Telangana High Court
The New India Ass. Com. Ltd., ... vs Smt G Chennamma, R.R.Dist And 3 Others on 1 March, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.972 OF 2017
JUDGMENT:
1. Aggrieved by the Award dated 12.11.2015 passed by the Chairman, Motor Accidents Claims Tribunal- cum - XII Additional District Judge, Vikarabad, Ranga Reddy District (for short, the Tribunal) in M.V.O.P.NO.71 of 2013, the 2nd Respondent/New India Assurance Company filed the present Appeal seeking to set- aside the Award passed by the learned Tribunal.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the claim petitioners, who are the wife, daughter and father of Ganta Chennaiah @ Chennappa (hereinafter be referred as 'the deceased'), filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.8,00,000/- with interest and costs for the death of the deceased in a motor vehicle accident that occurred on 27.11.2010. It is stated by the claim petitioners that on 27.11.2010 at about 20.00 hours, the deceased and one Lalaiah were proceeding on Scooter bearing No.AP-22E-9324 and when they reached near Petrol Bunk of Mohammadabad Village, Gandeed Mandal, the rider of the scooter drove the same in a rash and negligent manner at high speed and lost control over the 2 MGP,J MACMA.No972. of 2017 scooter. Due to which, the accident occurred and the deceased sustained grievous injuries on his head and all over the body. Immediately, he was shifted to SVS Hospital, Mahaboobnagar District, from there to Gandhi Hospital for better treatment and while undergoing treatment, he succumbed to injuries on 05.12.2010. It is stated by the petitioners that prior to accident, the deceased was hale and healthy and used to earn Rs.10,000/- per month on his agriculture and was contributing the same for maintenance of the family. Due to his sudden death, the petitioners lost their bread winner, apart from love and affection and were also subjected to shock and mental agony and hence, claimed compensation of Rs.8,00,000/- from Respondent Nos.1 & 2, who are the owner and insurer of the crime scooter.
4. Respondent No.1 filed counter admitting his ownership on the crime Scooter bearing No.AP-22E-9324. He denied that the accident occurred due to rash and negligent driving of one Lalaiah, who was the rider of the crime scooter at the time of accident. He also denied the avocation and income of the deceased and contends that the petition is liable to be dismissed for non-joinder of rider of the scooter and further contends that as the crime scooter was insured with Respondent No.2 and as the policy was in force at the time of accident, as such, Respondent No.2 is liable to 3 MGP,J MACMA.No972. of 2017 indemnify Respondent No.1 and that the claim of compensation is excess and exorbitant and prayed to dismiss the same.
5. Respondent No.2- Insurance Company filed its counter and denied the material averments made in the claim petition including, age, avocation and income of the deceased. He contends that the rider of the scooter do not possess valid driving license which amounts to violation of terms and conditions of the insurance policy. He further contends that as Respondent No.1 did not pay any additional premium to cover the risk of the deceased who travelled as a pillion rider on the crime scooter, as such Respondent No.2 -Insurance company is not liable to pay any compensation and that there is delay of '9' days in lodging First Information Report and that the claim of compensation is excess and exorbitant and prayed to dismiss the claim against it.
6. Based on the above pleadings, the learned Tribunal had framed the following issues:-
i. Whether the accident dated 27.11.2010 was due to rash and negligent driving of the driver of Scooter bearing No.AP- 22E- 9324 by its driver? ii. Whether the petitioners are entitled for compensation?
If so, to what amount and from whom? iii. To what relief?
7. Before the Tribunal, on behalf of the petitioners, PWs 1 & 2 were examined and Exs.A1 to A5 were marked.
4
MGP,J MACMA.No972. of 2017
8. On behalf of the respondents, RW1 was examined and Ex.B1-Authorization letter and Ex.B2-Insurance Policy were marked.
9. The learned Tribunal, after considering the entire evidence and documents available on record, allowed the claim petition of the petitioners by awarding compensation of Rs.8,00,000/- along with interest @ 7.5% per annum from the date of the petition till the date of realization. Aggrieved by the same, the 2nd respondent/Insurance company preferred the present appeal.
10. Heard the submission of the learned Standing Counsel for Appellant-Insurance Company as well as learned counsel for the respondents/ claim petitioners. Perused the record.
11. The main contentions of the learned counsel for Appellant/Insurance Company is that the learned Tribunal erred in appreciating the fact that the claim petition is not maintainable as the rider of the crime vehicle, against whom rash and negligence is pleaded, is not made a party respondent and that the FIR was filed with a delay of 9 days from the date of accident and further contended that the Tribunal erred in not examining Lalaiah nor filed his driving license to show that he is entitled to drive the crime vehicle and that Ex.B2-Insurance policy does not cover the 5 MGP,J MACMA.No972. of 2017 risk of pillion rider as no premium was collected in respect of the pillion rider and that the Tribunal erred in assessing the income of the deceased as Rs.4,500 and also erred in awarded compensation under various heads and hence, prayed to set-aside the same by allowing the appeal.
