The Oriental Insurance Co Ltd vs Aluri Naga Lakshmi 6 Others
2023 Latest Caselaw 4074 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

              M.A.C.M.A.Nos. 3066 and 3241 of 2014

COMMON JUDGMENT:

      Questioning the legal validity of the award of the Tribunal

dated 30.04.2014 passed by the Chairman, Motor Accident Claims

Tribunal-cum-XII    Additional    District   Judge,    Vijayawada,   in

O.P.No.310 of 2007, the 4th respondent/Oriental Insurance Co. Ltd.

filed M.A.C.M.A.No.3066 of 2014 while the 2nd respondent/Bajaj

Allianz General Insurance Co. Ltd. filed M.A.C.M.A.No.3241 of 2014.


2.    Since both the appeals arose from out of one decree and

order passed in O.P.310 of 2007, they are heard together and are

being disposed of by this common judgment.


3.    For the sake of convenience, both the parties in the appeals

will be referred to as they are arrayed in the claim petition.


4.    The claim petitioners filed the petition under Section 166 of the

Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V. Rules,
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                                                     MACMA.Nos.3066 & 3241 of 2014




1989    against   the   respondents     claiming    compensation              of

Rs.14,00,000/- for the death of Aluri Mani Kumar, who is husband of

1st petitioner, father of 2nd petitioner and son of petitioner Nos.3 and

4, in a road accident that took place on 09.10.2006.


5.     Facts

germane to dispose of the appeals may briefly be stated

as follows:

On 09.10.20096 at about 10.45 a.m. the deceased was

travelling in an auto bearing registration No.AP 7W 7132 of the 3 rd

respondent from Epuri to Vinukonda and when the said auto

reached near Chekkavagu of Vinukonda, an auto bearing

registration No.AP 7W 7538 being driven by its driver in a rash and

negligent manner at high speed came in opposite direction without

following the rules and dashed the auto in which the deceased was

travelling, as a result, the deceased sustained severe injuries and

later succumbed to injuries. The 1st respondent is owner and the 2nd

respondent is insurer of the auto No.AP 7W 7538, the 3 rd

respondent is owner and the 4th respondent is insurer of the auto

VGKR,J MACMA.Nos.3066 & 3241 of 2014

No.AP 7W 7132, hence, all the respondents are jointly and severally

liable to pay compensation to the petitioners.

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

Nos.2 and 4 filed their individual counters by denying the allegations

made in the claim petition.

i) It is pleaded by the 2nd respondent that the accident occurred

by reason of head on collision of the vehicles of the 1 st respondent

and the 3rd respondent and in both the vehicles, more than the

authorized number of passengers were travelling at the time of

accident, therefore, it amounts to violation of terms and conditions of

the policy, as such, the 2nd respondent is not liable to pay any

compensation.

ii) It is pleaded by the 4th respondent that the accident occurred

by reason of rash and negligent driving of the driver of the auto of

the 1st respondent, therefore, the 4th respondent is not liable to pay

any compensation.

VGKR,J MACMA.Nos.3066 & 3241 of 2014

7. Based on the above pleadings, the following issues were

framed for trial by the Tribunal:

1) Whether the death of Mani Kumar in a motor vehicle accident on 9.10.2006 at 10.45 hours near Chekka Vagu Karampudi, Guntur District due to the rash and negligent driving of crime vehicle auto bearing No.AP 7W 7538 and AP 7W 7132 auto?

2) If so, what is the correct age and income of the deceased by the date of accident?

3) Whether petitioners are entitled to the compensation as prayed for? If so, from whom and for what amount?

4) To what relief?

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

the petitioners, P.W. 1 was examined and Exs.A.1 to A.7 were

marked. On behalf of respondent Nos.2 and 4, R.W.1 was

examined and Exs.B.1 and B.2 were examined.

9. At the culmination of the enquiry, based on the material on

record, the Tribunal came to the conclusion that the accident

occurred due to rash and negligent driving of the drivers of both the

autos involved in the accident and accordingly, allowed the petition

VGKR,J MACMA.Nos.3066 & 3241 of 2014

in part and granted a total compensation of Rs.17,21,000/- with

costs and interest at 7.5% p.a. from the date of petition till the date

of payment against all the respondents. Aggrieved against the said

order, the 4th respondent/Oriental Insurance Co. Ltd. filed

M.A.C.M.A.No.3066 of 2014 while the 2nd respondent/Bajaj Allianz

General Insurance Co. Ltd. filed M.A.C.M.A.No.3241 of 2014.

10. Heard learned counsels for both the parties and perused the

record.

11. Now, the point for determination is:

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

12. POINT: In order to prove the accident, the petitioners got

examined the 1st petitioner as P.W.1. P.W.1 is none other than the

wife of the deceased and she is not an eye witness to the accident.

The petitioners did not examine any eye witness to the occurrence

of the accident. The petitioners relied on the documentary evidence

i.e., Ex.A.1-attested copy of first information report and Ex.A.4-

VGKR,J MACMA.Nos.3066 & 3241 of 2014

attested copy of charge sheet. Ex.A.1 is the first information report

issued by the Police based on a report given by one of the injured in

the accident and the de facto complainant was a passenger in the

auto of the 3rd respondent at the time of accident and in the same

auto, the deceased was travelling. As per Ex.A.1, the auto of the 1 st

respondent being driven by its driver in a rash and negligent manner

at high speed came in opposite direction and dashed the auto in

which the deceased and the de facto complainant were travelling.

