Hdfc Ergo General Insurance Co. ... vs Marothi Lovakumari And 6 Others
2023 Latest Caselaw 4724 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A.No. 2657 of 2012

JUDGMENT:-

1)   Aggrieved by the impugned Order, dated 25.08.2011,

passed in M.V.O.P. No. 861 of 2009 on the file of Motor

Accidents Claims Tribunal-cum-III Additional District and

Sessions   Judge-cum-Fast       Track   Court,   Bhimavaram,

whereby, granting the claim of Rs.5,00,000/- to the

Claimants towards compensation; this instant Appeal is

preferred by the 2nd Respondent/ HDFC Ergo General

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

Act'] against the Respondents claiming compensation of

Rs.5,00,000/- on account of death of one Maruthi Apparao

that took place on 03.05.2008.
                                 2



4)     Facts

germane to dispose of the Appeal may briefly be

stated as follows:-

i. Sri. Maruthi Apparao [for short 'the deceased'] was

working as Driver under the 1st Respondent tractor

bearing No. AP37 AQ 8537.

ii. On 03.05.2008, the deceased went to the fields of one

Kothpalli Ramalingaraju to load paddy bags and kept

the trailer for loading. While he was crossing the field

bund, in view of uneven earth, the tractor jumped,

and as he did not control himself, he fell down from

the driver's seat to the right side of the vehicle

resulting the back wheel of the tractor ran over him,

causing injuries to his waist. Consequently, he

succumbed to injuries on the way to hospital.

iii. The deceased was having valid driving license and

valid permit at the time of accident. The 1st

respondent is the owner and the 2nd respondent is

insurer of the offending tractor, hence, both the

respondents are jointly and severally liable to pay

compensation to the claim petitioners.

5) The respondents filed written statements separately

denying the manner of accident.

i. The 1st respondent pleaded that, at the time of

accident, the deceased was having valid driving

license and the offending vehicle was also having

valid permit. Therefore, the 1st respondent is not

liable to pay any compensation to the petitioners.

ii. It is further pleaded that, if any compensation is

granted to the petitioners by the Tribunal, it is the 2nd

respondent, who is liable to pay the same to the

petitioners as the offending vehicle is covered under

valid insurance policy.

iii. On the other hand, the 2nd respondent/Insurance

company pleaded that, the 1st respondent owner of

the tractor bearing no. AP 37 AQ 8537 has violated

the terms of the policy as well as the permit, as the

offending vehicle was used for other than the permit

condition granted to it. Hence, there is no liability on

2nd respondent.

iv. It is further pleaded that, if at all, if any liability

arises, it has to be met by the 1st respondent only

and the claim of compensation raised is highly

excessive, exaggerated and baseless.

v. It is pleaded that, since no liability arises on the 2nd

Respondent, if at all any liability arises, it has to be

restricted to Rs.50,000/- under the 'no fault no

liability clause'.

vi. It is further pleaded that, the interest claimed by the

petitioners is excessive and the petitioners are not

entitled to claim interest more than 7% per annum as

per the settled legal position. For all the aforesaid

submissions, the Insurance company submitted that

it is not liable to pay any compensation to the

petitioners and prays to set-aside the impugned

order.

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

following issues were settled for trial by the Tribunal:

1) Whether the deceased - Morothi Apparao dies in a motor vehicle accident on 03.05.2008 due to rash and negligent driving of the tractor and trailer bearing No. AP 37 AQ 8537 by its driver, who is the deceased herein?

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

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.7 were marked. On behalf of the respondents,

R.Ws.1 to 3 were examined and Ex.B.1 was marked.

8) At the culmination of the enquiry, after considering

the evidence on record and on appreciation of the same,

the Tribunal came to the conclusion that the accident

occurred due to rash and negligent driving of the driver of

the offending vehicle and accordingly, allowed the petition

by granting compensation to an amount of Rs.5,00,000/-

with proportionate costs and interest at 7.5% per annum

from the date of petition till the date of realization against

the 2nd respondent. Aggrieved against the said order, the

appellant/Insurance company preferred the present

Appeal.

9) Heard learned counsels for both the parties and

perused the record.

