The vs Branch Manager
2023 Latest Caselaw 3549 AP

 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                  M.A.C.M.A.No.954 of 2014

JUDGMENT:

The appellant is the third respondent/Insurance

Company in M.V.O.P.No.872 of 2005 on the file of the Motor

Accident Claims Tribunal-cum- II Additional District Judge,

West Godavari District, Eluru and it filed the appeal

questioning the legal validity of the order of the Tribunal.

2. Both the parties in the appeal will be referred to as they

are arrayed in the claim application.

3. The claimants filed the claim petition under Sections

166 of the Motor Vehicles Act, 1988 read with Rule 455 of

Motor Vehicles Rules, 1989 against the respondents praying

the Tribunal to award an amount of Rs.5,00,000/- towards

compensation for the death of the deceased Saripalli Yesobu

@ Ramaiah, in a motor vehicle accident occurred on

22.08.2004.

4. The facts germane to dispose of this appeal may be

briefly stated as follows:

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The petitioner No.1 is the wife of the deceased,

petitioners 2 to 4 are the children of the deceased and the

petitioners 5 and 6 are the parents of the deceased. On

22.08.2004 at about 8.00 a.m. the deceased Saripalli

Yesobu @ Ramaiah and other coolies boarded the crime

auto to go to Rajavaram for coolie work, when they reached

near Babji White Clay Quarry, the first respondent/ driver of

auto bearing No.AP 37V 4930, drove the same in a rash and

negligent manner with high speed, without blowing horn and

without following traffic rules, resulting which the auto turned

turtle, due to which the petitioner sustained multiple injuries

and died on the way to hospital.

5. The second respondent remained exparte.

The first and third respondents filed counters denying

the claim application and contended that the claimants are

not entitled any compensation and the first and third

respondents are not liable to pay any compensation to the

petitioners.

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

following issues for trial:

1. Whether the deceased Saripalli Yesobu @ Ramaiah, died in a motor vehicle accident on 22.08.2004 due to rash and negligent driving of the auto rickshaw bearing No.AP 37V 4930 driven by the first respondent?

2. What is the age and income of the deceased?

3. Whether the petitioners are entitled to claim compensation? If so, to what amount and from which of the respondents?

4. To what relief?

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.5 were marked. On behalf of respondents

R.Ws.1 to 3 were examined and Exs.B.1 and B.2 and

Exs.X.1 and X.2 were marked.

8. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the

Tribunal allowed the petition in-part and awarded a sum of

Rs.3,72,000/- towards compensation to the claim petitioners.

VGKR, J MACMA No.954 of 2014

Being aggrieved by the impugned award, the Appellant/

Insurance Company filed the appeal questioning the legal

validity of the order of the Tribunal.

9. Heard learned counsels for both the parties.

10. Now, the point for determination is:

Whether the order passed by the Tribunal needs any interference? If so, to what extent?

11. POINT :

In order to prove rash and negligent driving of the

driver of the offending vehicle, the petitioner relied on the

evidence of PW1, and so also PW2 and Ex.A1 attested copy

of First Information Report. PW1 is not an eye witness to the

accident. PW2 is an eye witness to the accident. As per his

evidence, himself, the deceased and four others were

travelling in the truck auto as loading and unloading workers

and the accident took place due to rash and negligent driving

of the first respondent and he sustained injuries in the said

accident and the deceased died on the spot itself. On

appreciation of the entire evidence on record and on

VGKR, J MACMA No.954 of 2014

considering the evidence of PW2 and Ex.A1, the Tribunal

came to conclusion that the deceased Saripalli Yesobu @

Ramaiah died in a Motor Vehicle Accident on 22.08.2004

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

truck bearing No.AP 37V 4930 i.e., first respondent in this

case. I do not find any legal flaw or infirmity in the said

finding given by the Tribunal.

12. Coming to the compensation, the Tribunal awarded an

amount of Rs.3,72,000/- against all the respondents with

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

realization. As per the material on record the age of the

deceased was 34 years. The same is considered by the

Tribunal, but the Tribunal applied wrong multiplier of 17. The

relevant multiplier with regard to the age group of the

deceased for 31 to 35 is '16'. The Tribunal rightly taken the

annual income of the deceased as Rs.30,000/- per month.

No appeal is filed against the said finding by the claimants.

From out of which, 1/3rd amount is deducted towards

personal expenses of the deceased and the remaining

amount is Rs.20,000/- is available towards contribution of

VGKR, J MACMA No.954 of 2014

family of the deceased. Accordingly, Rs.3,20,000/- (20,000 x

16) is awarded towards loss of dependency. The Tribunal

awarded an amount of Rs.2,000/- towards funeral expenses,

Rs.15,000/- was awarded towards loss of consortium to the

first petitioner and an amount of Rs.15,000/- was awarded

towards loss of estate. Therefore, in total, the claimants are

entitled an amount of Rs.3,52,000/-. I do not find any legal

flaw or infirmity in the above finding given by the Tribunal

except multiplier and quantum of compensation of

Rs.3,72,000/- awarded to the claimants.

