The vs United India Insurance Co. Ltd. ...
2023 Latest Caselaw 3826 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1282 of 2013

JUDGMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioners and respondent Nos.1 and 3 in

M.V.O.P.No.128 of 2011 on the file of the Motor Accident Claims

Tribunal-cum-V Additional District Judge (Fast Track Court),

Nandyal. The appellant filed the appeal questioning the legal validity

of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim application.

3. The claim petitioners filed the petition under Section 166 (c) of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.4,50,000/- for the death of Owk Mahaboob Saheb in a motor

vehicle accident that took place on 09.06.2009.

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4. The brief averments in the petition filed by the petitioners are

as follows:

On 09.06.2009 the deceased was proceeding from Nandyal to

go to Allagadda on Tata Ace bearing registration No.AP 21W 4313

as a cleaner and at about 10.00 p.m. when the vehicle was crossing

Yerraguntla village, one APSRTC bus bearing registration No.AP

28Z 3268 was coming from Allagadda side in opposite direction and

because of rash and negligent driving of drivers of both the vehicles,

there was head on collision of both the vehicles and thereby, the

Tata Ace vehicle fell into a road side ditch resulting in the

instantaneous death of the deceased. The 1st respondent is owner

of Tata Ace vehicle and 2nd respondent is insurer of Tata Ace

vehicle and the 3rd respondent is owner of the bus. Hence, all the

respondents are jointly and severally liable to pay compensation to

the petitioners.

5. The 1st respondent was set ex parte.

VGKR,J MACMA No.1282 of 2013

6. Respondent Nos.2 and 3 filed individual counters by denying

the manner of accident, age, occupation and income of the

deceased. It is pleaded by the 3 rd respondent that there was no

negligence on the part of the driver of the bus and as per the first

information report and charge sheet, the driver of Tata Ace was

responsible for causing the accident and, therefore, respondent

Nos.1 and 2 are only liable to pay compensation.

7. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the deceased Owk Mahaboob Saheb died in motor vehicle accident with Tata Ace bearing No.AP 21W 4313 and bus bearing No.AP 28 3268 due to rash and negligent driving of its driver?

2) Whether the deceased L.Rs.(petitioners) are entitled for compensation, if so, to what extent and from whom?

3) To what relief?

8. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.W.1 was examined and Exs.A.1 to A.6 were

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marked. On behalf of respondent Nos.2 & 3, R.Ws.1 to 3 were

examined and Ex.B.1 and Exs.X.1 to X.3 were marked.

9. At the culmination of the enquiry, based on the material

available on record, the Tribunal came to the conclusion that the

accident occurred only due to rash and negligent driving of the

driver of the Tata Ace vehicle and, accordingly, granted an amount

of Rs.4,01,500/- with interest at 6% p.a. from the date of petition till

the date of deposit against respondent Nos.1 and 2 and dismissed

the claim petition against the 3rd respondent. Aggrieved against the

said order, the appellant/Insurance company preferred the present

appeal.

10. Heard learned counsels for both the parties and perused the

record.

11. The appellant pleaded that the Tribunal failed to consider that

the driver of the Tata Ace vehicle was not having effective and valid

driving licence as on the date of the accident and the accident

VGKR,J MACMA No.1282 of 2013

occurred due to contributory negligence on the part of the drivers of

both the vehicles.

12. Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court?

