The New India Assurance Co Ltd vs Kondepudi Srinivasa Rao Srinivas ...
2022 Latest Caselaw 9644 AP

BVLNC, J                                               MACMA No.1166 of 2016
Page 1 of 9                                            dt.15.12.2022




              HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


              CIVIL MISCELLANEOUS APPEAL No.1166 OF 2016



JUDGMENT:

This appeal is preferred by the insurance company under

Section 173 of Motor Vehicles Act, 1988 challenging the award dated

10.10.2011 passed in M.V.O.P.No.809 of 2007 on the file of Motor

Accidents Claims Tribunal-cum-V Addl. District Judge (FTC), East

Godavari, Rajahmundry, wherein the Tribunal while allowing the petition,

awarded a compensation of Rs.1,50,000/-, as prayed for, with interest @

7.5% p.a., from the date of petition till the date of payment and with

costs.

2. For the sake of convenience, the parties hereinafter will be

referred to as they were arrayed in the trial Court.

3. As seen from the record, originally the 1st petitioner filed an

application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming a compensation of Rs.1,50,000/- for the injuries sustained by

him in a motor vehicle accident that occurred on 07.06.2006 while the

petitioner along with another was proceeding on the bicycle towards BVLNC, J MACMA No.1166 of 2016 Page 2 of 9 dt.15.12.2022

Vemagiri side near Satyadeva Nursery, on N.H.5 road, Kadiyapulanka,

Rajahmundry under the jurisdiction of Kadiam Police Station.

4. The facts of the case are that, on 07.06.2006 at about 10.00

a.m., while the 1st petitioner along with one Trimurthulu was proceeding

on a bicycle towards Vemagiri side and when they reached near

Satyadeva Nursary, on N.H.5 road, Kadiyapulanka, Rajahmundry, one

auto bearing No.AP 5V 4686 driven by the 1st respondent came in the

same direction in a rash and negligent manner and hit the petitioner. As

a result the 1st petitioner sustained grievous injuries. Immediately, he

was admitted in Aswini Orthopaedic Hospital, Rajahmundry, where he

took treatment as inpatient for more than 60 days and spent a sum of

Rs.50,000/- towards medical expenses. Kadiyam Police registered a case

in Cr.No.77 of 2006 under Section 338 of IPC against the 1st respondent.

In view of the injuries sustained in the accident, the 1st petitioner became

a permanently disabled person. The family members of the 1st petitioner,

who were depending upon the income of the petitioner, suffered financial

loss due to a loss of earnings by the 1st petitioner. The 1st respondent was

the driver-cum-owner of the auto. The 2nd respondent was its insurer. As

the accident occurred was due to negligence on the part of the 1st

respondent, both the respondents are jointly and severally liable to pay

compensation to the claimants.

 BVLNC, J                                              MACMA No.1166 of 2016
Page 3 of 9                                           dt.15.12.2022

5. Before the Tribunal, the 2nd respondent filed a counter

resisting while traversing the material averments with regard to the

manner of accident, and rash and negligence on the part of the driver of

the crime auto, nature of injuries, period of treatment, medical

expenditure, permanent disability sustained by the 1st petitioner and

liability to pay compensation. The 1st respondent was not the driver-cum-

owner of the crime auto. The crime auto was not insured with the 2nd

respondent. There is no proof for the injuries sustained by the 1st

petitioner in the said accident. The claim of compensation is arbitrary,

excessive and out of proportion and therefore, the 2nd respondent is not

liable to pay a compensation.

6. During pendency of the claim petition, the injured/1st

petitioner died and his legal representatives were added as petitioners 2 to

4 as per the orders in I.A.No.633 of 2010, dt.09.09.2010.

7. Subsequent thereto, the 2nd respondent filed an additional

written statement contending that the 1st petitioner has not died due to

the result of injuries allegedly sustained in the motor accident and hence

the petitioners are not entitled to prosecute the petition after the death of

1st petitioner.

 BVLNC, J                                              MACMA No.1166 of 2016
Page 4 of 9                                           dt.15.12.2022

8. On the strength of rival pleadings of both parties, the

Tribunal framed the following issues:

1.Whether the accident occurred due to the rash and negligent act of the R1, driver of Auto bearing registration No.AP 5V 4686?

2. Whether the petitioners are entitled for a compensation? If so, to what amount and from which of the respondents?

3. To what relief?

9. To substantiate their claim, on behalf of the petitioners, the

1st petitioner was examined P.W.1 and got marked Exs.A1 to A5. On

behalf of respondent No.2, none were examined, but a copy of insurance

policy was marked as Ex.B1.

10. The Tribunal, taking into consideration the evidence of P.W.1,

coupled with Exs.A1 to A5 and Ex.B1, held that the accident took place

due to the rash and negligent driving of the driver of the offending auto,

and awarded a compensation of Rs.1,50,000/- with interest @ 7.5% p.a.,

from the date of petition till the date of payment against the respondents

1 and 2 jointly and severally.

