United India Insurance Co. Ltd., vs Papana Annamma And 5 Others
2023 Latest Caselaw 4647 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.616 of 2023

JUDGMENT:

The appellant is 2nd respondent/United India Insurance

Company Limited and the respondents are petitioners and

respondent Nos.1, 3 and 4 in M.V.O.P.No.13 of 2008 on the file of

the Chairman, Motor Accident Claims Tribunal-cum-Principal District

Judge, Kadapa. The appellant filed the present 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 petition.

3. The claim petitioners filed the petition under Section 166 of

the Motor Vehicles Act, 1988 read with Rule 475 of the A.P.M.V.

Rules, 1989 against the respondents claiming compensation of

Rs.5,00,000/- for the death of Papana Siva Sankar Reddy, who is

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husband of 1st petitioner and father of petitioner Nos.2 and 3, in a

motor vehicle accident that took place on 04.11.2007.

4. The brief averments in the petition filed by the petitioners are

as follows:

On 04.11.2007 the deceased along with other workers loaded

the chicken in an auto and sent the same to the chicken centre of

the 1st respondent at Kadapa. Thereafter, the deceased along with

other workers left Nanapalli village in the Maruthi car of the 1st

respondent bearing registration No.AP 09K 7037, which was being

driven by the 1st respondent, and at about 2.30 a.m. when they

reached Ukkayapalli near Chalamareddypalli bypass road, the 1st

respondent drove his car in a rash and negligent manner and

dashed a lorry bearing registration No.AP 04V 8500 which was

parked on the road without signal lights, as a result, the deceased

sustained grievous injuries and later succumbed to injuries. The 1st

respondent is driver-cum-owner and the 2nd respondent is insurer of

the car, the 3rd respondent is owner and the 4th respondent is insurer

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of the stationed lorry, hence, all the respondents are jointly and

severally liable to pay compensation to the petitioners.

5. Respondent Nos.1 and 3 were set ex parte. Respondent

Nos.2 and 4/Insurance companies filed counters separately by

denying the manner of accident, age, avocation and income of the

deceased.

i) It is contended by the 2nd respondent that the accident

occurred due to parking of the lorry in the middle of the road without

taking precautions, the deceased was a labourer but not a clerk, the

policy issued to the car is of an act liability only and it does not cover

the risk of the inmates, therefore, the 2nd respondent is not liable to

indemnify the 1st respondent.

ii) It is contended by the 4th respondent that as per the first

information report, the accident was due to the driving of the driver

of the car and there was no negligence on the part of the driver of

the lorry and the claim of the petitioners is highly excessive.

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6. 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 the driver and owner of the Maruthi car bearing No.AP 09K 7037 and also due to the rash and negligent act of the driver of the lorry bearing No.AP 04V 8500?

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

3) To what relief?

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

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

were marked. On behalf of the 2nd respondent, R.W.1 was examined

and Ex.B.1 was marked. No evidence was adduced by the 4th

respondent.

8. 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 drivers of

both the car and the lorry, and accordingly, allowed the petition in

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part and granted an amount of Rs.3,80,000/- towards compensation

to the petitioners with proportionate costs and interest at 7.5% p.a.

from the date of petition till the date of deposit against all the

respondents and directed respondent Nos.2 and 4 to deposit the

compensation amount in equal proportions. Aggrieved against the

said order, the 2nd respondent/United India Insurance Company

Limited preferred the instant appeal. No appeal is filed by the 4th

respondent/Oriental Insurance Company Limited.

9. Heard Smt. S.A.V. Ratnam, learned counsel for the

appellant/2nd respondent-Insurance company, Sri L.J. Veera Reddy,

learned counsel for respondent Nos.1 to 3/petitioners, and Sri N.

Ramakrishna, learned counsel for the 6th respondent/4th respondent-

Insurance company, and perused the record.

10. Now, the point for determination is:

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

VGKR,J MACMA No.616 of 2023

11. POINT: In order to prove the accident, the petitioners relied

on the evidence of P.Ws.1 and 2. P.W.1 is the wife of the deceased

and she is not an eye witness to the accident. P.W.1 reiterated the

contents of the claim petition in her chief-examination affidavit.