13. The contention of the appellant/Insurance Company is

that the driver of the auto is not having valid and effective

driving licence. As per the evidence of RW3 i.e., employee

in RTO office that the driver of the offending vehicle is having

driving licence of Light Motor Vehicle but transport

endorsement is not there. The law is well settled that

offending truck auto is less than weight of 7,500 kgs,

therefore, the auto comes under the purview of less than

7,500 kgs. The driving skills of transport or non-transport

auto are one and the same. Therefore, the Light Motor

VGKR, J MACMA No.954 of 2014

Vehicle driving licence of first respondent is sufficient to drive

the offending vehicle.

14. Another contention taken by the Insurance Company is

that the deceased is an un-authorized passenger and he is

not entitled any compensation from the Insurance Company.

The material on record reveals that the deceased and some

others were travelling in the offending vehicle for coolie work.

The reliance has been placed by the learned counsel for

claimants, in a judgment, in between V.Renganathan and

another Vs. Branch Manager, United India Insurance

Company Limited and another1. In the above decision it

was held that:

5. We find no fault with the finding of the High Court that the Insurance Company could not be held liable for the payment of compensation in view of the judgment of 3- Judge Bench of this Court in the case of New India Assurance Company Limited vs. Asha Rani, 2003 ACJ 1 (SC). However, at the same time, we find that in view of the settled position, the High Court ought to have partly allowed the appeal. We may gainfully refer to the observations of this Court in similar facts at para 10 of the

2023 ACJ 623

VGKR, J MACMA No.954 of 2014

judgment of this Court in Shivaraj Vs. Rajendra, 2018 ACJ 2755 (SC).

6. As already observed, the facts in the present case are similar to the facts in the case of Shivaraj Vs. Rajendra (supra).

7. In the present case also, the High Court ought to have partly allowed the appeal preferred by the Insurance Company and ought to have directed it to pay the amount of compensation to the appellants and granted liberty to recover the same from the tractor owner.

8. We are, therefore, inclined to allow the appeal. We uphold the finding of the High Court that the respondent No.1-Insurance Company cannot be held liable for payment of compensation. At the same time, we direct the respondent No.1-Insurance Company to pay the compensation to the appellants-claimants as determined by the learned Tribunal with interest as specified in the order within three months from today with liberty to recover the said amount from the owner of the vehicle.

In the present case also the Tribunal allowed the claim

application against all the respondents i.e., driver of the

offending vehicle, owner of the offending vehicle and insurer

of the offending vehicle. The facts in the present case are

similar to the above judgment of the Apex Court. In the

present case the offending vehicle is insured with 3rd

respondent/Insurance Company and the policy is in force at

VGKR, J MACMA No.954 of 2014

the time of accident. Therefore, in view of the above said

decision of the Apex Court, I am of the considered view that

it is desirable to direct the respondent No.3 / Insurance

Company to deposit an amount of Rs.3,52,000/-, which is

modified by this Court, within two months from the date of

this judgment and later recover the same from the second

respondent/ owner of the vehicle by filing execution petition,

without filing any independent suit.

15. The material on record reveals that the appellant/

Insurance Company filed this appeal with a delay of more

than three years along with stay application. This Court

passed an order on 06.03.2013 in this appeal that "there

shall be interim stay of award subject to depositing total

compensation awarded by the Tribunal together with interest

and costs". In such a case, if the awarded amount is

deposited by the Insurer, the Insurance Company shall

recover the modified award amount as modified by this

Court. In case, the modified award amount is not deposited

by the Insurance Company, the Insurance company/ third

respondent is directed to pay the compensation amount of

VGKR, J MACMA No.954 of 2014

Rs.3,52,000/- to the claimants at first instance, later recover

the same from the second respondent by filing Execution

Petition without filing independent suit, since the second

respondent is the owner of the offending vehicle at the time

of accident.

16. In the result, this appeal is disposed of, modifying the

order dated 04.01.2008 passed in M.V.O.P.No.872 of 2005

on the file of the Motor Accident Claims Tribunal-cum-II

Additional District Judge, West Godavari District, Eluru. It is

held that the claimants are entitled to a total compensation of

Rs.3,52,000/- with interest @7.5% p.a., from the date of

petition, till the date of payment. The 3rd respondent/

Insurance Company is directed to deposit total compensation

amount of Rs.3,52,000/-, within two months from the date of

this judgment, before the Tribunal at first instance and later

recover the same from the second respondent by filing an

Execution Petition and without filing any independent suit.

On such deposit, the claimants are entitled to withdraw the

same along with costs and accrued interest thereon. There

shall be no order as to costs.

VGKR, J MACMA No.954 of 2014

As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.

_______________________________ JUSTICE V.GOPALA KRISHNA RAO Dated: 19.07.2023 sj

VGKR, J MACMA No.954 of 2014

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.954 of 2014

19.07.2023 sj