The National Insurance Company ... vs Yarra Lakshmi Saraswathi
2023 Latest Caselaw 4883 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.615 of 2023

JUDGMENT:

The appellant is 6th respondent/National Insurance Company

Limited and the respondents are petitioners and respondent Nos.1

to 5, 7 and 8 in M.V.O.P.No.251 of 2006 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-Principal District Judge,

Krishna at Machilipatnam. 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 against respondent Nos.1 to 6

claiming compensation of Rs.5,00,000/- for the death of Yarra

Radhakrishna, who is husband of 1st petitioner and father of 2nd

petitioner, in a motor vehicle accident that took place on 23.03.2005.

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

as follows:

The deceased is working as a driver in the lorry bearing

registration No.AP 16Y 4288. On 23.03.2005 he was driving the

said lorry with the load of cement from Macherla to Gudivada to

unload the same at Gudivada and at that time, he had entrusted the

lorry to the 2nd respondent as he was tired and while the 2nd

respondent was driving the said lorry and when it reached near

Vennadevi village, one tractor-cum-trailer bearing registration No.AP

07G 5175 and AP 05G 5176 was coming with a load of mud along

with coolies in the trailer and the driver of the said tractor-cum-trailer

has driven the same in a rash and negligent manner and in high

speed and dashed the lorry and the driver of the lorry was unable to

control the said vehicle and he went and hit the tamarind tree, which

is by the side of the road. The entire cabin of the lorry was

damaged and the deceased and two others sustained injuries in the

accident and later the deceased succumbed to injuries. The S.H.O.,

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Sathenapalli P.S. registered a case in crime No.33 of 2005 for the

offences punishable under Sections 337 and 304-A of IPC against

the drivers of both the lorry and the tractor-cum-trailer. The 1st

respondent is driver of tractor-cum-trailer, the 2nd respondent is

driver of lorry, the 3rd respondent is owner of tractor-cum-trailer, the

4th respondent is owner of lorry, the 5th respondent is insurer of

tractor-cum-trailer and the 6th respondent is insurer of lorry, hence,

they are jointly and severally liable to pay compensation to the

petitioners.

5. Subsequent to filing of the claim petition, respondent Nos.7

and 8 got themselves impleaded as party respondents to the petition

claiming that their mother, by name, Satyavati, is the wife of the

deceased and they are residing with their grand mother along with

the deceased and being class-I heirs of the deceased they are

entitled for compensation.

6. Respondent Nos.1 and 3 were set ex parte. The other

respondents filed counters separately by denying the material

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averments made in the petition, age, avocation and income of the

deceased.

7. 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 the vehicle/tractor-cum-trailer bearing No.AP 07G 5175 and AP 07G 5176 by its driver?

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

3) Whether the respondents 7 and 8 are also legal heirs of the deceased and whether they are entitled to compensation or share in the compensation if any?

4) To what relief?

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

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.10

were marked. On behalf of the respondents, R.Ws.1 and 2 were

examined and Exs.B.1 to B.6 were marked.

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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

the offending lorry and accordingly, allowed the petition and granted

an amount of Rs.5,00,000/- towards compensation to the petitioners

and respondent Nos.7 and 8 with costs and interest at 7.5% p.a.

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

Nos.2, 4 and 6 and dismissed the claim petition against respondent

Nos.1, 3 and 5. Aggrieved against the said order, the 6th

respondent/National Insurance Company Limited preferred the

instant appeal.

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

appellant/6th respondent-Insurance company, Sri G.Narasimharao,

learned counsel for respondent Nos.1 & 2/petitioners, and perused

the record.

11. Now, the point for determination is:

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

12. POINT: In order to prove the rash and negligent driving of

the driver of the offending vehicles involved in the accident, the

petitioners relied on the evidence of P.Ws.1 and 2. P.W.1 is none

other than the wife of the deceased and she is not an eye witness to

the accident. So, her evidence cannot be believable. P.W.2 is an

eye witness to the accident. He deposed that on the date of accident,

he boarded the tractor-cum-trailer to go to Dhulipala and the tractor

was proceeding on the left side of the road after crossing Vennadevi

village, the driver of the tractor had turned the vehicle to the other

side and as he took sudden turn, the rear side of the trailer came to

the road and the lorry dashed the said truck and thereafter, the truck

fell into the bushes and the lorry dashed the tamarind tree. The

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

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

the drivers of the offending vehicles in connection with the accident

VGKR,J MACMA No.615 of 2023

in question. Ex.A.4-charge sheet discloses that the police filed the

charge sheet against the driver of the offending lorry showing him as

accused No.1 for the offences punishable under Sections 337 and

304-A of IPC and also under Sections 134, 181 and 187 of the M.V.

Act and even though the police filed the charge sheet against the

driver of the tractor-cum-trailer showing him as accused No.2, the

police did not file the charge sheet against him for the offences

punishable under Sections 337 and 304-A of IPC. Though the

respondents examined R.W.1, who is owner of the offending lorry,

and R.W.2, who is the grand-mother of respondent Nos.7 and 8,

their evidence is no way helpful to decide this issue. The evidence

of P.W.2 coupled with Ex.A.4-charge sheet clearly proves that the

accident occurred only due to rash and negligent driving of the

driver of the offending lorry. On appreciation of the entire material

on record, the Tribunal also came to the same conclusion.

