The Oriental Insurance Co.Ltd., vs Smt. Gedala Appalanarasamma 2 ...
2023 Latest Caselaw 5238 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 1071 of 2012

JUDGMENT: -

1)   Aggrieved by the impugned Order and Decree, dated

07.04.2010, passed in M.O.P. No. 169 of 2008 on the file of

the Motor Accidents Claims Tribunal-cum-II Additional

District Judge [F.T.C.], Parvatipuram, whereby, a claim of

Rs.2,52,000/- was awarded towards compensation to the

claimants by the Tribunal, this instant appeal is preferred

by the 2nd respondent/the Oriental Insurance Company

Limited 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 the petition under Section

163-A of the Motor Vehicles Act, 1988 [the 'M.V. Act'] and

Rule 455 of the A.P.M.V. Rules [the 'Rules'] against the

respondents claiming compensation of Rs.4,00,000/- for
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the death of one Gedala Adinarayana [the 'deceased'], in a

motor vehicle accident that took place on 10.12.2005.


4)    Facts

germane to dispose of the Appeal in brief is as

follows: -

i. On 10.12.2005, the 1st respondent handed over the

tractor bearing registration No. AP30 U T.R. 3099 to

the deceased with instructions to bring the same to

his village. Accordingly, the deceased left to

Srikakulam and reached near Rajam by driving the

said tractor and had tiffin at Rajam along with the 1st

respondent and then the 1st respondent and the

deceased went to their village on a car and later the

deceased was driving the said tractor on far left side

of the road and reached near Mugada Village road

side and as the deceased did not turn up, the 1st

respondent and a mechanic went on a motorcycle

and noticed that the deceased died near Mugada

village road side with simple and grievous injuries. A

case in Crime No.35 of 2005 was registered for the

offence punishable under Section 304A of the Indian

Penal Code, 1860 ['I.P.C.']. The 1st respondent is the

owner and the 2nd respondent is insurer of the

offending vehicle tractor. Hence, both the

respondents are jointly and severally liable to pay

compensation to the petitioners.

5) The 1st respondent filed the counter and pleaded that,

since the offending vehicle is validly insured, no violations

to the terms of the policy, and the policy is in existence by

the date of accident, the 2nd respondent alone is liable to

pay compensation.

6) The 2nd respondent/insurance company filed written

statement denying the claim of the claimants and pleaded

that the claimants are not entitled for any compensation

since the entire negligence is on the part of the deceased

himself and prays to dismiss the petition.

7) Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred due to rash and negligent driving of R.1?

2) Whether the petitioners are entitled for any compensation? If so, at what quantum and what is the liability of the respondents?

3) To what relief?

4) Additional issue framed: Whether the deceased [Gadala Adinarayana] succumbed to the injuries sustained in the pleaded accident that occurred due to rash and negligent driving of the tractor bearing No.AP3O U/T.R. 3099 by its driver while it was used in a public place?

8) During the course of enquiry in the claim petition, on

behalf of the petitioners, PW1 was examined and Ex.A1 to

Ex.A4 were marked. On behalf of the respondents, RW1

and RW2 were examined and Ex.B1 and Ex.X1 were

marked.

9) At the culmination of the enquiry, based on the

material available on record, the Tribunal came to the

conclusion that the accident occurred from out of use of

the offending vehicle in a public place and accordingly

partly allowed the claim petition and awarded an amount

of Rs.2,52,000/- with proportionate costs and interest at

6% per annum from the date of petition till the date of

realization against the 2nd respondent. Aggrieved against

the said judgment, the appellant/Insurance company

preferred the present Appeal.

10) Heard Smt. A. Jayanthi, learned Standing Counsel

for the appellant/Insurance Company and Ms. T.Sowmaya,

Advocate, appearing on behalf of Sri. Taddi Nageswara Rao,

learned Counsel for the 1st and 2nd respondents.

11) Now, the point for determination is:

Whether the Judgment of the Tribunal needs any interference of this Court, if so, to what extent?

