The vs Unknown
2023 Latest Caselaw 3548 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.1946 of 2014

JUDGEMENT:

The appellant is 3rdrespondent/Insurance company and the

respondents are claim petitioners and respondent Nos.1, 2, 4 and 5

in M.V.O.P.No.624 of 2005 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-Principal District Judge, West

Godavari at Eluru. The appellant filed the instant 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, 1994 claiming compensation of Rs.2,00,000/- for the death of

their mother, namely, Bharothu Mangamma, in a motor vehicle

accident that took place on 04.01.2005.

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

as follows:

On 04.01.2005 the deceased was proceeding from

Vissannapet in an auto bearing registration No.AP 16TU 4733 and

when the auto reached near Kudapa, Madhavaram village, a tractor-

trailer bearing registration Nos.AP 16AK 6894 & AP 16AK 6895

being driven by its driver in a rash and negligent manner at high

speed came in opposite direction and dashed against the auto,

resulting in the instantaneous death of the deceased. The accident

occurred due to rash and negligent driving of the drivers of both the

tractor and the auto. The 1st respondent is driver, the 2nd

respondent is owner and the 3rd respondent is insurer of the tractor-

trailer. The 4th respondent is driver-cum-owner and the 5th

respondent is insurer of the auto. Hence, all the respondents are

jointly and severally liable to pay compensation to the petitioners.

5. Respondent Nos.1, 2 and 4 were set ex parte.

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6. Respondent Nos.3 and 5/Insurance companies filed counters

separately by denying the manner of accident, age, avocation and

income of the deceased.

It is pleaded by the 3rd respondent that respondent Nos.1 and

4 were not having valid driving licences at the time of accident and

there was no insurance coverage to the tractor-trailer.

It is pleaded by the 5th respondent that there was a clear

violation of terms and conditions of the policy as 15 passengers

were travelling in the auto at the time of accident, the first

information report and the charge sheet were against the 1st

respondent but not against the 4th respondent, the 1st respondent

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

there was no insurance coverage to the auto.

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

following issues were settled for trial by the Tribunal:

VGKR,J MACMA No.1946 of 2014

1) Whether the accident occurred due to rash and negligent driving of the tractor-cum-trailer bearing No.AP 16AK 6894 and AP 16AK 6895 driven by its driver-the 1st respondent?

2) Whether the petitioners are entitled to claim any compensation? If so, to what amount and against which of the respondents?

3) To what relief?

8. 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.11

were marked. On behalf of respondent Nos.3 & 5, R.Ws.1 and 2

were examined and Exs.B.1 and B.2 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 tractor-trailer and, accordingly, allowed the petition

granting compensation of Rs.2,00,000/- against respondent Nos.1 to

3, while dismissing the claim petition against respondent Nos.4 & 5.

Aggrieved against the said order, the appellant/3rd respondent-

Insurance company preferred the present appeal.

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

record.

11. Learned counsel for the appellant/Insurance company

contended that as per the averments of the claim petition and

contents of the first information report and the inquest report, the

accident took place because of contributory negligence on the part

of both the drivers of the tractor and the auto, therefore, the Tribunal

ought to have fixed the liability on respondent Nos.4 & 5 also.

12. Now, the point for determination is:

1) Whether the order of the Tribunal needs any interference of this Court? and

2) To what extent?

13. POINTS 1 & 2: The Tribunal held in its order that a case was

booked against the 1st respondent/driver of the tractor-trailer for his

rash and negligent act, but, the said finding was given by the

Tribunal without any basis of evidence. Ex.A.1-first information

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report goes to show that a case in crime No.1 of 2005 was

registered by the S.H.O., A.Konduru P.S., against the driver of the

tractor-trailer i.e., 1st respondent and also the driver-cum-owner of

the auto i.e., 4th respondent. For the reasons best known to the

petitioners, they did not choose to file a copy of charge sheet filed

before the Criminal Court by the police. In Ex.A.3-inquest report

also, it is mentioned that the accident occurred due to rash and

negligent driving of both the drivers of the tractor-trailer and the auto.

