Telangana High Court
Bookya Ramulu vs Mohammad Ali on 4 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
M.A.C.M.A.No.549 OF 2019
JUDGMENT :
Being aggrieved by the Judgment, dated 15.02.2018 in M.V.O.P.No.96 of 2015 on the file of Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Karimnagar whereunder the learned Chairman, dismissed their application for compensation on account of death of one Bookya Naresh (hereinafter be referred as deceased) in a road traffic accident, the petitioners in the above referred Original Petition filed this appeal under Section 173 of M.V.Act and sought for setting aside the impugned Judgment and prayed for compensation on the following grounds:
The Tribunal committed grave error in dismissing the claim petition on the ground that the appellants herein did not add the driver of the offending vehicle as party to the proceedings. The appellants have claimed that though there is no dispute regarding the accident with the vehicle and the owner of the vehicle is arrayed as party. The 2 Tribunal ought to have allowed their application and ought to have awarded appropriate compensation, thereby the dismissal of their petition by the Tribunal is incorrect and sought for setting aside the impugned Judgment and also prayed for appropriate compensation. While placing reliance on Judgment between Vaddepalli Rajesham vs. A.P.S.R.T.C 1. Learned counsel for the appellants has submitted that Court below having found that the appellants herein are entitled to compensation of Rs.5,00,000/-, dismissed their petition only on the ground that they failed to add the driver of the offending vehicle as respondent/party.
2. As could be seen from the impugned award the appellants herein have filed M.V.O.P.No.96 of 2015 claiming an amount of Rs.10,00,000/- as compensation for the death of deceased in road traffic accident.
3. The following was the brief case of the appellants as per their petition:
1 2002 (2) ALT 720 (S.B.) 3 The deceased Nagesh who was the son of 1st appellant and brother of the 2nd appellant, boarded one auto bearing No.AP-15-TA-6776 to go to his house at Yellareddypet from Marimadla village. When the auto reached Kancharla X Roads at 01:00 P.M., the driver of the said auto drove the same in high speed, in a rash and negligent manner, thereby lost control over the auto as such it turned turtle. In view of the accident, the deceased and other passengers of the auto received grievous injuries.
Soon after the accident he was shifted to Government Hospital, Siricilla and from there to Sairam Hospital at Karimnagr and on medical advice he was referred to Oxygen Hospital, Hyderabad. However, while he was on the way to Hyderabad, he succumbed to the injuries. The appellants have claimed that the deceased was aged about 19 years and studying 2nd year C.M.E in Polytechnic College. Had there been no such accident, he would have completed post graduation and by securing good job he could have earned lakhs of rupees and contributed the same for the maintenance of the family, thereby the 4 appellants sought for compensation of Rs.10,00,000/- from the owner and insurer of the above referred auto.
4. The owner of the vehicle who is shown as 1st responded disputed the ownership on the auto by saying that he has already disposed the same in favour of the driver, who himself purchased the auto. Thereby, he need not pay any amount. However, it seems there was no valid transfer of auto in favour of the driver.
5. Whereas the 2nd respondent Insurance Company filed a separate counter, denying the liability. The 2nd respondent has claimed that the appellants herein have to prove that the driver of the auto was having valid driving licence and a policy was in force. There was a valid permit to run the auto, otherwise they need not pay any amount.
6. Based on the above claims, the Tribunal has framed the following (3) issues:
1. Whether the accident had occurred due to rash and negligent driving of auto rickshaw bearing No.AP-15-TA-6776 by its driver?5
2. Whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents?
3. To what relief?
7. During the trial, though the 1st petitioner filed his evidence by way of an affidavit, failed to attend the Court for cross examination, thereby the Court below eschewed the affidavit of the witness. The younger brother of the deceased was examined as PW2 and one more witness was examined as PW3. Exs.A1 to A7 were marked for the appellants herein. The 1st respondent did not adduce any oral evidence. However, the Insurance company has examined its Administrative Officer as RW1 and marked Exs.B1 to B3. The Court below having appreciated the pleadings and evidence, though opined that the claimants are entitled to as sum of Rs.5,00,000/- in view of failure to implead the driver of the auto as party to the petition, dismissed the claim.
8. Heard both parties.
6
9. Now the point for consideration is:
Whether the Court below was wrong in dismissing the petition on the ground of non impleadement of the driver of auto as party to the petition?
10. POINT:
As could be seen from the impugned order, there is no dispute about the accident in which the deceased died due to the injuries caused in the above referred accident. Even though the 1st respondent who did not adduce any evidence, made a claim that he has already alienated his auto in favour of the driver, did not chose to place any material or evidence in support of his claim. Thereby, the contention of the 1st respondent that the auto was alienated in favour of the driver cannot be considered.
11. The 2nd respondent Insurance Company disputed the claim by putting the appellants herein to strict proof of their contentions. The oral evidence of PWs 2 and 3 as well as Exs.A1 to A7 goes to show that there was an accident when the deceased was travelling in the above referred auto, and he died due to the injuries caused to him in the 7 said auto. Exs.A1 to A6 are the certified copies of FIR, Inquest, post mortem report of the deceased, report of the Motor Vehicle Inspector about the auto and charge sheet filed by the police concerned. These documents would show that the accident occurred due to the rash and negligent driving by the auto driver.
12. The learned Chairman, Motor Accident Claims Tribunal, Karimnagar dismissed the claim solely on the ground that the appellants herein failed to add the driver of the auto as party to the proceedings. In the above referred Judgment between Vaddepalli Rajesham vs A.P.S.R.T.C., this Court made an observation that the non-joinder of driver of accident vehicle is not a ground to dismiss the claim which was filed for compensation. The Court while making the said observation further found that whether a claim for compensation is made against the owner of a truck or a motor vehicle, the driver is not a necessary party to the proceedings, as the driver was only a servant of the owner and owner's vicarious liability does not cease because the servant was not made as a party to the claim. 8 The Court further observed that according to Section 166 of M.V.Act the relief is against the owner only. The principle underlying is, the owner is liable for the tortuous acts committed by the servant during the course of employment.
13. In the case on hand, even though the owner claims that he has sold his vehicle to the driver, in view of his failure to produce any proof, the same cannot be considered. In fact, the vehicle was insured and the 2nd respondent/Insurance company did not dispute the said policy. Even though the driver of the auto is not made as party, the 1st respondent being owner of the vehicle is vicariously liable for the acts done by his servant. Since the 1st respondent obtained insurance policy, if any amount is found to be paid as compensation, the insurance company has got liability by virtue of the policy, thereby both the respondents shall be made liable to pay compensation. The Court below while dismissing the petition based on the oral and documentary evidence, came to the conclusions that the claimants are entitled to an amount of Rs.5,00,000/-. 9 The appellants herein did not raise any objection, nor have they placed any material to claim that they are entitled to more compensation. Therefore by setting aside the observations made by the Court below with regard to the failure of appellants showing the driver as party, the petition deserves to be allowed by awarding compensation of Rs.5,00,000/-.
14. In the result, the appeal is allowed. The impugned order is set aside. An amount of Rs.5,00,000/- is awarded as compensation and both the respondents are jointly and severally liable to pay the amount with interest @ 7% per annum from the date of accident, till the entire amount is realized. The respondents shall deposit the amount within (2) month from the date of Judgment.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 04.01.2024 PSSK