The New India Assurance Comp Ltd., ... vs K Suguna, Kurnool Dist And 1 ...
2023 Latest Caselaw 4723 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.2865 of 2015


JUDGMENT:

Aggrieved by the impugned order dated 20.08.2015 on the file

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

Kurnool, passed in M.V.O.P.No.241 of 2012, 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 claimant filed a Claim Petition under section 166 of Motor

Vehicles Act, 1988 against the respondents praying the Tribunal to

award an amount of Rs.15,00,000/- towards compensation on

account of death of deceased K.Vishnuvardhan in a Motor Vehicle

Accident occurred on 03.06.2010.

VGKR, J MACMA No.2865 of 2015

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

as follows:

The petitioner is the mother of the deceased K.Vishnuvardhan.

The deceased and his father Raghavaiah were running tourist buses

in the name and style of Ayyappa Tours and Travels at old bus

stand, Kurnool. On 03.06.2010 at 11.00 a.m., the deceased and the

bus driver P.Narayana had gone YMC Church, Kurnool, where the

bus bearing No.AP02T 6399, hereinafter referred to as 'offending

vehicle', was parked, to send the bus to Tadipatri marriage. The

deceased was standing on the rear side and giving signals to the

driver for taking the bus on reverse side, but the driver, without

following the signals, has taken the bus on reverse direction with

high speed in a rash and negligent manner, as a result, accident

was occurred and the deceased sustained multiple injuries, later

succumbed to injuries.

5. The first respondent remained exparte. The second

respondent filed counter denying the claim of the claimant and

contended that the claimant is not entitled any compensation and

VGKR, J MACMA No.2865 of 2015

the second respondent is not 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 vehicle Tourist bus bearing No.AP02T 6399?

ii. Whether the claimant is entitled to the compensation of Rs.15,00,000/- or to what just amount and from whom the same shall be recovered?

iii. To what relief?

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

the petitioner, PW1 and PW2 were examined and Ex.A1 to Ex.A6

were marked. On behalf of respondent No.2, RW1 was examined

and Ex.B1 was 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

VGKR, J MACMA No.2865 of 2015

granted an amount of Rs.12,39,000/- to the claimant towards

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 Smt A.Jayanthi, learned counsel for second respondent

Insurance Company and Sri K.Rathangapani Reddy, learned

counsel for the petitioner/claimant.

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 petitioner relied on the evidence of PW1

and PW2. PW1 is not an eye witness to the accident. PW2 is an

eye witness to the accident. As per the evidence of PW2, while he

was present at accident spot at relevant time, as he was called by

the deceased for T.V. repair to the offending vehicle, he noticed the

accident in question which occurred due to rash and negligent

VGKR, J MACMA No.2865 of 2015

driving of the driver of the offending vehicle and the driver of the

offending vehicle reversed the bus in a rash and negligent manner

without taking any proper precautions. Ex.A1 certified copy of First

Information Report goes to show that a case was registered against

the driver of the offending bus. Ex.A2 certified copy of charge sheet

goes to show that the Sub Inspector of Police concerned conducted

investigation in this case and after completion of investigation, he

laid charge sheet against the driver of the offending vehicle. On

appreciation of the entire evidence on record, the Tribunal came to

conclusion that the accident in question occurred due to rash and

negligent driving of the driver of the offending vehicle. Therefore, I

do not find any legal flaw or infirmity in the said finding given by the

Tribunal.

12. Coming to the compensation, the Tribunal awarded an amount

of Rs.12,39,000/- to the claimant towards total compensation. Since

the deceased was a post graduate in Bio-Chemistry and he was

aged about 27 years, on considering the facts and circumstances of

the case, the monthly income of the deceased was notionally arrived

at Rs.8,000/- per month. I do not find any illegality in the said

VGKR, J MACMA No.2865 of 2015

finding given by the Tribunal. The claim application is filed under

Section 166 of Motor Vehicles Act, 1988. Since the deceased was a

bachelor 50% amount has to be deducted towards personal

expenses of the deceased. If 50% is deducted, the net income

available to the dependent on the deceased is Rs.4,000/- per month

i.e., Rs.48,000/- per annum. The age of the deceased is 27 years

by the date of accident. The multiplier applicable to the age group

of the deceased is 17. Accordingly, an amount of Rs.8,16,000/-

(48,000 x 17) is awarded to the petitioner towards loss of

dependency. In addition to the above amount, an amount of

Rs.50,000/- is awarded towards loss of estate and an amount of

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

In total, the dependent on the deceased i.e., the mother of the

deceased is entitled an amount of Rs.8,81,000/- instead of

Rs.12,39,000/- towards compensation.

13. The learned counsel for the appellant would submit that the

deceased is none other than the son of insured, since the deceased

was a family member, he will not be covered under the premium.