In Ex.A.1-first information report, it is also mentioned that 14

passengers along with the de facto complainant, by name, B. Balaji,

were travelling in the auto. But, the Tribunal ignored the contents of

Ex.A.1-first information report as well as Ex.A.3-inquest report. 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 tractor-trailer and the auto and, therefore, the finding of the

Tribunal that the accident occurred only due to rash and negligent

driving of the driver of the tractor-trailer, is liable to be set aside.

VGKR,J MACMA No.1946 of 2014

14. Coming to the compensation, the Tribunal, by giving cogent

reasons, arrived the monthly income of the deceased at Rs.3,000/-

i.e., Rs.36,000/- per annum. As per Ex.A.2-post mortem certificate,

the age of the deceased was 47 years at the time of accident. After

deducting 1/3rd from out of the annual income towards personal

expenses of the deceased and by applying the appropriate multiplier

'7.68' to the age group of the deceased as per the decision reported

in 1987 (2) ALT 137, the Tribunal rightly arrived the loss of

dependency to the family members of the deceased at

Rs.1,84,320/- (Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier

"7.68"). In addition to that, the Tribunal awarded Rs.30,000/-

towards loss of love and affection, Rs.2,000/- towards funeral

expenses of the deceased, and Rs.2,000/- towards transport of

dead body of the deceased. By giving cogent reasons, the Tribunal

came to the conclusion that the petitioners are entitled to a total

compensation of Rs.2,18,320/-. Since the claim of the petitioners is

Rs.2,00,000/-, the Tribunal awarded the said amount of

Rs.2,00,000/- towards compensation to the petitioners. There is no

VGKR,J MACMA No.1946 of 2014

legal flaw or infirmity in the said finding given by the Tribunal and,

therefore, it warrants no interference.

15. Admittedly, the 1st respondent is driver, the 2nd respondent is

owner and the 3rd respondent is insurer of the tractor-trailer under

Ex.B.1-insurance policy, the 4th respondent is driver-cum-owner and

the 5th respondent is insurer of the auto under Ex.B.2-policy, the

policies were also in force as on the date of accident, and no

violations of conditions of the policies were attributed by respondent

Nos.3 & 5.

16. As stated supra, the accident occurred on account of

contributory negligence on the part of both the drivers of tractor-

trailer and the auto. The maximum passengers to be travelled in

the auto are three in number except the driver, but 15 passengers

were travelling in the auto at the time of accident. The auto is a

small vehicle when it is compared with the tractor. The material on

record reveals that the negligence on the part of the driver of the

tractor-trailer is more than the negligence on the part of the driver of

VGKR,J MACMA No.1946 of 2014

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

overall circumstances of the case, 75% contributory negligence is

fixed on the part of the 1st respondent/driver of the tractor-trailer and

25% contributory negligence is fixed on the part of the 4th

respondent/driver of the auto. Therefore, the finding of the Tribunal

that respondent Nos.1 to 3 are jointly and severally liable to pay the

compensation to the petitioners, is liable to be set aside. Since the

1st respondent is driver and agent of the 2nd respondent and the 3rd

is the insurer of the 2nd respondent, the 3rd respondent has to

indemnify the 2nd respondent. Likewise, the 5th respondent being the

insurer of the 4th respondent has to indemnify the 4th respondent.

17. In the result, the appeal is partly allowed. The order of the

Tribunal is modified by directing the 3rd respondent to deposit

Rs.1,50,000/- and the 5th respondent to deposit Rs.50,000/-, with

proportionate costs and interest @ 7.5% p.a. as ordered by the

Tribunal, before the Tribunal, within two months from the date of this

judgment. The order of the Tribunal in all other respects regarding

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apportionment of amount shall stands 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 19 July, 2023 cbs

VGKR,J MACMA No.1946 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.1946 of 2014

19th July, 2023 cbs