The Oriental Insurance Company ... vs Kaitepalli Sumthi 8 Others
2023 Latest Caselaw 4476 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1831 of 2013

JUDGMENT:

The appellant is 2nd respondent/ Oriental Insurance Company

Limited and the respondents are claim petitioners and respondent

Nos.1 and 3 to 5 in M.V.O.P.No.477 of 2007 on the file of the

Chairman, Motor Accident Claims Tribunal-cum-Principal District

Judge, Krishna at Machilipatnam. 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 petition.

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

the Motor Vehicles Act, 1988 against the respondents claiming

compensation of Rs.8,00,000/- for the death of K. Dinakar @

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

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and 3, and son of petitioner Nos.4 and 5, in a motor vehicle accident

that took place on 17.03.2007.

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

as follows:

On 17.03.2007 the deceased and his friend by name

Veerabhadra Rao were going on a motor cycle to Guidvada.

Veerabhadra Rao was riding the motor cycle and the deceased was

the pillion rider. When they reached near Aravinda high School of

Addada village and when they were going on the said motor cycle

on the left side of the road, one auto bearing registration No.AP

37W 8676 being driven by the 1st respondent in high speed and in a

rash and negligent manner without blowing horn came and dashed

the said motor cycle. Both the deceased and his friend fell on the

road. At that time, one lorry bearing registration No.AIC 1663 was

coming from behind the motor cycle and the 3rd respondent was

driving the said lorry in a rash and negligent manner in high speed

and he did not maintain proper distance from the motor cycle which

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is going in front of it and the said lorry dashed the motor cycle and

dragged the said Veerabhadrarao and the deceased to some extent.

Both Veerabhadrarao and the deceased sustained injuries in the

accident and later the deceased succumbed to injuries while

undergoing treatment in the Government Hospital, Gudivada. The

police, Pamarru P.S. registered a case in crime No.48 of 2007

against the drivers of both the auto and lorry for the offences

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

respondent is owner-cum-driver of auto, the 2nd respondent is

insurer of auto, the 3rd respondent is driver of lorry, the 4th

respondent is owner of lorry and the 5th respondent is insurer of the

lorry, hence, all the respondents are jointly and severally liable to

pay compensation to the petitioners.

5. The 3rd respondent was set ex parte.

6. The other respondents filed counters separately by denying

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

VGKR,J MACMA No.1831 of 2013

i) It is pleaded by respondent Nos.1 and 4 that the accident

occurred due to gross negligence of the rider of the motor cycle. It is

pleaded by the 2nd respondent that the driver of the offending auto

had no effective driving licence and the claim of the petitioners is

very excessive. It is pleaded by the 5th respondent that the driver of

the auto was responsible for the accident in question and the owner

of the lorry was running his vehicle by engaging a driver who had no

licence, as such, the 5th respondent is not liable to pay any

compensation.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred due to rash and negligent driving of the driver (R.1) of auto bearing No.AP 37W 8676 and also due to rash and negligent driving of driver (R.3) of lorry bearing No.AIC 1663?

2) Whether the petitioners are entitled to any compensation, and if so, to what amount and from which of the respondents?

3) To what relief?

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

the petitioners, P.Ws.1 to 4 were examined and Exs.A.1 to A.17

were marked. On behalf of the respondents, R.Ws.1 and 2 were

examined and Exs.B.1 to B.4 were marked.

9. 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 auto and accordingly, allowed the petition and granted

an amount of Rs.8,00,000/- with costs and interest at 7.5% p.a. from

the date of petition till the date of deposit against respondent Nos.1

and 2 and dismissed the claim petition against respondent Nos.3 to

5. Aggrieved against the said order, the appellant/2nd respondent-

Oriental Insurance Company Limited preferred the present appeal.

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

record.

