The Oriental Insurance Company ... vs Somali Somulamma And 7 Others
2023 Latest Caselaw 4884 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 1070 of 2012

JUDGMENT: -

1)   Aggrieved    by   the   impugned     Judgment,     dated

30.05.2003, passed in M.O.P. No. 380 of 2000 on the file of

the Chairman, Motor Accidents Claims Tribunal-cum-III

Additional District, Visakhapatnam, whereby, the claim of

Rs.1,14,000/- was awarded towards total compensation to

the claimants; this instant Appeal is preferred by the 3rd

Respondent/the Oriental 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

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

Rule 455 of the A.P.M.V. Rules [the 'Rules'] against the

Respondents claiming compensation of Rs.3,00,000/- on

account of death of one Someli Lakshmanna in the motor
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accident that took place on the intervening night of

04/05.01.2000.


4)     Facts

germane to dispose of the Appeal may briefly be

stated as follows: -

i. On the intervening night of 04/05.01.2000 at about

1.00 A.M., the deceased along with others were

travelling on the wooden logs loaded lorry bearing

registration No. ABV 1878 and when the lorry

reached the turning of Poolabhanda Ghat, due to

rash and negligent driving of the offending vehicle by

the 1st respondent, the lorry turned turtle, resulting

the instantaneous death of the deceased and three

others.

ii. The Station House Officer, Paderu Police Station,

registered a case in Crime No. 1 of 2000 against the

driver of the offending vehicle for the offence

punishable under Sections 304-A, 338 and 337 of

Indian Penal Code, 1860 ['I.P.C.']. The 1st respondent

is the driver, the 2nd respondent is the owner and the

3rd respondent is insurer of the offending vehicle.

Hence, all the respondents are jointly and severally

liable to pay compensation to the petitioners.

5) The 2nd and 3rd respondents individually filed their

counter denying the manner of accident.

i. The 2nd respondent pleaded that, at the time of

accident, the 1st respondent did not inform him of

engaging the offending vehicle for loading and

unloading the wooden logs. Therefore, the 2nd

respondent is not liable to pay any compensation to

the petitioners.

ii. It is further pleaded that, by the time of accident, the

offending lorry was insured with the 3rd

respondent/insurance company and the policy was

in existence. If any compensation is granted to the

petitioners by the Tribunal, it is the 3rd 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 3rd respondent/Insurance

company pleaded that, the 1st respondent owner of

the lorry has violated the terms of the policy as well

as the route permit, since, clause 26 of the permit

conditions, the vehicle is to carry only a maximum of

six coolies, but, however, the offending vehicle was

carrying eleven persons i.e., more than the permitted

number, which is in clear violation of Section 149(2)

of the M.V. Act. Hence, no liability arises on the 3rd

respondent.

iv. For all the aforesaid submissions, the 3rd

respondent/Insurance company pleaded that it is not

liable to pay any compensation to the petitioners and

prays to dismiss the petition.

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 the lorry bearing No. A.B.V. 1878 by the first respondent on 4/5.1.2000 at 1.00 A.M. resulting the death of Someli Lakshmanna?

2) Whether the petitioners are entitled to any compensation and if so, from whom?

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.4 were marked. On behalf of the respondents,

the 2nd respondent and 3rd respondents were examined as

R.Ws.1 and 2 and Exs.B.1 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 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.1,14,000/-

with proportionate costs and interest at 9% per annum

from the date of petition till the date of realization against

the all the respondents. 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) Now, the point for determination is:

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

11) POINT: The contention of the claimants is that, on

the intervening night of 04/05.01.2000 at about 1.00 A.M.,

while the deceased [Lakshmana] and others were engaged

as loading and unloading coolies, were traveling on the

wooden logs loaded on the offending vehicle lorry bearing

registration No. ABV 1878 and by the time the said lorry

reached Poolabhanda Ghat turning, due to rash and

negligent driving of the 1st respondent - the driver of the

said lorry, the lorry turned turtle, resulting the deceased

and three others died on the spot. A case in Crime No. 1 of

2000 was registered against the driver of the offending

lorry by the Station House Officer, Paderu Police Station.

