The vs Rajesh Kr. Singh (Civil Appeal ...
2023 Latest Caselaw 3689 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1044 of 2015

JUDGMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.1647 of 2012 on the file of the Chairman,

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

Guntur.

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 163-A of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.6,00,000/- for the death of Nemalikanti Narasamma, who is wife

of 1st petitioner, mother of petitioner Nos.2 & 3 and father-in-law of

the deceased, in a motor vehicle accident that took place on

21.10.2012.

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

as follows:

On 21.10.2012 at about 6.00 p.m. the deceased along with

others was proceeding on a tractor-trailer bearing registration

Nos.AP 07TA 6030 & 6031, which was loaded with cotton bales, as

a loading and unloading coolie from Devarampadu fields to go to

Gullapalli and when they reached near Devarampadu fields, the

driver of the tractor-trailer drove the same in a zig zag manner

rashly and negligently and thereby, the tractor-trailer turned turtle,

as a result, the deceased and others received grievous multiple

injuries and later the deceased succumbed to injuries while

undergoing treatment in the Government Hospital, Narasaraopet.

The police, Rajupalem P.S. registered a case in crime No.141 of

2012 for the offences under Sections 304-A and 337 of IPC against

the driver of the tractor-trailer. The 1st respondent is owner and the

2nd respondent is insurer of the offending tractor-trailer. Hence, both

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the respondents are jointly and severally liable to pay compensation

to the petitioners.

5. Both the respondents filed written statements by denying the

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

It is pleaded by the 1st respondent that the accident occurred

during the subsistence of insurance policy with the 2 nd respondent,

as such, the 2nd respondent is liable to indemnify the 1st respondent.

It is pleaded by the 2nd respondent that the 1st respondent

violated the conditions of the policy by allowing unauthorized

passengers to travel in the offending tractor-trailer, the 1st

respondent did not pay premium to cover the risk of coolies, the

trailer was not insured with the Insurance company, the driver of the

1st respondent was not holding valid and effective driving licence at

the time of accident, therefore, the Insurance company is not liable

to pay any compensation.

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

following issues were settled for trial by the Tribunal:

1) Whether the death of Nemalikanti Narasamma was caused by the vehicle i.e., tractor-cum-trailer bearing No.AP 07TA 6030 and AP 07TA 6031?

2) Whether the petitioners are entitled for compensation, if so, to what amount against whom?

3) To what relief?

7. 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.5 were

marked. On behalf of the respondents, R.W.1 was examined and

Exs.B.1 to B.3 were marked.

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

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

deceased died in the accident arose out of the use of the offending

tractor-trailer and accordingly, allowed the petition in part awarding

an amount of Rs.4,17,500/- with proportionate costs and interest at

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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, the appellants/petitioners preferred the

present appeal.

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

record.

10. Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court and to what extent?

11. POINT: The claim is made under Section 163-A of the M.V.

Act whereunder the petitioners need not prove the rash and

negligent driving. It is sufficient to prove that the vehicle was

involved in the accident. In order to establish the accident, the

petitioners got examined P.W.1 and got marked Exs.A.1 to A.3 and

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A.5. P.W.1 is not an eye witness to the accident. As per the

evidence of P.W.1, the deceased and others were proceeding on

the offending tractor-trailer of the 1st respondent as loading and

unloading coolies from Devarampadu to go to Gullapalli, and at that

time, the driver of the tractor-trailer drove the same in a zig zag

manner rashly and negligently and thereby, the tractor-trailer turned

turtle, due to that, the deceased sustained grievous injuries and died.

The evidence of P.W.1 coupled with Exs.A.1-first information report,

Ex.A.2-inquest report, Ex.A.3-post mortem report and Ex.A.5-charge

sheet clearly reveals that the deceased died in the accident that

arose out of use of the offending tractor-trailer of the 1st respondent.

On appreciation of the material on record, the Tribunal also came to

the same conclusion. Therefore, there is no need to interfere with

the said finding given by the Tribunal.