13. POINT: The case of the petitioners is that because of rash

and negligent driving of drivers of both the vehicles, there was head

on collision of both the vehicles, as a result of which, the deceased

died on the spot. In order to establish their case, the petitioners

relied on the evidence of P.W.1 and Exs.A.1-certified copy of first

information report, Ex.A.5-certified copy of charge sheet and Ex.A.4-

certified copy of M.V.I. report. Since it is elicited in the cross-

examination of P.W.1 that she was not an eye witness to the

accident, her evidence with regard to the manner of accident cannot

be relied upon. Exs.A.1 and A.5 disclose that on a complaint given

by the driver of the bus in the police station, the Investigating Officer

after completion of investigation filed a charge sheet against the

VGKR,J MACMA No.1282 of 2013

driver of Tata Ace vehicle. The material on record reveals that the

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

Tata Ace vehicle, FIR was registered against the driver of the Tata

Ace vehicle, and no complaint was given by the driver of the Tata

Ace vehicle. As seen from Ex.A.4-certified copy of M.V.I. report,

due to collision of both the vehicles only, the right side of the bus

front portion got damaged and the front portion of Tata Ace was

completely damaged. In view of the above reasons, this Court finds

that the accident occurred due to contributory negligence on the part

of the drivers of the Tata Ace vehicle and the APSRTC bus and,

therefore, the finding of the Tribunal that the accident occurred only

due to rash and negligent driving of the driver of the Tata Ace

vehicle, is liable to be set aside.

14. According to the petitioners, the deceased was working as a

collie. As per Ex.A.2-certified copy of inquest report and Ex.A.3-

certified copy of post mortem report, the age of the deceased was

40 years. The multiplier applicable to the age group of the

VGKR,J MACMA No.1282 of 2013

deceased is "16". The dependents on the deceased are two in

number. The Tribunal by giving cogent reasons fixed the monthly

income of the deceased as Rs.3,000/- and after deducting 1/3rd from

out of the monthly income towards personal expenses of the

deceased, arrived the loss of dependency to the family of the

deceased at Rs.3,84,000/- (Rs.2,000/- x 12 months x multiplier "16").

Apart from that, the Tribunal awarded Rs.8,000/- towards loss of

estate, Rs.7,000/- towards loss of consortium and Rs.2,500/-

towards funeral expenses. In total, the Tribunal granted

compensation of Rs.4,01,500/-. But, no cross-objections are filed by

the petitioners seeking enhancement of compensation. Therefore,

there is no need to interfere with the quantum of compensation

awarded by the Tribunal.

15. Though it is the contention of the 2nd respondent that the Tata

Ace vehicle was registered as LMV-goods carriage and its driver

was holding only LMV non-transport driving licence, the Tribunal in

its order held that the 1st respondent is owner and the 2nd

VGKR,J MACMA No.1282 of 2013

respondent is the insurer of the Tata Ace vehicle under Ex.B.1

policy and the policy was also in force as on the date of the accident

and the 2nd respondent cannot escape from its liability and therefore,

respondent Nos.1 and 2 are jointly liable for payment of

compensation, by relying on the decisions in Swaran Singh Vs.

United India Insurance Co. Ltd. (reported in 2004 ACJ (1)), New

India Assurance Co.Ltd. Vs. G.Sampoorna (reported in 2008 (4)

TAC ALD 586) and United India Insurance Co.Ltd. Vs. Julapally

Sudhakar Rao (reported in 2010 ALD 791). This Court feels that

there is no illegality in the said finding recorded by the learned

Tribunal.

16. In view of the foregoing discussion and on considering the

overall circumstances of the case, 25% contributory negligence is

fixed on the driver of the RTC bus and 75% contributory negligence

is fixed on the driver of the Tata Ace vehicle.

17. Accordingly, the appeal is disposed of directing respondent

Nos.1 & 2 being owner and the insurer of Tata Ace vehicle

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respectively to pay 75% of compensation amount i.e., Rs.3,01,125/-

and the 3rd respondent being the owner of the Bus to pay the

remaining 25% of compensation amount i.e., Rs.1,00,375/- to the

petitioners with proportionate costs and interest at 6% p.a. from the

date of petition till the date of deposit before the Tribunal within two

months from the date of this judgment. The order of the Tribunal in

all other respects regarding apportionment of amount shall stand

confirmed. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

appeal shall stand closed.

______________________________ V.GOPALA KRISHNA RAO, J th 8 August, 2023 cbs

VGKR,J MACMA No.1282 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1282 of 2013

VGKR,J MACMA No.1282 of 2013

8th August, 2023 cbs