Tribunal Has Partly Allowed The ... vs For The Foregoing Reasons
2023 Latest Caselaw 3550 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.1439 of 2012


JUDGMENT:

Aggrieved by the impugned order dated 19.01.2012 on the file

of Motor Accident Claims Tribunal -cum- VII Additional District

Judge, Kakinada, passed in M.V.O.P.No.28 of 2008, whereby the

Tribunal has partly allowed the claim against the first respondent,

the instant appeal is preferred by the appellants/ claimants.

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 claimants filed a Claim Petition under section 166 of

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

Rules, 1989 against the respondents praying the Tribunal to award

an amount of Rs.4,00,000/- towards compensation on account of

death of Tipirisetti Saibabu @ Nandipalli Sai in a Motor Vehicle

Accident occurred on 31.05.2007.

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

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On 31.05.2007 at about 12.15 p.m. while the deceased

Saibabu was proceeding to Peddapuram from Kotapadu on Hero

Honda Glamour motor cycle bearing No.AP 05BNT/R4760 and

when he reached near Pandavulametta, Pedapuram, one she

buffalo caused hurdle i.e., crossing the road, then the deceased

applied sudden brakes, resulting which he fell along with motor

cycle and sustained injuries and died while undergoing treatment

and the petitioners claimed an amount of Rs.4,00,000/- towards

compensation.

5. The first respondent filed a counter with a plea that the

offending vehicle is insured with second respondent Insurance

Company and the policy is in force and denying the claim of the

petitioners. Second respondent filed a counter denying the claim of

petitioners and further pleaded that the driver of the offending

vehicle is not having valid driving licence by the date of accident.

The second respondent further pleaded that the accident occurred

due to self-negligence of deceased and that the insurer is not liable

to pay any compensation.

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

following issues:

i. Whether the accident occurred by use of Hero Honda Motor Cycle bearing No.AP 05BNT/R 4760 resulting in death of deceased?

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

iii. To what relief?

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

of the petitioners, PW1 and PW2 were examined and Ex.A1 to

Ex.A4 were marked. On behalf of respondents RW1 to RW3 were

examined and Ex.B1 to Ex.B3 and Ex.X1 and Ex.X2 were marked.

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

evidence on record and on appreciation of the same, the Tribunal

found that the accident occurred only due to negligence of the

deceased and the deceased was not having driving licence and

second respondent is not liable to pay any compensation and the

first respondent alone is liable to pay the compensation of

Rs.2,28,000/- to the petitioners. No appeal is filed by the first 4 VGKRJ MACMA 1439 of 2012

respondent against the said finding. Being aggrieved by the

impugned award, the present appeal is preferred by the appellants/

claimants, questioning the legal validity of the impugned award

passed by the Tribunal.

9. Heard learned counsels for both the parties.

10. At the time of hearing, learned counsel for the appellants

confined his arguments only on the exonerating the Insurance

Company for paying the compensation to the claimants. Although

the appeal has been filed on the other grounds alleging that the

income of the deceased Rs.12,000/- per annum arrived by the

Tribunal is not in accordance with law, the appellants did not press

the said ground during the course of arguments in this appeal. As

noticed supra, he has confined his arguments only to the liability

fixed on the first respondent and exonerating the Insurance

Company for payment of compensation to the claimants.

11. Therefore, the only legal ground, which requires to be

considered in this appeal is:

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Whether the exoneration of Insurance Company for payment of compensation to the claimants is legally sustainable or not?

12. It is the case of the second respondent Insurance Company

that the deceased/ rider of motor cycle is not having any driving

licence at the time of the accident. In order to prove the same the

Insurance Company relied on the evidence of RW2 Junior Assistant

in RTO office, Kakinada. As per her evidence the deceased/ rider of

the motor cycle was not having any driving licence as on the date of

the accident. To rebut the said evidence, no evidence is adduced

by the claimants.

13. Another contention taken by the learned counsel for Insurance

Company is that the accident occurred due to self-negligence of the

rider of the motor cycle/ deceased, therefore, the Insurance

Company is not liable to pay any compensation to the claimants.

The material on record reveals that the First Information Report is

registered against the deceased under Section 304-A of Indian

Penal Code, 1860. In the Motor Vehicle Inspection report, the name

of the deceased is mentioned as rider of the offending vehicle. The 6 VGKRJ MACMA 1439 of 2012

material on record reveals that due to self-negligence on the part of

the deceased only the accident was occurred and the deceased was

the rider of the offending vehicle at the time of accident. As seen

from Ex.B1 policy, no premium was paid for un-named driver. The

legal position in this regard has been well settled. The Apex Court

in the case of Ningamma and another Vs. United India Insurance

Company Limited1 had an occasion to deal with the similar issue.

In the said case, the Apex Court held that:

"The owner of the vehicle or his legal representatives or the borrower of the vehicle cannot raise a claim for an accident in which there was no negligence on the part of the insured vehicle. It is submitted that in the aforesaid decisions, this Court has held that the borrower of the vehicle steps into the shoes of the owner and, therefore, the borrower of the vehicle or his legal representatives are not entitled to compensation from the insurer under the Act. It is submitted that the deceased in the present case has stepped into the shoes of the owner and therefore not entitled to any third party compensation from the insured vehicle".

For the foregoing reasons, I am of the considered view that

the Tribunal rightly dismissed the claim against the second

respondent Insurance Company by fixing liability against the first

(2009) 13 SCC 710 7 VGKRJ MACMA 1439 of 2012

respondent for payment of entire compensation of Rs.2,28,000/-.

As stated supra, no appeal is filed by the owner of the offending

vehicle/first respondent.

14. I do not find any legal flaw or infirmity in the finding given by

the Tribunal in exonerating the Insurance Company for payment of

compensation to the claimants. From the foregoing discussion, the

award passed by the Tribunal is perfectly sustainable under law and

there are no merits in the appeal filed by the claimants and it

warrants no interference. Accordingly, this appeal is liable to be

dismissed.

15. In the result, this appeal is dismissed. 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: 19.07.2023.

sj
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                                          MACMA 1439 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.1439 of 2012

19.07.2023

sj