The New India Assurance Co. Ltd., ... vs Nisankam Punna Rao, Prakasam ...
2023 Latest Caselaw 3009 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                        M.A.C.M.A.No.168 of 2014


JUDGEMENT:

The appellant is the forth respondent in M.V.O.P.No.141 of

2005 on the file of theMotor Accident Claims Tribunal-cum-VI

Additional District& SessionsJudge, Markapur and the

respondents are the petitioner and other respondentsin 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 claimant filed a Claim Petition under section 166 of

Motor Vehicles Act, 1988 against the respondentsby praying the

Tribunal to award an amount of Rs.1,00,000/- towards

compensation for the death of his wifeNarayanamma in a Motor

Vehicle Accident occurred on18.02.1995.

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

On18.02.1995 at about 9.30 a.m. when the deceased

Narayanamma was going in a tractor and trailer bearing Nos.AP

27 T 4173 and 4174 to attend coolie work and when the tractor 2VGKRJ MACMA 168 of 2014

reached near Reddy Sagar village, the driver of tractor drove the

same in a rash and negligent manner, consequently, the trailer

was separated by loosening of hook and trailer fell into

N.S.P.Canal, resulting which the deceased received injuries, later

succumbed to injuries.

5. The respondents 1 to 4 filed countersdenying the claim

application and contended that the claimant is not entitled any

compensation and the respondents arenot liable to pay any

compensation to the petitioner.

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

following issues:

i. Whether the accident occurred due to rash and negligent driving of the driver of the vehicle tractor and trailer bearing Nos.AP 27 T 4173 and 4174?

ii. Whether petitioner isentitled to anycompensation.

If soto what amount and from whom?

iii. To what relief?

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

of the petitioner,PW1and PW2 were examined and Ex.A1 to 3VGKRJ MACMA 168 of 2014

Ex.A7were marked. On behalf of respondents RW1 and RW2

wereexaminedand Ex.B1 wasmarked.

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

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

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

and negligent driving of driver of offending vehicle and the

Tribunal granted an amount of Rs.91,000/- to the claimant

towards compensation.

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

company filed the present appeal.

10. Now, the point for consideration is:

Whether the Order of Tribunal needs any interference?

11. POINT:-

On considering the evidence of PW1 and PW2, this Court

finds that the accident was occurred due to pure negligence of

the driver of offending vehicle only. The learned Tribunal also

gave the same finding. Therefore, there is no need to interfere

with the said finding given by the Tribunal.

4VGKRJ MACMA 168 of 2014

12. The petitioner in this case is claiming compensation of

Rs.1,00,000/- for the death of deceased Narayanamma in a road

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

was a coolie and earning an amount of Rs.2,000/- per month by

the date of her death. The learned Tribunal by giving cogent

reasons fixed an amount of Rs.1,050/- per month towards the

monthly income of deceased (Rs.35/- per day)and deducted

1/3rdof the said amount towards personal expenses of the

deceased.After deducting 1/3 amount, Rs.700/- per month is

available to the dependents of the deceased, it comes to

Rs.8,400/- per annum and the multiplier applicable to the age

group of the deceased is „15‟ and it comes to Rs.1,26,000/-

(Rs.8,400 x 15). Accordingly, the learned Tribunal granted an

amount of Rs.1,26,000/- to the petitioner towards loss of

dependency. In addition to that, the learned Tribunal also

granted an amount of Rs.5,000/- towards loss of estate and

Rs.10,000/- towards loss of consortium. Accordingly, the learned

Tribunal granted an amount of Rs.1,41,000/- towards total

compensation and the learned Tribunal rightly granted the said

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

quantum of compensation awarded by the Tribunal.

5VGKRJ MACMA 168 of 2014

13. On considering the material on record, the Tribunal came to

conclusion that the petitioner filed O.P.No.128 of 1995 claiming

compensation of Rs.50,000/- under no fault liability under Section

140 of Motor Vehicles Act, 1988 and the petitioner received an

amount of Rs.50,000/- from the Insurance Company and from the

owner of vehicle. So the petitioner was entitled an amount of

Rs.91,000/- only (Rs.1,41,000/- - Rs.50,000/-). There is no need

to interfere with the said finding given by Tribunal.

14. It is the contention of the learned counsel for Insurance

Company that no premium was collected for the coolies travelling

in the offending vehicle and 23 passengers were traveling in the

offending vehicle at the time of accident. Out of which 17

persons were died and premium was paid for 6 coolies

only.Learned counsel for Insurance Company would submit that

by the date of accident, the crime vehicle was insured with forth

respondent/ Insurance Company and the policy is also in force. It

was held by the Hon‟ble Supreme Court of India in National

Insurance Company Limited Vs.Swaran Singh and others1:

2004(2) ALD 36 6VGKRJ MACMA 168 of 2014

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 others 2 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 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 forth respondent is directed to pay the entire compensation to

(2017) 4 Supreme Court Cases 796 7VGKRJ MACMA 168 of 2014

the claimant at first instance, later recover the same from

respondents 1 to 3, who are the legal heirs of the owner of the

crime vehicle, since the offending vehicle is insured with 4th

respondent and the policy is in force by the date of accident and

the driver of the offending vehicle is also having valid driving

licence by the date of accident.

15. In the result, this appeal is disposed of, by modifying the

order dated 04.06.2008 passed inM.V.O.P.No.141 of 2005 on the

file of theMotor Accident Claims Tribunal-cum-VI Additional

District & Sessions Judge, Markapur. It is held that in this case

the claimant is entitled an amount of Rs.91,000/- with interest @8%

p.a., from the date of petition i.e., 5.3.2005 till the date of deposit

excluding the period from 01.02.2007 to 12.02.2008. The 4th

respondent/ Insurance Company is directed to pay the claim

amount, within two months from the date of this judgment, to the

claimant at first instance and later recover the same from

respondent Nos.1 to 3 by filing an Execution Petition and without

filing any independent suit. On such deposit, the claimant is

entitled to withdraw the same along with costs and accrued

interest thereon.There shall be no order as to costs.

8VGKRJ MACMA 168 of 2014

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO,J Dated: 10.05.2023.

Sj 9VGKRJ MACMA 168 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.168 of 2014

10.05.2023

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