Peetani Nageswara Rao 2 Ors vs D.Krishna 4 Ors
2023 Latest Caselaw 4293 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 2141 of 2012

JUDGMENT:

Aggrieved against the award dated 10.01.2012 passed by the

Chairman, Motor Accident Claims Tribunal-cum-Principal District

Judge, West Godavari at Eluru, in M.V.O.P.No.1042 of 2009,

whereby the Tribunal awarded an amount of Rs.4,19,005/- as

against the claim of Rs.6,36,500/-, the petitioners preferred the

instant appeal.

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 claim petition under Section

163-A of the Motor Vehicles Act, 1988 (for short 'the Act') read with

Rule 455 of the A.P.M.V. Rules, 1989 against the respondents

praying the Tribunal to award an amount of Rs.6,36,500/- towards

compensation for the death of P. Rajya Lakshmi, who is daughter of

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petitioner Nos.1 and 2 and elder sister of the 3rd petitioner, in a

motor vehicle accident that occurred on 03.04.2008.

4. The brief averments of the claim petition are as follows:

On 03.04.2008 at 10.30 a.m. the deceased along with others

was travelling in an auto bearing registration No.AP 35U 6470 and

after overtaking a bus bearing registration No.AP 10Z 6255, the said

auto fell in a ditch on the road and turned turtle and thereby, the

deceased and other passengers in the auto fell on the road and the

bus ran over the deceased resulting in the instantaneous death of

the deceased. The 1st respondent and his Union influenced the

police personnel and got registered a case in crime No.46 of 2008

by the Bobbili P.S. against the 3rd respondent. The 1st respondent is

driver and the 2nd respondent is owner of the bus. The 3rd

respondent is driver, the 4th respondent is owner and the 5th

respondent is insurer of the auto. Hence, all the respondents are

jointly and severally liable to pay compensation to the petitioners.

VGKR,J MACMA No.2141 of 2012

5. Respondent Nos.1, 3 and 4 were set ex parte. Respondent

Nos.2 and 5 filed written statements separately by denying the

manner of accident, age, avocation and income of the deceased.

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

in question took place due to rash and negligent driving of the driver

of the auto and there was no rash and negligent driving on the part

of the driver of the bus.

ii) It is pleaded by the 5th respondent/Insurance company that the

accident took place due to rash and negligent driving of the driver of

the bus and there was no rash and negligent driving on the part of

the driver of the auto and the claim of the petitioners is exorbitant.

6. Based on the above pleadings, the Tribunal framed the

following issues for trial:

1. Whether the motor vehicle accident on 3.4.2008 at cross road of Gollapalli and Pridi Village, arose on account of rash and negligent driving of A.P.S.R.T.C. Bus bearing No.AP 10Z 6265 by R.1/driver, resulting the death of the deceased Petani Rajya Lakshmi?

VGKR,J MACMA No.2141 of 2012

2. Whether the petitioners are entitled for compensation, and if so, for what amount and from which of the respondents? and

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.9

were marked. On behalf of respondent Nos.2 and 5, R.Ws.1 to 3

were examined and Exs.B.1 to B.8 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 auto and accordingly,

allowed the petition in part and granted a sum of Rs.4,19,005/-

towards compensation to the claim petitioners against respondent

Nos.3 and 4 only and dismissed the claim petition against

respondent Nos.1, 2 and 5 and also dismissed the claim of the 3rd

petitioner. Being aggrieved by the impugned award, the claim

petitioners filed the instant appeal for enhancement of the

VGKR,J MACMA No.2141 of 2012

compensation and for exonerating the 5th respondent/Insurance

company from payment of the compensation.

9. Heard Sri P.A.N.V. Ravi Teja, learned counsel, representing

Sri A.Veeraswamy, learned counsel for the appellants/petitioners,

Sri Vinod Kumar Tarlada, learned counsel for the 2nd

respondent/APSRTC, and Smt. A. Malathi, learned counsel for the

5th respondent/Insurance company, and perused the record.

10. Now, the points for determination are:

1) Whether the claim petitioners are entitled enhancement of compensation as prayed for? and

2) Whether the order passed by the Tribunal needs any interference, if so, to what extent?

11. POINT Nos.1 and 2: The claim petition is filed under

Section 163-A of the Act whereunder the petitioners need not prove

the rash and negligent driving of the driver of the offending vehicle.

It is sufficient to prove that the vehicle was involved in the accident.

VGKR,J MACMA No.2141 of 2012

12. It is the case of the petitioners that on 03.04.2008 at 10.30 a.m.

the deceased along with others was travelling in an auto bearing

registration No.AP 35U 6470 and after overtaking a bus bearing

registration No.AP 10Z 6255, the said auto fell in a ditch on the road

and turned turtle and thereby, the deceased and other passengers

in the auto fell on the road and the bus ran over the deceased

resulting in the instantaneous death of the deceased. It is also the

case of the petitioners that the 1st respondent and his Union

influenced the police personnel and got registered a case in crime

No.46 of 2008 by the Bobbili P.S. against the 3rd respondent.

13. In order to establish the accident, the petitioners got examined

the 2nd petitioner as P.W.1. P.W.1, who too was travelling in the

auto along with the deceased at the time of accident, deposed in her

chief examination affidavit that the accident in question took place

due to rash and negligent driving of the driver of the bus. On behalf

of the respondents, the driver of the auto was examined as R.W.2.

