Talari Padmavathamma Anr vs Dasari Gangadri 2 Ors
2023 Latest Caselaw 1771 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.1777 of 2012


JUDGEMENT:

The appellants are the Claimants in M.V.O.P.No.21 of 2008 on

the file of the Motor Accident Claims Tribunal -cum- III Additional

District and Sessions Judge (FTC), Anantapur and the respondents

are the respondents 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 140 and

166 of Motor Vehicles Act, 1988 against the respondents by praying

the Tribunal to award an amount of Rs.5,00,000/- towards

compensation on account of death of deceased Talari Ramakrishna

in a Motor Vehicle Accident occurred on 24.06.2007.

4. The case of the claimants is that on 24.06.2007 at about 6.45

p.m., when the deceased T.Ramakrishna was proceeding in an auto

bearing registration No.AP 02 U 6203 and when the auto reached

near Janakampalli on Puttaparthy-Bukkapatnam road, the driver of VGKRJ MACMA 1777 of 2012 Page 2 of 11 Dt:31.03.2023

auto drove the same in a rash and negligent manner and dashed

against the tractor and trailer bearing registration No.AP 02 U 6650

and 6651, resulting which the deceased sustained severe injuries,

later succumbed to injuries and the petitioners claimed an amount of

Rs.5,00,000/- towards compensation.

5. The respondents 1 and 2 are set exparte. The third

respondent filed counter denying the claim application and

contended that the claimants are not entitled any compensation and

the third respondent is not liable to pay any compensation to the

petitioners.

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

following issues:

i. Whether the accident occurred on 24.06.2007 at about 6.45 p.m. due to rash and negligent driving of auto bearing No.AP 02 U 6203 by its driver and dashed the tractor trolley and caused death of the deceased?

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

iii. To what relief?

 VGKRJ                                          MACMA 1777 of 2012
Page 3 of 11                                    Dt:31.03.2023

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

and Ex.A1 to Ex.A5 were marked. On behalf of 3rd respondent RW1

and RW2 were examined and Ex.B1 to Ex.B4 were marked.

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 offending vehicle (Auto) and the

Tribunal granted an amount of Rs.2,56,024/- to the claimants

towards compensation.

9. Aggrieved by the same, the claimants filed the present appeal

by claiming the remaining balance of compensation amount.

10. Now, the point for consideration is:

Whether the Order of Tribunal needs any interference?

11. POINT :-

The averments in the petition filed by the claimants clearly

goes to show that the first petitioner is the wife and second

petitioner is the minor son of the deceased T.Ramakrishna. The

further averments in the petition filed by the claimants are that on VGKRJ MACMA 1777 of 2012 Page 4 of 11 Dt:31.03.2023

24.06.2007 at about 6.45 p.m., when the deceased T.Ramakrishna

was proceeding in an auto bearing registration No.AP 02 U 6203

and when the auto reached near Janakampalli on Puttaparthy-

Bukkapatnam road, the driver of auto drove the same in a rash and

negligent manner and dashed against the tractor and trailer bearing

registration No.AP 02 U 6650 and 6651, resulting which the

deceased sustained severe injuries, later succumbed to injuries.

12. In order to prove the case of the petitioners, the first petitioner

herself got examined as PW1. PW1 is not an eye-witness. The

claim petitioners got examined the eye-witness as PW2. The

evidence of PW2 clearly shows that because of the rash and

negligent driving of the driver of crime vehicle only, the accident was

occurred and the petitioners also relied on Ex.A1 certified copy of

First Information Report and Ex.A4 certified copy of charge sheet.

The evidence of PW2 coupled with Ex.A1 and Ex.A4 clearly proves

about the rash and negligent driving of auto bearing No.AP 02 U

6203 and due to his rashness and negligence only, the accident was

occurred and the deceased, who was travelling in the auto,

sustained severe injuries, later succumbed to injuries. Therefore, in VGKRJ MACMA 1777 of 2012 Page 5 of 11 Dt:31.03.2023

view of the above reasons, because of the rash and negligent

driving of first respondent only, the accident was occurred.

13. The petitioners in this case are claiming compensation of

Rs.5,00,000/- for the death of deceased T.Ramakrishna in a road

accident. It is the contention of the petitioners that the deceased

was working as Mechanic, APSRTC Puttaparthi Depot and earning

an amount of Rs.7,500/- per month by the date of his death. In

order to prove their case, the petitioners marked the pay slip of the

deceased for the month of April, 2007 as Ex.A5. A careful perusal

of Ex.A5 shows that gross salary of the deceased for the month of

April, 2007 was Rs.7,088/- and the net salary was Rs.2,523/-. The

learned Tribunal by giving cogent reasons fixed an amount of

Rs.2,523/- per month and Rs.30,276/- per annum. The learned

Tribunal deducted 1/3 of the said amount towards personal

expenses of the deceased. After deducting 1/3 amount, Rs.20,184/-

is available to the dependents of the deceased and the multiplier

applicable to the age group of the deceased is '11' and it comes to

Rs.2,22,024/- (Rs.20,184/- x 11 = Rs.2,22,024/-). Accordingly, the

learned Tribunal granted an amount of Rs.2,22,024/- to the VGKRJ MACMA 1777 of 2012 Page 6 of 11 Dt:31.03.2023

petitioners towards loss of dependency. In addition to that, the

learned Tribunal also granted an amount of Rs.15,000/- towards

loss of consortium to the first petitioner and an amount of

Rs.15,000/- towards loss of estate and an amount of Rs.4,000/-

towards funeral expenses. Accordingly, the learned Tribunal

granted an amount of Rs.2,56,024/- towards total compensation.

