Andhra Pradesh High Court - Amravati

Boya Ramanjineyulu Another vs T.Viswanath Another on 8 May, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 1654 of 2015

JUDGEMENT:

The appellants are claimants in M.V.O.P.No.481 of 2012 on

the file of the Chairman, Motor Accident Claims Tribunal-cum-III

Addl. District Judge (Fast Track Court), Ananthapur and the

respondents are respondents in the said case.

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 claimants filed a claim petition under Sections 140 and

166 of the Motor Vehicles Act, 1988 against the respondents

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

compensation for the death of Boya Ramesh in a motor vehicle

accident that occurred on 28.01.2012.

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

VGKR,J MACMA No.1654 of 2015

On 28.01.2012 at about 2.30 a.m. the deceased was

proceeding in a lorry bearing registration No.AP 02U 6372 and when

the lorry reached near Asundi Cross, Thirumala Nagar Camp,

Bellary to Rupanagudi Camp, the driver of the lorry drove it in a rash

and negligent manner with high speed and dashed against a tree.

Due to that, the deceased died on the spot. The 1st respondent is

owner and the 2nd respondent is insurer of the offending lorry.

Hence, both the respondents are jointly and severally liable to pay

compensation to the claimants.

5. While admitting the accident, the 1st respondent filed a counter

pleading that the driver of the offending lorry had valid driving

licence and since the lorry was insured with the 2nd respondent and

the policy was in force as on the date of accident, the 2nd

respondent is liable to pay compensation, if any.

6. The 2nd respondent also filed a counter by denying the manner

of accident. It is pleaded that the driver of the offending lorry had no

driving licence and the deceased travelled in the offending lorry as

an unauthorized passenger.

VGKR,J MACMA No.1654 of 2015

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

following issues for trial:

1. Whether the accident occurred on 28.01.2012 at about 2.30 a.m. near Asundi Cross, Tirumalanagar Camp, Bellary-Rupanagudi Camp, due to rash and negligent driving of the driver of lorry bearing No.AP 02U 6372 and dashed against the tree and caused death of deceased?

2. Whether the petitioners are entitled to receive compensation, if so, to what extent and from whom? and

3. To what relief?

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

the claimants, P.Ws.1 and 2 were examined and Exs.A.1 to A.5

were marked. On behalf of the respondents, R.Ws.1 to 4 were

examined and Exs.B.1 to B.7 and Exs.X.1 and X.2 were 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.4,63,000/-

VGKR,J MACMA No.1654 of 2015

towards compensation to the claimants. Being aggrieved by the

impugned award, the claimants preferred the appeal for

enhancement of compensation.

10. Heard learned counsels for both the parties.

11. The grounds urged by the appellants/claimants are that the

Tribunal failed to fasten the liability on the 2nd respondent/Insurance

company, as there is valid and subsisting policy as on the date of

accident and also failed to appreciate the evidence of P.Ws.1 and 2

in proper perspective in awarding just compensation.

12. Now, the points for determination are:

1) Whether the claimants are entitled enhancement of compensation as prayed for? and

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

13. POINT Nos.1 and 2 : On considering the evidence of P.W.1,

who is an eye witness to the accident, and on considering Ex.A.1-

certified copy of first information and Ex.A.5-certified copy of charge

VGKR,J MACMA No.1654 of 2015

sheet, the learned Tribunal rightly came to the conclusion that the

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

the offending lorry, as a result of that, the deceased died on the spot.

No appeal was filed by the respondents against the order of the

Tribunal. Therefore, there is no need to interfere with the said

finding given by the learned Tribunal.

