The New India Assurance Company ... vs Gunneri Amaravathi,
2022 Latest Caselaw 7285 AP

           HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                          MACMA.No.2268 OF 2013

JUDGMENT :

1. Aggrieved by the order dated 03.06.2010 in MVOP.No.344 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal - cum - III Additional District Judge, Tirupathi (for short Tribunal), the New India Assurance Company Limited, represented by its Divisional Manager filed this appeal by contending that awarding compensation of Rs.1,90,500/- is fairly excessive.

2. For the sake of convenience hereinafter parties will be referred as they were arrayed in MVOP.No.344 of 2008

3. On factual side, the claimants filed the petition under section 166(1)(c) of MV Act claiming compensation on the ground that on 16.10.2007 at about 05.30PM the deceased Pattabhireddy along with Janardhana Reddy and two other woman were travelling in auto rikshaw bearing No.AP26X0604 to their village and when they reached near Gundelaganta cross on Srikalahasti Kasaram road, the driver of the auto drove the auto in a rash and negligent manner and the auto turned turtle and the deceased sustained severe bleeding injuries to head and rib bones were fractured and while he was being shifted to SVRRG Hospital, Tirupathi and when they reached Mallammagunta cross the deceased died due to injuries sustained in the accident.

4. The 1st respondent remained exparte and the 2nd respondent filed the counter by contending that the crime vehicle was insured with the respondent as a passenger carrying vehicle, the driver of the vehicle was having driving license to drive auto rickshaw non- transport.

MACMA.No.2268 OF 2013

5. Based on the pleadings the appropriate issues were formulated by the tribunal for consideration. Before the Tribunal on behalf of claimant PWs.1 and 2 were examined and Exs.A1 to A5 were marked and on behalf of respondents RWs.1 and 2 were examined and Exs.B1 and B2 were marked and Ex.X1 driving license is marked.

6. The tribunal on appreciation of both oral and documentary evidence on record awarded the total compensation amount of Rs.1,90,500/- to the petitioners with interest at 6% per annum under different heads.

7. Heard the arguments of learned counsel appearing for appellant and the counsel for respondent. Perused the record.

8. The learned counsel for the appellant contended that the learned tribunal failed to see that there was no rash and negligent driving on the part of the driver of the auto and the driver was having driving license for non-transport vehicle, but the alleged vehicle is a transport vehicle and there is a clear violation of conditions of policy and awarding compensation of Rs.1,90,500/- is fairly excessive. Learned counsel appearing for respondent supported the observations and findings of the learned Tribunal.

9. Now the point for consideration is whether the accident occurred due to rash and negligent driving of the driver of offending vehicle and the driver was having valid driving license and the quantum of compensation amount awarded by the tribunal is just and reasonable.

MACMA.No.2268 OF 2013

POINT :

10. To prove the manner of accident the 1st petitioner is examined as PW.1 and she is not a direct witness to the incident, PW.2 - Sri.Janardhana Reddy is examined to prove the accident. He stated in his evidence that on 16.10.2007 while he was returning to his village from Srikalahasti along with G.Pattabhireddy and two other woman, the driver of the auto bearing No.AP26X0604 drove it in a rash and negligent manner and the auto turned turtle. In support of their case the petitioners also relied on Ex.A1 certified copy of FIR and Ex.A2 certified copy of charge sheet. To prove the death of deceased due to injuries sustained in the accident the petitioners relied on Ex.A3 certified copy of inquest report, Ex.A4 certified copy of postmortem report. The respondents have not disputed the death of deceased due to injuries sustained in the accident. Though PW.2 is cross-examined nothing is elicited to discredit his evidence regarding the manner of accident.

11. The driver of the auto is the best person to speak about the manner of accident. The respondent insurance company has also not taken steps to prove the manner of accident by summoning the driver of auto and to establish that he did not drive the vehicle rashly and negligently at the time of accident.

12. A reading of Ex.A1 coupled with Ex.A2 certified copy of charge sheet goes to show that the driver of the offending vehicle drove it in a rash and negligent manner and caused the accident.

No evidence is placed by the respondent to show that the contents of the charge sheet are incorrect. In a decision between K.Rajani and

MACMA.No.2268 OF 2013

others V. M.SatyanarayanaGoud and others1, the Hon'ble High Court is pleased to observe that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

In the case of Bheemla Devi V. Himachal Road Transport Corporation2, the Hon'ble Apex Court observed as follows:

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied".

There is nothing on record to suggest that that the Investigating Officer filed charge sheet against the driver of auto without conducting proper investigation bus also it is difficult to hold that the Police Officer fabricated a case.