The learned Tribunal directed the respondents 1 and 2 to pay the

said compensation and the claim petition against the third

respondent is dismissed by the learned Tribunal. No appeal is filed

by the respondents against the said finding passed by the Tribunal.

14. The learned Insurance Company argued that the driver of auto

is not having any kind of driving licence. In order to prove the same,

the respondents relied on the evidence of RW2. RW2 is none other

the second respondent and owner of the crime vehicle. RW2 in his

evidence stated that he will produce the driving licence of driver of

crime vehicle by the next date of hearing. But the second

respondent has not taken any steps to produce the driving licence of

the first respondent. As per the material available on record, the

crime vehicle auto is insured with third respondent Insurance VGKRJ MACMA 1777 of 2012 Page 7 of 11 Dt:31.03.2023

Company and the policy is also on force by the date of accident. As

per the case of the Insurance Company, the first respondent had no

valid driving licence to drive the offending vehicle. It was held by the

Hon'ble Supreme Court of India in National Insurance Company

Limited Vs.Swaran Singh and others1:

The breach of policy condition, e.g,, disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

In the judgment of Manuara Khatun and others Vs. Rajesh

Kumar Singh and others2 it was held that the direction to United

India Insurance Company Limited being the insurer of the offending

vehicle which was found involved in causing accident due to

negligence of its driver needs to be issued directing them (United

2004(2) ALD 36

(2017) 4 Supreme Court Cases 796 VGKRJ MACMA 1777 of 2012 Page 8 of 11 Dt:31.03.2023

India Insurance Company Limited/ respondent No.3) to first pay the

awarded sum to the appellants (claimants) and then to recover the

paid awarded sum from the owner of the offending vehicle without

filing any independent suit by filing an Execution Petition against the

owner of the crime vehicle. Therefore, in view of the above

decisions of Hon'ble Supreme Court of India, the third respondent is

directed to pay the entire compensation to the claimants at first

instance, later recover the same from the second respondent, who

is the owner of the crime vehicle.

15. As per the material on record, the crime vehicle is insured with

third respondent Insurance Company and the policy also is on force

by the date of accident. Here in the present case, the claimants are

third parties and the deceased was also a third party. The Motor

Vehicle Act is a beneficial legislation. As per the case of the

petitioners on 24.06.2007 at about 6.45 p.m., when the deceased

T.Ramakrishna was proceeding in an auto bearing registration

No.AP 02 U 6203 and when the auto reached near Janakampalli on

Puttaparthy-Bukkapatnam road, the driver of auto drove the same in

a rash and negligent manner and dashed against the tractor and VGKRJ MACMA 1777 of 2012 Page 9 of 11 Dt:31.03.2023

trailer and the accident was happened all of a sudden. Therefore,

the deceased being a third party had no opportunity to ascertain

whether the driver of the auto is having driving licence or not to drive

the auto. Therefore, in view of the above reasons, the third

respondent / Insurance Company is directed to pay the entire

compensation and recover the same from respondent No.2/ owner

of the crime vehicle.

16. Accordingly, the 3rd respondent/ Insurance company is

directed to pay the total claim of Rs.2,56,024/- to the claimants at

first instance, later recover the same from respondent No.2, by filing

Execution Petition without filing independent suit, since second

respondent is the owner of the offending vehicle at the time of

accident.

17. In the result, the appeal is disposed of by modifying the order

dated 01.02.2010 passed in MVOP No.21/2008 on the file of the

Motor Accident Claims Tribunal-cum- III Additional District Judge

(FTC), Ananthapur. It is held that the appellants are entitled to a

total compensation of Rs.2,56,024/- with interest @7.5% p.a. from

the date of petition, till the date of payment. The 3rd respondent/ VGKRJ MACMA 1777 of 2012 Page 10 of 11 Dt:31.03.2023

Insurance Company is directed to pay the claim amount, within one

month from the date of this judgment, to the claimants at first

instance and later recover the same from respondent No.2, owner of

the crime vehicle, by filing an Execution Petition and without filing

any independent suit. On such deposit, the appellants are entitled

to withdraw the same along with costs and accrued interest thereon.

The award of Tribunal in all other respects regarding apportionment

of amount shall stands confirmed. 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: 31.03.2023.

sj
 VGKRJ                                    MACMA 1777 of 2012
Page 11 of 11                              Dt:31.03.2023




          HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




                   M.A.C.M.A.No.1777 of 2012



                          31.03.2023

sj