Hdfc Ergo General Insurance Co. ... vs Bijji Sarojamma
2023 Latest Caselaw 5085 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.3535 of 2014


JUDGMENT:

Aggrieved by the impugned order dated 26.03.2012 on the file

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

Kadapa, passed in M.V.O.P.No.255 of 2009, whereby the Tribunal

partly allowed the claim against the respondents, the instant appeal

is preferred by the appellant-Respondent No.2-Insurance Company,

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 claimants filed a Claim Petition under section 166 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 B.Rama Subbaiah

in a Motor Vehicle Accident occurred on 12.01.2009.

4. Facts germane to dispose of this appeal in brief stated as

follows:

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                                                  MACMA 3535 of 2014

Sri B.Rama Subbaiah, hereinafter referred to as 'deceased',

was aged about 45 years by the date of accident and used to earn

Rs.1,00,000/- per annum by doing cultivation. On 12.01.2009, the

deceased along with his wife and other relatives went to

Kamalapuram, later, the deceased left kamalapuram on his TVS

motor cycle and when he reached near Peddaputha cross road, the

tyre of his motor cycle was punctured, hence, he stopped the same

at the cross roads and while he was talking to one Palem Nadipi

Narasimhulu, the driver of Scorpio car bearing No.MH 31CP 181,

hereinafter referred to as 'offending vehicle', drove the same in a

rash and negligent manner, without blowing horn, dashed against

the deceased, resulting which the deceased fell into the ditch and

the car also fell on him, as a result, the deceased sustained fatal

injuries and died on the spot itself.

5. The first respondent remained exparte. The second

respondent field counter denying the claim of the claimants and

contended that the claimants are not entitled any compensation and

the second respondent is not liable to pay any compensation to the

petitioners.

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                                                      MACMA 3535 of 2014

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 driver of Scorpio car bearing No.MH 31CP 181 resulting the death of the deceased by name Bijji Rama Subbaiah on 12.01.2009?

ii. Whether the petitioners are entitled for 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.A6 were marked. No oral or documentary evidence was

adduced on behalf of second respondent.

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.3,46,000/- towards total compensation to

the claimants against the respondents. Being aggrieved by the 4 VGKRJ MACMA 3535 of 2014

impugned award, the second respondent Insurance Company filed

the appeal questioning the legal validity of the order of the Tribunal.

9. Heard Sri D.Kodanda Ramireddy, learned counsel for the

petitioners/ claimants and Sri Naresh Byrapaneni, learned counsel

for second respondent Insurance Company and perused the

material on record.

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 PW1

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

eye witness to the accident. The evidence of PW2 goes to show

that the accident in question was occurred due to rash and negligent

driving of the driver of the Scorpio bearing No.MH31CP 181, in

which the deceased sustained severe injuries and died on the spot

itself. On considering the entire material on record, the Tribunal

came to conclusion that the accident in question was occurred due 5 VGKRJ MACMA 3535 of 2014

to rash and negligent driving of the driver of the offending vehicle, in

which the deceased sustained fatal injuries and died at the spot

itself. I do not find any legal flaw or infirmity in the above finding

given by the Tribunal.

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

of Rs.3,46,000/- to the claimants towards total compensation. The

case of the claimants is that the deceased was used to earn

Rs.1,00,000/- per annum by doing cultivation. The accident in

question occurred in the year 2009. On considering the entire

evidence on record, the Tribunal arrived monthly income of the

deceased as Rs.3,000/- per month and applied relevant multiplier of

14, since the age of the deceased was 45 years by the date of

accident and awarded an amount of Rs.3,36,000/- to the claimants

towards loss of dependency. The Tribunal also awarded an amount

of Rs.10,000/- towards loss of consortium to the first petitioner. in

total, the Tribunal awarded an amount of Rs.3,46,000/- to the

petitioners towards compensation. The Tribunal fastened the

liability on both the respondents and directed them to pay the entire

compensation amount to the claimants.

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                                                     MACMA 3535 of 2014

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

respondent/owner of the offending vehicle paid the premium by way

of cheque and the said cheque was dishonoured on 16.03.2009 and

policy was cancelled subsequently. As seen from the material on

record, there is no whisper in the written statement of the second

respondent Insurance Company that the cheque issued by the first

respondent was dishonoured and the policy was also cancelled. In

fact, no evidence is produced by the second respondent-Insurance

Company to prove their defense. On the other hand, the learned

counsel for the claimants placed a copy of cover note, which shows

that the offending vehicle is insured with second respondent

Insurance Company from 27.03.2008 to 26.03.2009 and the date of

accident herein is 12.01.2009, therefore, the policy covers the

relevant period of accident time. The learned counsel for appellant/

Insurance Company would submit that the date of accident is

12.01.2009, the cheque issued by the first respondent was

dishonoured on 16.03.2009. As stated supra, the offending vehicle

is insured with second respondent Insurance Company and there

was a coverage of policy from 27.03.2008 to 26.03.2009, therefore,

by the date of accident, the policy is in force. Therefore, no material 7 VGKRJ MACMA 3535 of 2014

is placed by the Insurance Company/ appellant to show that the

policy issued by the appellant/ Insurance Company was cancelled

by the Insurance Company. The paramount question that falls for

adjudication in this appeal is whether the cheque issued towards

payment of premium for the policy taken in respect of the offending

vehicle was dishonoured subsequently and that the policy was

cancelled on the ground that the cheque that was issued towards

payment of premium was dishonoured, would be a valid ground to

exonerate the Insurance Company from its liability and to indemnify

the said owner to pay the compensation to the third parties, on

account of death of the deceased in the Motor Vehicle accident that

occurred due to rash and negligent driving of the driver of the

offending vehicle. Therefore, the material on record clearly reveals

that the offending vehicle is insured with appellant Insurance

Company and the policy is in force from 27.03.2008 to 26.03.2009.

As stated supra the date of accident is on 12.01.2009, therefore, the

contention of the learned counsel for the appellant that the policy

issued by the Insurance Company was cancelled on 16.03.2009

which is two months subsequent to the date of accident has no

relevant in the particular facts of this case. Therefore, I do not find 8 VGKRJ MACMA 3535 of 2014

any illegality in the award passed by the Tribunal and the award

passed by the Tribunal is perfectly sustainable under law and there

are no merits in the appeal filed by the second respondent

Insurance Company. Accordingly, this appeal is liable to be

dismissed.

14. In the result, this appeal is dismissed. 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: 18.10.2023.

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                                           MACMA 3535 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.3535 of 2014

18.10.2023

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