11. Now, the point for determination is:

VGKR,J MACMA No.1831 of 2013

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

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

the drivers of the offending vehicles, the petitioners relied on the

evidence of P.Ws.1 and 2. P.W.1 is none other than the wife of the

deceased and she is not an eye witness to the accident, so, her

evidence cannot be relied on. P.W.2, who is the rider of the motor

cycle, reiterated the contents of the claim petition in his chief

examination affidavit and the suggestion that the accident occurred

due to his negligence, was denied by him. Except giving the said

suggestion, no evidence was adduced by the respondents to

substantiate the said suggestion. Even the driver of the auto, who is

added as 1st respondent in the claim petition, was not examined to

substantiate the said version. So, his non-examination is fatal to the

case of the respondents. Further, though the driver of the offending

lorry was examined as R.W.1, his evidence cannot be relied on to

prove that the accident occurred because of negligence of the rider

VGKR,J MACMA No.1831 of 2013

of the motor cycle/P.W.2. The petitioners also relied on Ex.A.5-

charge sheet which proves that the police found fault with the driver

of the auto in causing the accident on account of his rash and

negligent driving of the auto during the course of their investigation.

The evidence of P.W.2 coupled with Ex.A.5 clearly proves that the

accident occurred only due to rash and negligent driving of the

driver of the auto. On appreciation of the entire material on record,

the Tribunal also came to the same conclusion. The Tribunal by

giving cogent reasons held in its order that the lorry dragged the

motor cycle only to a short distance of 10 feet which also indicates

that the lorry was not driven in high speed or in a rash and negligent

manner at the time of accident, therefore, it cannot be said under

any stretch of reasoning that the accident occurred due to negligent

driving of the driver of the lorry. Therefore, there is no need to

interfere with the said finding given by the Tribunal.

13. Coming to the compensation, according to the petitioners, the

deceased was earning Rs.15,000/- per month by practicing as RMP

VGKR,J MACMA No.1831 of 2013

doctor in Ayurvedic medicine. However, as there is no valid

evidence to that effect, by giving cogent reasons, the Tribunal fixed

the monthly income of the deceased as Rs.6,000/- i.e., Rs.72,000/-

per annum. After deducting 1/3rd from out of the annual income

towards personal expenses of the deceased, a sum of Rs.48,000/-

(Rs.72,000/- - Rs.24,000/-) is available towards contribution to the

family members of the deceased. As per Ex.A.2-inquest report and

Ex.A.3-post mortem report, the age of the deceased was 26 years at

the time of accident and the multiplier applicable to the age group of

the deceased is "17" as per the decision of the Hon'ble Supreme

Court of India in Sarla Varma case, and accordingly, the loss of

dependency to the family members of the deceased is arrived at

Rs.8,16,000/- (Rs.48,000/- x multiplier '17'). Besides, the Tribunal

awarded Rs.15,000/- towards loss of consortium to the 1st petitioner,

Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral

expenses of the deceased. In total, the petitioners are entitled to a

total compensation of Rs.8,46,000/-. As the petitioners claimed only

Rs.8,00,000/- in the claim petition, the Tribunal restricted the claim

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of the petitioners to Rs.8,00,000/-. There is no legal flaw or infirmity

in the said finding given by the Tribunal.

14. It is not in dispute that the offending auto 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 as on the date of

accident. Though it is the case of the 2nd respondent/Insurance

company that the 1st respondent had no valid driving licence at the

time of accident, admittedly, no evidence was adduced by the 2nd

respondent/Insurance company to establish the same. Therefore,

respondent Nos.1 and 2 are jointly and severally liable to pay

compensation to the petitioners.

15. For the foregoing discussion, I do not find any illegality or

irregularity in the impugned order of the Tribunal and it is perfectly

sustainable under law and the appeal is devoid of merits, therefore,

it is liable to be dismissed.

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16. Accordingly, the appeal is dismissed, while confirming the

decree and order dated 18.03.2013 passed by the Chairman, Motor

Accident Claims Tribunal-cum-Principal District Judge, Krishna at

Machilipatnam, in O.P.No.477 of 2007. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

appeal shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 25 September, 2023 cbs

VGKR,J MACMA No.1831 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1831 of 2013

25th September, 2023 cbs