Therefore, there is no need to interfere with the said finding given by

the Tribunal.

VGKR,J MACMA No.615 of 2023

13. By relying on the evidence of P.W.3, who is brother of the

deceased, R.W.2, who is grand mother of respondent Nos.7 and 8,

and Exs.A.7 to A.10 and Exs.B.2 to B.6, the Tribunal held in its

order that as the claim petition was filed claiming compensation on

account of death of the deceased and the compensation is to be

awarded to all his dependents and legal representatives, the

petitioners and respondent Nos.7 and 8 are the dependents and

legal representatives of the deceased and they are entitled to

compensation. There is no legal flaw or infirmity in the said finding

given by the Tribunal.

14. Coming to the compensation, by giving cogent reasons, the

Tribunal fixed the monthly income of the deceased as Rs.4,500/-

p.m. i.e., Rs.54,000/- per annum. As per Ex.A.3-post mortem report,

the age of the deceased was 35 years. The Tribunal, after deducting

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

the deceased and by applying the appropriate multiplier '17' to the

age group of the deceased, arrived the loss of dependency to the

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family members of the deceased at Rs.6,12,000/- (Rs.36,000/-

(Rs.54,000/- - Rs.18,000/-) x multiplier '17'). Besides, the Tribunal

granted Rs.15,000/- towards loss of consortium, Rs.10,000/-

towards loss of estate and Rs.5,000/- towards funeral expenses and

other miscellaneous expenses. By giving cogent reasons, the

Tribunal came to the conclusion that the petitioners are entitled to a

total compensation of Rs.6,42,000/-. As the petitioners claimed only

Rs.5,00,000/- in the claim petition, the Tribunal restricted the claim

of the petitioners to Rs.5,00,000/-. There is no legal flaw or infirmity

in the said finding given by the Tribunal.

15. It is mainly contended by the appellant/Insurance company

that at the time of accident, the cleaner of the offending lorry was

driving the lorry and thereby, the 4th respondent/owner of the

offending lorry violated the conditions of the policy, as such, the

Insurance company is not liable to pay the compensation.

16. It is the case of the petitioners that on the date of accident, as

the deceased was tired, he entrusted the offending lorry to the

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2ndrespondent and while the 2nd respondent was driving the lorry,

the accident occurred. It is proved that the accident in question

occurred due to rash and negligent driving of the 2nd

respondent/driver of the offending lorry of the 4th respondent.

17. The owner of the offending lorry/4th respondent was examined

as R.W.1. He deposed in his evidence that the deceased worked as

driver in his lorry and he had entrusted the lorry to the deceased.

He admitted in his cross examination that the 2nd respondent is

working as cleaner in his lorry. Even though the 2nd respondent

denied in his counter that he had driven the vehicle, he did not even

enter the witness box and he was not examined to prove that he did

not drive the vehicle at the time of accident. A perusal of Ex.A.4-

charge sheet reveals that the police filed the charge sheet against

the driver of the lorry i.e., the 2nd respondent as accused No.1 not

only for the offences punishable under Sections 337 and 304-A of

IPC holding him responsible for the accident, but also under

Sections 134, 181 and 187 of the M.V. Act. As seen from the

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evidence of R.W.1 as well as Ex.A.4, it is clear that the 2nd

respondent, who is cleaner of the offending lorry, drove the said

vehicle at the time of accident and thereby, the 4th respondent

violated the terms and conditions of the policy.

18. The principle laid down in the decision of the Hon'ble Supreme

Court in National Insurance Co. Ltd. Vs. Swaran Singh and

others1 is that even in case of absence, fake or invalid licence or

disqualification of the driver for driving, the Insurance company is

liable to satisfy the award in favour of 3rd party at the first instance

and later recover the award amount from the owner of offending

vehicle, even when the Insurance company could able to establish

breach of terms of policy on the part of the owner of the offending

vehicle.

19. Since it is not in dispute that the offending lorry of the 4th

respondent was insured with the 6th respondent/Insurance company

2004 (2) ALD (SC) 36

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under a valid policy and the policy was also in force as on the date

of accident and in the light of the decision of the Hon'ble Apex Court

referred supra, the 6th respondent/Insurance Company is liable to

pay the compensation to the petitioners in the first instance and later

recover the same from the 4th respondent/owner of the offending

lorry, by filing an execution petition and without filing any

independent suit.

20. Accordingly, the 6th respondent/Insurance Company is

directed to deposit the compensation amount of Rs.5,00,000/- with

costs and interest as ordered by the Tribunal, before the Tribunal in

the first instance within two months from the date of this judgment

and later recover the same from the 4th respondent/owner of the

offending lorry by filing an execution petition and without filing any

independent suit. The order of the Tribunal with regard to the

liability is modified to the extent indicated above. The order of the

Tribunal in all other respects shall remain intact.

21. The appeal is accordingly disposed of. No order as to costs.

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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.615 of 2023

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.615 of 2023

4thOctober, 2023 cbs