Telangana High Court
Cholamandalam Ms General Insurance Co. ... vs Syed Dawood on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.703 OF 2023
JUDGMENT:
Heard learned standing counsel Sri A.Ramakrishna Reddy for the appellant-insurance company and Sri. Kuriti Prem V.Swami Naidu, learned counsel for respondents-claimants.
2. The present appeal has been filed by the appellant/ insurance company challenging the award passed by the Chairman, Motor Accident Claims Tribunal (I Additional District Judge), Nizamabad (for short, 'Tribunal') in M.V.O.P.No.230 of 2021, dated 14.12.2022, thereby seeking to set-aside the award against the insurance company.
3. The brief factual matrix of the present appeal is as under.
4. On 29.04.2021 at about 8.40 a.m., while the deceased- Smt.Habeeba Begum, Mahaboob and Fareeda Begum were proceeding towards Nizamabad from Katepally for medical checkup of Fareeda Begum in a Car bearing registration No.AP-25-AA-0044, which was driven by Mahaboob in a cautious manner and when they reached Afandi Farm village shivar, one Eicher Van bearing registration No.TS-17-UB-8030 came in opposite direction, driven LNA,J MACMA No.703 of 2023 2 by its driver, in rash and negligent manner at high speed in wrong side and dashed the car, due to which, the deceased and Mahaboob died on the spot and Fareeda Begum sustained grievous and crush injuries. The Police, P.S. Varni registered a case in Crime No.81 /2021 and filed charge sheet.
5. The claimants, i.e., husband and children of the deceased, have filed claim petition against the owner of the crime vehicle and insurance company under Section 166(1)(c) of MV Act, 1988, r/w Rule 455 of MV Rules, 1989 before the Tribunal claiming compensation of Rs.15,00,000/- together with costs and interest from the date of petition till the date of realization.
6. The deceased was hale and healthy and aged 45 years and was a tailor by profession and was also doing embroidery and maggam works and was earning more than Rs.30,000/- per month and contributing the same to the petitioners. Due to death of the deceased, the claim petitioners lost their love and affection and monitory loss.
7. The owner of the crime vehicle i.e., respondent No.6 herein, filed counter before the Tribunal denying all the allegations made LNA,J MACMA No.703 of 2023 3 in the claim petition, particularly about the accident and prayed to dismiss the petition.
8. The owner of the crime vehicle i.e., appellant herein filed counter before the Tribunal denying all the allegations in the claim petition as regards the accident to the deceased, his age, avocation, health condition, earning capacity and involvement of the crime vehicle in the said accident and the manner of driving of Van by its driver, his holding valid and effective driving license to drive the crime vehicle. The insurance company also denied the dependency of the petitioners and their entitlement to compensation and prayed to dismiss the claim petition against the insurance company.
9. Basing on the above pleadings, the following issues were framed for trial:
1. Whether the deceased in this case by name Haheeba @ Habeeba Begum died due to injuries sustained in the accident which took place on 29.04.2021 at about 0840 hours on main road, Afandi farm village shivar, Varni Mandal, Nizamabad District?
2. Whether the accident in this case took place due to rash and negligent riding of Driver of Eicher Van bearing No.TS-16-UB-
8030?
3. Whether the petitioners are entitled for compensation? If so, to what amount and from which respondents?
LNA,J MACMA No.703 of 2023 4
4. To what relief?
10. On behalf of the petitioners/claimants, petitioner No.1 herself was examined PW.I and also examined the eye witness as PW.2 and Exs.Al to A5 were marked. On behalf of the insurance company, its legal Manager was examined as RW.1 and Ex.B-1- insurance policy and Ex.B-2-Scene of offence panchanama were marked.
11. The Tribunal, on due consideration of the evidence and the material placed on record, came to a conclusion that the accident took place due to rash and negligent driving of the Eicher Van and awarded compensation of Rs.14,21,200/- along with costs and interest @ 8% per annum from the date of petition till the date of realization. The Tribunal also held that respondent Nos.1 and 2 therein, who are the driver of the crime vehicle and insurance company, were jointly and severally liable to pay the said compensation amount to the claimants.
12. During the course of hearing of the appeal, learned Standing Counsel for the appellant-insurance company contended that the Tribunal committed serious irregularity in holding that the LNA,J MACMA No.703 of 2023 5 accident occurred due to the rash and negligent driving of the Eicher Van; that the driver of the car, in which the deceased was travelling, was also negligent in causing the accident and therefore, there is contributory negligence in causing the accident.
