The New India Assurance Co Ltd vs Alamanda Surya Kumari 6 Others
2023 Latest Caselaw 5239 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 12 of 2015

JUDGMENT: -

1)   Aggrieved by the impugned Decree and Judgment,

dated 11.07.2014, passed in M.V.O.P. No. 400 of 2011 on

the file of the Motor Vehicles Accidents Claims Tribunal-

cum-I   Additional   District   Judge,   East   Godavari   at

Rajahmundry, whereby, a claim of Rs.8,23,500/- was

awarded towards compensation to the claimants by the

Tribunal, this instant appeal is preferred by the 3rd

respondent/the New India Assurance Company Limited

questioning the legal validity of the Judgment 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

166 of the Motor Vehicles Act, 1988 [the 'M.V. Act'] against

the respondents claiming compensation of Rs.6,50,000/-
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for the death of one Alamanda Krishna [the 'deceased'], in

a motor vehicle accident that took place on 01.10.2010.


4)    Facts

germane to dispose of the Appeal in brief is as

follows: -

i. On 01.10.2010 morning, the deceased along with

other coolies while proceeding towards Rajahmundry

after loading the bricks in tractor and trailer bearing

registration No.AP37 V 1841 and AP37 U 0915,

respectively, in Machavaram Village and when the

tractor reached near railway gate at Kesavaram at

about 12.30 P.M., the 1st respondent being the driver

of the tractor and trailer drove the vehicle in a rash

and negligent manner with high speed and lost

control over the vehicle, as a result, the tractor and

trailer turned turtle and the deceased and one

Penugonda Nageswara Rao fell into the canal and

died on the spot and two other coolies also sustained

injuries. A case in Crime No.830 of 2010 under the

relevant Sections of the Indian Penal Code, 1860

['I.P.C.'] is registered against the 1st respondent, who

is the driver. The 2nd respondent is the owner and the

3rd respondent is insurer of the offending vehicle

tractor and trailer. Hence, all the respondents are

jointly and severally liable to pay compensation to the

petitioners.

5) The 2nd respondent filed the written statement, which

was adopted by the 1st respondent, and pleaded that, since

the offending vehicle is validly insured and that the 1st

respondent is having a valid driving license, the 1st and 2nd

respondents are not liable to pay compensation.

6) The 3rd respondent/insurance company filed written

statement while denying the claim of the claimants pleaded

that the offending vehicle is a goods carriage meant for

transporting the goods, as such, the deceased was an

unauthorized passenger travelling in the offending vehicle

and, therefore, the risk of insurance is not covered to

unauthorized passengers and prays to dismiss the claim

against the 3rd respondent/insurance company.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident was occurred due to rash and negligent driving of driver of Tractor and trailer bearing No.AP37 V 1841 and AP37 U 915?

2) Whether the petitioners are entitled for claim of compensation? If so, to what amount and from which of the respondents?

3) To what relief?

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

behalf of the petitioners, PW1 and PW2 were examined and

Ex.A1 to Ex.A4 and Ex.X1 to Ex.X3 were marked. On

behalf of the respondents, RW1 to RW3 were examined and

Ex.B1 to Ex.B5 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 due to rash and

negligent driving of the driver of offending tractor and

trailer and accordingly, allowed the claim petition and

awarded an amount of Rs.8,23,500/- with proportionate

costs and interest at 6% per annum from the date of

petition till the date of realization against the 2nd and 3rd

respondents. Aggrieved against the said judgment, the

appellant/Insurance company preferred the present

Appeal.

10) Heard learned counsels for both the parties and

perused the record.

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

01.10.2010 morning, while the deceased along with other

coolies were proceeding towards Rajahmundry after loading

the bricks in tractor and trailer bearing registration

No.AP37 V 1841 and AP37 U 0915, respectively, in

Machavaram Village and when the tractor reached near

railway gate at Kesavaram at about 12.30 P.M., the 1 st

respondent/driver of the tractor drove the vehicle in a rash

and negligent manner with high speed and lost control over

the vehicle, as a result, the tractor and trailer turned turtle

and the deceased and one Penugonda Nageswara Rao fell

into the canal and died on the spot and two other coolies

also sustained injuries.

13) In order to prove rash and negligent driving of the

driver of the offending vehicle tractor and trailer, the

claimants relied on the evidence of PW1 and PW2 and

Ex.A1 to Ex.A4. The case of the claimants is that, the

deceased was loading and unloading coolie on the

offending vehicle and on the date of accident i.e., on

01.10.2010, while he was travelling in the offending vehicle

from Machavaram to Rajahmundry after unloading the

bricks and returning in the offending vehicle, the 1st

respondent, who is the driver of the tractor and trailer,

drove the tractor in a rash and negligent manner,

resultantly, the tractor turned turtle and the deceased and

one Penugonda Nageswara Rao fell into the canal and died

on the spot itself.

14) PW2 is an eye witness to the accident, who travelled

along with the deceased. PW3 is also another eye witness

to the accident and is a co-passenger. Both, PW2 and PW3

are injured and sustained injuries in the same accident.

Their evidence discloses that the deceased was working as

a loading and unloading coolie in the offending vehicle

along with them, on the date of accident, they were also

travelling along with the deceased after completion of the

loading of the bricks and while returning in the tractor and

trailer, due to the negligent driving of the driver of

offending vehicle, the tractor and tailer turned turtle.