11. The contention of Sri Amancharla Satish Babu, learned

counsel appearing for the appellant/insurance company is that as the BVLNC, J MACMA No.1166 of 2016 Page 5 of 9 dt.15.12.2022

injured/1st petitioner died a natural death and not as a result of the

injuries sustained by him in the accident, the claimants, who are the legal

representatives of the 1st petitioner, have no subsisting cause of action

and they are not entitled to any compensation, in the absence of post

mortem certificate opining that the death of 1st petitioner is the result of

injuries sustained by him in the subject matter of accident. He further

contended that the Tribunal lost sight of the fact and granted

compensation as if it is a death case, though the 1st petitioner sustained

only simple injuries, which were subsequently healed and died from a

heart attack long after the accident, and prays to allow the appeal.

12. As seen from the record it is apparent that the Original

Petition was filed by the 1st petitioner/deceased claiming compensation

for the injuries sustained by him in the subject matter of the accident.

Pending trial, he died. The legal representatives of the 1st petitioner, who

are his wife and children, filed an application in I.A.No.633 of 2010 to

implead them as petitioners 2 to 4, which was allowed. Subsequently,

amendment was carried out and neat copy of the petition was filed.

13. In the amended petition para No.26 (g) was added.

Thereupon, the 2nd respondent/insurance company filed additional

counter on 01.12.2010. Then the Tribunal posted the matter for enquiry

observing that no additional issue is necessary.

 BVLNC, J                                             MACMA No.1166 of 2016
Page 6 of 9                                          dt.15.12.2022

14. Subsequently, the wife of the deceased/1st petitioner was

examined as P.W.1. In the chief-examination affidavit at para No.7 she

stated that on 08.12.2008 her husband was admitted in Bollineni Heart

Center at Danavaipeta, Rajahmundry as inpatient due to severe heart

pain and while undergoing treatment, he died due to accident and they

spent some expenditure towards medical treatment. The 2nd respondent

in the cross-examination of P.W.1 suggested that her husband died due to

some other reason, but not due to his involvement in the accident and the

same was denied by the witness.

15. No other evidence was adduced for the claimants and no

evidence was adduced on behalf of the insurance company. The

claimants did not adduce any medical evidence about the death of the

deceased. No death certificate or a postmortem report was filed.

16. Inspite of the plea taken by the 2nd respondent in the

additional written statement contending that there was no nexus between

the death of the deceased (1st petitioner) and the injuries sustained in the

accident, the Tribunal did not frame any issue regarding the cause of

death of the deceased to say whether or not the death of the 1st claimant-

deceased is direct result of the injuries sustained in the accident. The

Tribunal in its order did not give any finding in any of the issues whether

the 1st petitioner died due to the injuries sustained by him in the BVLNC, J MACMA No.1166 of 2016 Page 7 of 9 dt.15.12.2022

accident. The Tribunal decided the claim application as if it is a case of

death of a person occurred due to the accident.

17. In the light of the above facts and circumstances, it appears

that the Tribunal failed to frame an appropriate issue to determine the

disputed fact i.e., whether the death of the 1st petitioner was a direct

result of the accident, and the respective parties also are not having an

opportunity to lead any evidence on that aspect and the Tribunal did not

give any relevant finding on that aspect.

18. In that view of the matter, I am of the considered opinion that

the judgment of the Tribunal is liable to be set aside and the matter shall

be remanded back to the Tribunal for fresh disposal, with a direction to

frame an appropriate issue regarding the death of the 1st petitioner-

deceased claimant and to give an opportunity to both parties to adduce

evidence on the said aspect only, and to decide the same by dealing with

the other issues already framed in the case, to arrive at a proper and just

decision in the case for awarding reasonable compensation.

19. In the result, the Civil Miscellaneous Appeal is disposed of

accordingly, setting aside the Award dated 10.10.2011 passed in

M.V.O.P.No.809 of 2007 on the file of Motor Accidents Claims Tribunal-

cum-V Addl. District Judge (FTC), East Godavari, Rajahmundry, and the BVLNC, J MACMA No.1166 of 2016 Page 8 of 9 dt.15.12.2022

matter is remanded back to the Tribunal for fresh disposal, with a

direction to frame an appropriate issue regarding the death of the 1st

petitioner-deceased; to give an opportunity to both parties to adduce

evidence on the said aspect only; to decide the case by dealing with other

issues already settled. Since the matter pertains to the year 2007, the

Tribunal is directed to dispose of the matter as expeditiously as possible,

preferably within a period of six months from the date of receipt of the

record.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                               _____________________________
                                                B.V.L.N.CHAKRAVARTHI, J

15.12.2022
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 BVLNC, J                                           MACMA No.1166 of 2016
Page 9 of 9                                        dt.15.12.2022




              HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                      M.A.C.M.A.No.1166 OF 2016




                      15th day of December, 2022

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