Telangana High Court
Icici Lombard General Insurance ... vs P. Pentaiah , Pedda Pentaiah, on 25 January, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
M.A.C.M.A.No.939 of 2013
JUDGMENT:
This appeal is filed by the Insurance Company against the Order dated 16.01.2013 in M.V.O.P.No.884 of 2008 passed by the Motor Accidents Claims Tribunal-cum- I-Additional District Judge at Mahabubnagar.
2. The claimants/parents filed M.V.O.P.No.884 of 2008 claiming compensation of Rs.4,50,000/- for the death of the deceased, P.Kurumurthy @ Kurumaiah in the motor vehicle accident occurred on 30.04.2008.
3. The trial Court considering the oral and documentary evidence granted an amount of Rs.3,70,000/- with interest at 7.5% per annum from the date of petition till the date of realization.
4. Heard the arguments of learned counsel for appellant/Insurance Company. No representation for respondents/claimants.
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5. Learned counsel for appellant mainly contended that the trial Court wrongly considered the evidence of P.Ws.1 and 2 and Exs.A1 to A4 documents and awarded compensation. The trial Court failed to consider that the claim petition filed is a fault liability and respondent No.3 vehicle was not crime vehicle and no case was registered against the driver of respondent No.3. As such, the insurance company is not liable to pay compensation and respondent Nos.1 and 2 can claim compensation from the owner and insurer of the auto trolley. Non joinder of the parties the claim petition is liable to be dismissed.
6. He further contended that the accident was occurred due to the negligence of auto trolley, but the respondent Nos.1 and 2 filed a case against the owner of the jeep even though the driver of the auto was at fault. The driver of the auto has no valid license. Respondent No.3 entrusted the vehicle to his driver willfully and knowingly that the driver did not posses any valid and effective driving license and the respondent No.3 violated the terms and conditions of the insurance company, the insurance company is not liable to pay any compensation. The trial Court did not consider the compensation against owner and insurer of the auto trolley. 3
7. The case of claimants is that on 30.04.2008 afternoon, the deceased and others were travelling in a jeep bearing No.AP-22-U-3121 at Wanaparthy to Buddara Village and the deceased was sitting towards right side on the back seat of the driver. When they reached in the limits of Thatiparthy village at about 01.30 P.M., the driver of the jeep drove the vehicle at high speed in rash and negligent manner and dashed the opposite auto-trolley bearing No.AP-22-V-8773. As a result, the deceased, sustained grievous injuries on forehead on legs and he was shifted to Government Civil Hospital, Wanaparthy and they referred the deceased to Hyderabad, but succumbed to the injuries on the way to the hospital. A case was registered in Cr.No.37 of 2008 under Section 338 of IPC against the driver of the auto-trolley.
8. In the F.I.R, it was stated that the accident occurred due to the negligence of the auto trolley bearing No.AP-22-V- 8773 and after dashing the jeep, the driver of the auto-trolley left the vehicle and fled away from that place. As the case was registered under Section 338 of IPC, later it was altered to 304 IPC.
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9. After the investigation, charge sheet was filed and it was clearly held that the driver of the auto trolley bearing No.AP-22-V-8773 drove in a rash and negligent manner while proceeding to Wanaparthy.
10. The main contention of the learned counsel for insurance company is though the F.I.R and charge sheet was filed against the driver of the auto trolley, P.Ws.1 and 2 filed the O.P. against the driver and owner of the jeep and the Insurer of the jeep. The trial Court failed to consider the contributory negligence on the part of the drivers of the auto trolley and jeep. In a decision made by the Hon'ble Apex Court in T.O.Anthony Vs Karvarnan 1, in which it was held that when a person is injured as a result of negligence on the part of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them.
11. The trial Court without appreciating the facts fixed the liability on the owner and insurer of the jeep. It is not the case of hit and run. In this case, immediately after the 1 2008 ACJ 1165 (SC) 5 accident, FIR was registered against the driver of the auto and charge sheet was filed after the investigation and none of the petitioners filed claim petition against the owner and insurer of auto, they filed only against the owner and insurer of the jeep ignoring the documents like FIR and charge sheet and they could not substantiate whey they have not filed the petition against owner and insurer of the auto.
12. Motor Vehicles Act is beneficial legislation and Court should interpret the provisions of law leniently that does not mean the Court can ignore the documents filed by claimants i.e., FIR and charge sheet. The deceased was aged 23 years and the claimants has lost grown-up son in an accident, but it is for the claimants to prove their case before claiming compensation and in this case though they have filed several documents regarding the age and income of the deceased, it is for them to prove the involvement of the crime vehicle, but they failed to do so. The trial Court erroneously fixed the liability without considering the FIR and charge sheet and misinterpreted the provisions of Section 163-A of Motor Vehicle Act, 1988. Therefore the order of the trial Court is liable to be set aside.
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13. In the result, the appeal is allowed by setting aside the order dated 16.01.2013 in M.V.O.P.No.884 of 2008 passed by the Motor Accidents Claims Tribunal-cum-I-Additional District Judge at Mahabubnagar. There shall be no order as to costs.
14. As per the proceedings dated 22.04.2013, there was an interim stay subject to the deposit of half of the decreetal amount within a period of eight weeks from 22.04.2013. As per proceedings dated 22.08.2013, this Court observed that the petitioners were permitted to withdraw the amount deposited by 1st respondent without furnishing any security and accordingly vacate petition was dismissed. Considering the fact that the insurance company has already deposited the amount and the parties are also withdrawn the same, and thus this Court finds it reasonable that appellant herein is not entitled for the refund of the deposited amount.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA Dated: 25.01.2024 CHS 7 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA M.A.C.M.A No. 939 of 2013 DATED: 25.01.2024 CHS