Andhra Pradesh High Court - Amravati

United India Insurance Company ... vs Y.Laxmi Narasamma on 20 September, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No. 318 of 2014

JUDGMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioners and respondent No.1 in

O.P.No.377 of 2009 on the file of the Motor Accident Claims

Tribunal-cum-V Additional District Judge (Fast Track Court),

Ananthapur. The appellant filed the appeal 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 Sections 140 and

166 of the Motor Vehicles Act, 1988 read with Rule 455 of the

A.P.M.V. Rules, 1989 against the respondents claiming

compensation of Rs.1,25,000/- for the death of Y. Narayana Reddy,

VGKR,J MACMA No.318 of 2014

who is husband of 1st petitioner and father of petitioner Nos.2 and 3,

in a motor vehicle accident that took place on 14.08.1998.

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

as follows:

On 14.08.1998 at about 9.00 a.m. when the deceased was

proceeding in a van bearing registration No.AP 03 3390 with tomato

boxes to go to Kadiri by paying luggage charges and after going one

kilometer from Malakavemula cross, as the driver of the said van

drove the van in a rash and negligent manner, the back door of the

van was opened and the empty boxes and the deceased fell down

from the van, as a result, the deceased sustained grievous injuries

and later he succumbed to injuries while undergoing treatment in the

Government Hospital, Anantapur. A case in crime No.46 of 1998

was registered against the driver of the van for the offences

punishable under Sections 337, 338 and 304-A of IPC. The 1st

respondent is owner and the 2nd respondent is insurer of the van,

hence, both the respondents are jointly and severally liable to pay

compensation to the petitioners.

VGKR,J MACMA No.318 of 2014

5. The 1st respondent was set ex parte. The 2nd

respondent/Insurance company filed a counter by denying the

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

is pleaded that the accident occurred due to negligence of the

deceased himself and the claim of the petitioners is exorbitant.

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 on 14.08.1998 due to rash and negligent driving of the van bearing No.AP 03 3390 by its driver, the deceased fell down from the van and caused the death of the deceased?

2) Whether the petitioners are entitled to compensation? If so, to what amount and from which respondent?

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 2nd respondent/Insurance company,

no oral evidence was adduced, but Ex.B.1 was got marked.

VGKR,J MACMA No.318 of 2014

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 van and accordingly, allowed the petition in part and

granted an amount of Rs.95,400/- with proportionate costs and

interest at 9% p.a. from the date of petition till the date of deposit

against both the respondents. Aggrieved against the said order, the

appellant/Insurance company preferred the present appeal.

9. Heard learned counsel for the appellant/Insurance company

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: In order to prove the rash and negligent driving of

the driver of the offending van, the petitioners relied on the evidence

of P.Ws.1 and 2 as well as Exs.A.3 and A.4. P.W.1 is not an eye

VGKR,J MACMA No.318 of 2014

witness to the accident, so, his evidence cannot be relied upon.

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

accident occurred because of rash and negligent driving of the

driver of the offending van. Nothing was elicited by the 2 nd

respondent/Insurance company from the cross-examination of

P.W.2 to discredit his testimony in chief examination affidavit and

the contra suggestion put to him that the deceased died on account

of his negligence, was also denied by him. In order to establish the

said suggestion and that the accident did not take place due to rash

and negligent driving of the driver of the offending vehicle, no

evidence was let in by the 2nd respondent and the 2nd respondent did

not even choose to examine the driver of the offending van as he is

the best person to speak as to the manner of accident. Ex.A.3-

M.V.I. report goes to show that the accident occurred not due to any

mechanical defects in the offending van. Ex.A.4-charge sheet also

goes to show that after completion of investigation, a charge sheet

was laid against the driver of the offending van. The evidence of

P.Ws.1 and 2 coupled with Exs.A.3 and A.4 clearly proves that the

VGKR,J MACMA No.318 of 2014

accident took place on account of rash and negligent driving of the

driver of the offending van. The Tribunal, on appreciation of the

evidence on record, also came to the same conclusion. Therefore,

this Court feels that there is no need to interfere with the said finding

given by the Tribunal.

12. Coming to the compensation, though it is the case of the

petitioners that the deceased was earning Rs.5,000/- per month by

doing agricultural work as well as vegetable business, no evidence

is produced by the petitioners before the Tribunal. However, by

giving cogent reasons, the Tribunal fixed the annual contribution to

the family members of the deceased as Rs.10,600/-. As per Ex.A.1-

certified copy of inquest report and Ex.A.2-certified copy of post

mortem report and as per the case of the petitioners, the age of the

deceased was 55 years at the time of accident. By applying the

multiplier '9' applicable to the age group of the deceased, the

Tribunal arrived the loss of dependency to the family members of

the deceased at Rs.95,400/- (Rs.10,600/- x multiplier '9'). By giving

cogent reasons, the Tribunal came to the conclusion that the

VGKR,J MACMA No.318 of 2014

petitioners are entitled to a total compensation of Rs.95,400/-. No

appeal or cross-objections is filed by the petitioners for

enhancement of the compensation. Therefore, there is no need to

interfere with the said finding given by the Tribunal in awarding the

quantum of compensation.

13. It is the contention of the appellant/Insurance company that

the deceased was travelling as a gratuitous passenger in the

offending vehicle at the time of accident, therefore, the Insurance

company is not liable to pay the compensation.

14. It is not in dispute that the offending van of the 1 st respondent

was insured with the 2nd respondent/Insurance company under

Ex.B.1 policy and the policy was also in force at the time of accident.

15. Even as per the pleadings of the petitioners in the claim

petition, the deceased travelled in the offending vehicle by paying

luggage charges to the driver of the offending vehicle. No evidence

is adduced by the respondents to prove their defence. On

considering the material on record, this Court is of the opinion that

VGKR,J MACMA No.318 of 2014

the deceased travelled in the offending vehicle as an

unauthorized/gratuitous passenger.

16. In similar circumstances, in Manuara Khatun Vs. Rajesh Kr.

Singh (Civil Appeal No.3047 of 2017 dated 21.02.2017 arising out

of SLP (C) No.5805/2013), the Hon'ble Apex Court held as under:

"This question also fell for consideration recently in Manager, National Insurance Co. Limited V. Saju P. Paul and Anr, (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"."

VGKR,J MACMA No.318 of 2014

17. In similar circumstances, in Anu Bhanvara Vs. Iffco Tokio

General insurance Company Limited 1 , a three-Judge Bench of

the Hon'ble Supreme Court also held that the principle of 'pay and

recover' should be directed to be invoked in the present case.

18. Since the deceased travelled as an unauthorized/gratuitous

passenger in the offending vehicle, which was owned by the 1st

respondent and insured with the 2nd respondent/Insurance under

Ex.B.1 policy, at the time of accident and as the claim petitioners are

none other than the dependents on the deceased and in the light of

the principle laid down by the Hon'ble Apex Court in the aforesaid

judgments, this Court is of the view that the Insurance company is

liable to first pay the awarded sum to the petitioners and then to

recover the paid awarded sum from the owner of the offending

vehicle by filing an execution petition and without filing any

independent suit.

2019 0 Supreme (SC) 848 = 2019 (5) ALD (SC) 287