12) POINT: The case of the claimants is that, on

10.12.2005, the 1st respondent handed over the tractor

bearing registration No. AP30 U T.R. 3099 to the deceased

[Gedala Adinarayana] with instructions to bring the same

to his village. Accordingly, the deceased left to Srikakulam

and reached near Rajam by driving the said tractor and

had tiffin at Rajam along with the 1st respondent and then

the 1st respondent and the deceased went to their village on

a car and later the deceased was driving the said tractor on

far left side of the road and reached near Mugada Village

road side and since the deceased did not turn up, the 1st

respondent and a mechanic went on a motorcycle and

found the deceased died near Mugada village road side

with simple and grievous injuries on him.

13) The insurance company pleaded that the accident in

question has occurred due to the negligent driving of the

driver of the offending vehicle tractor of the deceased

herein. The material on record reveals that the deceased

was driving the tractor at the time of accident. Since, the

claim application is filed under Section 163A of the M.V.

Act, therefore the question of deciding the rash and

negligent act on the part of the driver of the offending

vehicle is not at all required, as per law.

14) Ex.A4 - attested true copy of charge-sheet filed by the

claimants before the Tribunal clearly goes to show that the

charge-sheet is filed against the 1st respondent/owner of

the tractor. The recitals in Ex.A4 [charge-sheet] is that, on

09.12.2005 the 1st respondent purchased a new tractor

and obtained temporary registration certificate and handed

over the same to the deceased on 10.12.2005 with

instructions to bring the same by driving it, without

verifying whether the deceased possessed a valid driving

license to drive the tractor. Ex.A4 clearly goes to show that

the 1st respondent handed over the offending vehicle

tractor to the deceased without verifying whether the

deceased was having driving license or not and the

material on record goes to show that the accident in

question occurred due to self-negligence of the deceased

himself.

15) The material on record reveals that the accident in

question occurred due to use of the offending vehicle

tractor by the deceased himself and due to his self-

negligence only the accident occurred, in which the

deceased himself died.

16) Smt. A. Jayanthi, learned Standing Counsel for the

appellant/Insurance Company, placed reliance on the case

rendered in between Ramkhiladi and Another Vs. United

India Insurance Company and Another1, wherein, the

Hon'ble Apex Court held in paragraph No. 9.8 as under:

"9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh.

Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e., much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle."

(2020) 2 Supreme Court Cases 550

17) The above decision relates to the claim under Section

163-A of M.V. Act. The facts in the present case are similar

to the decision relied by the learned Standing Counsel for

the Appellant herein. The date of accident in the present

case is 10.12.2005. No doubt, in the present case, the

offending vehicle tractor is insured with the

appellant/insurance company and the policy is in force.

Therefore, the ratio laid down in the said decision by the

Hon'ble Apex Court would squarely applicable to the

present facts of the case on hand. Therefore, the claimants

who are none other than the parents of the deceased are

entitled to an amount of Rs.1,00,000/- as per the contract

of insurance, because the accident in question has

occurred due to the personal accident committed by the

deceased himself, as per the contract of insurance.

Therefore, the claimants are entitled to an amount of

Rs.1,00,000/- [Rupees One Lakh Only] in-stead of

Rs.2,52,000/- awarded by the Tribunal.

18) The learned Standing Counsel for the

appellant/Insurance Company would submit that, 50% of

the amount was deposited before the Tribunal in

pursuance of the interim orders of this Court, but the same

was not withdrawn by the claimants because no

permission was granted by this Court for withdrawal.

19) In the result, the appeal is partly allowed. The claim

amount of Rs.2,52,000/- awarded by the Tribunal is

reduced to Rs.1,00,000/-. Consequently, the claimants are

entitled to withdraw the total amount of Rs.1,00,000/-

with interest @ 6% per annum from the date of petition till

the date of realization equally. From out of the 50% of total

award amount deposited by the insurance company, the

insurance company is entitled to withdraw the remaining

balance amount lying, if any, before the Tribunal. No order

as to costs.

20) As a sequel, miscellaneous petitions, if any, pending

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J Date: 01.11.2023 Sm...

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A. No. 1071 of 2012

Date: 01.11.2023

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