12. Coming to the award of compensation, by giving cogent

reasons the Tribunal arrived the monthly income of the deceased at

Rs.3,000/- i.e., Rs.36,000/- per annum. Based on Exs.A.2 and A.3,

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the Tribunal took the age of the deceased as 30 years as on the

date of accident. The claim petition is filed under Section 163-A of

the M.V.Act. So, as per II Schedule to Section 163-A of the M.V.Act,

the appropriate multiplier applicable to the age group of the

deceased is '17'. After deducting 1/3rd from out of annual income

towards personal expenses of the deceased and by applying the

multiplier '17' to this case, the Tribunal arrived the loss of

dependency of family members of the deceased at Rs.4,08,000/-

(Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier '17'). In

addition to that, the Tribunal awarded Rs.2,500/- towards loss of

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

Rs.5,000/- towards loss of consortium to the 1st petitioner. By giving

cogent reasons, the Tribunal came to the conclusion that the

petitioners are entitled to a total compensation of Rs.4,17,500/-.

There is no legal flaw or infirmity in the said finding given by the

Tribunal.

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13. Learned counsel for the 2nd respondent/Insurance company

would contend that the offending trailer was not insured with their

company and the policy of the trailer was expired, therefore, the

Insurance company is not liable to pay the compensation to the

petitioners.

14. On the other hand, learned counsel for the

appellants/petitioners would contend that the 2nd

respondent/Insurance company cannot escape from liability of

payment of compensation on mere absence of insurance coverage

to the trailer and the Insurance company has to pay third party risks

and recover the same from the owner of the offending tractor-trailer.

15. A reliance has been placed by the counsel for the

appellants/petitioners on the decision of the Hon'ble Apex Court in

Manuara Khatun Vs. Rajesh Kr. Singh (Civil Appeal No.3047 of

2017 dated 21.02.2017 arising out of SLP (C) No.5805/2013)

wherein it is held that "The facts of the case at hand are somewhat

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identical to the facts of the case mentioned supra because here also

we find that the deceased were found travelling as 'gratuitous

passengers' in the offending vehicle and it as for this reasons, the

Insurance companies were exonerated. In Saju P. Paul's case

(supra) also, having held that the victim was 'gratuitous passenger',

this Court issued directions against the insurer of the offending

vehicle to fist satisfy the awarded sum and then to recover the same

from the insured in the same proceedings".

16. Another reliance has been placed by the counsel for the

appellants/petitioners on the decision of the Hon'ble Supreme Court

in Anu Bhanvara Vs. Iffco Tokio General Insurance Company

Limited (Civil Appeal Nos.6231-6232 of 2019 dated 09.08.2019

arising out of SLP (C) Nos.19090-19092/2019) wherein it is held that

"The insurance of the vehicle, though as a goods vehicle, is not

disputed by the parties, the claimants in the present case are young

children who have suffered permanent disability on account of the

injuries sustained in the accident. Thus, keeping in view the peculiar

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facts and circumstances of this case, we are of the considered view

that the principle of 'pay & recovery' should be directed to be

invoked in the present case".

17. In this case, the dependents on the deceased are the husband

and the minor children and they are fighting for just compensation

since 2012. It is not in dispute that the 1st respondent is owner of

offending tractor-trailer and the 2nd respondent is insurer of the

offending tractor under Ex.B.1-copy of policy and the policy was also

in force at the time of accident. There is no evidence on record that

the trailer was insured with the 2nd respondent. It is well settled that

the trailer cannot move on roads without tractor, because there is no

separate engine to the trailer. No evidence is produced by the 2nd

respondent to show that the driver of the offending vehicle is not

having valid driving licence.

18. In view of the above reasons and in the light of the decisions

of the Hon'ble Apex Court referred supra, I am of the considered

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opinion that the principle of 'pay & recovery' has to be applied to the

case on hand.

19. Accordingly, the 2nd respondent/Insurance Company is

directed to deposit the compensation amount of Rs.4,17,500/- with

costs and interest as ordered 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 tractor-trailer by filing an execution petition and without

filing any independent suit. The order passed by the Tribunal with

regard to the liability is modified to the extent indicated above. The

order of the Tribunal in all other respects shall remain intact.

20. The appeal is accordingly disposed of. 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 25 July, 2023 cbs

VGKR,J MACMA No.1044 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1044 of 2015

25th July, 2023

VGKR,J MACMA No.1044 of 2015

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