The National Insurance Company ... vs Chillara Usha Kumari And 7 Others
2023 Latest Caselaw 1229 AP

BVLNC,J                                     MACMA 1849 OF 2012 & 906 OF 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

          M.A.C.M.A.No.1849 OF 2012 & 906 OF 2016

                    COMMON JUDGMENT:
           The appeal in MACMA No.1849/2012 is preferred by the

2nd    respondent/National      Insurance    Company      Limited,    Nellore,

challenging the order dated 26.03.2011 passed in

M.V.O.P.No.254/2006 on the file of Motor Accidents Claims Tribunal-

cum-Prl.District Judge, Nellore, wherein the Tribunal partly allowing

the petition, awarded a compensation of Rs.3,71,000/- with interest @

7.5% p.a. from the date of petition, till the date of realisation, for the

death of Chillara Gopalakrishna Murthy in a motor vehicle accident.

2. The appeal in MACMA No.906/2016 is preferred by the

claimants/petitioners, challenging the same order and sought for

enhancement of the compensation amount.

3. For the sake of convenience, the parties are arrayed as parties

before the Tribunal.

4. As seen from the record, the claim petition was filed U/s.166 of

the Motor Vehicles Act, 1988 (for brevity "the Act") claiming

compensation of Rs.6,00,000/- on account of the death of Chillara BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 2 of 19 Dt: 02.03.2023

Gopalakrishna Murthy, in a motor vehicle accident that occurred on

07.05.2005.

5. The facts would show that on 07.05.2005 the deceased Chillara

Gopalakrishna Murthy and two others along with Ch.Sridhar Reddy

going to Tirupati in a Toyota Innova Car bearing No.AP 26N 23 at

about 04.30 p.m.; When the said car was reached 9 K.M. Stone on

Srikalahasti-Naidupet Road within Thottambedu Mandal, Chittoor

District, Sridhar Reddy driving the car, gave signal to the front

proceeding tanker for overtaking, and after receiving signals from him,

Sridhar Reddy was crossing the said tanker; At that time, a lorry

bearing No.OR 19A 1911 came in opposite direction in a rash and

negligent manner in high sped, came to the extreme right side of the

road, dashed the Toyota Car; Both the drivers are negligent in causing

the accident, resulting the deceased and two others and also Sridhar

Reddy in the car died on the spot; The 3rd respondent is wife of Sridhar

Reddy who is owner cum driver of the car; The deceased was aged 48

years, working as Computer Operator-cum-Accountant in Surya

Marketing Company, Nellore and earning Rs.6,000/- per month; Due

to the sudden and premature death of deceased, the claimants have

lost their sole bread winner.

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6. Before the Tribunal, the 2nd respondent/National Insurance

Company Limited, Nellore, filed counter resisting, while traversing the

material averments with regard to proof of age, avocation, monthly

earnings of the deceased, manner of accident, rash and negligence on

the part of the driver of the offending vehicle, liability to pay

compensation; It contended that the driver of Toyota Innova Car

caused the accident while crossing the vehicle which was proceeding in

front of it without observing traffic rules; The driver of the 1 st

respondent is not negligent in causing the accident, as such, the 2 nd

respondent is not liable to pay any compensation and that the driver of

3rd respondent alone is negligent in causing the accident.

7. The 1st respondent i.e., owner of the lorry remained exparte.

8. The 3rd respondent filed counter, denying the material

allegations in the claim petition, and contended that there is no

negligence on the part of driver of Toyota Car bearing No.AP 26N 23;

The negligence was only on the part of driver of lorry bearing No.OR

19A 1911; One Gandham Penchalayya, R/o.Poyya village,

Thottambedu Mandal witnessed the accident and filed complaint in

C.C.No.279/2005 on the file of Addl.Junior Civil Judge, Srikalahasti,

against the driver of lorry bearing No.OR 19A 1911.

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9. The 4th respondent/New India Assurance Company Limited,

Nellore filed counter, with similar contentions raised by the 3 rd

respondent; Further contended that there is no valid insurance policy,

and valid driving license to the driver of car, and the said accident was

occurred due to rash and negligent driving of driver of lorry bearing

No.OR 19A 1911, since the driver of car gave signal to front proceeding

tanker and offending lorry bearing No.OR 19A 1911 which was coming

in opposite direction, driven by its driver in a rash and negligent

manner, came to the extreme right side of the road, and dashed the

car, and caused the accident, resulting the death of deceased and

others on the spot. The 4th respondent denied its liability by way of

additional counter contending that as per policy conditions of the car,

the inmates are not covered under the said policy, since no premium

for inmates was collected to cover the liability of the inmates of the car.

10. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the death of deceased was due to rash and negligent driving of the driver of the Innova Car bearing No.AP 26N 23 or due to the rash and negligent driving of the driver of the lorry bearing No.OR 19A 1911 or due to fault of both the drivers?

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2. Whether the claimants are entitled for any compensation? If so, against whom?

3. To what relief?

11. To substantiate claim, the claimants examined P.Ws-1 to 3 and

got marked Exs.A-1 to A-6. On behalf of 2nd respondent, R.W-1 was

examined and Exs.B-1 and B-2 were marked. No oral or documentary

evidence was adduced on behalf of the respondents No.3 and 4, except

marking Ex.B-3 copy of insurance policy by the 4th respondent.

12. The Tribunal, taking into consideration the evidence of P.Ws-1 to

3, coupled with Exs.A-1 to A-6, evidence of R.W-1 and Exs.B-1 to B-3,

held that the accident took place due to the rash and negligent driving

of both drivers of Toyota Innova Car bearing No.AP 26N 23 and lorry

bearing No.OR 19A 1911 and their contributory negligence is @ 50%

each, and further, taking into consideration the evidence of P.Ws-1 to

3, corroborated by Exs.A-1 to A-6 and evidence of R.W-1 and Exs.B-1

to B-3, awarded a compensation of Rs.3,71,000/- with interest @ 7.5%

p.a. from the date of petition, till the date of realisation against the

respondents No.1 to 4, out of which, the respondents No.1 and 2 are

jointly and severally liable to pay half of the awarded compensation

amount, and the respondents No.3 and 4 are jointly and severally

liable to pay the remaining half of the awarded compensation amount.

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13. The claimants, who are appellants in MACMA No.906/2016

contend that the Tribunal erroneously disbelieved the evidence of

P.W-2 and Ex.A-4 placed by the claimants though it would establish

the salary of the deceased as Rs.6,000/- per month. The other

contention of the claimants is that the Tribunal erred in fixing the

income of the deceased at Rs.100/-only per day, though the deceased

was working as Computer Operator-cum-Accountant at the time of

death, and therefore, the Tribunal failed to award just compensation

entitled by the claimants. They also contended that Tribunal failed to

consider the evidence of P.W-3 and came to an erroneous opinion that

both drivers are responsible for the accident and fixed 50%

contributory negligence on the part of lorry driver as well as the

deceased driver of the Toyota Innova Car.

14. The contention of the appellant in MACMA No.1849/2012, i.e.,

2nd respondent that as per the report filed by the police, the accident

occurred due to negligence of the driver of the car, who also died in the

accident, but the Tribunal erroneously fixed 50% contributory

negligence on the part of driver of the lorry, and in that view of the

matter, the 2nd respondent shall be exonerated from liability.

15. In the light of the above rival contentions, the points that would

arise for consideration in both the appeals are as under:

 BVLNC,J                                  MACMA 1849 OF 2012 & 906 OF 2016
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1. Who is responsible for the accident? Whether the driver of the Toyota Innova Car or driver of the lorry; or both the drivers responsible?

2. Whether the Tribunal did not award just compensation?

3. To what relief?

16. POINT No.1:

The case of the claimants is that on 07.05.2005, the deceased

along with two others were travelling in a Toyota Innova Car bearing

No.AP 26N 23 driven by Mr.Ch.Sridhar Reddy, who is husband of the

3rd respondent, for going to Tirupathi; While so, at about 04.30 p.m.

car was reached a place near 9 K.M. stone on Srikalahasti - Naidupet

Road. Sridhar Reddy intends to overtake a tanker lorry proceeding in

front of the car; He gave signals, the driver of the tanker lorry also gave

signals allowing Sridhar Reddy to overtake the tanker lorry; Therefore,

Sridhar Reddy was crossing the tanker lorry; Suddenly, the lorry

bearing No.OR 11A 1911 came in opposite direction in a rash and

negligent manner with high speed on the extreme right side of the

road, and dashed the Toyota Innova Car bearing No.AP 26N 23, as a

result, the deceased along with two others and Sridhar Reddy died on

the spot.

