Andhra Pradesh High Court - Amravati

Reliance General Insurance Co. ... vs Podilapu Satyavathi on 5 October, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.621 of 2023


JUDGMENT:

Aggrieved by the impugned order dated 08.08.2011 on the file

of Motor Accident Claims Tribunal -cum- II Additional District Judge,

Visakhapatnam, passed in M.V.O.P.No.109 of 2010, whereby the

Tribunal has partly allowed the claim against the respondents 1 and

2, the instant appeal is preferred by the appellant-Respondent No.2-

Insurance Company.

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 section 163-A of

Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.4,00,000/- towards

compensation on account of death of deceased P.Venkata Satyam

in a Motor Vehicle Accident occurred on 28.04.2008.

4. Facts germane to dispose of this appeal may be briefly stated

as follows:

On 28.04.2008, the deceased Venkata Satyam along with

some other persons engaged one auto rickshaw bearing No.AP35U

9261, hereinafter referred to as 'offending vehicle', to go to Bheemili

to attend one marriage as he was engaged along with other band

party, when the said auto rickshaw reached near Parm Zell

Company at Modavalasa opposite to market yard, the driver of the

said auto rickshaw drove the same in a rash and negligent manner

and lost control over the vehicle, as a result, the auto turned turtle,

resulting which, the deceased sustained grievous injuries, later

succumbed to injuries while undergoing treatment.

5. The respondents 1 and 2 filed counters separately denying the

claim of the claimants and contended that the claimants are not

entitled any compensation and the respondents 1 and 2 are not

liable to pay any compensation to the petitioners.

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

following issues:

i. Whether the death of the deceased by name P.Venkata Satyam occurred on account of the rash and negligent driving of the vehicle bearing No.AP35U 9261 (auto rickshaw) by its driver?

 ii.   Whether     the    petitioners    are       entitled   to
       compensation, if so, to what amount and from
       whom?
iii.   To what relief?

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

the petitioners, PW1 and PW2 were examined and Ex.A1 to Ex.A5

were marked. On behalf of respondents, RW1 was examined and

Ex.B1 and Ex.B2 were marked.

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.3,90,000/- to the claimants towards total

compensation. Being aggrieved by the impugned award, the

second respondent Insurance Company filed the appeal questioning

the legal validity of the order of the Tribunal.

9. Heard Sri S.N.K.Mahanthi, learned counsel for the petitioners

and Sri N.Ramakrishna, learned counsel for second respondent

Insurance Company.

10. Now, the point for consideration is:

      Whether     the    Order     of   Tribunal     needs   any
      interference? If so, to what extent?

11.   POINT :

In order to prove the rash and negligent driving of the driver of

the offending vehicle, the petitioners relied on the evidence of PW2.

PW2 is an eye-witness to the accident. On considering the

evidence of PW2 coupled with Ex.A1 copy of First Information

Report and Ex.A2 copy of another First Information Report and

Ex.A4 copy of Motor Vehicles Inspector report, the Tribunal arrived

to a conclusion that the accident in question occurred due to rash

and negligent driving of the driver of the offending vehicle. I do not

find any legal flaw or infirmity in the said finding given by the

Tribunal that the accident in question occurred due to rash and

negligent driving of the driver of the offending vehicle.

12. Learned counsel for the second respondent-appellant would

submit that the offending vehicle is not insured with the appellant

Insurance Company. In order to prove the same, the appellant

relied on the evidence of RW1. RW1 is the manager of second

respondent Insurance Company. As per his evidence, there was no

contract of insurance between the owner of the auto rickshaw and

respondent No.2. He further deposed that the said auto rickshaw

was insured with respondent No.2 Insurance Company only with

effect from 10.06.2008 and the said policy is valid upto 09.06.2009

and as the said accident took place on 28.04.2008, there was no

coverage of insurance to the said vehicle and as such the Insurance

Company is not liable to pay any compensation.

13. In order to prove the contention of the claimants, the learned

counsel for the claimants relied on Ex.A5 cover note/copy of

insurance policy. The Insurance Company also relied on the

original cover note, which is marked as Ex.B1 and pleaded that the

dates on cover note i.e., Ex.A5 is tampered by the claimants and the

learned counsel for second respondent/appellant would submit that

Ex.B1 cover note makes abundantly clear that both are different.

But the Tribunal held in its order that Ex.A5 cover note and Ex.B1

cover note makes abundantly clear that both are one and the same

in respect of the said auto. I have perused the Ex.A5 and Ex.B1.

As seen from Ex.A5 and Ex.B1, the date of issue on Ex.A5 and

Ex.B1 are different and dates of coverage of policy are also different

on both Ex.A5 and Ex.B1. Therefore, I am unable to accept the

finding of the Tribunal that Ex.A5 and Ex.B1 are one and the same.

Moreover, the cover note is not a policy. The original policy is filed

by the Insurance Company, which is marked as Ex.B2. Ex.B2

shows that the offending vehicle is insured with the appellant

Insurance Company from 10.06.2008 to 09.06.2009. The date of

accident is 28.04.2008, therefore, by the date of accident, there is

no coverage of policy.

14. Another plea taken by the counsel for petitioners/claimants is

that in the counter, the Insurance Company has not taken any plea

that the offending vehicle is not insured with the second respondent.

It was pleaded in the written statement by respondent No.2

Insurance Company that respondent No.2 is not admitting that the

offending vehicle belongs to respondent No.1 and insured with

respondent No.2 Insurance Company. Another plea taken by the

counsel for the claimants is that RW1 admitted in cross examination

that the offending vehicle involved in the accident is insured with

second respondent Insurance Company. At this stage, the learned

counsel for second respondent/appellant would submit that no doubt

the offending vehicle is insured with the appellant Insurance

Company, but the coverage of policy is from 10.06.2008 to

09.06.2009. It does not mean that the offending vehicle is insured

with the second respondent on the date of accident. As stated

supra, Ex.A5 is a cover note. The date of issue and the date of

coverage of the policy is also different on Ex.B1 and Ex.A5, more

over the Insurance Company filed original cover note and marked as

Ex.B1. Original policy filed is marked as Ex.B2. Ex.B2 goes to

show that the offending vehicle is insured with the appellant

Insurance Company and the policy is in force from 10.06.2008 to

09.06.2009. To arrive to a conclusion of trustworthiness of the

witness, the entire deposition of RW1 has to be looked into. In para

No.3 of chief examination affidavit of RW1, RW1 specifically stated

that:

"the cover note bearing No.200702855537 covers the risk to the vehicle of the 1st respondent for the period valid from 10.06.2008 to 09.06.2009 and the policy was also issued vide policy No.1811782339001928 for the said period. The accident took place on 29.04.2008 and there was no coverage of insurance to the vehicle of the 1st respondent as on the date of accident".

Therefore, for the foregoing discussion and on careful

consideration of entire evidence on record, this Court came to

conclusion that the offending vehicle is not insured with the second

respondent Insurance Company as on the date of accident.

Therefore, on the date of accident there is no coverage of policy to

the offending vehicle, but the Tribunal fastened the liability on both

the respondents. Therefore, the claimants are at liberty to recover

the entire award amount with interest as ordered by the Tribunal

from the first respondent/owner of the offending vehicle.

15. At this stage, the learned counsel for second

respondent/appellant would submit that as per the order of this

Court dated 27.08.2012, half of the award amount was deposited