Telangana High Court
The New India Assurance Company Limited vs Angirekula Pentaiah And 2 Ors on 23 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.207 OF 2017
JUDGMENT:
Heard Sri T.Ramulu, learned counsel for the appellant- Insurance company and Sri Parsa Ananth Nageshwar Rao, learned counsel for respondents-claimants.
2. The present appeal has been filed by the appellant- Insurance company being aggrieved and dissatisfied with the award dated 30.08.2006 passed by the Motor Accidents Claims Tribunal-cum-District Judge, Khammam (for short 'Tribunal') in M.T.O.P.No.514 of 2005 and thereby sought to set-aside the award against the insurance company.
3. The appellant herein is the respondent no.2-insurance company, respondent nos.1 and 2 herein are the claim petitioners and respondent no.3 herein is the respondent No.1-owner of the offending vehicle before the Tribunal. For convenience, the parties hereinafter are referred to as they are arrayed before the Tribunal.
LNA,J MACMA No.207 of 2017 2
4. The brief factual matrix of the present appeal is that A.Srinivasa Rao (hereinafter referred to as deceased) was working as Hamili on Lorry bearing registration No.AAD-5765 (hereinafter referred to as offending vehicle) to load and unload of cotton; that on 24.02.2005, at about 1330 hours when the lorry was crossing Korlakunta village, the driver of the lorry drove the same in rash and negligent manner with high speed, due to which, he lost control over the steering while turning and dashed to a toddy tree. On account of which, the lorry turned turtle and the deceased sustained grievous injury and died on the spot. The Police, Kukkunoor Police Station, registered a case in Crime No.18/2005 against the driver of the offending vehicle and filed charge sheet.
5. According to the claimants, deceased was aged 22 years, hale and healthy as on the date of accident, and was used to attend Hamali work for loading and unloading on offending vehicle and used to earn Rs.150/- per day and contribute the same to the family; that due to the death of deceased in a road accident, the claimants lost their earning member in the family.
LNA,J MACMA No.207 of 2017 3 Hence, they filed claim petition under Section 166 of the M.V.Act, 1988 claiming compensation of Rs.3,00,000/- before the Tribunal against the respondents.
6. Respondent No.1-owner of offending vehicle filed counter denying all the allegations in the claim petition and contended that there was no negligence on the part of the driver of offending vehicle and he is having valid driving license and that the said vehicle was insured with respondent No.2-insurance company and therefore, he is not liable to pay any compensation.
7. Respondent No.2-Insurance Company filed counter denying manner of accident, age, avocation, earning capacity of the deceased. It is further contended that deceased was travelling as unauthorized passenger in goods vehicle, as such, insurance company is not liable to pay compensation; that the amount of compensation claimed is excessive and exorbitant. In additional counter, it is contended that as per charge sheet, when the offending vehicle reached at the outskirts of Korlakunta village, the deceased who was in the body of the LNA,J MACMA No.207 of 2017 4 lorry, all of a sudden, got jumped down from the lorry, as a result, he died instantaneously for his own negligence, however, there was no negligence on the part of the driver and as such, the insurance company is not liable to pay compensation and finally, prayed to dismiss the claim petition.
8. On the basis of the above pleadings, the Tribunal framed the following issues:
i) Whether the accident took place due to rash and negligent driving of the Lorry bearing No.AAD- 5765?
ii) Whether the petitioners are entitled to claim any compensation, if so, to what amount and from which of the respondents?
iii) To what relief ?
9. In order to substantiate the case on behalf of claimants, P.Ws.1 and 2 were examined and got marked Exs.A1 to A5. On behalf of appellant-insurance Company, RW.1 was examined and Ex.B1-copy of insurance policy was marked.
10. The Tribunal, on due consideration of oral and documentary evidence, came to conclusion that the accident took LNA,J MACMA No.207 of 2017 5 place due to rash and negligent driving of crime vehicle and awarded compensation of Rs.2,22,000/- along with interest @ 7.5% per annum from the date of petition till the date of deposit of amount, payable by the respondent Nos.1 and 2.
11. During the course of hearing of appeal, the learned counsel for appellant-insurance company, while reiterating the averments in the counter filed before the Tribunal, submitted that Tribunal erred in awarding the compensation contrary to the evidence on record; that the deceased was unauthorized passenger travelling in the goods vehicle, as such, the insurance company is not liable to pay compensation; that Tribunal should have taken the notional income of the deceased as Rs.15,000/- per annum as there is no cogent evidence with regard to his earnings and finally, prayed to set aside the award against the insurance company.
12. On the other hand, learned counsel for claimants submitted that the Tribunal, on due consideration of the evidence and material placed on record, had rightly awarded the compensation and the appellant failed to make out any case to interfere with the LNA,J MACMA No.207 of 2017 6 award passed by the Tribunal and finally, prayed to dismiss the appeal.
Consideration:
13. The contention of the learned counsel for appellant insofar as disputing the occurrence of accident is concerned, before the Tribunal, P.W.2-B.Venkanna, who is cited as eye witness to the accident, was examined and he deposed that he witnessed the accident and the accident was caused due to rash and negligent driving of the offending vehicle. Further, the evidence of P.W.2 is corroborated with the documentary evidence i.e., Ex.A1-FIR, Ex.A2-charge sheet, Ex.A3-inquest panchanama, Ex.A4- postmortem examination report, Ex.A5- Motor Vehicle Inspector's report, which clearly show that accident occurred due to rash and negligent driving of the driver of the offending vehicle.
14. In respect of the contention of learned counsel for appellant that deceased was unauthorized passenger of the goods vehicle and therefore, insurance is not liable to pay compensation, as per LNA,J MACMA No.207 of 2017 7 the evidence of P.W.1, deceased and others were travelling in the offending vehicle as Hamalies to load and unload the goods as on the date of accident. Perusal of record, as per the investigation of police also, it is proved that the deceased and others were travelling as Hamalies in the lorry for loading and unloading the cotton in the lorry. In view of the above, this Court is of the opinion the deceased was working as Hamali in the lorry to load and unload the cotton as on the date of the accident and therefore, the contention raised by the appellant that deceased was an unauthorized passenger travelling in the lorry at the time of accident was not convincing and therefore, the same is rejected.
15. Insofar as the other contention of the learned counsel for appellant that Tribunal erred in taking the monthly income of the deceased, without there being any evidence, though no documentary evidence is placed on record by the claimants with regard to the income of the deceased, the Tribunal considering the profession of the deceased as Hamali, age and health condition, had assessed the income of the deceased at Rs.2,000/-
LNA,J MACMA No.207 of 2017 8 per month, which in considered opinion of this Court, the Tribunal had rightly assessed the income of the deceased at Rs.2,000/- in the light of facts and circumstances of the present case, date of accident, the inflation, devaluation of rupee, cost of living etc., and therefore, there is no need to interfere with the monthly income of the deceased.
16. Therefore, in view of the above discussion, this Court is of the opinion that there are no valid grounds to interfere with the cogent findings given by the Tribunal and the appeal is liable to be dismissed and is accordingly, dismissed. The appellant- insurance company is directed to pay the compensation as awarded by the Tribunal within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount if any already deposited by it. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_________________________________ LAXMI NARAYANA ALISHETTY,J Date: 23.04.2024 Fm/kkm