The vs Delhi Transport Corporation1 And ...
2023 Latest Caselaw 3343 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 256 of 2014

JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.396 of 2006 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-IV Additional District Judge,

East Godavari at Kakinada. The appellants 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 petition.

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

the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.v.

Rules, 1989 claiming compensation of Rs.3,50,000/- for the death

of their father, namely, Vaddi Arjuna Rao, in a motor vehicle

accident that took place on 09.02.2004.

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

as follows:

On 09.02.2004 at about 2.00 a.m. the deceased was

proceeding on his bicycle and when he reached near the Drivers‟

colony at Pithapuram, an auto bearing registration No.AP 5Y 4515,

which was coming from uppada and proceeding towards

Pithapuram, being driven by its driver in a rash and negligent

manner came and dashed against the deceased, as a result, the

deceased sustained injuries and later succumbed to injuries on the

way to hospital. The 1st respondent is the driver cum owner and the

2nd respondent is the insurer of the offending auto, hence, both the

respondents are jointly and severally liable to pay compensation to

the petitioners.

5. The 1st respondent was set ex parte. The 2nd

respondent/Insurance company filed a written statement by denying

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

deceased. It is pleaded that the 1st respondent did not have a valid

VGKR,J MACMA No.2883 of 2014

driving licence at the time of accident, the auto involved in the

accident was not having a valid permit and it was not in road worthy

condition, the accident occurred because of negligence on the part

of the deceased himself, as such, the Insurance company is not

liable to pay any compensation.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred by the use of the auto rickshaw bearing No.AP 5Y 4515 by its driver in a rash and negligent manner, who is employee under the 1st respondent herein, resulting in the death of the deceased-Vaddi Arjunarao?

2) Whether the petitioners are entitled to claim compensation, if so, to what amount and from which of the respondents.

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

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.8

were marked. On behalf of the 2nd respondent/Insurance company,

R.W.1 was examined and Exs.B.1 and B.2 were marked.

VGKR,J MACMA No.2883 of 2014

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

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

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

the offending auto and accordingly, allowed the petition in part and

awarded an amount of Rs.2,30,000/- with proportionate costs and

interest at 7.5% p.a. from the date of petition till the date of deposit

against the 1st respondent only and dismissed the claim petition

against the 2nd respondent/Insurance company. Aggrieved against

the exoneration of the Insurance company from the liability of

payment of the compensation amount and granting of meager

compensation, the appellants/petitioners preferred the present

appeal.

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

record.

10. Learned counsel for the appellants/petitioners mainly

contended that the 3rd respondent/Insurance company cannot

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escape from liability of payment of compensation on mere absence,

fake or invalid license or disqualification of the driver and the

Insurance company has to pay third party risks and recover the

same from the owner of the offending vehicle. It is also contended

that the Tribunal erred in arriving the monthly income of the

deceased at Rs.2,000/-.

11. Now, the point for determination is:

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

12. POINT: On considering the evidence of P.W.2, who is an

eye witness to the accident, and on considering Exs.A.1-attested

copy of first information report and Ex.A.6-certified copy of charge

sheet, the Tribunal came to the conclusion that the accident

occurred due to rash and negligent driving of the 1st

respondent/driver of the offending auto. No appeal was filed by the

respondents against the said finding. Therefore, there is no need to

interfere with the said finding given by the Tribunal.

VGKR,J MACMA No.2883 of 2014

13. Though it is the case of the petitioners that the deceased was

earning Rs.40,000/- per annum by doing brick kiln business, no

documentary evidence was placed on record by them. The accident

occurred in the year 2004. In those days, an ordinary coolie can

easily earn Rs.2,500/- per month. Therefore, the monthly income of

the deceased is arrived at Rs.2,500/- i.e., Rs.30,000/- per annum.

The dependants on the deceased are four in number. So, 1/4th from

out of the annual income has to be deducted towards personal

expenses of the deceased. Having deducted as such, the annual

contribution to the family members of the deceased is arrived at

Rs.22,500/- (Rs.30,000/- - Rs.7,500/-). The material on record

discloses that the deceased was aged 50 years as on the date of

accident. The relevant multiplier applicable to the age group of the

deceased is "13", as per the judgment of the Hon‟ble Supreme Court

in Sarla Varma Vs. Delhi Transport Corporation1 and the loss of

dependency is arrived at Rs.2,92,500/- (Rs.22,500/- x multiplier „13‟).

2009 (4) SCJ 91

VGKR,J MACMA No.2883 of 2014

The Tribunal awarded an amount of Rs.5,000/- towards funeral

expenses of the deceased, which is just and reasonable, therefore,

there is no need to interfere with the said finding given by the

Tribunal under this head. In all, the petitioners are entitled to

Rs.2,97,500/- towards compensation.

14. Coming to the liability, it is not in dispute that the 1st

respondent is driver cum owner and the 2nd respondent is insurer of

the offending auto under Ex.B.1-insurance policy and the policy was

also in force as on the date of accident and the 1st respondent was

prosecuted by the police for not having a valid driving licence to

drive the auto as on the date of accident.

15. It is contended by the learned counsel for the 2nd

respondent/Insurance company that the 1st respondent being driver

cum owner of the offending auto was not having a valid driving

licence at the time of accident and thereby, the 1st respondent

violated terms and conditions of the policy, therefore, the Insurance

company is not liable to pay any compensation to the petitioners.

VGKR,J MACMA No.2883 of 2014

16. In order to establish its case, the 2nd respondent/Insurance

company got examined its Senior Assistant as R.W.1, through him,

Exs.B.1 and B.2 were got marked. In Ex.B.2/Ex.A.6-copy of charge

sheet, it was mentioned that the 1st respondent was the driver cum

owner of the offending auto and he was not having driving licence at

the time of accident and Section 181 of the Motor Vehicles Act was

also added to Section 304-A of IPC. The evidence of R.W.1

coupled with Ex.B.2/Ex.A.6 clearly proves that the 1st respondent

was not having a valid driving licence at the time of accident.

17. The principle laid down in the decision of the Hon‟ble Supreme

Court in National Insurance Co. Ltd. Vs. Swaran Singh and

others2 is that even in case of absence, fake or invalid licence or

disqualification of the driver for driving, the Insurance company is

liable to satisfy the award in favour of 3rd party at the first instance

and later recover the award amount from the owner of offending

vehicle, even when the Insurance company could able to establish

2004 (2) ALD (SC) 36

VGKR,J MACMA No.2883 of 2014

breach of terms of policy on the part of the owner of the offending

vehicle.

18. For the foregoing discussion, the 2nd respondent/Insurance

Company is liable to pay the compensation to the petitioners in the

first instance and later recover the same from the 1st

respondent/owner of the offending auto, by filing an execution

petition and without filing any independent suit.

19. In the result, the appeal is partly allowed enhancing the

compensation from Rs.2,39,000/- awarded by the Tribunal to

Rs.2,97,500/-. The 2nd respondent/Insurance company is directed to

deposit the entire compensation amount, with costs and interest as

awarded by the Tribunal, before the Tribunal in the first instance

within two months from the date of this judgment and later recover

the same from the 1st respondent/owner of the offending auto by

filing an execution petition and without filing any independent suit.

On such deposit, the petitioners are entitled to withdraw the

VGKR,J MACMA No.2883 of 2014

compensation amount along with costs and interest equally. No

order as to costs.

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

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 11 July, 2023 cbs

VGKR,J MACMA No.2883 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 256 of 2014

11th July, 2023 cbs