The learned counsel for the appellant placed a reliance in the

VGKR, J MACMA No.2865 of 2015

judgment of erstwhile High Court of A.P. in between Jayavarapu

Rajamma and others Vs. Jayavarapu Laxminarayana and

others1. The facts in that case are the owner/insured was traveling

in the car along with his family members and his father died in the

accident, his mother and two other sons of the deceased made a

claim for compensation against the owner, who himself was driving

the car. Here in the present case, the driver of the offending bus is

not a family member and he is a third party. The facts in the present

case are the deceased was standing on the rear side and giving

signals to the driver of the offending bus for reversing the bus, the

driver of the bus without following the signals, had taken the bus on

reverse direction at high speed in a rash and negligent manner

without taking any proper precautions. The offending bus is insured

with the appellant insurance Company under Ex.B1, which is a

packaged policy i.e., comprehensive policy. The deceased was

aged about 27 years, but not a minor and the claimant is none other

than the mother of the deceased. The claimant being mother of the

deceased as a class-I, heir claiming compensation for untimely

2007 (6) ALD 306 (DB)

VGKR, J MACMA No.2865 of 2015

death of her only son in a Motor Vehicle Accident. Therefore, the

deceased was a third party to Ex.B1 insurance policy.

A reliance has been placed by the learned counsel for the

claimant in the judgment of erstwhile High Court of A.P. in between

New India Assurance Company Limited Vs. Doredla

Satyanarayana and others2. In that judgment it was held that:

"as enunciated by the Supreme Court in Skandia Insurance Company Ltd. vs. Kokilaben Chandravadan in the following terms:

........ When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the "main purpose' of the provision so that the 'exclusion clause' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose."

The above principle has been approvingly quoted by the Supreme Court in B.V.Nagaraju v. M/s. Oriental Insurance Company Limited, Hassan. In Sohan Lal Passi v. P. Sesh Reddy, the Supreme Court after referring to several beneficial provisions introduced by the Parliament both in the Motor Vehicles Act, 1939 and the Motor

1997 (5) ALT 219 (DB)

VGKR, J MACMA No.2865 of 2015

Vehicles Act, 1988 for the purpose of protecting the interest of the claimants, concluded:

....... even Parliament is conscious that right to claim compensation by the claimants in connection with the motor vehicles accidents should not be defeated on technical grounds." (para 11).

Let us take a case where the owner of a vehicle walking on a highway was knocked down by his own vehicle driven rashly and negligently by a duly appointed driver having a valid licence. Is it permissible for the insurer of the said vehicle to avoid its liability to satisfy the claim laid against it by his legal representatives on the ground that the policy of insurance does not cover owner's risk? In our considered view, the answer could only be 'no', particularly in the light of the principle enunciated in Skandias's case. We have, therefore, no hesitation to add that the same principle will apply in all fours to the facts of the case in C.M.A. No. 1041/90.

In view of the above, we hold that the claim of the claimants in O.P.No.637/88 cannot be negatived on the ground that the insurance policy of the vehicle in question does not cover owner's risk".

The learned counsel for claimant placed another judgment in

between United India Insurance Company Limited Vs. Alka

Mangla and others3. In that decision it was held that :

Section 149 of the M.V. Act 1988 casts a duty on the insurer to satisfy judgments and awards passed against the insured in respect of third party risks notwithstanding that insurer may be

2008 (103) DRJ 384

VGKR, J MACMA No.2865 of 2015

entitled to avoid or cancel or may have avoided or cancelled the policy. There is no statutory limit of liability provided under the M.V. Act 1988 unlike the old Act of 1939.

At first blush it would be revealed to a reader that a third party must necessarily indicate a party other than those who are parties to the contract of insurance. Thus, insured and insurer are the first and second party and all others are third parties except that category of persons who may be excluded specifically by the Act or the contract of insurance. The owner, insured and third party cannot be rolled into one. In other words, the insured is not covered by the policy of insurance as third party, unless he has taken personal insurance or coverage as decided in the decision reported in AIR 2004 SC 4767 Dhanraj V. New India Assurance Company Ltd. by the Apex Court".

Here in the present case, as stated supra, the driver of the

offending bus is a third party and he reversed the bus in a rash and

negligent manner without taking any proper precautions and it

dashed the deceased, who is aged about 27 years. Ex.A1 and

Ex.A2 and the material on record reveals that the accident in

question was occurred due to pure rash and negligent driving on the

part of the driver of the offending bus. The said driver is not a family

member of the deceased and is a third party. As stated supra,

Ex.B1 is a comprehensive policy and the deceased is a third party to

Ex.B1 policy and it is not in dispute that the driver of the offending

VGKR, J MACMA No.2865 of 2015

vehicle is having valid driving licence to drive the offending bus and

the Tribunal rightly fastened the liability on the insurer and the

insured. I do not find any illegality insofar as the liability fixed on

both the respondents by the Tribunal.

14. In the result, this appeal is partly allowed and the order dated

20.08.2015 passed in MVOP No.241 of 2012 on the file of the Motor

Accident Claims Tribunal-cum- IV Additional District Judge, Kurnool

is modified by reducing the compensation amount from

Rs.12,39,000/- to Rs.8,81,000/-. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

                                        ________________________________
                                        V.GOPALA KRISHNA RAO, J
Dated:     .10.2023.
sj

                                                      VGKR, J
                                          MACMA No.2865 of 2015






     HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO




              M.A.C.M.A.No.2865 of 2015



                      .10.2023

sj