14. As per the case of the claimants, the deceased was aged

about 22 years and he was unmarried. He was working as a

cleaner under the 1st respondent and earning Rs.5,000/- p.m. On

considering the evidence on record, the Tribunal arrived the monthly

income of the deceased at Rs.4,000/- and the annual income at

Rs.48,000/- and took the multiplier "14" based on the age of the

mother of the deceased and accordingly awarded a sum of

Rs.4,28,000/- towards contribution to the family members of the

deceased. As per the decision of the Hon'ble Supreme Court in

Sarla Varma Vs. Delhi Transport Corporation1, if the deceased is

a bachelor, 50% of the income has to be deducted towards personal

2009 (4) SCJ 91

VGKR,J MACMA No.1654 of 2015

expenses of the deceased. As per the said decision, the appropriate

multiplier applicable to the age group of the deceased is "18". But,

the Tribunal erroneously awarded the said quantum of

compensation, by deducting 1/3rd of income towards personal

expenses of the deceased and by applying the multiplier "14". So,

as per the said decision, having deducted 50% of the income,

Rs.24,000/- (Rs.48,000/- - Rs.24,000/-) is available towards

contribution to the family members of the deceased and a sum of

Rs.4,32,000/- (Rs.24,000/- x 18) is granted towards total

contribution to the family members of the deceased. The Tribunal

also awarded a sum of Rs.5,000/- towards funeral expenses and

Rs.30,000/- towards loss of future support. This Court feels that the

quantum of compensation awarded by the Tribunal under these two

counts is just and reasonable and, therefore, there is no need to

interfere with the same. Thus, in all the claimants are entitled a sum

of Rs.4,67,000/-.

15. The Tribunal, on appreciation of the evidence on record, came

to the conclusion that the driver of the offending lorry was having

VGKR,J MACMA No.1654 of 2015

LMV driving licence and it is not sufficient to drive the heavy motor

vehicle i.e., the offending lorry and accordingly held that the 1st

respondent being the owner of the offending lorry is liable for

payment of compensation and exonerated the 2nd

respondent/Insurance company from payment of compensation. The

material on record clearly goes to show that the driver of the

offending lorry was not having valid and effective driving licence at

the time of accident. However, the offending lorry was insured with

the 2nd respondent/Insurance company under Ex.B.2 policy and the

policy is also in force as on the date of accident. The same is not

disputed by the 2nd respondent.

16. In National Insurance Co. Ltd. Vs. Swaran Singh and

others2, the Hon'ble Supreme Court held as under:

"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

2004 (2) ALD (SC) 36

VGKR,J MACMA No.1654 of 2015

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."

ii) The Hon'ble Supreme Court in its judgment in Francisca

Luiza Rocha Vs. K. Valarmathi3 held as under:

"6. In the present case the owner of the vehicle did not contest the proceedings to prove and establish that in spite of best efforts the fact that the driver did not have a valid driving licence was not known to him. What alone stood proved (by the Insurer) was that the driver of the vehicle did not have a valid driving licence on the date of the accident. As the driver had a licence but validity of the same had expired, we are of the view that the conclusion of the High Court that the said fact, by itself, constitutes a

2018 ACJ 1430

VGKR,J MACMA No.1654 of 2015

fundamental breach of the terms and conditions of the policy of insurance is not correct.

7. On the basis of the aforesaid finding, we will have to hold that the insurance company (M/s. United India Insurance Co. Ltd.) i.e. Respondent No. 2 herein would be liable to satisfy the award and thereafter seek recovery, if so advised, from the owner of the vehicle (Mrs. K. Valarmathi) i.e. Respondent No. 1. Consequently, with the aforesaid modification we dispose of the appeal in the above terms."

17. For the foregoing discussion and in view of the above

decisions of the Hon'ble Apex Court, the 2nd respondent/Insurance

Company is liable to pay compensation to the claimants in first and

later recover the same from the 1st respondent, who is owner of the

offending lorry, by filing an execution petition and without filing any

independent suit.

18. In the result, the appeal is partly allowed by enhancing the

compensation from Rs.4,63,000/- to Rs.4,67,000/-. The 2nd

respondent/Insurance Company is directed to pay the total

VGKR,J MACMA No.1654 of 2015

compensation of Rs.4,67,000/-, with interest at 7.5% p.a. from the

date of petition till the date of payment as awarded by the Tribunal,