15) On considering the oral evidence of PW2 and PW3

and the documentary evidence under Ex.A1 - certified copy

of the F.I.R. and Ex.A4 - certified copy of the charge-sheet,

the Tribunal came to a conclusion that the accident

occurred due to rash and negligent driving of the 1 st

respondent/driver, who drove the tractor and trailer in a

rash and negligent manner. I do not find any legal flaw or

infirmity in the said finding given by the Tribunal.

16) The contention of the appellant is that, the deceased

was a gratuitous passenger and there was no coverage in

the policy. I have perused the evidence of RW1 to RW3.

RW3 is the Senior Assistant in R.T.A. Office, who produced

Registration extract of the tractor and trailer marked as

Ex.X1 and Ex.X2 into the Court. Ex.X1 and Ex.X2 are the

registration extract particulars of the tractor and trailer in

question. As per the admissions of RW3 in cross-

examination, an endorsement is made under Ex.X3,

mentioning the vehicle had permit, which is valid from

06.02.2006 to 05.02.2011. RW3 also admitted that the

seating capacity is 6+1 and they are authorized to travel

along with goods in a goods vehicle and the tractor and

trailer is a 'goods vehicle'.

17) By considering the evidence of RW3 and the offending

vehicle is insured with the appellant/insurance company

under a valid policy and since the third party risk was

covered in the policy, the Tribunal rightly came to a

conclusion that the appellant/insurance company is liable

to pay compensation to the claimants and later recover the

same from the 2nd respondent/owner of the offending

vehicle. I do not find any legal flaw or infirmity in the said

finding given by the Tribunal.

18) The legal position, in this regard, is not res nova and

the same has been well settled. The Hon'ble Apex Court in

the case of Anu Bhanvara Etc. Vs. Iffco Tokio General

Insurance Company Limited & Others1, had an occasion

to deal with the same issue. In that decision, the Hon'ble

Apex Court held in paragraph No. 11, as under:

"11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case."

19) The facts in the present case are that, in view of the

death of the deceased, the dependents on the deceased are

starving for food and in view of sudden death of the

deceased the dependents are suffering great humiliation.

The offending vehicle is insured with the

appellant/insurance company and the policy is in force

and as per the admission of RW3 there was coverage of

policy for the third party and the seating capacity is 6+1

Civil Appeal Nos. 6231-6232 of 2019, dated 09.08.2019.

and they are authorized to travel along with the goods

vehicle i.e., tractor and trailer. Therefore, certainly the

insurance company is liable to pay the compensation

amount, which was awarded to the claimants and later

recover the same from the owner of the tractor and trailer/

2nd respondent - Mr. Hari Gopala Reddy by filing an

execution petition without any independent suit.

20) The claimants claimed compensation of

Rs.6,50,000/-. The age of the deceased by the date of

accident is '30' years. Even though the claimants pleaded

that the deceased used to earn Rs.5,000/- per month, but

on considering the entire material on record, the Tribunal

arrived at the monthly income of the deceased as

Rs.3,000/- and 50% income is added to the said income of

the deceased towards 'future prospects'. The deceased was

not a permanent employee and the deceased was not

working as a government employee, therefore, 40% of

income is to be added to the income of the deceased

towards 'future prospects' as per the decision of National

Insurance Company Limited Vs. Pranay Sethi 2. If 40%

of the income is added to Rs.3,000/-, the income would

come to 4,200/- per month [Rs.3,000/- + Rs.1,200/-].

Since, the dependents are four in number, 1/4th income

has to be deducted towards 'personal expenses' of the

deceased. If 1/4th of income is deducted from out of

Rs.4,200/- it would come to Rs.3,150/- [Rs.4,200/- -

Rs.1,050/-] i.e., the annual net income of the deceased

available to the dependents are Rs.37,800/- [Rs.3,150/- x

12]. Since the deceased was aged about '30' years, the

relevant multiplier applicable to the age group of the

deceased was '17'. Therefore, an amount of Rs.6,42,600/-

[Rs.37,800/- x 17] was awarded to the claimants towards

'loss of dependency'. As per the decision of Pranay Sethi

[cited 2nd supra], an amount of Rs.40,000/- is awarded

towards 'loss of consortium' to the 1st claimant; an amount

of Rs.15,000/- is awarded towards 'loss of estate'; and

Rs.15,000/- is awarded towards 'funeral expenses' of the

deceased. In total, a sum of Rs.7,12,600/- is awarded

2017 (16) SCC 680

towards compensation to the claimants in-stead of

Rs.8,23,500/-.

21) In the result, the appeal is partly allowed.

Consequently, the claim amount of Rs.8,23,500/- awarded

by the Tribunal is reduced to Rs.7,12,600/-. Accordingly,

the appellant/the New India Assurance Company Limited

is directed to deposit the balance remaining compensation

amount before the Tribunal in the first instance within two

months from the date of this judgment and later recover

the total amount of compensation of Rs.7,12,600/- as

modified by this Court with interest and costs from the 2nd

respondent/owner of tractor and trailer by filing an

execution petition and without filing any independent suit.

The order of the Tribunal in all other respects shall remain

intact. No order as to costs.

22) 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. 12 of 2015

Date: 01.11.2023

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