The vs Gopala Krishna Rao
2023 Latest Caselaw 2906 AP

 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                  M.A.C.M.A.No. 421 of 2012

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioners and respondent No.1 in

M.V.O.P.No.99 of 2009 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-I Additional District Judge, Ongole.

The appellant filed the appeal questioning the legal validity of the

order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal

will be referred to as they are arrayed in the claim application.

3. The claim petitioners filed a claim petition under Section

163-A of the Motor Vehicles Act, 1988 against the respondents

praying the Tribunal to award an amount of Rs.7,10,000/- towards

compensation for the death of Kancherla Venkata Ramanaiah in

a motor vehicle accident that occurred on 21.09.2007.

4. The brief averments of the claim petition are as follows:

VGKR,J MACMA No.421 of 2012

The deceased is a driver of lorry bearing registration No.AP

16T 5549 of the 1st respondent. On 21.09.2007 the deceased

went to Mahi Agro Pvt. Ltd. with a load of tobacco in the said lorry.

As there was no cleaner in the lorry, the deceased went to the top

of the lorry and while he was removing the tarpaulin over the load,

unfortunately he slipped from the lorry and fell down and

sustained multiple injuries and a fracture to left leg and later, he

succumbed to injuries on 27.09.2007 while undergoing treatment.

The 1st respondent is owner and the 2nd respondent is insurer of

the said lorry. Therefore, both the respondents are liable to pay

compensation to the claim petitioners.

5. The 1st respondent was set ex parte.

6. The 2nd respondent/Insurance company filed a written

statement by denying the manner of accident. It is pleaded that

report to police was given one week after the occurrence of the

incident and the petitioners and the 1st respondent cooked up a

story that the deceased was the driver of the lorry at the time of

accident for getting wrongful gain from the Insurance company.

VGKR,J MACMA No.421 of 2012

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

following issues for trial:

1. Whether the death of the deceased occurred due to rash and negligent driving of lorry bearing No.AP 16T 5549 by its driver?

2. Whether the petitioners are entitled to claim any compensation and if so, to what amount and against whom? and

3. To what relief?

8. During the course of enquiry in the claim petition, on behalf

of the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to

A.18 were marked. On behalf of the 2nd respondent/Insurance

company, R.W.1 was examined and Ex.B.1 was marked.

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

allowed the petition in part and awarded a sum of Rs.5,18,800/-

towards compensation to the claim petitioners. Being aggrieved

by the impugned award, the 2nd respondent/Insurance company

filed the appeal.

VGKR,J MACMA No.421 of 2012

10. Heard learned counsels for both the parties.

11. The grounds urged by the appellant/Insurance company are

that the Tribunal failed to see that as per the first information

report, the number of the vehicle involved in the accident is APK

5549, but the policy was issued for vehicle No.AP 16T 5549, and

the claim petitioners falsely implicated the vehicle No.AP 16T

5549 for getting wrongful gain from the Insurance company,

though it was not involved in the accident.

12. Now, the points for determination are:

1) Whether the deceased died in a motor vehicle accident? and

2) Whether the order passed by the Tribunal needs any interference?

13. POINT Nos.1 & 2: The pleadings of the petitioners are

as follows:-

The petitioner Nos.1 and 2 are parents and petitioner Nos.3

and 4 are children of the deceased. The 1st respondent is owner

of lorry bearing registration No.AP 16T 5549 and also wife of the

deceased Venkata Ramanaiah. On 21.09.2007 the deceased

VGKR,J MACMA No.421 of 2012

went to Mahi Agro Pvt. Ltd. with a load of tobacco in the said lorry.

As there was no cleaner in the lorry, the deceased got into the top

of the lorry and while he was removing the tarpaulin, which was

tied, he slipped from the lorry and fell down. The petitioners

further pleaded that as a result of which, the deceased Venkata

Ramanaiah sustained multiple injuries and a fracture to his left

leg. Immediately, he was shifted to Dr. Prasada Rao Hospital,

Ongole and six days thereafter, he died while undergoing

treatment in Peoples Trauma and Emergency Hospital, Guntur.