10) At the time of hearing, learned counsel for the

appellant/Insurance company has confined his arguments

only to the aspect of fixation of liability of payment of

compensation on the Insurance company.

11) Now, the point for determination is:

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

12) POINT: The learned counsel for the

appellant/Insurance company has confined his arguments

only to the aspect of fixation of liability on the Insurance

company and he did not press the other grounds raised in

the Appeal. Therefore, the only legal ground which is

required to be considered in this Appeal is, whether the

liability of payment of compensation fixed by the Tribunal on

the appellant/Insurance company is legally sustainable or

not?

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

driver of the offending accident vehicle, the Petitioners have

relied on the evidence of P.Ws. 1 and 2. As per the evidence

of P.W.1, the deceased was working as driver under the 1 st

respondent bearing No. AP 37 AQ 8537, on 03.05.2008

evening at about 5.00 p.m., with a view to load the paddy

on his tractor, the deceased went to the fields of one

Kothapalli Ramalingaraju with his tractor and truck and

kept his truck for loading, while going with his tractor,

accidentally the tractor get on a bund and jumped to some

height resulting the deceased fell from the tractor in the

front side of the right back wheel and the right side back

wheel of the tractor ran over him, as a result of which, the

deceased sustained injuries and later succumbed with

injuries.

14) The contention of the Appellant insurance company

is that, the accident in question took place due to self-

negligence on the part of the deceased himself. Therefore,

absolutely the claimants, who are the dependents on the

deceased, are not entitled for compensation from the

Appellant insurance company. The learned Counsel for the

Appellant would submit that, as per Section 149 of the Act,

the insurer has to pay third party claims only.

15) The fact remains is that, the first information report

was registered against the deceased himself and

subsequent to completion of investigation, the police laid

final report under Ex.A5 stating that since the deceased i.e.

the driver died in the same accident, the case against the

deceased is abated. The oral and documentary evidence

clearly reveal that the accident, in question, occurred due

to rash and negligent driving of the driver of the offending

vehicle i.e., the deceased herein. The material on record

also clearly reveals that the accident in question took place

due to rash and negligent driving of the driver of the

offending vehicle. The application is filed under Section

163-A and 166 of the Act.

16) As regards the compensation, the case of the

claimants is that, the deceased was aged about 28 years

and he was receiving a salary of Rs.5,000/- per month, but

no documentary evidence is filed by the claimants to prove

the said quantum of income. On the other hand, the

Tribunal by giving cogent reasons arrived at a conclusion

that the claimants are entitled for compensation of

Rs.5,00,000/-.

17) As stated supra, the deceased was aged about 28

years. By applying the relevant multiplier of 18 as the age

of the deceased was 28 years and the annual income was

taken as Rs.28,800/- [Rs.2,400/ (net income) x 12 months]

by the Tribunal, the Tribunal awarded Rs.5,00,000/-

towards total compensation to the claimants.

18) As stated supra, the accident in question has

occurred due to rash and negligent driving of the driver of

the offending accident vehicle i.e., the deceased himself.

Therefore, as per Section 149 of the Act, the insurance

company is not liable to pay any compensation to the

claimants. The claimants are at liberty to recover the

amount of compensation ordered by the Tribunal from the

owner of the offending vehicle i.e., the 1 st respondent.

19) At this juncture, it has been brought to the notice of

this Court that by virtue of the interim orders passed by

this Court in the Appeal, the appellant/Insurance company

had deposited 50% of the award amount with costs and

interest before the Tribunal.

20) In this context, I am of the view that at this length of

time, it would not be appropriate to direct the Petitioners to

repay the amount, which was deposited by the insurer, and

already withdrawn by the Petitioners, as per the interim

directions of this Court, to the insurer applying the

principle of 'equity'.

21) In the result, the appeal is allowed. The liability fixed

on the appellant/Insurance company by the Tribunal is

liable to be set aside. The appellant/Insurance company

shall recover the 50% of the compensation amount already

deposited by it with costs and interest from the 1st

respondent/owner of the offending vehicle by filing an

execution petition and without filing any independent suit.

No order as to costs.

As a sequel, miscellaneous petitions, if any, pending

in the appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J

Date: 06.10.2023 Note:

Issue C.C. by one week.

B/o.

sm

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2657 of 2012

.10.2023

sm