Andhra Pradesh High Court - Amravati

The New India Assurance Co Ltd vs Vanapalli Sithamaha Lakshmi 7 Ors on 8 September, 2023

Bench: Venuthurumalli Gopala Rao

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1887 of 2013

JUDGMENT:

Aggrieved by the award dated 15.02.2011 passed by the

Chairman, Motor Accident Claims Tribunal-cum-V Additional District

Judge (Fast Track Court), Eluru, in O.P.No.1111 of 2005, this

instant appeal is preferred by the 3rd respondent/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 petition.

3. 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, 1989 claiming compensation of Rs.4,00,000/- for the death

of Vanapalli Venkateswara Rao in a motor vehicle accident that took

place on 08.10.2005.

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

as follows:

On 08.10.2005 in the morning hours the deceased went to

Bhimavaram on his motor cycle bearing registration No.AP 09-08-

6617 and after completion of his work at Bhimavaram, he was

proceeding to Kalla village and when he reached near a Bridge at

Kopalle Village at about 9.15 p.m., a private Hi-tech bus bearing

registration No.AP 05Y 8687, which is bound to Hyderabad, being

driven by its driver in a rash and negligent manner at high speed

came from Narsapur and dashed against the motor cycle of the

deceased from behind, as a result, the deceased sustained grievous

injuries and later succumbed to injuries. The police, Kalla P.S.

registered a case in crime No.117 of 2005 against the driver of the

offending bus for the offence punishable under Section 304-A of IPC.

The 1st respondent being driver, the 2nd respondent being owner and

the 3rd respondent being insurer of the offending bus are jointly and

severally liable to pay compensation to the petitioners.

VGKR,J MACMA No.1887 of 2013

5. Respondent Nos.1 and 2 were set ex parte. Respondent

Nos.3 and 4 filed counters separately, by denying the manner of

accident, age, avocation and income of the deceased. The counter

filed by the 4th respondent was adopted by respondent Nos.5 and 6.

i) The 3rd respondent/Insurance company pleaded that the

owner of the offending bus obtained policy for the coverage of the

bus and paid premium by way of a cheque and when the cheque

was presented for collection, it was dishonoured, they issued policy

cancellation notice to the owner of the bus and also intimated to the

RTA, Hyderabad, about the same, as such, the Insurance company

has no liability to indemnify the owner of the bus.

ii) It is pleaded by the 4th respondent that she is legally wedded

wife of the deceased and out of their wedlock, she gave birth to

respondent Nos.5 and 6, the 1st petitioner is not the legally wedded

wife of the deceased, the petitioners are not the legal

representatives of the deceased, therefore, she prays to grant entire

compensation to respondent Nos.4 to 6 only.

VGKR,J MACMA No.1887 of 2013

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

following issues were settled for trial by the Tribunal:

1) Whether the deceased-Vanapalli Venkateswara Rao died in a motor vehicle accident on 08.10.2005 due to rash and negligent driving of the private Hi-tech bus bearing No.AP 05Y 8687 driven by its driver-1st respondent?

2) What was the age and income of the deceased?

3) Whether the petitioners are entitled to claim compensation? If so, to what amount and from which of the respondents?

4) 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.5

were marked. On behalf of the respondents, R.Ws.1 to 3 were

examined and Exs.B.1 to B.13 were marked.

8. 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 bus and accordingly, allowed the petition in part and

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granted an amount of Rs.3,26,000/- towards compensation to

petitioner Nos.2 and 3 and respondent Nos.4 to 6 with proportionate

costs and interest at 6% p.a. from the date of petition till the date of

deposit against respondent Nos.1 to 3. Aggrieved against the said

order, the 3rd respondent/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 case of the petitioners is that on 08.10.2005 in

the morning hours the deceased went to Bhimavaram on his motor

cycle bearing registration No.AP 09-08-6617 and after completion of

his work at Bhimavaram, he was proceeding to Kalla village and

when he reached near a Bridge at Kopalle Village at about 9.15 p.m.,

VGKR,J MACMA No.1887 of 2013

a private Hi-tech bus bearing registration No.AP 05Y 8687, which is

bound to Hyderabad, being driven by its driver in a rash and

negligent manner at high speed came from Narsapur and dashed

against the motor cycle of the deceased from behind, as a result,

the deceased/rider of the motor cycle fell down from the motor cycle

and sustained grievous injuries and later succumbed to injuries.

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

the offending bus, the petitioners relied on the evidence of P.Ws.1

and 2. P.W.1 is the 1st petitioner, admittedly, she is not an eye

witness to the accident. P.W.2 is an eye witness to the accident.

The evidence of P.W.2 clearly goes to show that because of rash

and negligent driving of the driver of the offending bus only, the

accident occurred in which the deceased died due to injuries

sustained by him. Ex.A.1-attested copy of first information report

support the case of the petitioners. Ex.A.4-attested copy of charge

sheet also supports the case of the petitioners. The material on

record reveals that due to rash and negligent driving of the driver of

VGKR,J MACMA No.1887 of 2013

the offending bus only, the accident in question occurred in which

the deceased died due to injuries. On appreciation of the material

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

Therefore, I do not find any legal flaw or infirmity in the said finding

given by the Tribunal.