14. Perused Ex.A.1-copy of first information report, Ex.A.2-copy

of inquest report, Ex.A.3-copy of postmortem certificate. Ex.A.1-

first information report shows that a crime was registered under

Section 174 Cr.P.C. on 27.09.2007, i.e., after a lapse of six days

from the date of alleged incident, on which date a complaint was

given as per the case of the Investigating Officer. As per the

pleadings of the petitioners, the deceased proceeded as a driver

on the lorry bearing No.AP 16T 5549 and after proceeding for

some distance, he himself stopped the lorry and got into the top

of it and while he was removing the tarpaulin, which was tied, he

VGKR,J MACMA No.421 of 2012

slipped from the lorry and fell down, as a result, his left leg was

fractured and he received multiple injuries. The lorry number is

not at all mentioned in Ex.A.1.

15. Another important point is that the 1st respondent is none

other than the wife of the deceased. As per the case of the

petitioners, P.Ws.1 to 3 are not eye witnesses to the incident.

Originally, the lorry No.AP 16T 5549 was mentioned in the

pleadings of the petitioners and in the cause title of the petition it

was mentioned that the said lorry was insured with the 2nd

respondent. At page No.4 of the claim application in para-B, it

was mentioned that the respondents are the owner and the

insurer of lorry No.AP 16T 5549.

16. In Ex.A.2-inqest report, the offending lorry was mentioned

as ATK 5549 and the deceased was the driver of the said lorry on

the date of incident i.e., on 21.09.2007. In Ex.A.4-final report filed

by the police, the offending lorry number was also mentioned as

ATK 5549. But, in the pleadings in para-B of the claim application

at page No.4, the number of the offending vehicle was mentioned

as AP 16T 4459. The said variation of the number of the

VGKR,J MACMA No.421 of 2012

offending lorry is not at all explained by the petitioners in the

pleadings. The petitioners did not also produce any cogent

evidence to prove the said aspect.

17. As stated supra, the offending vehicle was mentioned in

Exs.A.2 and A.3 as ATK 5549. The A.S.I. of Police, who

investigated the case at the relevant point of time, was also

examined as P.W.3. He deposed that he enquired about the

vehicle involved in the accident and the same was mentioned in

Ex.A.2-inquest report, and in Ex.A.4-final report, it was mentioned

that the deceased fell down from lorry No.ATK 5549. But, in the

pleadings of the petitioners at page No.4 of the claim applicatiion,

it was mentioned that the deceased proceeded as a driver of the

1st respondent in the lorry No.AP 16T 5549.

18. The complaint was issued to the concerned police after six

days of the date of alleged incident. Initially, the first information

report was registered under Section 174 of Cr.P.C. It is not in

dispute by the petitioners that the date of alleged incident is

21.09.2007. The complaint was lodged on 27.09.2007. The said

delay is also not at all explained by the petitioners. No doubt, in

VGKR,J MACMA No.421 of 2012

the motor accident claims application, there is no need to explain

the delay in registering the first information report. But in the

instant case, there is a discrepancy of number of lorry involved in

the incident. Exs.A.2 and A.3 show that the offending lorry

number is ATK 5549, but as per the pleadings of the petitioners at

page No.4 of the claim application, the offending lorry number

was mentioned as AP 16T 5549.

19. Learned counsel for the petitioners relied on a judgment of

the Hon'ble Supreme Court in Kurvan Ansari @ Kurvan Ali Vs.

Shyam Kishore Murmu (Civil Appeal No.6902 of 2021 dated

16.11.2021) wherein it is held as under:

"In this case it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, Schedule- II is not yet amended. Therefore, fixing notional income at Rs.15,000/- per annum for non-earning members is not just and reasonable."

i) He also placed reliance on a judgment of the High Court of

Delhi at New Delhi in Smt. Dhaneshwari Vs. Tejeshwar Singh

VGKR,J MACMA No.421 of 2012

(MAC.App.997 of 2011 and batch dated 19.03.2012. In the said

judgment, it is held thus:

"Difficulty arises where a Claims Tribunal is unable to find any evidence to assess the loss of dependency. What should be taken as income to arrive at the loss suffered by the LRs of the deceased or the victim himself in the case of injury in a motor accident? In all such cases, a Claims Tribunal sometimes has to make some guess work objectively considering the facts and circumstances of each case."

