The Oriental Ins Comp Ltd, ... vs Smt. D Fakrubee, Anantapuramu ...
2022 Latest Caselaw 7911 AP

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BVLNC,J                                            MACMA 245 of 2016
Page 1 of 18                                        Dt: 18.10.2022




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

                    M.A.C.M.A.No.245 OF 2016

JUDGMENT:

This appeal is preferred by the Oriental Insurance Company

Limited, Anantapuramu, challenging the award dated 18.11.2015

passed in M.V.O.P.No.709/2012 on the file of Motor Accidents Claims

Tribunal-cum-IV Addl.District Judge, Ananthapuramu, wherein the

Tribunal while allowing the petition, awarded compensation of

Rs.6,00,000/- with interest @ 7.5% P.A. from the date of petition, till

the date of realisation to the respondents/claimants who are the

parents, wife and children of the deceased Tadimarri Surya Prakash @

Suri,

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, the petitioners filed an application

U/s.140, 163-A of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.6,00,000/- on account of the death of

Tadimarri Surya Prakash @ Suri, who is husband of 1st petitioner,

father of petitioners 2 and 3, and son of petitioners 4 and 5, in a road

BVLNC,J MACMA 245 of 2016 Page 2 of 18 Dt: 18.10.2022

accident occurred on 20.07.2010 while the deceased was going on a

motor cycle bearing No.AP 02 AE 3485 from Kotank to Anantapuramu.

4. The facts show that on 20.07.2010 at about 02.30 p.m. when

the deceased Tadmimarri Surya Prakash @ Suri was going on motor

cycle bearing No. AP 02 AE 3485 from Kotank to Anantapuramu and

reached near Yekkaluri Yellareddy lands, Garladinne Mandal, on his

personal work and also owner's work, he fell into a pit and sustained

multiple injuries, and immediately shifted to Govt. General Hospital,

Anantapuramu and from there, he was shifted to Govt. General

Hospital, Kurnool for better treatment and on 01.08.2010 at 02.30

p.m. the deceased succumbed to injuries. As accident occurred due to

deceased who was riding the motor cycle, Garladinne police registered

a case in Cr.No.89/2010 for the offence punishable U/s.304-A of I.P.C.

and the said case was abated. The deceased was aged about 28 years

and doing agriculture works, and business earning Rs.10,000/- per

month.

5. Before the Tribunal, the appellant, who is the 2nd respondent in

the petition, filed written statement resisting the claim, while

traversing the material averments with regard to proof of age,

avocation, monthly earnings of the deceased, manner of accident and

death of deceased and contended that, as per records accident

BVLNC,J MACMA 245 of 2016 Page 3 of 18 Dt: 18.10.2022

occurred only due to self negligence of deceased, and he is not owner

of the motor cycle and the deceased was in unauthorised possession of

the said motor cycle. Risk to the person who was in unauthorised

possession of motor cycle is not covered, as owner has not paid any

premium to cover the risk of unauthorised passengers. Under the

insurance policy, only the original owner of the vehicle alone is

covered. As per records, the deceased was not holding any driving

license at the time of accident and the claim of compensation is

excessive.

The 1st respondent i.e., owner of the motor cycle was remained

exparte.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the rider of the motor cycle bearing No. AP 02 AE 3485 has driven same rash and negligent manner and caused the death of deceased T.Surya Prakash @ Suri?

2. Whether the petitioners are entitled to compensation? If so, to what amount?

3. Whether the 2nd respondent is liable to pay compensation?

4. To what relief?

BVLNC,J                                            MACMA 245 of 2016
Page 4 of 18                                        Dt: 18.10.2022

7. To substantiate the claim of the petitioners, the petitioners

examined P.Ws-1 and 2 and got marked Exs.A-1 to A-5. On behalf of

the 2nd respondent, R.Ws-1 and 2 were examined and Exs.B-1 to B-4

and Ex.X-1 were marked.

8. The Tribunal, taking into consideration the evidence of P.Ws-1

and 2, coupled with Exs.A-1 to A-5, held that the accident took place

due to rash and negligent driving of the driver of the motor cycle, and

further, taking into consideration of the evidence of P.Ws-1 and 2 and

Exs.A-1 to A-5, awarded a compensation of Rs.6,00,000/- with interest

@ 7.5% P.A. from the date of petition, to the date of realisation.