P.W.2 is an eye witness to the accident. The testimony of P.W.2 is

also to the same effect. There is nothing in the cross examination of

P.W.2 to discredit his testimony in chief examination affidavit. The

petitioners also relied on Exs.A.1 and A.4. Ex.A.1-first information

report goes to show that the police registered a case against the

drivers of both the vehicles involved in the accident. Ex.A.4-charge

sheet discloses that after completion of investigation into the

accident, the police filed the charge sheet against both the drivers of

the offending vehicles. As seen from the evidence of P.W.2 as also

Exs.A.1 and A.4, it is apparent that the accident occurred because

of negligent driving of the 1st respondent and the negligent act of the

driver of the lorry leaving the vehicle across the road without any

parking lights. On considering the material available on record and

on appreciation of the same, the Tribunal also came to the same

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

finding given by the Tribunal.

12. Coming to the compensation, though it is contended by the

petitioners that the deceased was working as a clerk in the poultry

form of the 1st respondent and he was getting salary of Rs.6,000/-

per month, their contention cannot be sustained because Ex.A.1-

first information report specifically reveals that the deceased was

only a labourer and actually the complainant, who gave the report, is

the clerk. The petitioners relied on Ex.A.5-salary certificate of the

deceased issued by the 1st respondent, but there is no corroborative

evidence in support of Ex.A.5. Moreover, the petitioners failed to

examine the 1st respondent to establish Ex.A.5 and the 1st

respondent did not choose to contest the matter. However, the

Tribunal rightly considered the minimum income of the deceased as

Rs.3,000/- per month i.e., Rs.36,000/- per annum since the accident

occurred in the year 2007. As per Ex.A.3-post mortem certificate,

the deceased was aged 37 years at the time of accident. The

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dependents on the deceased are three in number. After deducting

1/3rd from out of the annual income towards personal expenses of

the deceased and by applying the relevant multiplier '15' to the age

group of the deceased as per the decision of the Hon'ble Supreme

Court in Sarla Varma Vs. Delhi Transport Corporation 1 , the

Tribunal arrived the loss of dependency to the family members of

the deceased at Rs.3,60,000/- (Rs.24,000/- (Rs.36,000/- -

Rs.12,000/-) x multiplier '15'). In addition to that, the Tribunal

granted Rs.15,000/- towards loss of consortium to the 1st petitioner

and Rs.5,000/- towards funeral expenses of the deceased. By giving

cogent reasons, the Tribunal came to the conclusion that the

petitioners are entitled to a total compensation of Rs.3,80,000/-. No

appeal or cross-objections is filed by the petitioners for

enhancement of the compensation. There is no legal flaw or

infirmity in the said finding given by the Tribunal.

2009 (4) SCJ 91

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13. It is the main contention of the appellant/2nd respondent-

Insurance company that as the policy is an act policy, the Insurance

company is not liable to pay the compensation. The 4th

respondent/Insurance company did not adduce any evidence. The

2nd respondent/ Insurance company got examined its Assistant

Manager as R.W.1 and got marked Ex.B.1 policy. Ex.B.1 goes to

show that it covers one employee also. Admittedly, the deceased

was an employee under the 1st respondent and premium of Rs.25/-

was collected for one employee. On considering the material

available on record, the Tribunal rightly held in its order that the

deceased would be covered under Ex.B.1 policy as an employee, as

such, the contention of the appellant cannot be sustained, and as it

is already proved that the accident occurred due to contributory

negligence on the part of the drivers of both the offending vehicles,

both the owners of the vehicles are equally liable to pay

compensation and respondent Nos.2 and 4 being insurers of the

offending vehicles are liable to indemnify the owners/respondent

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Nos.1 and 3 in equal proportions. There is no legal flaw or infirmity

in the said finding given by the Tribunal.

14. For the foregoing discussion, I do not find any illegality or

irregularity in the impugned order of the Tribunal and it is perfectly

sustainable under law and the appeal is devoid of merits, therefore,

it is liable to be dismissed.

15. Accordingly, the appeal is dismissed, while confirming the

decree and order dated 09.11.2011 passed by the Chairman, Motor

Accident Claims Tribunal-cum-Principal District Judge, Kadapa, in

M.V.O.P.No.13 of 2008. No order as to costs.

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

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO,J th 4 October, 2023 cbs

VGKR,J MACMA No.616 of 2023

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.616 of 2023

4thOctober, 2023 cbs