20. The facts and circumstances in the cited decisions are

different to that of the instant case. The facts germane are, it is

not the case of the claim petitioners that the deceased fell down

from the top of the lorry, by that time the lorry is moving, and the

1st respondent, who is owner of the alleged offending vehicle, is

none other than the wife of the deceased.

21. In the present case, the accident itself is not at all proved by

the claim petitioners. The pleadings of the petitioners itself do not

come under the definition of 'accident' as defined under the Motor

Vehicles Act and it cannot be treated as 'accident'. As per the

VGKR,J MACMA No.421 of 2012

pleadings of the petitioners, the alleged incident occurred on

21.09.2007 and six days thereafter i.e., on 27.09.2007 the

deceased died. The complaint was also lodged on 27.09.2007

and the first information was registered under Section 174 Cr.P.C.

on the same day. Therefore, the petitioners must establish the

accident.

22. The above circumstances clearly reveal that there are

several suspicious circumstances which surround the case of the

petitioners. As noticed above, the petitioners failed to establish

the accident, therefore, granting compensation to the claim

petitioners under the Motor Vehicles Act does not arise. As

stated supra, the pleadings of the petitioners itself do not come

under the definition of 'accident' as defined under the Motor

Vehicles Act. Therefore, the claim application itself is not at all

maintainable. The learned Tribunal committed a grave error in

awarding compensation to the claim petitioners. Therefore, the

impugned award passed by the Tribunal is not sustainable under

law and it is liable to be set aside.

VGKR,J MACMA No.421 of 2012

23. Accordingly, the appeal is allowed and the order and decree

dated 10.08.2010 passed by the Chairman, Motor Accident

Claims Tribunal-cum-I Additional District Judge, Ongole, in

M.V.O.P.No.99 of 2009 are hereby set aside. Consequently,

M.V.O.P.No.99 of 2009 is dismissed. The amount, if any,

deposited by the appellant shall be refunded to the appellant. No

order as to costs in the appeal.

As a sequel, miscellaneous petitions, if any, pending in the

appeals shall stand closed.

______________________________ V.GOPALA KRISHNA RAO, J th 5 May, 2023

Note: L.R. copy be marked.

(b/o) cbs

VGKR,J MACMA No.421 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 421 of 2012

5th May, 2023 cbs

VGKR,J MACMA No.421 of 2012

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

M.A.C.M.A.No. 421 of 2012

Between:

The New India Assurance Co. Ltd., rep. by its Divisional Manager, Divisional Office, Ongole, Prakasam District.

.. Appellant Vs.

Kancherla Chenchu Ramaiah and others .. Respondents

DATE OF JUDGMENT PRONOUNCED: 05.05.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment?

VGKR,J MACMA No.421 of 2012

_________________________ V. GOPALA KRISHNA RAO, J *THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

+M.A.C.M.A.No. 421 of 2012

% 05-05-2023

# The New India Assurance Co. Ltd., rep. by its Divisional Manager, Divisional Office, Ongole, Prakasam District.

.. Appellant Vs.

$ Kancherla Chenchu Ramaiah and others .. Respondents

<GIST:

>HEAD NOTE:

! Counsel for appellant : Ms. A. Jayanthi

^ Counsel for respondent Nos.1 to 4 : Sri N.Krishna Murthy

^ Counsel for 5th respondent : Sri N.Madhava Rao

? CASES REFERRED :

1) Judgment of the Hon'ble Supreme Court in Civil Appeal No.6902 of 2021 dated 16.11.2021.

VGKR,J MACMA No.421 of 2012

2) Judgment of the High Court of Delhi at New Delhi in MAC.App.997 of 2011 and batch dated 19.03.2012.