Kummara Kondaiah Another vs K.Venkataiah Another
2023 Latest Caselaw 4441 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.2195 of 2015


JUDGMENT:

Aggrieved by the impugned order dated 08.07.2010 on the file

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

Kurnool at Nandyal, passed in M.V.O.P.No.137 of 2005, whereby

the Tribunal partly allowed the claim of claimants against the first

respondent, the instant appeal is preferred by the appellants-

claimants for enhancement of compensation and in exonerating the

second respondent Insurance company from the liability of payment

of the compensation amount.

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(c) of

Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.2,00,000/- towards

compensation on account of death of deceased Kummara

Subbamma in a Motor Vehicle Accident occurred on 23.08.2002.

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4. Facts germane to dispose of this appeal may be briefly stated

as follows:

The deceased Kummara Subbamma, hereinafter referred to

as 'deceased', was working as hamali under the first respondent in

the lorry bearing No.AP01T 8472, hereinafter referred to as

'offending vehicle', and the said lorry was transporting sand from

Chirala to Pacharla at the time of accident. The first respondent

was the driver-cum-owner of the said lorry. On 22.08.2002 evening

the deceased along with other hamalis boarded the offending

vehicle at Giddalur as hamali after loading sand at Chirala and while

the lorry was going to Pacharla, in the early hours on 23.08.2002 at

about 7.00 a.m., it got turned turtle as the driver lost control over the

vehicle, near Marrimanu turning in Nallamalla forest. The lorry went

off the road and fell into a channel, resulting which, the deceased

and five others died on the spot.

5. The first respondent remained exparte. The second

respondent filed counter denying the claim of the claimants and

contended that the claimants are not entitled any compensation and 3 VGKRJ MACMA 2195 of 2015

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

claimants.

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

following issues:

i. Whether the accident occurred due to the rash or negligent driving of the driver of lorry bearing No.AP01T 8472 resulting the death of the deceased by name Kummara Subbamma?

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

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.A5 were marked. On behalf of respondents, RW1 was examined

and Ex.B1 was marked.

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 4 VGKRJ MACMA 2195 of 2015

granted an amount of Rs.50,000/- to the claimants towards

compensation from the respondent No.1 and claim against the

respondent No.2/Insurance Company is dismissed. Aggrieved

against the exoneration of the Insurance company from the liability

of payment of the compensation amount and granting of meager

compensation, the appellants/petitioners preferred the present

appeal.

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

record.

10. Now, the points for consideration are:

1. Whether the Order of Tribunal needs any interference?

2. Whether the claimants/ appellants are entitled for enhancement of compensation as prayed for?

11. POINT Nos.1 and 2:-

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 the son of the deceased and he is not an eye

witness to the accident. PW2 is the eye witnesses to the accident.

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                                                     MACMA 2195 of 2015

As per the evidence of PW2, at the time of accident, the driver of the

offending vehicle drove the same in a rash and negligent manner

and lost control over the vehicle, due to which, the lorry went off the

road and fell by the side of the road, resulting which, the inmates of

the vehicle received multiple injuries and some of them died. The

same is supported by Ex.A1 certified copy of First Information

Report and Ex.A5 certified copy of charge sheet. On considering

the evidence of PW2 and on considering Ex.A1 and Ex.A5, the

Tribunal rightly came to conclusion that the accident in question

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

offending lorry. I do not find any legal flaw or infirmity in the said

finding given by the Tribunal.

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

of Rs.50,000/- to the claimants towards total compensation against

the first respondent and exonerated the second respondent

Insurance company in awarding compensation. On considering the

entire evidence on record, since the deceased occupation was a

hamali, the Tribunal arrived the monthly income of the deceased as

Rs.1,200/- per month. From out of which, the Tribunal deducted 6 VGKRJ MACMA 2195 of 2015

1/3rd amount i.e., Rs.400/- towards personal expenses of the

deceased, after deducting 1/3rd amount, the contribution of

deceased for maintenance of family would be Rs.800/- per month

i.e., 9,600/- per annum. As per Ex.A2 inquest report and Ex.A3 post

mortem certificate, the deceased was aged about 50 years by the

date of accident and the Tribunal applied the multiplier 13.

Accordingly, the Tribunal arrived to a conclusion that the petitioners

are entitled an amount of Rs.1,24,800/- ( 9,600 x 13) towards loss of

dependency. But the Tribunal held in its order that since both the

petitioners are majors and aged about 28 and 25 years, their status

is considered not as dependents, but only as legal heirs of the

deceased. It is not in dispute that both the petitioners are none

other than the sons of the deceased and at the time of filing of the

application, their age is 28 years and 25 years respectively. There

is no evidence on record that they are the dependents on the

deceased and the Tribunal by recording reasons awarded an

amount of Rs.50,000/- only to the petitioners towards compensation

with interest @6% p.a. from the date of petition till the date of

realization.

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                                                                    MACMA 2195 of 2015

13. The contention of the claimants is that the deceased was not a

gratuitous passenger and the deceased was a hamali, travelled in

the offending vehicle along with other hamalis. As seen from the

policy, the offending vehicle is insured with the second respondent

Insurance Company and the policy is in force under Ex.B1. Ex.B1

also discloses that premium was paid by the owner of the offending

vehicle for engaging coolies and the deceased also covered under

the said premium. It is not in dispute that the offending vehicle is

insured with second respondent Insurance Company and the policy

is in force. The learned counsel for appellants has relied on a

decision of the Apex Court in Anu Bhanvara Etc. Vs.Iffco Tokio

General Insurance Company Limited and others1. In that decision it

was held that:

"The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case".

    2019 ACJ 2802
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                                                                   MACMA 2195 of 2015

Learned counsel for the appellants also relied on a decision of

Apex Court in Manura Khatun and others Vs. Rajesh Kr. Singh and

others2. In that decision was held that:

In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company- respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra.

The ratio applied in the said decisions is rightly applicable to

the present facts of the case. Here in the present case, the

deceased was also travelling in the offending vehicle. Therefore, in

view of the above decisions of the Hon'ble Apex Court, which was

decided in the year 2017 and 2019 as stated supra, the second

respondent Insurance Company initially liable to deposit the

compensation of Rs.50,000/-, with interest @7.5 p.a., from the date

of petition, till the date of realization, which was awarded by the

Tribunal, before the Tribunal in first instance and later recover the

2017 ACJ 1031 9 VGKRJ MACMA 2195 of 2015

same from the owner of the offending vehicle by filing an Execution

Petition and without filing any independent suit.

14. In the result, this appeal is disposed of, modifying the order

dated 08.07.2010 passed in MVOP No.137/2005 on the file of the

Motor Accident Claims Tribunal-cum-III Additional District Judge,

Kurnool at Nandyal. It is held that the claimants are entitled to a

total compensation of Rs.50,000/-, as ordered by the Tribunal, with

interest @7.5% p.a., from the date of petition, till the date of

realization. The 2nd respondent/ Insurance Company is directed to

deposit the compensation amount of Rs.50,000/- with interest as

ordered by the Tribunal within two months from the date of this

judgment, before the Tribunal at first instance and later recover the

total compensation amount with interest from the first respondent/

owner of the offending vehicle, by filing an Execution Petition and

without filing any independent suit. After depositing the

compensation amount along with accrued interest thereon, the

petitioners are entitled to withdraw their share of compensation

amount along with accrued interest thereon. The award of Tribunal 10 VGKRJ MACMA 2195 of 2015

in all other respects regarding apportionment of amount shall stands

confirmed. 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: 21.09.2023.

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                                           MACMA 2195 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.2195 of 2015

21.09.2023

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