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17. The contention of the 2nd respondent is that the driver of the 3rd

respondent is negligent in causing the accident i.e., driver of the

Toyota Car bearing No.AP 26N 23, as driver of the Innova Car, while

crossing the tanker which was proceeding in front of it, did not observe

traffic rules.

18. The contention of the 3rd respondent and 4th respondent is that

Mr.Sridhar Reddy gave signal to the front proceeding vehicle i.e.,

tanker and after receiving signal from the tanker allowing him to cross

the tanker, he was crossing the tanker, and at that juncture, the lorry

came in opposite direction in a rash and negligent manner in high

speed to the extreme side of the road and dashed the car. It is

pertinent to note down that the defence of the 3rd respondent and 4th

respondent is in line with the case of the claimants. Further, the

3rd respondent in the counter stated that one Mr.Gandham

Penchalayya (P.W-3) a resident of Poyya village of Thottambedu

Mandal witnessed the accident, and he filed a private complaint in

C.C.No.279/2005 on the file of I Addl.Junior Civil Judge, Srikalahasthi

against the lorry driver for the offence punishable U/s.304-A of Indian

Penal Code.

19. The claimants in support of their case about the way in which

the accident occurred have examined P.W-3 i.e., Gandham BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 9 of 19 Dt: 02.03.2023

Penchalayya, stating that he is an eye witness to the accident. At the

same time, the claimants in their evidence also filed copy of FIR in

Cr.No.36/2005 of Thottambedu Police Station, Chittoor District, which

was registered by the police basing on a statement made by one

Mr.G.Pushpa Raj an eye witness to the accident. The claimants also

filed a copy of private complaint filed in C.C.279/2005 on the file of I

Addl.Junior Civil Judge, Srikalahasthi. The story in both documents

is contradictory.

20. The 2nd respondent filed a copy of final report filed by the police

basing on Ex.A-1 FIR, and it was marked as Ex.B-2.

21. P.W-1 is none other than the wife of the deceased, and the 1st

claimant in the case. Admittedly, she is not an eye witness to the

accident. The claimants examined P.W-3 stating that he is an eye

witness to the accident. But as per Ex.A-1 copy of FIR, one

Mr.G.Pushpa Raj as a witness to the accident gave a statement to the

police about accident. Ex.B-2 copy of final report does not disclose the

name of P.W-3 as witness, much less eye witness.

22. Ex.B-2 is a final report filed by the Thottambedu Police opining

that their investigation would establish that the accident occurred due

to rash and negligent driving of the driver of the Toyota Innova Car. It BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 10 of 19 Dt: 02.03.2023

discloses that the driver of the Toyota Innova car drove the vehicle in a

rash and negligent manner and made attempt to overtake the tanker

lorry proceeding in front of the car, without noticing that the lorry is

coming in opposite side, he could not control the car and dashed the

proceeding tanker lorry and car turtle down, and as a result, the

persons travelling including the driver sustained injuries and died in

the accident. Whereas P.W-3 version is different. He deposed that the

driver of the car gave signals to the driver of the tanker lorry to allow

him to overtake the tanker lorry, then the driver of the tanker lorry

gave reply signals allowing him to overtake the tanker lorry and then,

the car driver was proceeding on the right side of the tanker lorry, and

all of a sudden, the lorry came extreme right side in a rash and

negligent manner, dashed the Toyota Innova Car. P.W-3 in the cross-

examination deposed that two weeks after the accident, he reported

the matter to the police, and he filed private complaint before the

Court, and he does not know its details and he also does not know the

contents of his chief-examination affidavit, and he is an illiterate

person, and he does not know letters or numbers and one K.V.Subba

Rao, advocate prepared the affidavit etc.

23. The claimants nor the Insurance Company for the reasons

known to them did not choose to examine the driver of the tanker BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 11 of 19 Dt: 02.03.2023

lorry, which is a third vehicle to the accident. The 3rd respondent and

4th respondent, who are contending that the accident occurred due to

rash and negligent driving of the car driver, also did not choose to

examine the driver of the tanker lorry. They also did not choose to

examine the driver of the lorry to speak about the way in which the

accident occurred. None of the parties filed the scene observation

report or rough sketch prepared by the police in Cr.No.36/2005.

24. R.W-1 is an employee of the appellant/Insurance Company is

also not an eye witness to the accident. In the cross-examination, he

admitted that he has no personal knowledge about the accident.