13. He further contended that though the claimants did not prove the earnings of the deceased, the Tribunal fixed his income as Rs.7,500/- per month and further, the Tribunal ought not to have awarded interest on future prospects for the reason that the amount towards future prospects have already been awarded to the claimants in lump sum and therefore, the insurance company is not liable to pay compensation.
14. Learned counsel for the respondents/claimants submitted that on due consideration of the evidence and material placed on record, the Tribunal had rightly awarded the compensation and no grounds are made out to interfere with the award passed by the Tribunal and finally, prayed to dismiss the appeal. Consideration:
15. The principal contentions raised by the learned counsel for the appellant-insurance company are with regard to (i) non-
LNA,J MACMA No.703 of 2023 6 fastening the liability of 50% towards contributory negligence since the accident occurred due to negligence of the drivers of the Car and the Eicher Van and (ii) assessing high monthly income by the Tribunal without there being any material, evidence.
16. Insofar as the contributory negligence is concerned, a perusal of Ex.B2-scene of offence panchanama with rough sketch which was marked on behalf of the insurance company shows that two vehicles, i.e., the Car in which the deceased was travelling and the Eicher Van, which is coming in opposite direction were involved in head-on collision. From the rough sketch, it suggests that the car, in which the deceased was travelling, was driven in zigzag fashion by its driver and came to wrong side of the road, resulting in head-on collision with Eicher van, which is coming in opposite direction.
17. P.W.2-Fareeba Begum, who was also present in the Car and also injured, deposed that the driver of the Eicher Van drove it in rash and negligent manner and dashed their car, due to which she received injuries and deceased-Habeeba Begum died with the injuries sustained in a fatal accident. During cross-examination, she stated that she was sitting at backside of the car and there LNA,J MACMA No.703 of 2023 7 were three persons in the car including driver and the car belongs to her relative, by name, Chand and it was driven by Mahaboob, who also died in the said accident. She admitted that said driver is brother-in-law of the said Chand. Obviously, P.W.2 would not depose against the driver of the car since the car belongs to her relative though there was negligence on the part of the driver of the car.
18. In APSRTC vs. N.Krishna Reddi and others 1, the learned single Judge of erstwhile High Court of Andhra Pradesh, held as under:
"5. Since first respondent received injuries due to a collision between the two vehicles, i.e., the van in which he was travelling and bus coming in its opposite direction, unless the drivers of both the vehicles are negligent, the accident could not have taken place. Even if one of them was careful, they could have easily averted the accident. Obviously that is the reason why the owners of both the vehicles involved in the accident were made parties to the claim petition. So I hold that the accident involving the first respondent took place due to 50% negligence of the driver of the van of second respondent and due to 50% negligence of the driver of 1 2004 SCC Online AP 357 LNA,J MACMA No.703 of 2023 8 the bus belonging to the appellant. The point is answered accordingly."
19. In view of the above discussion, this Court is of the considered opinion that the accident occurred due to negligence of the driver of the Car and the driver of the Eicher Van and drivers of both the vehicles should be held responsible to have contributed equally to the accident. The said fact was not considered by the Tribunal and thus, Tribunal committed error in not appreciating the fact that accident occurred due to head-on collision and therefore, 50% of the compensation amount can be deducted towards contributory negligence on the part of both the drivers.
20. Insofar as the other contention raised by the learned counsel for appellant that the Tribunal had erred in assessing the monthly income of the deceased as Rs.7,500/- without there being any evidence and material. Though it was contended in the claim petition that deceased was earning Rs.30,000/- per month by doing tailoring work and also embroidery and maggam works, in the absence of any proof, the Tribunal had notionally taken the monthly income of the deceased at Rs.7,500/-, which, in LNA,J MACMA No.703 of 2023 9 considered opinion of this Court, is just and proper and needs no interference.
21. In view of the facts, circumstances, above discussion and legal position, in considered opinion of this Court the respondents/claimants are entitled to 50% of the compensation amount awarded by the Tribunal since there was contributory negligence on the part of the driver of the Car. Therefore, the claimants are entitled to a sum of Rs.7,10,600/- as against Rs.14,21,200/- awarded by the Tribunal.
22. In the result, the appeal is allowed in part. The award passed by the Tribunal is modified and the respondents/claimants are entitled to Rs.7,10,600/- towards compensation with interest at the rate of 8% from the date of the petition till the date of realization. The appellant-insurance company and the respondent No.6 herein are jointly and severally liable to pay the said compensation amount. The appellant is directed to deposit the compensation amount within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount already deposited by the appellant. The claimants are entitled to the LNA,J MACMA No.703 of 2023 10 apportionment of the amount as directed by the Tribunal. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 15.02.2024 kkm