The National Insurance Company ... vs Marri Nancharaiah 2 Others
2023 Latest Caselaw 1463 AP

                                     1   MACMA.NO.1526 of 2012




     HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A.NO.1526 OF 2012



JUDGMENT:

The appellant is 2nd respondent Insurance Company in

M.V.O.P.No.5 of 2010, dated 12.11.2010 on the file of the

Motor Accidents Claims Tribunal-cum- District Judge at

Guntur, and the respondents herein are the petitioners and

1strespondent in the said case.

2. 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 Sections 140

and 163-A of the Motor Vehicles Act, for seeking

compensation of Rs.2,00,000/- for the death of Bhaskararao,

in a Road Accident that occurred on 02.01.2003. at about

02:30 PM.

2 MACMA.NO.1526 of 2012

4. The case of the petitioner is as follows:- The legal heirs

of the deceased Marri Bhaskararao and the 1stpetitioner is the

father of deceased and 2nd petitioner is the none other than

wife of the deceased Bhaskarrao and on 02.01.2003 at about

02:30 PM., while Bhaskrarao and one Thota Jayaramaiah,

while attending agricultural work with Tractor bearing No. AP

7 U 2385 on which they were coming, the driver of the tractor

drove the same in rash and negligent manner, as such, the

tractor fell down near Tobacco barrens of Neerukonda on the

road of Kuragallu to Neerukonda, as a result, Bhaskararao

and Jayaramaiah received grievous injuries and brought to a

private hospital at Mangalagiri and the doctor declared

Bhaskararao dead. Thus, the accident occurred due to rash

and negligent driving of the driver of the tractor.

5. The 1st respondent remained ex parte.

6. The case of the 2nd respondent is as follows:- The

alleged accident took place on 02.01.2003, but the petitioners

failed to explain the delay for filing the petition, as such, the 3 MACMA.NO.1526 of 2012

claim of the petitioners is barred by limitation. On the other

hand, the driver of the tractor has no valid driving license to

drive the same at the time of accident and the tractor was not

insured with respondent No.2, Insurance company and there

are more number of passengers than the seating capacity, as

such, this respondent is not liable to pay any compensation

to the petitioners and 1st respondent who violated the terms

and conditions of policy, alone is liable to pay compensation if

any, to the petitioners. The claim of the petitioners is

excessive. While denying the age, income, contribution to the

family by Bhaskararao, the petitioners were called upon to

put the same to strict proof.

7 Based on the above pleadings the, Tribunal framed

following issues:

1) Whether Marri Bhaskar Rao died in a motor accident on 02.01.2003? If so, whether the accident occurred due to rash and negligent driving of the Tractor bearing No. AP07 U 2385 by its driver?

4 MACMA.NO.1526 of 2012

2) Whether the petitioners are entitled for compensation?

3)Whether the respondents are liable to pay compensation, if any the petitioners are entitled?

8. On behalf of the Petitioners, PW1 is examined, and

marked Ex.A.1 to A.5. On the other hand, on behalf of the

respondents, no oral or documentary evidence was adduced.

9. Now the point for consideration is:

1) Whether the order of the Tribunal needs any

interference?

POINT NO.1:

10. In the present case the petition is filed under section

163-A of M.V. Act, therefore, the petitioners are not required

to prove rashness and negligence on the part of the driver of

the tractor, the petitioners have to prove that the accident

was occurred due to use of motor vehicle. To establish that 5 MACMA.NO.1526 of 2012

the accident occurred due to use of motor vehicle and death

of Bhaskararao in the accident, father of deceased i.e. 1st

petitioner was examined as PW1. No doubt, he is not a direct

witness to the occurrence of accident and documentary

evidence available on record Ex.A1 and Ex.A2 and the

evidence of PW1clearly establishes that involvement of the

tractor in a motor vehicle accident. The contention of the

learned counsel for Insurance Company is that the deceased

Bhaskararao sit by the side of the driver and he is a

gratuitous passenger. Here in the present case, I have clearly

stated above, the petition is filed under section 163-A M.V.

Act. Therefore, it is not required to prove rashness and

negligence or violation of any rules under the M.V. Act.

Therefore, the evidence available on record clearly proves that

the accident occurred due to use of Motor Vehicle i.e., tractor

bearing No. AP 07 U 2385.