12) The 1st respondent driver of the offending lorry

remained ex parte. The 2nd and 3rd respondents filed their

respective counters denying the claim of the claimants.

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

driver of the offending lorry, the Petitioners relied on the

evidence of PW.1 and PW.2 and so also Ex.A1 to Ex.A4.

PW1 is none other than the wife of the deceased. Ex.A1 is

the attested copy of the F.I.R. and Ex.A2 is the autopsy

report of the deceased. PW2, who is said to have been an

eye witness to the accident, deposed in his evidence that,

while the lorry was going with the load of logs from Kakki

to Poolabhjanda, at that time, the driver of the lorry drove

the lorry at high speed in a rash and negligent manner and

at turning point of the Ghat Road, lost control over the

lorry and the deceased fell down and sustained bleeding

injuries. His evidence clearly goes to show that the

deceased was travelling in the vehicle as loading and

unloading coolie.

14) On appreciation of the entire material on record, the

Tribunal arrived at a conclusion that the accident in

question occurred due to rash and negligent driving of the

lorry bearing registration No. ABV 1878 driven by the 1st

respondent, resulting the death of the deceased.

15) The Tribunal on appreciation of the entire evidence

on record came to a conclusion that the deceased was aged

about 35 years, by the date of accident, and considered the

monthly income of the deceased as Rs.750/- per month

i.e., Rs.9,000/- per annum. 1/3rd amount was deducted

towards personal expenses of the deceased, resulting

Rs.6,000/- was available to the dependents of the

deceased. Since, the deceased was '35' years of age, the

Tribunal by applying relevant multiplier of '16' as per the

judgment of Sarla Varma Vs. Delhi Transport

Corporation1 awarded an amount of Rs.96,000/-

[Rs.6,000/- x 16] towards 'loss of dependency'. The

Tribunal also awarded an amount of Rs.10,000/- towards

'loss of consortium' to the 1st petitioner and Rs.8,000/-

towards 'loss of estate'. In total, the Tribunal awarded an

amount of Rs.1,14,000/- towards total compensation to

the claimants.

16) The Tribunal also held in its order that the offending

vehicle is insured with the appellant/insurance company

and the policy is in force and the driver of the offending

2009 (4) SCJ 91

vehicle is having valid driving license at the time of

accident and the Tribunal fastened the liability on the

insured and insurer. I do not find any flaw or illegality in

the said order given by the Tribunal.

17) The learned Standing Counsel for the

Appellant/Insurance company would submit that, the

deceased was 'gratuitous passenger' in the offending

vehicle and that the insurer is not liable to pay any

compensation. The Tribunal on appreciation of the entire

evidence on record and by giving cogent reasons, held that

the deceased travelled as a labourer in the offending

vehicle for loading and unloading and assuming that he

was non-fare paying passenger, still the insurance

company cannot avoid the liability and further held that, a

premium of Rs.50/- was collected for Non-fare paying Non

Employees No.1; an amount of Rs.30/- was collected by

the insurance towards paid drivers/workmen No.2; and

Rs.75/- collected towards TPPD Cover for unlimited

amount. The Tribunal on seeing the Ex.B1 [policy] arrived

at a conclusion that the said policy is comprehensive policy

and the coverage of deceased was there in the said policy

and by giving cogent reasons rightly fastened the liability

on the respondents. Therefore, the Award passed by the

Tribunal is perfectly sustainable under law and it warrants

no interference. The appeal is devoid of merits, therefore, it

is liable to be dismissed.

18) Resultantly, the appeal is dismissed, while

confirming the decree and order, dated 30.05.2003, passed

by the Chairman, Motor Accidents Claims Tribunal-cum-III

Additional District, Visakhapatnam, in M.O.P. No. 380 of

2003. No order as to costs.

19) As a sequel, miscellaneous petitions, if any, pending

in the appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J

Date: 11.10.2023 Sm..

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1070 of 2012

11.10.2023

sm