9. The plea of the 2nd respondent/Insurance Company is that as

per record the accident occurred only due to the self negligence of

deceased and he is not owner of the said motor cycle, and the

deceased was in unauthorised possession of the said motor cycle, as

such, risk is not covered to the deceased, as owner has not paid any

premium to cover risk of unauthorised passengers, and the deceased

was not holding driving license at the time of accident and the claim of

compensation is excessive.

10. The Tribunal considered the evidence on record, and based on

the contentions of both parties, held that the respondents are jointly

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and severally held liable for payment of compensation, since insurance

policy was in force at the time of accident, and as violation of policy

conditions are not proved.

11. The petition is filed U/s.140 and 163-A of the Motor Vehicles

Act, 1988 claiming compensation of Rs.6,00,000/- for the death of

deceased on 20.07.2010 due to accident occured while he was driving

the motor cycle.

13. The case of the claimants is that the deceased was going on the

motor cycle on his personal work and also owner's work and he fell

into a pit and sustained multiple injuries and he was shifted to Govt.

General Hospital, Kurnool, and died on 01.08.2010 due to injuries and

he was aged about 28 years, and he was doing agricultural work and

business and earning Rs.10,000/- per month, and family members

were depending on his income, and that police registered a case in

Car.No.89/2010 for the offence punishable U/s.304-A of the Indian

Penal Code against the deceased, and that the 1st respondent is the

owner of the crime vehicle, and the 2nd respondent is the Insurance

Company.

14. The owner, who is the 1st respondent remained exparte before

the Tribunal, and the Insurance Company contended that the

BVLNC,J MACMA 245 of 2016 Page 6 of 18 Dt: 18.10.2022

possession of the vehicle by the deceased is unauthorised, and his risk

was not covered as owner not paid any premium to cover the risk of

the unauthorised passengers, and policy covers the risk of only

original owner of the vehicle, and the deceased was not holding any

driving license at the time of accident.

15. The Tribunal considered the evidence of P.W-2, who is an eye

witness to the accident, and held that the accident was occurred due

to the negligence of the deceased, and on facts the Tribunal found that

the deceased was holding license, and the Insurance Company did not

adduce any contra evidence to prove that the deceased was not holding

license to drive the motor cycle.

16. The Insurance Company filed Ex.B-1 copy of policy and as per

policy, the risk of owner, driver is covered as add on cover, and it

provides protection against any accidental injuries to the owner, driver

of the insured vehicle. Therefore, it provides compensation in case the

owner/driver of the motor vehicle suffers from bodily injuries,

permanent disability, or both following the motor vehicle accident. The

Tribunal observed that as per FIR and inquest report, deceased was

going on his personal work and with the consent of the owner of the

vehicle, he was going on the motor cycle and since risk of the owner,

driver is covered, the risk of deceased is also covered, because under

BVLNC,J MACMA 245 of 2016 Page 7 of 18 Dt: 18.10.2022

the policy, Insurance Company collected premium covering risk for the

owner, driver, and it cannot escape from the liability.

17. The contention of the Appellant/Insurance Company is that it is

a false claim, and that the deceased died due to some other reasons,

and in order to claim compensation, a false report was presented

through the elder brother of the deceased by furnishing vehicle

number belonging to a close relative of the deceased, and the

claimants are trying to get wrongful gain and that the FIR etc., were

created for the purpose of claiming compensation with the collusion of

concerned officials.