25. However, facts on record placed by both sides, would establish

one fact that the accident occurred when car was proceeding on the

right side of the tanker while overtaking the tanker, and at that

juncture, lorry came in opposite direction in front of the car, and

therefore, the accident occurred. These circumstances, speak for

themselves and establish that both the drivers i.e., driver of the car, as

well as the driver of the lorry were equally negligent for the accident.

Hence, fixing 50% of contributory negligence on the part of both

drivers by the Tribunal cannot be held as an erroneous finding.

Accordingly, this point is answered.

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26.    POINT No.2:

The claimants contend that the deceased was working as a

Computer Operator-cum-Accountant in Surya Marketing Company,

Nellore, and was receiving an amount of Rs.6,000/- per month

towards salary. The claimants examined P.W-2 Mr.Bellam Srinivasulu

and filed Ex.A-4 salary certificate issued by Surya Marketing

Company, Nellore. The Tribunal did not rely on the evidence of P.W-2

and Ex.A-4, on the ground that Ex.A-4 was not issued by P.W-2 and

no record relating to Ex.A-4 is produced before the Tribunal by the

person, who issued Ex.A-4, and further, there is no evidence placed

before the Tribunal that P.W-2 is working in Surya Marketing

Company, Nellore.

27. In that view of the matter, this Court do not find any ground to

interfere with the finding of the Tribunal on this aspect, as the

claimants failed to prove the contents of Ex.A-4 salary certificate by

examining the author of the document, and by producing supporting

documents establishing that the amount mentioned in Ex.A-4 was

actually paid to the deceased, as salary.

28. The contention of the claimants is that the deceased was

working as a Computer Operator-cum-Accountant in Surya Marketing BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 13 of 19 Dt: 02.03.2023

Company at Nellore. The accident occurred in the year 2005. Nellore is

one of the big cities in Andhra Pradesh State. The Tribunal did not

consider these facts and fixed at Rs.100/- only per day. Therefore, this

Court is of the opinion that amount is fixed by the Tribunal as daily

income of the deceased is low. Considering the place of his working

i.e., Nellore, this Court is of the considered opinion that it can be fixed

at Rs.150/- per day. The monthly income of the deceased would be

Rs.150 x 30 = Rs.4,500/-. The annual income of the deceased would

be Rs.4,500 x 12 = Rs.54,000/-. There are five dependents in the

case, therefore, ¼ of the income of the deceased shall be deducted

towards personal expenses of the deceased. The age of the deceased as

per Ex.A-6 Pan Card filed by the claimants was rightly considered by

the Tribunal is 50 years, since the date of birth in the Pan Card was

mentioned as 17.10.1954

29. As per judgment of the Hon'ble Apex Court in Sarla Verma and

another Vs. Delhi Road Transport Corporation and others1, the

multiplier to be applied is '13' for the persons in the age group of 46 to

50 years. Therefore, the loss of dependency would be

Rs.40,500 x 13 = Rs.5,26,500/-.

    2009 ACJ 1298
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30. In view of the judgment of the Hon'ble Apex Court in the case of

National Insurance Company Limited Vs. Pranay Sethi2, the

claimants are entitled to Rs.15,000/- towards funeral expenses,

Rs.15,000/- towards loss of estate and Rs.40,000/- towards spouse

consortium to the 1st claimant, and the total would be Rs.70,000/-.

31. At this juncture, it is pertinent to note down that as per

judgment of Hon'ble Apex Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and

others3, the deceased being the father of the claimants No.2 and 3,

who are minors at the time of the accident, the claimants No.2 and 3

can be awarded a sum of Rs.40,000/- each towards loss of parental

consortium, and the total would be Rs.80,000/-. Therefore, the total

compensation entitled by the claimants would be Rs.5,26,500 +

70,000 + 80,000 = Rs.6,76,500/- towards just compensation, instead

of Rs.3,71,000/- as awarded by the Tribunal.

32. The Hon'ble Apex Court in the case of Mona Baghel and others

Vs. Sajjan Singh Yadaav and others4, held that in the matter of

compensation, the amount actually due and payable is to be awarded

(2017) 16 SCC 680

2018 ACJ 2782

2022 LiveLaw (SC) 734 BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 15 of 19 Dt: 02.03.2023

despite the claimants having sought for a lesser amount and the claim

petition being valued at a lesser value. The law is well settled that in

the matter of compensation, the amount actually due and payable is to

be awarded despite the claimants having sought for a lesser amount

and the claim petition being valued at a lesser value. Therefore, though

the claimant sought for a lesser amount, and the claim petition being

valued at lesser value for Rs.6,00,000/-, the amount actually due and

payable is to be awarded is Rs.6,76,500/-.

