Royal Sundaram Alliance ... vs Amilineni Eswara Naidu,
2023 Latest Caselaw 2078 AP

      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A. No.2774 of 2012 &
     CROSS OBJECTIONS No.21 of 2022 in MACMA No.2774 of 2012


COMMON JUDGEMENT:

       The appellant is the second respondent in M.V.O.P.No.502 of

2009 on the file of the Motor Accident Claims Tribunal-cum-Principal

District Judge, Nellore and the respondents are the petitioners and

the respondent No.1 in the said case. The claimants filed cross

objections No.21 of 2022 for claiming remaining compensation.

Since both the appeal and the cross objections relates to one

decree and order, both the cases were heard together and they are

being disposed of by this common judgment.

2. Both the parties in the appeal and cross objections will be

referred to as they are arrayed in claim application.

3. The claimants filed a Claim Petition under sections 166 of

Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.6,00,000/- towards

compensation on the account of death of deceased Amilineni VGKRJ MACMA 2774 of 2012 Page 2 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

Sukanya Prabhavathi in a Motor Vehicle Accident occurred on

26.12.2008.

4. The brief averments of the claim petition are as follows:

On 26.12.2008 the deceased Prabhavathi and her son

Gnanendra Sai went to Narayana Junior College,

Dhanalakshmipuram to see her son Dora Sai and after seeing her

son, the deceased and her son boarded an auto to go to Nellore, at

about 3.30 p.m. when their auto reached near Parthasaradhi real

estate on Nellore-Muthukur road, one Mahendra Truck bearing

No.AP 26 Y 0424 came in a rash and negligent manner in opposite

direction from Nellore side and dashed their auto, resulting which

the deceased sustained severe head injury, later succumbed to

injuries, the driver of auto also sustained bleeding injuries and the

petitioners claimed an amount of Rs.6,00,000/- towards

compensation.

5. The respondents 1 and 2 filed counters by denying the claim

application and contended that the claimants are not entitled any VGKRJ MACMA 2774 of 2012 Page 3 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

compensation and the respondents are not liable to pay any

compensation to the petitioners.

6. Based on the above pleadings, the Tribunal framed the

following issues:

i. Whether the motor accident was occurred due to rash and negligent driving of the Mahendra Truck bearing No.AP 26 Y 0424 or due to rash and negligent driving of the driver of the auto or whether there is any contributory negligence of both the vehicles?

ii. Whether claimants are entitled for any compensation? If so, how much amount and against which of the respondents?

iii. To what relief?

7. On behalf of the petitioners, PW1 and PW2 were examined

and Ex.A1 to Ex.A10 were marked. On behalf of respondents RW1

was examined and Ex.B1 and Ex.X1 and Ex.X2 were marked.

8. After considering the evidence on record, the Tribunal has

given a finding that the accident was occurred due to rash and

negligent driving of drivers of both the vehicles and the Tribunal VGKRJ MACMA 2774 of 2012 Page 4 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

granted an amount of Rs.1,94,000/- to the claimants towards

compensation.

9. Aggrieved by the same, the second respondent/ Insurance

company filed the present appeal, against which the claimants in the

said case filed cross objections vide Cross Objections No.21 of

2022.

10. Now, the points for consideration are:

i) Whether the Order of Tribunal needs any interference?

ii) Whether the claimants are entitled for enhancement of compensation as prayed for?

11. POINT Nos.1 and 2:-

In order to prove the claim of the petitioners, the first petitioner,

who was the husband of the deceased, was examined as PW1 and

the third petitioner, who was son of the deceased and who travelled

in the auto along with the deceased at the time of accident, was

examined as PW2. PW2 deposed in his evidence about the rash

and negligent driving of the driver of the crime vehicle/ Mahendra

Truck bearing No.AP 26 Y 0424. Admittedly the First Information VGKRJ MACMA 2774 of 2012 Page 5 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

Report was registered against the driver of the crime vehicle/

Mahnindra Truck and after completion of investigation, charge sheet

was filed against the driver of offending vehicle/Mahindra Truck.

The learned Tribunal came to conclusion that the accident was

occurred due to rash and negligent driving of the driver of the auto

and also the rash and negligent driving of the driver of Mahendra

Truck and 50% contributory negligence is fixed on each vehicle i.e.,

driver of Mahindra Truck and driver of auto. But the material on

record reveals that due to rash and negligent driving of the driver of

Mahindra Truck only, the accident was occurred. The First

Information Report and charge sheet were also laid against the

driver of Mahindra Truck. The owner of the auto and insurer of auto

were also not a party to this case. But unfortunately, the learned

Tribunal fixed 50% contributory negligence on the part of the driver

of the alleged auto. Therefore, the said finding given by the Tribunal

is liable to be set aside. With these above observations, this Court

feels that the accident was occurred due to rash and negligent

driving of the driver of the Mahindra Truck bearing No.AP 26 Y 0424

only.

 VGKRJ                                                MACMA 2774 of 2012
Page 6 of 12                                      Cross objections 21 of 2022
                                                     Dt: 19.04.2023

12. In order to prove their claim, the claim petitioners relied on the

evidence of PW1 and PW2 and got exhibited Ex.A1 to Ex.A10. The

second respondent/ Insurance company filed Ex.B1 copy of policy

admitting the existence of valid insurance policy to Mahindra Truck

and examined one K.Lavanya, who is working as Junior Assistant in

RTA Office, Nellore as RW1 and she also brought the driving

licence extract of driver of the Mahindra Truck. As per her evidence,

the driver was authorized to drive motor vehicle with gear and Light

Motor Vehicle non-transport only and he is not authorized to drive

the transport vehicle as per Ex.X2 driving licence extract. Therefore,

the driver of the Truck is not having valid and effective driving

licence by the date of accident. The crime vehicle is insured with

insurance company and the policy is on force. The Tribunal also

gave the same finding.