18. The claimants in their evidence filed Ex.A-1 copy of FIR, Ex.A-2

copy of inquest report, Ex.A-3 copy of post mortem certificate, Ex.A-4

copy of M.V.I.Report and Ex.A-5 copy of final report relating to the

alleged accident and death of deceased in the case. P.W-1 is wife of

deceased in the case. In the chief-examination affidavit, she reiterated

the contents of the claim petition that on 20.07.2010 the accident was

occurred and her husband died due to the injuries sustained in the

accident on 01.08.2010 in Govt. General Hospital, Kurnool. As per

Ex.A-1 FIR, report was presented to the police on 02.08.2010, though

the accident was occurred on 20.07.2010. The chief-examination

affidavit of P.W-1 did not disclose any reason as to why report was

BVLNC,J MACMA 245 of 2016 Page 8 of 18 Dt: 18.10.2022

presented on 02.08.2010 when the accident was occurred on

20.07.2010. Ex.A-1 FIR does not disclose any reason for delay in

reporting by the informant. Ex.A-2 inquest report shows that

panchayatdars found burn injuries below the right knee of the

deceased due to silencer of the motor cycle apart from other injuries.

Ex.A-3 post mortem report discloses burn injuries on the right leg.

Ex.A-5 final report filed by Sub Inspector of Police, Garladinne P.S.

discloses that his investigation shows 'no foul play suspected on the

death of deceased' and it was disclosed that it was a 'purely an

accidental death'.

19. The Appellant/Insurance Company in the cross-examination of

P.W-1 made an attempt to say that the entire case was manipulated

for the purpose of compensation, subsequent to the death of deceased.

But in view of Ex.A-5 final report, there are no reasons to disbelieve

the evidence of P.W-1 and P.W-2 that the deceased received injuries in

the motor cycle accident. The Insurance Company did not adduce any

contra evidence in support of their contention. In that view of the

matter, there is no material on record for coming to a conclusion that

no accident was occurred on 20.07.2010, and that the claimants

presented a false report showing the motor cycle of their relative to

make a false claim.

BVLNC,J                                            MACMA 245 of 2016
Page 9 of 18                                        Dt: 18.10.2022

20. In the cross-examination of P.W-1 and P.W-2, nothing was

elicited showing that the owner of the motor cycle involved in the case

is a relative of the deceased, or P.W-1 or P.W-2. Therefore, there is no

material available on record for coming to a conclusion that the owner

of the motor cycle i.e., 1st respondent in the case is relative of

deceased, to presume that the motor cycle was planted in the case to

make false claim.

21. The contention of the Appellant/Insurance Company is that the

claimants made a false claim as there is a delay in presenting FIR. No

presumption can be drawn that it is a false claim merely because

there is delay in presenting the FIR to the police, when the other

evidence showing that the deceased died due to injuries sustained by

him in the accident. There is no evidence to say that the authorities

i.e., police and medical officers colluded with the claimants to lay a

false claim as alleged by the Insurance Company.

22. The Appellant/Insurance Company examined its Administrative

Officer as R.W-1. In his chief-examination affidavit he stated that as

per records the deceased is not owner of the vehicle, and that he was

going on his own work only, and Insurance Company not covered the

risk of deceased under the policy as on the date of death and there is

no abnormal delay in presenting report to the police and that the

BVLNC,J MACMA 245 of 2016 Page 10 of 18 Dt: 18.10.2022

accident was caused due to the self negligence of deceased. The

statement of R.W-1 that the accident was occurred due to self

negligence of the deceased is against the case of the Insurance

Company that no accident was occurred, and deceased sustained

injuries somewhere and the claimants gave a false report to the police

for the purpose of making false claim and they used the motor cycle of

their relative for making the claim etc. It is pertinent to note down

that the statement of R.W-1 was made in the chief-examination

affidavit. not in the cross-examination made by the claimants. In the

cross-examination, he admitted that the accident was caused by the

motor cycle. Therefore, it is very clear that the contention of the

Insurance Company is without any evidence, and it appears that they

have taken the said plea, because the claimants presented the report

to the police on 02.08.2010, though the accident was occurred on

20.07.2010.

23. R.W-1 in his chief-examination affidavit, stated that the

deceased was going on his own work only and he was not the owner of

the vehicle. Therefore, in the chief-examination itself, R.W-1 says that

the deceased was going on the motor cycle on his own work at the time

of accident. He did not state the relationship between the deceased

and the owner of the vehicle. He did not state that the deceased was

BVLNC,J MACMA 245 of 2016 Page 11 of 18 Dt: 18.10.2022

using the motor cycle, after taking permission of the owner. On the

other hand, he says that the deceased was going on the motor cycle on

his own work and he is an unauthorized person.

