The New India Assurance Company ... vs Yeddu Parvathi 4 Ors
2022 Latest Caselaw 5666 AP

         HONOURABLE SMT. JUSTICE V. SUJATHA

                 M.A.C.M.A.No.1726 of 2006

JUDGMENT:

The appellant, who is New India Assurance Company

Limited, preferred the present appeal challenging the award

dated 17.02.2006 passed in M.V.O.P.No.473 of 2002 by the

Chairman, Motor Accidents Claims Tribunal-cum-District

Judge, Vizianagaram.

For the sake of convenience, the parties are referred to as

they are arrayed before the Tribunal.

2. The facts, in brief, are that one Yeddu Bangarayya

(hereinafter referred as 'deceased') was working as a cleaner in a

Tourist bus bearing No.AP 16 U 6156. While so, on 02.06.2001,

when the said bus was returning from Srisailam towards

Guntur side, when the vehicle reached Dornala, the 1st

respondent drove the vehicle negligently and handed over the

said bus to the deceased (cleaner), who drove the bus towards

Guntur, when the vehicle reached near Chinnadugipadu village,

the deceased lost control and the vehicle turned turtle at

Nellavagu bridge, resulting which, the deceased died on the

spot. The deceased was aged about 25 years as on the date of

accident and he was hale and healthy and used to earn

Rs.3,000/- per month as a cleaner. Hence the claim petition

claiming an amount of Rs.2,81,500/- towards compensation.

3. While the respondents 1 and 2 remained ex parte, the 3rd

respondent filed counter denying all the allegations mentioned

in the petition and denied the manner of accident, age,

occupation and income of deceased and also denied that the 1st

respondent is having a valid driving licence at the time of

accident. Further contended that the deceased was travelling in

the bus as an unauthorized passenger and in violation of the

terms and conditions of the policy, as such the Insurance

Company is not liable to pay any compensation and that the

amount claimed by the claimants is excessive.

4. Basing on the above pleadings, the following issues are

framed for trial:

1) Whether the accident occurred due to the rash and negligent driving by the driver of the bus bearing No.AP 16 U 6156?

2) Whether the petitioners are entitled for any compensation?

3) Whether the respondents are liable to pay the compensation?

4) To what relief?

5. During the course of trial, on behalf of the claimants,

PW.1 was examined and Exs.A.1 to A.4 were marked. On behalf

of the respondents, RW-1 was examined and Ex.B1 was marked.

6. The Tribunal, basing on the evidence of PW-1 coupled with

Exs.A1 to A4, came to the conclusion that the vehicle in

question was involved in the accident due to rash and negligent

driving of the driver of the bus and the deceased received

injuries and died on the spot, accordingly answered issue No.1

in favour of the claimant. In so far as issue Nos.2 and 3, the

Tribunal, basing on Ex.A4-postmortem certificate, has taken the

age of the deceased as 25 years and in the absence of proof

regarding the earnings of deceased, has fixed the annual

earnings of the deceased as Rs.18,000/-, deducted 1/3rd

towards his personal expenses, arrived at Rs.12,000/- towards

annual contribution to the family, applied multiplier '18' and

arrived at Rs.2,16,000/- (Rs.12,000/- x 18) towards loss of

dependency. In addition to that, the Tribunal awarded

Rs.5,000/- towards consortium to the 1st claimant, Rs.2,000/-

towards funeral expenses and Rs.2,500/- towards loss of estate.

In all, the Tribunal awarded a sum of Rs.2,25,500/-

(Rs.2,16,000/- + Rs.5,000/-+ Rs.2,000/- + Rs.2,500/-), as

follows:

S.No.         Head of claim                Amount              Amount
                                           claimed             awarded
1.          Loss of dependency                ---          Rs.2,16,000/-
2.          Loss of consortium               ---           Rs.    5,000/-
3.          Funeral expenses                 ---           Rs.    2,000/-
4.          Loss of estate                   ---           Rs.    2,500/-
                   Total          Rs.2,81,500              Rs.2,25,500/-

7. Heard Smt.A.Jayanthi, learned Standing Counsel for the

appellant-Insurance Company and Sri Venkateswara Rao

Gudapati, learned counsel for the claimants.

8. Learned counsel for the appellant-Insurance Company

would submit that the Tribunal ought to have considered that

the accident occurred due to the fault of the deceased, hence

there cannot be any fault liability. The Tribunal failed to

consider that Section 163-A of the Motor Vehicles Act does not

apply to the facts of the case. Further, the Tribunal failed to

consider that the deceased was not having driving licence.

9. Learned counsel for the respondents 1 to 3 / claimants

would submit that the amount of compensation awarded by the

Tribunal is just and reasonable and it needs no interference by

this Court. He relied upon a Judgment in Premkumari and

others v. Prahlad Dev and others1, wherein it was held that

mere absence of fake or invalid driving licence or disqualification

of the driver for driving at the relevant time, are not in

themselves defences available to the insurer against either the

insured or the third parties. Hence, in view of the ration laid

down in the above Judgment, the contention raised by the

Insurance Company that the deceased being cleaner drove the

offending vehicle without having any driving licence, is over

ruled.

10. Learned counsel for the claimants further relied upon a

Judgment of Madras High Court in C.M.A.(MD)No.211 of 2018

and C.M.P.(MD)No.3295 of 2018, wherein the Madras High

Court held that in respect of the Workmen's Compensation Act

alone, wherein, employer-employee relationship is vital part and

precondition for maintaining claim petition under Workmen's

Compensation Act and therein, for non-possession of the driving

licence, the insurance company can be exonerated. However,

(2008) 3 Supreme Court Cases 193

when the claim petition is filed under Motor Vehicles Act, the

Insurance Company may be directed to pay and recover the

compensation amount from the owner of the vehicle.

11. Accordingly, in view of the ratio laid down in the above

judgments relied upon by the learned counsel for the claimants

and having considered the submissions of the counsel, this

Court is inclined to direct the Insurance Company to pay the

compensation and thereafter recover the same from the owner

i.e. 2nd respondent in claim petition.

12. Therefore, in view of foregoing discussion, the appeal is

disposed of directing the appellant-Insurance Company to pay

the compensation along with interest within two (2) months

from the date of receipt of a copy of this order and thereafter

recover the same from the 2nd respondent-owner of the offending

vehicle, by filing execution proceedings before the Tribunal in

the same O.P. proceedings. The rest of the directions given by

the Tribunal with regard to withdrawal of compensation amount

remained unaltered. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

pending shall stand closed.

_______________ V. SUJATHA, J

Date: 29-08-2022 ARR

HONOURABLE SMT. JUSTICE V.SUJATHA

M.A.C.M.A.No.1726 of 2006

DATED : 29-08-2022

ARR