Based on Ex.A.1, the Sub Inspector of Police took up the

investigation in this case, examined the witnesses concerned and

laid a charge sheet under Ex.A.4. As seen from the contents of

Ex.A.4, the Investigating Officer examined all the witnesses in this

case, visited the scene of offence immediately after occurrence of

the accident, conducted scene observation panchanama in the

presence of mediators and prepared a report to that effect, and also

prepared a rough sketch of scene of offence. Ex.A.4 clearly

discloses that the accident occurred in the middle of the road and

the drivers of both the autos are negligent. Either of the parties in

VGKR,J MACMA.Nos.3066 & 3241 of 2014

the claim petition did not file the scene observation report and rough

sketch.

13. The 1st respondent's auto driver was examined as R.W.1. As

per the evidence of R.W.1, at the time of accident he was

proceeding on the road on his left side in a slow manner and the

auto of the 3rd respondent driven by its driver in a rash and negligent

manner came in opposite direction and dashed his auto. The

accident in question occurred in broad daylight and both the autos

involved in the accident came in opposite direction. As per Ex.A.4,

the accident occurred in the middle of the road. The same is not

denied by the driver of the auto of the 1st respondent. As the

accident occurred in broad daylight, there is every possibility for the

drivers of both the autos to take steps to avoid the accident. The

evidence of R.W.1 is silent as to what steps are taken by him to

avoid the accident. On considering the entire material on record, by

giving cogent reasons, the Tribunal came to the conclusion that

there was composite negligence on the part of the drivers of both

VGKR,J MACMA.Nos.3066 & 3241 of 2014

the autos for occurrence of the accident. I do not find any legal flaw

or infirmity in the said finding given by the Tribunal.

14. Coming to the compensation, the case of the petitioners is that

during the lifetime of the deceased, he worked as a Police

Constable and used to earn gross salary of Rs.8,200/- p.m. As per

Ex.A.7, the Government deductions are Rs.871/-. Therefore, the net

salary of the deceased is Rs.7,329/- p.m. i.e., Rs.87,948/- per

annum which is rounded off to Rs.88,000/-. Since the deceased

was a permanent employee and aged in between 25-30 years, as

per the decision of the Hon'ble Apex Court in National Insurance

Company Limited Vs. Pranay Sethi 1 , 50% from out of annual

income has to be added towards future prospects and accordingly,

the annual income of the deceased is arrived at Rs.1,32,000/-

(Rs.88,000/- + Rs.44,000/-). The dependants on the deceased are

four in number. So, 1/4th from out of the annual income has to be

deducted towards personal expenses of the deceased. Having

deducted as such, the annual contribution to the family members of

2017 (16) SCC 680

VGKR,J MACMA.Nos.3066 & 3241 of 2014

the deceased is arrived at Rs.99,000/- (Rs.1,32,000/- - Rs.33,000/-).

As stated supra, the deceased was aged in between 25-30 years on

the date of accident and the relevant multiplier applicable to the age

group of the deceased is "17", as per the judgment of the Hon'ble

Supreme Court in Sarla Varma Vs. Delhi Transport Corporation2

and the loss of dependency is arrived at Rs.16,83,000/- (Rs.99,000/-

x 17). The 1st petitioner lost her husband at the age of 25 years,

therefore, Rs.30,000/- is awarded towards loss of consortium to the

1st petitioner. Apart from that, an amount of Rs.8,000/- is awarded

towards funeral expenses of the deceased. In total, the petitioners

are entitled to a compensation of Rs.17,21,000/-. Therefore, the

compensation of Rs.17,21,000/- awarded by the Tribunal is just and

proper and there is no need to interfere with the quantum of

compensation awarded by the Tribunal.

15. Since it is proved that the accident occurred by reason of

composite negligence on the part of the drivers of both the autos

involved in the accident, on considering the overall circumstances of

2009 (4) SCJ 91

VGKR,J MACMA.Nos.3066 & 3241 of 2014

the case, 50% contributory negligence is fixed on the driver of the

auto of the 1st respondent and 50% contributory negligence is fixed

on the driver of the auto of the 3rd respondent.

16. As per Ex.B.1-copy of policy, the auto of the 1st respondent

was insured with the 2nd respondent/Bajaj Allianz General Insurance

Company Limited, and as per Ex.B.2-copy of policy, the auto of the

3rd respondent was insured with the 4th respondent/Oriental

Insurance Company Limited and the policies were also in force as

on the date of accident. As per the evidence on record, there are no

violations of the terms and conditions of the policies issued by

respondent Nos.2 and 4. Therefore, respondent Nos.2 and 4 are

liable to indemnify respondent Nos.1 and 3 respectively. On

appreciating the evidence on record, the Tribunal came to the

conclusion that all the respondents are jointly and severally liable to

pay the compensation and respondent Nos.2 and 4 being insurers

of the offending autos are liable to indemnify respondent Nos.1 and

3 respectively. Therefore, there is no need to interfere with the said

finding given by the Tribunal.

VGKR,J MACMA.Nos.3066 & 3241 of 2014

17. Accordingly, both the appeals are dismissed. The 2nd

respondent/Bajaj Allianz General Insurance Company Limited is

directed to deposit 50% of the compensation i.e., Rs.8,60,500/- after

deducting the amount deposited if any, and the 4th

respondent/Oriental insurance Company Limited is directed to

deposit the remaining 50% of the compensation i.e., Rs.8,60,500/-

after deducting the amount deposited if any, along with costs and

interest as ordered by the Tribunal, before the Tribunal within two

months from the date of this judgment. No order as to costs in both

the appeals.

Miscellaneous petitions, if any, pending in the appeals shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J th 6 September, 2023 cbs

VGKR,J MACMA.Nos.3066 & 3241 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.Nos.3066 and 3241 of 2014

6th September, 2023

VGKR,J MACMA.Nos.3066 & 3241 of 2014

cbs