12. On the other hand, the learned counsel for the respondents/claim petitioners contended that the learned Tribunal, after considering the entire evidence and documents available on record, had awarded reasonable compensation for which interference of this Court is unwarranted.
13. Now the point that arise for determination is, Whether the order passed by the learned Tribunal suffers from any irregularity?
POINT:-
14. This Court has perused the entire evidence and documents available on record. PW1, who is the wife of the deceased, reiterated the contents of the claim petition. As she is not an eye witness to the accident, she got examined PW2-Sri U.Narsimulu, who is an eye witness to the accident and deposed that on 27.11.2010, when he and the deceased-G.Chennappa were proceeding towards Mohammadabad village along with N.Lalaiah on his scooter bearing No.AP-22E-9324 and when they reached 6 MGP,J MACMA.No972. of 2017 Petrol Bunk at Mohammnadabad of Gandeed Mandal, the rider of the scooter Sri N.Lalaiah drove the vehicle in a rash and negligent manner at a high speed and lost control over the same. Due to which, the deceased and rider fell down from the scooter and the deceased sustained grievous injuries on his Head and was shifted to SVS Hospital, Mahaboobnagar, from there to Gandhi Hospital, Hyderabad and finally died on 05.12.2010 while undergoing treatment. A perusal of evidence of PW2 shows that there was triple riding on the crime Scooter. But the insurance company did not take any plea nor adduced any evidence stating that triple riding is a prohibited under the provisions of Motor Vehicles Act.
15. The primary contention of the learned counsel for the appellant/Insurance company is that the rider of the crime vehicle, against whom rash and negligence is pleaded, is not made as party respondent. In this regard, it is pertinent to refer Ex.A1-FIR which shows that Police, Mohammadabad Police Station, registered a case in Crime No.99 of 2010 under Section 304-A IPC against N.Lalaiah, who is the rider of the crime scooter bearing No.AP-22E- 9324 for his rash and negligent driving and after thorough investigation, laid charge sheet under Ex.A5 against the said Lalaiah. Therefore, it is held that the accident occurred due to rash and negligent driving of the rider of the crime scooter. As stated by the Hon'ble Supreme Court, the approach in examining 7 MGP,J MACMA.No972. of 2017 the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyze the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. Furthermore, the Motor Vehicles Act is a beneficial piece of legislation, brought with an intent to compensate the family of the deceased and the persons suffered with injuries including permanent disability as expeditiously as possible. Moreover, the evidence of PW2, who is an eye witness of to the accident, clearly stated in his evidence that the rider of the crime vehicle -Sri Lalaiah is responsible for the accident. Therefore, mere non-examination of rider of the crime vehicle, would not entitle the Insurance company from indemnifying Respondent No.1. Furthermore, the Insurance company would have taken steps to examine the rider of the crime vehicle on their behalf. But it did not do so. Hence, it is liable to pay compensation. It is also pertinent to state that the alleged accident is of the year 2010 and the case was filed in the year 2013. At that time, it is not mandatory to show the driver of the crime vehicle as necessary party to the petition. Hence, the contention made by the learned counsel for the appellant is unsustainable with regard to this aspect.
8
MGP,J MACMA.No972. of 2017
16. It is also the contention of the learned counsel for appellant that the FIR was filed with delay of nine days. In this regard it is pertinent to refer to the complaint given by PW1 wherein the reason stated by her for delay in lodging FIR is that immediately after the accident, she thought that her husband would be recovered from injuries, hence, she did not lodge any complaint immediately after the accident. However, immediately after the death of her husband, she gave a complaint before the Police. The said explanation is reasonable and would not make any consequence in deciding the petition. It is also admitted fact that delay in lodging of FIR cannot be a ground to dismiss the claim petition as the family members will be engaged in providing necessary treatment to the injured but would not rush to police station for giving a complaint regarding the alleged accident. Therefore, the contention of the learned counsel for the appellant that complaint was given after nine days of the alleged accident is unsustainable.
17. It is also the contention of the learned counsel for the appellant that Respondent No.1 has not paid any separate premium to cover the risk of the pillion rider. A perusal of Ex.B1 insurance policy filed by Insurance company shows that two persons can travel on the crime scooter. In the case on hand, the rider and deceased travelled on the scooter as such, the deceased 9 MGP,J MACMA.No972. of 2017 was covered under Ex.B1 insurance policy and the said policy is valid as on the date of accident and hence the Insurance company is liable to pay compensation to the petitioners.
18. The other contention made by the learned counsel for appellants is with regard to income of the deceased. Though the petitioners stated that the deceased used to earn Rs.10,000/- as monthly income on agriculture, but they have not filed any documentary proof in support of the same. Therefore, the learned Tribunal, by considering the age and avocation of the deceased, fixed the monthly income of the deceased as Rs.4,500/- per month and upon addition of future prospects and relevant multiplier, had awarded reasonable compensation. This Court do not find any reason to interfere with the said findings of the learned Tribunal which are in proper perspective. Hence, the Appeal is devoid of merits and substance and is liable to be dismissed.
19. In the result, the MACMA is dismissed. There shall be no order as to costs.
20. Miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.01.03.2024 ysk