24. The Appellant/Insurance Company to substantiate its

contention did not adduce any evidence or did not brought any

material on record in the cross-examination of P.W-1 and P.W-2.

25. The contention of the Insurance Company in the written

statement that the owner of the motor cycle has not paid any premium

to cover the risk of the deceased or any unauthorised persons, and the

original owner alone is covered under the policy. It has taken a specific

plea that the deceased is an unauthorised person, as his possession of

the motor cycle is unauthorised.

26. R.W-1 in his chief-examination affidavit stated that as per

records, the deceased is not owner of the vehicle, and he was going on

his own work only, and Insurance Company not covered the risk of

deceased under the policy as on the date of death. It is not the

contention of the Insurance Company in the written statement or in

the evidence of R.W-1 that the deceased has taken permission of owner

of the vehicle and therefore, the deceased steps into the shoes of the

owner and as such, the claimants of the deceased cannot make any

BVLNC,J MACMA 245 of 2016 Page 12 of 18 Dt: 18.10.2022

claim U/s.163-A of M.V.Act, 1988. The Insurance Company even in

the cross-examination of P.W-1 also did not suggest such a plea.

27. The Insurance Company without any plea in the written

statement or evidence, in the arguments made an attempt to rely upon

the judgment of the Hon'ble Apex Court in the case of Ningamma and

another Vs. United Insurance Company Limited1, wherein the case

of the claimants of the deceased was that the deceased borrowed the

motor vehicle from its real owner for going to his native place. In that

view of the matter, the contention of the Insurance Company without

any plea in the written statement and supporting evidence cannot be

considered.

28. The learned counsel for claimants relied upon the judgment of

the Hon'ble Apex Court in the case of National Insurance Company

Limited Vs. Sinitha and others, and submitted arguments that the

burden is on the Insurance Company to establish that the deceased in

the case occupied the shoes of the owner, and that he cannot be

treated as a third party, and the Insurance Company could not point

out the relationship between the deceased, and the owner of the motor

cycle involved in the accident, and the deceased was not shown even

1 2009 (2) TN MAC 169 (SC).

BVLNC,J                                          MACMA 245 of 2016
Page 13 of 18                                     Dt: 18.10.2022

as representative of owner in order to establish the relationship

between the deceased, and the owner and the Insurance Company

could have easily produce either the owner himself as a witness or

other witness, who could have brought out the relationship between

the owner and the deceased, and therefore, the Insurance Company

has not discharged the onus which was rested on its shoulders, since

the relationship between the deceased and the owner has not been

established, nor the capacity in which he was riding the vehicle has

been brought out, it cannot be concluded that the deceased was riding

the motor cycle as an agent, employee or representative of the owner

and it is open to the Insurance Company to defeat the claim of

compensation received by the claimants only by establishing that the

deceased represented the owner, but the Insurance Company failed to

discharge the said onus. In that view, it is not possible to accept the

contention of the Insurance Company.

29. The Hon'ble Apex Court in the case of National Insurance

Company Limited Vs. Sinitha and others2, held in para 18 and 19

as follows:

2   2012 (2) SCC 356


BVLNC,J                                               MACMA 245 of 2016
Page 14 of 18                                          Dt: 18.10.2022

"18. The contention of the learned counsel for the claimants that compensation payable under Section 163-A is in addition to the determination of compensation on the basis of fault liability and thereafter it could be adjusted on similar lines provided under Section 140 read with Section 141 or Section 162 cannot be accepted. The legislature has specifically provided Scheme of adjustment of compensation under Section 140 read with Section 141 and Section 162 if the claimants get compensation under the Act, while there are no such provisions under Section 163-A. Addition or introduction of such scheme in provisions would be impermissible.

