Telangana High Court
Cholamandalam Ms General Insurance Co. ... vs Syed Ahmed on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.No.694 of 2023
JUDGMENT:
Heard Sri A.Ramakrishna Reddy, learned standing counsel for the appellant-insurance company and Sri Kuriti Prem V.Swami Naidu, learned counsel for respondent Nos.1 to 3-claimants.
2. The present appeal has been filed by the appellant/insurance company challenging the Award passed by the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Nizamabad (for short, 'Tribunal') in M.V.O.P.No.229 of 2021, dated 14.12.2022.
3. The appellant is the insurance company and respondent Nos.1 to 3 herein are the petitioners-claimants and respondent No.4 is the owner of the crime vehicle.
4. The brief factual matrix of the case is as under.
On 29.04.2021 at about 8.40 a.m., one Syed Mahaboob (hereinafter referred as "the deceased") along with one Habeeba LNA,J MACMA No.694 of 2023 2 Begum and Fareeda Begum was proceeding towards Nizamabad from Katepally village for medical check-up of Fareeda Begum in a Car bearing No.AP-25-AA-0044 and the deceased was driving the said Car in a cautious manner. When they reached Afandi Farm village Shivar, Varni mandal, one Eicher Van bearing No.TS16-UB-8030 came in the opposite direction, driven by its driver in a rash and negligent manner at high speed in the wrong side and dashed the Car, due to which the deceased and Habeeba Begum died on the spot and Fareeda Begum sustained grievous and crush injuries all over the body and the claimants incurred Rs.2.00,000/- for medical treatment and funeral.
4.1. The claimants stated that the deceased, aged 22 years, was unmarried and was a driver by profession and he was also doing Automobile business on commission basis and earning more than Rs.30,000/- per month and was contributing his income to the petitioners. Claimant Nos. 1 and 2 are the parents and Claimant No.3 is the unmarried sister of the deceased. As the deceased was the sole bread winner of the family, due to his death, the claimants are LNA,J MACMA No.694 of 2023 3 subjected to monetary loss and loss of caring due to his death. Hence, the claim petition under Section 166(1) (c) of Motor Vehicles Act r/w Rule 455 of A.P. Motor Vehicles Rules, 1989, seeking compensation of Rs.15,00,000/- with an interest of 24% per annum from the date of petition till the date of realization.
5. The driver of the crime vehicle i.e., respondent No.1 in the O.P., filed counter before the Tribunal denying all the allegations in the claim petition, particularly about the accident and prayed to dismiss the petition.
6. The owner of the crime vehicle i.e., respondent No.2 in the O.P. 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 by the driver, his holding valid and effective driving license to drive the car. The Insurance company also denied the dependency of the petitioners LNA,J MACMA No.694 of 2023 4 and their entitlement to compensation and prayed to dismiss the claim petition against the insurance company.
7. Basing on the above pleadings, the following issues were framed for trial:
1. Whether the deceased in this case by name Syed Mahaboob died due to injuries sustained in the accident which took place on 29.4.2021 at about 8.40 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?
4. To what relief?
8. 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.A-l to A-5 were marked. On behalf of the insurance company, its legal Manager was examined as R.W-1 and Ex.B-1-insurance policy and Ex.B-2-Scene of offence panchanama were marked.
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9. 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.21,36,000/- 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 and owner of the crime vehicle, were jointly and severally liable to pay the said compensation amount to the claimants.
10. 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 accident occurred due to the rash and negligent driving of the Eicher van.
11. 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 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 LNA,J MACMA No.694 of 2023 6 negligent in causing the accident and therefore, there is contributory negligence on the part of the driver of the car i.e., the deceased in causing the accident. He further contended that though the claimants did not prove the earnings of the deceased, the Tribunal fixed his income as Rs.10,000/- per month and further deducted only 1/3rd of the income towards personal expenses though the deceased was a bachelor.