13. Coming to the compensation, the Tribunal held in its order that

even though the petitioners claimed that the monthly income of the

deceased was more than Rs.3,000/-, but no proof was filed by them

before the Tribunal. It is the contention of the petitioners that the

deceased used to earn Rs.10,000/- per month by doing aqua culture

and also by taking lands on lease. In order to prove the same, no

evidence was adduced by the petitioners. The accident occurred in

the year 2005. In those days, an ordinary coolie can easily earn

Rs.100/- per day. Therefore, the monthly income of the deceased

was arrived at Rs.3,000/- p.m. i.e., Rs.36,000/- per annum. The

Tribunal, by giving cogent reasons, held in its order that the age of

the deceased was in between 51 to 55 years and the multiplier

VGKR,J MACMA No.1887 of 2013

applicable to the age group of the deceased is '11'. The Tribunal

also held in its order that after deducting 1/3rd from out of the annual

income towards personal expenses of the deceased, an amount of

Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) is available to the

dependents on the deceased. Therefore, the Tribunal awarded an

amount of Rs.2,64,000/- (Rs.24,000/- x multiplier '11') towards loss

of dependency. In addition to the above amount, the Tribunal

awarded an amount of Rs.2,000/- towards transportation charges,

Rs.5,000/- towards funeral expenses of the deceased, Rs.15,000/-

towards loss of love and affection, Rs.15,000/- towards loss of

consortium to the 4th respondent, and Rs.25,000/- towards loss of

estate. The Tribunal, by giving cogent reasons, held in its order that

the dependents on the deceased i.e., petitioner Nos.2 and 3 and

respondent Nos.4 to 6 are entitled to the total compensation of

Rs.3,26,000/-. The petitioners or respondent Nos.4 to 6 did not file

any cross-objections or did not challenge the said finding given by

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

finding given by the Tribunal.

VGKR,J MACMA No.1887 of 2013

14. It is not in dispute that the driver of the offending bus was

having valid driving licence at the time of accident.

15. Learned counsel for the appellant/Insurance company would

vehemently contend that the owner of the offending bus obtained

policy for the coverage of the bus for the period from 29.01.2005 to

28.01.2006 and paid premium by way of a cheque bearing

No.039209 dated 27.01.2005 drawn on I.C.I.C.I. Bank Limited in

favour of the Insurance company, the said cheque was presented

for collection through Andhra Bank and it was returned on

02.02.2005 with an endorsement 'insufficient funds', later the

Insurance company cancelled the policy, therefore, the Insurance

company is not liable to pay any compensation.

16. The material on record reveals that the accident in question

occurred on 08.10.2005. the 2nd respondent paid premium by way

of a cheque and obtained policy on 29.01.2005. After dishonour of

the cheque, the policy was cancelled by the Insurance company on

03.02.2005, but the same was not intimated to the 2nd

VGKR,J MACMA No.1887 of 2013

respondent/insured. Ex.B.4-letter filed by the Insurance company

clearly goes to show that a notice with regard to cancellation of the

policy was sent to some other person but not to the 2 nd

respondent/insured. Learned counsel for the appellant/Insurance

company fairly admits that the notice was sent to the brother of the

2nd respondent/insured. Therefore, there is no evidence on record

that the dishonour of the cheque and cancellation of the policy was

intimated to the 2nd respondent by the Insurance company.

17. After considering the earlier judgments rendered by the Apex

Court in this regard in Oriental Insurance Company Limited vs.

Inderjit Kaur1, National Insurance Company Limited Vs. Seema

Malhotra and others 2 and Deddappa Vs. Branch Manager,

National Insurance Company Limited3 and after considering the

relevant provisions of the Motor Vehicles Act i.e., Sections 147, 149

1998 (1) SCC 371

2001(3) SCC 151

2008 (2) SCC 595

VGKR,J MACMA No.1887 of 2013

and also Section 64 of VB of the Insurance Act, the Apex Court in

United India Insurance Company Limited Vs. Laxmamma and

others4 authoritatively held as under:

"In our view, the legal position is this : where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonored and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof".

2012 (5) SCC 234

VGKR,J MACMA No.1887 of 2013

"Having regard to the above legal position, insofar as facts of the present case are concerned, the owner of the bus obtained policy of insurance from the insurer for the period April 16, 2004 to April 15, 2005 for which premium was paid through cheque on April 14, 2004. The accident occurred on May 11, 2004. It was only thereafter that the insurer cancelled the insurance policy by communication dated May 13, 2004 on the ground of dishonour of cheque which was received by the owner of the vehicle on May 21, 2004. The cancellation of policy having been done by the insurer after the accident, the insurer became liable to satisfy award of compensation passed in favour of the claimants".

18. The ratio laid down in the above judgment squarely applies to

the present facts of the case. In the instant case also, the policy

was issued on 29.01.2005 and the cheque towards the premium

was issued on 27.01.2005. Thereafter, the cheque was

dishonoured and the policy was cancelled on 03.02.2005. The

accident in question in this case occurred on 08.10.2005, but the

Insurance company had not sent the intimation of dishonour of

cheque and cancellation of policy to the insured/2nd respondent. The

Tribunal, on considering the entire material on record, rightly passed

VGKR,J MACMA No.1887 of 2013

award against all the respondents including the Insurance Company.

Therefore, I do not find any legal flaw or infirmity in the said finding