33. The Tribunal awarded interest at 7.5% p.a. from the date of

petition, till the date of realisation. This Court do not find any ground

to interfere with the rate of interest awarded by the Tribunal at 7.5%

p.a., from the date of petition, till the date of realisation, in view of the

Hon'ble Apex Court judgement in National Insurance Company

Limited Vs. Mannat Johal5. Accordingly, this point is answered.

34. POINT No.3: To what relief?

In the light of findings on points No.1 and 2, this Court is of the

considered opinion that it is a fit case to allow the appeal, filed by the

claimants, modifying the order and decree passed by the Tribunal as

under:

2019 ACJ 1849 (SC) BVLNC,J MACMA 1849 OF 2012 & 906 OF 2016 Page 16 of 19 Dt: 02.03.2023

35. In the result, the appeal in MACMA No.906/2016 filed by the

claimants is allowed, by modifying the order dated 26.03.2011 passed

in M.V.O.P.No.254/2006 on the file of Motor Accidents Claims

Tribunal-cum-Prl. District Judge, Nellore, holding that the

appellants/claimants are entitled to a compensation of Rs.6,76,500/-

(Rupees Six Lakhs, Seventy Six Thousand and Five Hundred only) with

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

instead of Rs.3,71,000/-, awarded by the Tribunal. The respondents

No.1 to 4 are jointly and several liable to pay the compensation

amount, in which the respondents No.1 and 2 are jointly and severally

liable to pay 50% of the compensation amount, which would be

Rs.3,38,250/- (Rupees Three Lakhs, Thirty Eight Thousand, Two

Hundred and Fifty only) with interest @ 7.5% p.a. from the date of

petition, till the date of realisation, and the respondents No.3 and 4 are

jointly and severally liable to pay 50% of the compensation amount,

which would be Rs.3,38,250/- (Rupees Three Lakhs, Thirty Eight

Thousand, Two Hundred and Fifty only) with interest @ 7.5% p.a. from

the date of petition, till the date of realisation. There shall be no order

as to costs.

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36. Consequently, the appeal in MACMA No.1849/2012 filed by the

2nd respondent/Insurance Company is dismissed. There shall be no

order as to costs.

37. The 2nd respondent/National Insurance Company Limited,

Nellore, is directed to deposit the 50% of the compensation amount,

which would be Rs.3,38,250/- (Rupees Three Lakhs, Thirty Eight

Thousand, Two Hundred and Fifty only) awarded in MACMA

No.906/2016 along with accrued interest thereon, within one month

from the date of judgment. In the event of the 2nd respondent/National

Insurance Company Limited, Nellore, already deposited some amount,

the said amount has to be excluded, and the balance amount shall be

deposited within one month from the date of judgment.

38. The 4th respondent/New India Assurance Company Limited,

Nellore, is directed to deposit the 50% of the compensation amount,

which would be Rs.3,38,250/- (Rupees Three Lakhs, Thirty Eight

Thousand, Two Hundred and Fifty only) awarded in MACMA

No.906/2016 along with accrued interest thereon, within one month

from the date of judgment. In the event of the 4th respondent/New

India Assurance Company Limited, Nellore, already deposited some

amount, the said amount has to be excluded, and the balance amount

shall be deposited within one month from the date of judgment.

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39. On such deposit, the claimants No.2 to 5, who are appellants in

MACMA No.906/2016 are permitted to withdraw a sum of

Rs.1,00,000/- (Rupees One Lakh only) each, along with the accrued

interest thereon, and the 1st claimant, being the wife of the deceased is

permitted to withdraw a sum of Rs.2,76,500/- (Rupees Two Lakhs,

Seventy Six Thousand and Five Hundred only) along with the accrued

interest thereon. The claimants are directed to pay the deficit court fee

before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989, within

one month from the date of receipt of certified copy of judgment.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                         _________________________________
                                         B.V.L.N.CHAKRAVARTHI, J
02.03.2023

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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




          M.A.C.M.A.No.1849 OF 2012 & 906 OF 2016




                      2nd March, 2023

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