12. Learned counsel for the appellant-insurance company further contended that 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.
13. Learned counsel for the respondents/claimants submitted that on due consideration of the evidence and the material placed on record, the Tribunal had rightly awarded the compensation and no LNA,J MACMA No.694 of 2023 7 grounds are made out to interfere with the Award passed by the Tribunal and finally, prayed to dismiss the appeal.
14.Consideration:
The principal contentions raised by the learned counsel for the appellant-insurance company are two-fold; firstly, non-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 secondly, assessment of high monthly income of the deceased by the Tribunal without there being any material or evidence on record.
15. So far as the aspect of contributory negligence is concerned, a perusal of Ex.B2-scene of offence panchanama along with rough sketch, which was marked on behalf of the appellant-insurance company, shows that the two vehicles, i.e., the Car which the deceased was driving and the Eicher Van, which was coming in opposite direction were involved in the head-on collision. Further, a perusal of the rough sketch of the scene of offence reveals that the LNA,J MACMA No.694 of 2023 8 deceased being driver of the car was driving the same in a zigzag fashion and went to the wrong side of the road, resulting in head-on collision with the Eicher van, which was coming in opposite direction.
16. P.W.2-Fareeba Begum, who was also present in the Car and also injured, filed affidavit in lieu of her chief-examination, wherein the averments made in the claim petition were reiterated. It was stated that the driver of the Eicher Van drove it in a rash and negligent manner and dashed their car, due to which she received injuries. During cross-examination, she stated that she was sitting at backside of the car and there were three persons in the car including the driver and the car belongs to her relative by name, Chand and it was driven by the deceased, who also died due to the fatal injuries sustained in the said accident. She admitted that the deceased is the brother-in-law of the said Chand. Obviously, since the car belongs to her relative, P.W.2 would not depose against the driver of the car though there was negligence on the part of the driver of the car.
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17. In APSRTC vs. N.Krishna Reddi and others 1 , a learned single Judge of the 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 the bus belonging to the appellant. The point is answered accordingly."
18. In view of the above discussion, this Court is of the considered opinion that the accident in question occurred due to negligence of the driver of the Car as well as 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 lost sight of by the Tribunal 1 2004 SCC Online AP 357 LNA,J MACMA No.694 of 2023 10 and Tribunal erred in not observing that the accident occurred due to head-on collision between the car and the Eicher van and therefore, 50% of the compensation amount should be deducted towards contributory negligence on the part of the drivers of both the vehicles.
19. Insofar as the other contention raised by the learned counsel for the appellant as regards the assessment of the monthly income of the deceased on higher side by the Tribunal, it is to be noted that in the claim petition, the claimants averred that deceased was working as driver and also doing automobile business on commission basis and earning Rs.30,000/- per month. However, in the absence of any proof, the Tribunal had notionally taken the monthly income of the deceased at Rs.10,000/-, which, in considered opinion of this Court, is just and proper and needs no interference by this Court.
20. In view of the facts, circumstances, above discussion and legal position, in the considered opinion of this Court respondent Nos.1 to 3/claimants are entitled to 50% of the compensation amount awarded by the Tribunal since there was contributory negligence on the part of LNA,J MACMA No.694 of 2023 11 the driver of the Car. Therefore, the claimants are entitled to a sum of Rs.10,68,000/- as against Rs.21,36,000/- awarded by the Tribunal.
21. In the result, the Appeal is allowed in part. The award passed by the Tribunal is modified and respondent Nos.1 to 3/ claimants are entitled to Rs.10,68,000/- towards compensation with interest at the rate of 8% per annum from the date of the petition till the date of realization. The appellant-insurance company and the respondent No.4 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 apportionment of the compensation amount as directed by the Tribunal. There shall be no order as to costs.
22. Pending miscellaneous applications if any shall stand closed.
_________________________________________ JUSTICE LAXMI NARAYANA ALISHETTY 15.02.2024 dr