13. The learned Tribunal in its order, came to conclusion that as

per the decision of Hon'ble Supreme Court in National Insurance

company Limited vs. Kusum Rai and others1, the person who

holds LMV non-transport is not authorized to drive the transport

2006 ACJ 1336 VGKRJ MACMA 2774 of 2012 Page 7 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

vehicles. Here the driver of the vehicle was driving Mahindra Truck,

but not an auto, therefore, there was a breach of conditions of

contract of insurance and by giving cogent reasons, the learned

Tribunal directed the second respondent/ Insurance company to pay

the amount at first instance and later recover the same from first

respondent by filing execution petition.

14. With regard to the quantum of compensation, as per Ex.A2

attested xerox copy of inquest report and Ex.A3 attested xerox copy

of post mortem certificate, the deceased was aged about 39 years

as on the date of accident, except marking Ex.A9 copy of pattadar

pass book, Ex.A10 copy of title deed and Ex.A5 lease agreement in

between P.C.Hari Naidu and the first petitioner, the claimants did

not adduce any evidence to prove the income of the deceased.

They also not filed any proof that the deceased was running a mess

and earning Rs.24,000/- per month. By giving cogent reasons, the

learned Tribunal fixed the monthly income of the deceased as

Rs.3,000/- per month and the dependents are four in number, 1/4th

of income has deducted towards her personal expenditure and 3/4th

can be taken into account for contribution towards her joint family.

 VGKRJ                                          MACMA 2774 of 2012
Page 8 of 12                                Cross objections 21 of 2022
                                               Dt: 19.04.2023

In view of the decision of Hon'ble Supreme Court of India in Sarla

Verma and another Vs. Delhi Road Transport Corporation and

others 2 case, the multiplier applicable to the age group of the

deceased is '14'. Accordingly, the future contribution of the

deceased towards her joint family would be Rs.3,78,000/-

(Rs.3,000/- x 12 x ¾ x 14 = Rs.3,78,000/- and an amount of

Rs.5,000/- is awarded towards funeral expenses and an amount of

Rs.5,000/- is awarded towards loss of estate, totalling to

Rs.3,88,000/-. As per the finding given by the learned Tribunal on

point No.1, the respondents are liable to pay only 50% of amount

i.e., Rs.1,94,000/-. I have clearly stated above that there is no

negligence on the part of the driver of the auto in occurrence of the

alleged accident and this Court has clearly explained above that

because of the rash and negligent driving of the driver of the

Mahindra Truck only, the accident was occurred, in which the

deceased met with accident and succumbed to injuries. Therefore,

the claimants are entitled total compensation of Rs.3,88,000/-.

2009 ACJ 1298

 VGKRJ                                                MACMA 2774 of 2012
Page 9 of 12                                      Cross objections 21 of 2022
                                                     Dt: 19.04.2023

15. The learned counsel for claimants relied on a decision of

Hon'ble Supreme Court of India in Aurn Kumar Agarwal and

another Vs. National Insurance Company Limited and others3.

In that decision it was held:

In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have a regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by the wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services.

Here in the present case on considering the entire evidence

on record, the monthly income of the deceased was fixed as

Rs.3,000/- per month by the Tribunal and the same is confirmed by

this Court by giving cogent reasons.

The learned counsel for claimants also relied on a decision in

National Insurance Company Limited Vs. Pranay Sethi and

(2010) 9 Supreme Court Cases 218 VGKRJ MACMA 2774 of 2012 Page 10 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

others4. Here in the present case, there are policy violations and

the claimants are also have not taken any plea in the cross

objections that they are entitled future prospects. With the above

observations the appeal filed by the Insurance company is liable to

be dismissed and the cross objections filed by the claimants/

petitioners is to be partly allowed by enhancing the compensation

from Rs.1,94,000/- to Rs.3,88,000/- with interest @7.5% p.a. on the

balance amount of compensation of Rs.1,94,000/-.

16. In the result, MACMA No.2774 of 2012 filed by the second

respondent/ Insurance company is dismissed and the Cross

Objections No.21 of 2022, filed by the claimants/ petitioners, is

allowed in-part, by modifying the order dated 09.04.2012 passed in

M.V.O.P.No.502 of 2009 on the file of the Motor Accident Claims

Tribunal-cum-Principal District Judge, Nellore. It is held that the

claimants are entitled an amount of Rs.3,88,000/- instead of

Rs.1,94,000/- with interest @7.5% p.a., from the date of petition, till

the date of payment. The 2nd respondent/ Insurance Company is

directed to pay the enhanced compensation amount of

(2017) 16 Supreme Court Cases 680 VGKRJ MACMA 2774 of 2012 Page 11 of 12 Cross objections 21 of 2022 Dt: 19.04.2023

Rs.1,94,000/- within one month from the date of this judgment, to

the claimants at first instance and later recover the same from

respondent No.1 by filing an Execution Petition and without filing

any independent suit. On such deposit, the first claimant is entitled

an amount of Rs.44,000/- with interest @ 7.5% p.a. on the

enhanced compensation amount of Rs.1,94,000/- and claimants 2 to

4 are entitled an amount of Rs.50,000/- each and all the claimants

are permitted to withdraw their respective share amounts. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO, J Dated: 19.04.2023.

Sj
 VGKRJ                                     MACMA 2774 of 2012
Page 12 of 12                            Cross objections 21 of 2022
                                          Dt: 19.04.2023

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A. No.2774 of 2012 & CROSS OBJECTIONS No.21 of 2022 in MACMA No.2774 of 2012

19.04.2023

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