In his evidence in chief examination, R.W.2 attributed rash and

negligent driving of the driver of the bus resulting in the accident. A

VGKR,J MACMA No.2141 of 2012

perusal of Ex.A.2-attested copy of post mortem examination

certificate, Ex.A.3-attested copy of inquest report, and Ex.B.3-scene

observation report disclose that the death of the deceased caused

due to the accident in question. In view of the above, this Court

finds that the deceased died in the accident in question that arose

out of use of the auto and the bus and due to composite negligence

on the part of the drivers of both the vehicles. Therefore, the finding

of the Tribunal that the accident in question took place due to rash

and negligent driving of the driver of the offending auto only

resulting in the death of the deceased, is liable to be set aside.

14. Ex.A.1-first information report goes to show that a case was

registered against the driver of the offending auto. Ex.B.3-charge

sheet reveals that after completion of investigation into the case, a

charge sheet was laid against the driver of the offending auto. On

considering Exs.A.1 and Ex.B.3 and also the facts and

circumstances of the case, this Court feels that it is appropriate to fix

25% contributory negligence on the driver of the offending bus and

75% contributory negligence on the driver of the offending auto.

VGKR,J MACMA No.2141 of 2012

15. Coming to the compensation, as per Ex.A.5-S.S.C. Certificate

of the deceased, the date of birth of the deceased is 23.09.1985 and

she was aged about 23 years. By giving cogent reasons, the

Tribunal fixed the annual income of the deceased as Rs.40,000/-.

The dependents on the deceased are in two number. Since the

claim application was filed under Section 163-A of the Act, 1/3rd has

to be deducted towards personal expenses of the deceased. If it is

so deducted, an amount of Rs.26,667/- (Rs.40,000/- - Rs.13,333/-)

is available towards contribution to the family members of the

deceased. As stated supra, the deceased was aged about 23 years

and the appropriate multiplier applicable to the age group of the

deceased is '17' as per II Schedule to Section 163-A of the Act, and

accordingly, the loss of dependency to the family members of the

deceased is arrived at Rs.4,53,339/- (Rs.26,667/- x multiplier '17').

In addition to that, an amount of Rs.5,000/- is awarded towards loss

of estate and Rs.2,000/- towards funeral expenses of the deceased.

In total, an amount of Rs.4,60,339/- is awarded towards

compensation to the petitioners.

VGKR,J MACMA No.2141 of 2012

16. In order to establish its case that the 3rd respondent/driver of

the offending auto was not having a valid and effective driving

licence, the 5th respondent/Insurance company got examined the

driver of the offending auto as R.W.2 and relied on Ex.B.3-charge

sheet. A careful perusal of Ex.B.3 shows that respondent Nos.3 and

4 have been shown as accused in Crime No.46 of 2008 registered

relating to the accident in question for the offences punishable under

Sections 304-A and 337 of IPC, and under Section 3 r/w 181,

Section 5 r/w 180, Section 134 r/w 187 a & b of the Act and the

specific accusation made against the 4th respondent is with regard to

his allowing the offending auto to be plied by the 3rd respondent who

does not have any driving licence. Further, R.W.2 has specifically

admitted during the course of his cross-examination that he did not

have any driving licence. In the instant case, no documentary

evidence is placed on record by the petitioners to prove that the

driver of the offending auto was having valid and effective driving

licence at the time of accident. The evidence of R.W.2 coupled with

Ex.B.2 clearly proves that the driver of the offending auto/3 rd

VGKR,J MACMA No.2141 of 2012

respondent was not holding driving licence at the time of accident

and thereby, the 4th respondent/owner of the offending auto violated

the conditions of the policy.

17. It is not in dispute that the offending auto of the 4 th respondent

was insured with the 5th respondent/Insurance company under

Ex.B.1 policy and the policy was also in force as on the date of

accident and the driver of the offending bus/1st respondent was

working under the control of the 2nd respondent/APSRTC.

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

2004 (2) ALD (SC) 36

VGKR,J MACMA No.2141 of 2012

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

vehicle.

19. For the foregoing discussion, the 5th respondent/Insurance

Company is liable to pay 75% of the compensation to the petitioners

in the first instance and later recover the same from the 4th

respondent/owner of the offending auto, by filing an execution

petition and without filing any independent suit, and the 2nd

respondent/APSRTC is liable to pay the remaining 25% of

compensation to the petitioners.

18. In the result, the appeal is partly allowed enhancing the

compensation of Rs.4,19,005/- awarded by the Tribunal to

Rs.4,60,339/-. Petitioner Nos.1 and 2 are entitled to the enhanced

compensation of Rs.41,334/- along with interest as ordered by the

Tribunal equally. The 2nd respondent/APSRTC is directed to deposit

25% of total compensation amount i.e., Rs.1,15,085/- with costs and

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

months from the date of this judgment, and the 5 th

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respondent/Insurance Company is directed to deposit the remaining

75% of total compensation amount i.e., Rs.3,45,254/- 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

auto by filing an execution petition and without filing any

independent suit. The order passed by the Tribunal is modified to

the extent indicated above. The order of the Tribunal in all other

respects shall remain intact. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 15 September, 2023 cbs

VGKR,J MACMA No.2141 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2141 of 2012

15th September, 2023 cbs