13. In a proceeding under the M.V.Act, where procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. Document having some probative value, the genuineness of which is not in doubt can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of claim petition can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touch stone for arriving at a conclusion regarding rashness and negligent as well as

2015 ACJ 797

2009 ACJ 1725 (SC)

MACMA.No.2268 OF 2013

mode and manner of happening of the accident.

14. The reading of the documents placed before Tribunal clearly shows that the accident occurred due to rash and negligent driving of driver of auto and when the appellant contends that the accident occurred in a different manner, it is to place necessary evidence before the Tribunal basing on which the Tribunal is expected to give its own conclusion. The Tribunal has accepted the case of the claimants regarding manner of accident and also accepted the observations made by the Investigating Officer in the charge sheet making the driver of auto responsible for the accident. As already observed the contents of the charge sheet also support the case of claimants regarding the manner of the accident.

15. Upon careful reading of the material on record this court is of view that the Tribunal has correctly appreciated the evidence on record and finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle holds good.

16. Regarding the policy violations, to establish its case the insurance company mainly relied on evidence of RW.2 - T.K.Subbarao, Administrative Officer of 2nd respondent/insurance company. His evidence shows that Ex.B2 policy was in force as on the date of accident and it covers risk of passengers including the deceased. According to his evidence the driver of the auto is not having valid driving license and he is having license to drive the auto rikshaw for non-transport vehicle only. To strengthen their case the respondents got examined RW.1 - N.Sivarama Prasad who has been working as Regional Transport Officer and he produced driving license extract of R.Narayana Naidu and as per Ex.X1 he is authorized to drive light motor vehicle (LMV i.e., Auto rickshaw and motorcycle with gear) for

MACMA.No.2268 OF 2013

the period from 30.03.2007 to 11.03.2020. In the cross examination it is elicited that the structure of vehicle of a transport and non- transport is one and the same. A person who is having non transport license can also drive a transport vehicle, but he has to obtain badge.

17. The evidence of RWs.1 and 2 is not disputed by the claimants.

Furthermore the appellant insurance company relied on the evidence of RW.1 and 2 and exhibits marked through them in support of their contention. In the light of the above evidence on record when the facts and evidence in the instance case are considered as rightly observed by the Tribunal, it is not a case of driver not holding the license at the time of accident. Basing on the said fact the learned counsel appearing for the appellant tried to convince the court that the Tribunal ought to have directed the insurance company to pay and recover the compensation amount. Identical question came to be considered by the Hon'ble Supreme Court in the case of Santalal Appellant Vs. Rajesh and others3. The Hon'ble Supreme Court observed and held as follows

"this Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the trol- ley carrying goods and also whether separate endorsement is re- quired authorizing him to drive such a transport vehicle?

We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.

Accordingly, in view of the answer given to reference by the three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be allowed and are hereby allowed. The right given to the in-

2017 AIR (civil 734)

MACMA.No.2268 OF 2013

surer to recover amount from owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer.

18. By following the aforesaid decision of the Hon'ble Apex Court and the evidence on record it cannot be said that the learned Tribunal has committed any error in holding that the appellant insurance company is liable to pay compensation amount. The Tribunal order is in consonance with the principles laid down in the paragraphs extracted above and the same need not be interfered. In view of the same this court finds difficulty to accept the contentions raised re- garding the breach of the conditions of the policy.

19. The 1st petitioner is the wife, 2nd petitioner is the son of deceased. The postmortem report Ex.A4 and Ex.A3 inquest report shows the age of deceased as 40 years. Whereas, Ex.B1 xerox copy of household card shows the age of the deceased as 48 years and basing on the same the tribunal has fixed the age of the deceased as 49 years as on the date of accident and by considering recitals in Ex.B1 household card the income of deceased is taken as Rs.18,000/- per annum. Since the deceased had only two dependants 1/3rd of the income of earnings is deducted towards personal expenses and net contribu- tion of the family is assessed at Rs.12,000/- and applying multiplier 13, the tribunal hold that the petitioners are entitled Rs.1,56,000/- towards loss of dependency and it has granted Rs.34,500/- towards conventional heads. The quantum of compensation amount was fixed by the tribunal is not assailed by the claimants by filing cross appeal or objections. In view of the same this court is of view that the order passed by the learned tribunal attained finality so far as the clai- mants concerned. The tribunal awarded just compensation.

MACMA.No.2268 OF 2013

20. In view of the aforementioned discussion I do not find any substance in the appeal and I do not find any reason to interfere in the impugned order in the present appeal. Accordingly the appeal being devoid of merits is hereby dismissed without costs by confirming the order of the tribunal. The petitioners are entitled for compensation amount as per the appropriation laid by the tribunal.

21. Miscellaneous petitions if any pending shall stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO Date : 22.09.2022 BV/KGM

MACMA.No.2268 OF 2013

HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

MACMA.No.2268OF 2013

Dated 22.09.2022

BV/KGM