Use of different words such as -- "any other law, under this section", "any other law for the time being in force", "provisions of this Act" or "any other provision of this Act" in different sections

19. The learned counsel for the claimants submitted that the proviso to sub-section (5) of Section 140 would mean that even in case where compensation is determined under the structured- basis formula under Section 163-A, the claimant is entitled to claim compensation on the basis of fault liability and if he gets higher amount on the basis of fault liability then from that amount compensation which is paid under Section 163-A is to be reduced. At the first blush the argument of the learned counsel appears to be attractive as the proviso to sub-section (5) of Section 140 is to some extent ambiguous and vague. It may mean that amount of compensation given under any other law may include the amount payable on the basis of fault liability, therefore, in view of the said proviso compensation amount payable under any other law is to

BVLNC,J MACMA 245 of 2016 Page 15 of 18 Dt: 18.10.2022

be reduced from the compensation payable under Section 140 or 163-A. For appreciating this contention and for ascertaining appropriate me aning of the phrase " co mpensation under any other law for the time b eing in force ", the proviso to sub-section (5) is required to be considered along with other provisions. The Scheme of other provision in Section 167 indicates that the aforesaid phrase is referable to compensation payable under the Workmen's Compensation Act, 1923 or any other law which may be in force but not to the determination of "compensation under the Act", and would not include the compensation which is determined "under the provision of the Act". Thus Section 167 in terms provides that where death of, or bodily injury to, any person gives rise to claim compensation under the Act and also under the Workmen's Compensation Act, 1923, such person cannot claim compensation under both the Acts. Further, in Section 140(5), the legislature has used the words "under any other law for the time being in force" and "under any other law". In Section 141(1), the legislature has used the phrase "under any other provision of this Act or of any other law for the time being in force". In sub-section (2), the legislature has specifically provided that a claim for compensation under Section 140 shall be disposed of as expeditiously as possible and where compensation is also claimed in pursuance of any right on principle of fault, the application under Section 140 is to be disposed of in first place. Whereas, there is no such reference for payment of compensation under Section 163-A. Further, in Section 161(2), the legislature has used the phrase "any other law for the time being in force" and "provisions of this Act". Similarly, in Section 162, the legislature

BVLNC,J MACMA 245 of 2016 Page 16 of 18 Dt: 18.10.2022

has used the words "under any other provisions of this Act" or "any other law or otherwise". As against this, in Section 163- A, the legislature has used the phrase "notwithstanding anything contained in this Act or in any other law for the time being in force" . When the legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the legislature, unless context otherwise requires. However, in relation to the same subject-matter, if different words of different import are used in the same statute, there is a presumption that they are not used in the same sense (Member, Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35. In this light, particularly Section 141 which provides for right to claim compensation "under any other provision of this Act" or of "any other law for the time being in force", proviso to sub-section (5) of Section 140 would mean that it does not provide for deduction or adjustment of compensation payable under the Act, that is, on the principle of fault liability which is to be determined under Section 168."

30. In the case on hand, as discussed above, the

Appellant/Insurance Company has not adduced any evidence to

establish the relationship between the deceased and the owner of the

motor cycle. On the other hand, in the written statement, they have

taken a plea that the deceased is an unauthorised person. Therefore,

the contention of the Insurance Company is without plea or evidence,

BVLNC,J MACMA 245 of 2016 Page 17 of 18 Dt: 18.10.2022

31. The Tribunal having considered the evidence, fixed the monthly

income at Rs.4,000/- as coolie, and age as 28 years, applied multiplier

17, as per II Schedule of M.V.Act, 1988, and deducted ¼ share, since

there are five dependants and awarded Rs.6,12,000/-, and a sum of

Rs.30,000/- towards consortium, and Rs.5,000/- towards loss of

estate, and arrived the total sum of compensation eligible as

Rs.6,47,000/-, but restricted the awarded amount to Rs.6,00,000/-

only, as claimants restricted their claim to Rs.6,00,000/- in the claim

petition.

32. In view of the above discussion, I do not find any grounds to

interfere with the award passed by the Tribunal and the appeal is

liable to be dismissed.

33. In the result, the appeal is dismissed, by confirming the award

dated 18.11.2015 passed in M.V.O.P.No.709/2012 on the file of Motor

Accidents Claims Tribunal-cum-IV Addl.District Judge,

Ananthapuramu. 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
18.10.2022
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BVLNC,J                                      MACMA 245 of 2016
Page 18 of 18                                 Dt: 18.10.2022




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




                    M.A.C.M.A.No.245 OF 2016




                        18th October, 2022


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