11. Ex.A3 attested copy of P.M. report and Ex.A4 certified

copy of M.V. Inspector's report, clearly establishes about the

accident occurred due to use of Motor Vehicle, Ex.A3 attested 6 MACMA.NO.1526 of 2012

copy of PM report, Ex.A5 certified copy of Inquest report,

proves the death of deceased in a motor vehicle accident. The

oral and documentary evidence clearly proves that the

accident occurred due to use of Motor Vehicle, and the

deceased received injuries and succumbed with injuries

received by him in the said accident.

The Tribunal gave the said finding, therefore, there is no

need to interfere with the said finding given by the Tribunal,

the Tribunal gave the said finding by giving cogent reasons,

therefore, there is no need to interfere with the said finding

given by the Tribunal.

12. The petitioners claimed compensation of Rs.2,00,000/-

under all heads and the deceased was a married and 2 nd

petitioner was his wife, 1st petitioner was his father. He was

aged 25 years as per PM report, therefore multiplier

applicable to the age group of the deceased is '17', as per

section 163 of M.V. Act.

7 MACMA.NO.1526 of 2012

13. As per the case of the petitioner, the deceased was only

an agricultural colie, on considering the evidence on record by

giving cogent reasons, the learned Tribunal fixed the notional

income of the deceased as Rs.3,000/- per month and annual

income is Rs.36,000/- and 1/3rd shall be deducted towards

personal expenditure of the deceased and 2/3rd shall be taken

as contribution to the family. Therefore, the contribution to

the family of deceased comes to Rs.24,000/- per annum.

Therefore, the compensation payable to the petitioners under

the head of loss of dependency comes to Rs.4,08,000/-

(Rs.24000x17). The petitioners claimed Rs.1,70,000/-

towards loss of dependency. Here the claim of the petitioners

is restricted to Rs.1,70,000/-. The Tribunal awarded the

same, under the head of loss of dependency, therefore, the

same is awarded.

14. By giving cogent reasons the learned Tribunal came to

conclusion that an amount Rs.5,000/- is hereby awarded to

the 2nd petitioner towards loss of consortium and an amount

of Rs.2,500/- awarded under the head of loss of estate, and 8 MACMA.NO.1526 of 2012

the learned Tribunal granted Rs.2,000/- towards funeral

expenses. By giving cogent reasons the learned Tribunal came

to conclusion that the claimants are entitled total

compensation of Rs.1,79,500/-.

15. The learned counsel for Insurance company severely

contended that the accident is not occurred due to the

negligence of the driver of the tractor, but same is not

justifiable because the claim application is field under section

163-A of M.V.Act. here the petitioners furnished details of

cover note in the long cause title itself under the name of the

2nd respondent/Insurance company and copy of the said

cover note is also filed along with the claim application. As

per the case of the petitioners, the 2nd respondent issued the

cover note bearing No.79102, valid from 20.03.2002 to

19.04.2003. The original policy is with the owner of the crime

vehicle and copy of the said policy is available with 2 nd

respondent. here the claimants are only third parties. But for

the reasons best known to the 1st and 2nd respondent they did

not chose to file the policy copy. As per motor vehicle 9 MACMA.NO.1526 of 2012

Inspector report Ex.A4, the said vehicle was insured with

National Insurance company limited, Divisional Office,

Vijayawada under cover Note No. HRO/79102.

16. This Court has clearly stated above the original policy

with the owner/1st respondent and copy is available with the

2nd respondent Insurance company and the same is also

available in the records of Insurance company, but for the

reasons best known to the respondents no evidence by the

respondents.

17. The petitioners are only third parties, they are not in a

possession of the policy copy, the entire burden is on the 2 nd

respondent or 1st respondent, to produce the copy of the

policy which is available, the 2nd respondent also fails to

produce copy of the policy and relevant records. Therefore,

the 1st respondent being the owner and 2nd respondent being

the insurer of the tractor bearing No. AP 7 U 2385 are jointly

and severally liable to pay the compensation awarded to the

petitioners. The learned Tribunal came to the said conclusion 10 MACMA.NO.1526 of 2012

by giving cogent reasons, therefore, there is no need interfere

with the said finding given by the Tribunal.

18. Accordingly, this appeal is dismissed, the order dated

12.11.2010 passed in M.V.O.P.No.5 of 2010 on the file of the

Motor Accidents Claims Tribunal-cum-District Judge at

Guntur, is confirmed.

Miscellaneous Petitions, if any, pending in this appeal

shall stand closed.

______________________________ V. GOPALA KRISHNA RAO, J

Dated:16.03.2023.

KNN