The National Insurance Company ... vs Damarasingh Sambamurthy And 4 ...
2023 Latest Caselaw 1666 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A. No.705 of 2012


JUDGEMENT:

The appellant is the second respondent in M.V.O.P.No.469 of

2010 on the file of the Motor Accident Claims Tribunal-cum-IV

Additional District Judge, Visakhapatnam and the respondents are

the petitioners and respondents 1, 3 and 4 in the said case.

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

arrayed in claim application.

3. The claimants filed a Claim Petition under sections 163(A) of

Motor Vehicles Act, 1988 against the respondents by praying the

Tribunal to award an amount of Rs.6,00,000/- towards

compensation on account of death of Damarasingh Kalavathi in a

Motor Vehicle Accident occurred on 04.08.2009.

4. The case of the claimants is that on 04.08.2009 while the

deceased Kalavathi was coming from Visakhapatnam in a jeep

bearing No.AP 31X 0280 belonging to 3rd respondent and when the

jeep reached near Bheemili cross road at about 7.40 p.m., at that VGKRJ MACMA 705 of 2012 Page 2 of 9 Dt: 24.03.2023

juncture, one JCB Excavator belonging to the 1st respondent came

in a rash and negligent manner and hit the jeep, in which the

deceased kalavathi was travelling, resulting which, the deceased

sustained injuries and later died which undergoing treatment and the

petitioners claimed an amount of Rs.6,00,000/- towards

compensation for the death of the deceased Kalavathi.

5. The respondents 1 to 3 filed counters by denying the claim

application and contended that the claimants are not entitled any

compensation and the respondents 1 to 3 are not liable to pay any

compensation to the petitioners.

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

following issues:

i. Whether the deceased viz. Damarasingh Kalavathi, W/o.Samba Murthy, died in the motor accident occurred due to rash and negligent driving of the vehicles bearing registration No.AP 31 X 0280 (jeep) and CG 04 DA 5394 (JCB) driven by its drivers?

ii. Whether the petitioners are entitled for compensation amount? If so to what amount?

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 iii.   To what relief?

7. On behalf of the petitioners, PW1 and PW2 were examined

and Ex.A1 to Ex.A7 were marked. No oral or documentary

evidence was adduced on behalf of respondents.

8. After considering the evidence on record, the Tribunal has

given a finding that the accident was occurred due to rash and

negligent driving of driver of JCB and the Tribunal granted an

amount of Rs.4,23,000/- to the claimants towards compensation.

9. Aggrieved by the same, the second respondent/ Insurance

company filed the present appeal.

10. Now, the point for consideration is:

              Whether   the   Order   of   Tribunal   needs     any
              interference?

11.     POINT:-

The case of the petitioner is that on 04.08.2009 while the

deceased Kalavathi was coming from Visakhapatnam in a jeep

bearing No.AP 31X 0280 belonging to 3rd respondent and when the VGKRJ MACMA 705 of 2012 Page 4 of 9 Dt: 24.03.2023

jeep reached near Bheemili cross road at about 7.40 p.m., at that

juncture, one JCB Excavator belonging to the 1st respondent came

in a rash and negligent manner and hit the jeep, in which the

deceased Kalavathi was travelling, resulting which, two persons

died and the deceased sustained head injury, immediately, she was

shifted to K.G.Hospital and while undergoing treatment she

succumbed to injuries and the police registered a case against the

driver of said JCB.

12. The first petitioner is examined as PW1. He reiterated the

contents of evidence affidavit, Ex.A1 to Ex.A7 were got marked

through PW1. The petitioners also examined one Kasireddy

Srinivasa Rao, who travelled in the jeep of third respondent at the

time of accident, as PW2. He also deposed that the accident was

occurred due to rash and negligent driving of the JCB, which

belongs to first respondent only. To rebut the said evidence the

respondents did not adduce any evidence either orally or

documentarily challenging the plea of the claim petitioners.

Therefore, the evidence of PW1 and PW2 coupled with Ex.A1

attested copy of First Information Report would indicate that the VGKRJ MACMA 705 of 2012 Page 5 of 9 Dt: 24.03.2023

accident was occurred due to rash and negligent driving of driver of

JCB belonging to first respondent. Due to his negligence only, the

accident was occurred and in the said accident, the deceased

sustained severe injuries and later succumbed to injuries.

13. The learned counsel for appellant argued that there is a

contributory negligence in this case, the contributory negligence is

also on the part of the driver of the jeep in which the deceased was

travelling at the time of accident and charge sheet was filed against

the driver of the jeep. But there is no whisper in the evidence of

PW1 and PW2 about the rash and negligent driving of the driver of

jeep in which the deceased was travelling at the time of accident.

14. The learned counsel for claimants relied on a decision of

Khenyei Vs. New India Assurance company Limited and others 1.

Here in the present case there is no negligence on the part of the

driver of jeep and as per the evidence on record also the negligence

is on the part of JCB operator only. The evidence of PW1 and PW2

and the contents of claim petition also shows that the entire

(2015) AAC 1857 VGKRJ MACMA 705 of 2012 Page 6 of 9 Dt: 24.03.2023

negligence is on the part of JCB operator only, contra to the said

evidence, no rebuttal evidence is adduced by the appellant/

Insurance Company.

15. Here the petitioners filed the petition under Section 163-A of

Motor Vehicles Act, 1988. The evidence of PW1 and PW2 coupled

with Ex.A1 Attested copy of First Information Report shows that the

entire negligence was on the driver of JCB only. Contra to the said

evidence, no evidence was adduced by the respondents. By giving

cogent reasons, the learned Tribunal came to conclusion that the

accident was occurred due to rash and negligent driving of the driver

of JCB belonging to first respondent only.

16. The contention of the claim petitioners was the deceased was

house wife, aged about 39 years at the time of accident. The

leaned Tribunal by giving cogent reasons fixed the monthly income

of the deceased as Rs.3,000/- per month. From out of which 1/3rd is

deducted towards personal expenses of the deceased, it comes to

Rs.2,000/- per month and Rs.24,000/- per annum. The learned

Tribunal gave a finding that the appropriate multiplier applicable to

the age group of deceased is '17'. As per schedule 2, the multiplier VGKRJ MACMA 705 of 2012 Page 7 of 9 Dt: 24.03.2023

applicable to the age group of deceased is 16, but not 17.

Therefore, Rs.24,000/- x 16 = Rs.3,84,000/-. The claimants are also

entitled an amount of Rs.5,000/- towards funeral expenses.

Accordingly, in total, the claimants are entitled an amount of

Rs.3,89,000/- instead of Rs.4,23,000/-. Since the respondent No.1,

who is the owner of JCB, insured the vehicle with second

respondent/ Insurance Company, respondents 1 and 2 are jointly

and severally only liable to pay the total compensation amount to

the petitioners.

17. In the result, this appeal is allowed in-part, by modifying the

order dated 22.11.2011 passed in M.V.O.P.No.469 of 2010 on the

file of the Motor Accident Claims Tribunal-cum-IV Additional District

Judge, Visakhapatnam. It is held that the claimants are entitled an

amount of Rs.3,89,000/- instead of Rs.4,23,000/- from the

respondents 1 to 2 only with interest @7.5% p.a., from the date of

petition, till the date of payment. The respondents 1 and 2 are

directed to deposit the said amount within one month from the date

of this judgment. On such deposit, the claimants are entitled to VGKRJ MACMA 705 of 2012 Page 8 of 9 Dt: 24.03.2023

withdraw the same along with accrued interest thereon. 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: 24.03.2023.

Sj
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HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A. No.705 of 2012

24.03.2023

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