Andhra Pradesh High Court - Amravati
The United India Insurance Co Ltd vs V.Muragaiah 9 Ors on 5 August, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI
THE HON‟BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No.2219 of 2009
Between:
The United India Insurance Co. Ltd.,
rep. by its Divisional Manager, Tirupati,
Chittoor District. ... Appellant/
Respondent No.2
and
V.Muragaiah and others ... Respondents/
Petitioners 1 to 7 and
Respondents 1, 3 & 4
Counsel for appellant : Sri Maheswara Rao Kuncheam
Counsel for respondents 1 to 7 : Sri A. Chandraiah Naidu
Counsel for respondents 8 & 9 : None appeared
Counsel for 10th respondent : Sri N.S. Bhaskar Rao
This Court made the following:
JUDGMENT:
This appeal is preferred by the 2nd respondent in
M.V.O.P. No.644 of 2005 aggrieved by the order dated
10.03.2008 passed by the Chairman, Motor Accidents Claims
Tribunal-III Additional District Judge, Tirupati (for short „the
Tribunal‟) awarding compensation of an amount of
Rs.2,95,472/- to the petitioners.
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2. For convenience sake, hereinafter the parties will be
referred to as they were arrayed in the O.P.
3. The petitioners filed M.V.O.P. No.644 of 2005 under
Section 166(1)(c) of the Motor vehicles Act, 1988 (for short
„the Act‟) claiming compensation of Rs.3,00,000/- against the
respondents on account of the death of V. Subrahmanyam,
who is son of petitioner Nos.1 & 2 and brother of petitioner
Nos.3 to 7, in a motor accident that occurred on 17.02.2005 at
about 8.30 AM while he was going in auto bearing No.AP 03 V
7817 to Tirupati, and when the said Auto reached M.R.F.
show room on Tiruchanur by-pass road, a tractor bearing
No.AP 26 T 6592 and trailer bearing No.AP 03 V 1087
(hereinafter referred as the offending vehicle) came in a rash
and negligent manner and dashed the auto, as a result of
which, the deceased and other inmates sustained grievous
injuries. The deceased succumbed to injuries while taking
treatment in SVRRGG Hospital, Tirupati. A case in
Cr.No.32/2005 came to be registered against the driver of the
offending vehicle under Section 304(A), 338 and 279 IPC.
4. The first respondent has remained ex parte and the 2nd
respondent filed counter contending that while the driver of the
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offending vehicle was going on the left side of the road, the
auto with over load came to the road and near to the tractor
and due to the confusion, the driver of the auto dashed the
tractor and the accident occurred due to the negligence of the
driver of the auto and the driver of the offending vehicle was
not negligent.
5. Basing on the pleadings, the T ribunal framed the
following issues for consideration:
1) Whether the pleaded accident occurred resulting
the death of the deceased and if so was it due to
fault of the driver of tractor and trailer of first
respondent bearing Nos.AP 03 T 6592 and AP 03V
1087 or due to the fault of the driver of auto of third
respondent bearing No.AP 03V 7817?
2) Whether the tractor and trailer in question belongs
to R.1 and stood insured with R.2 by the date of
accident and if so whether the policy covers the
risk of the decea sed?
3) Whether the Auto in question belongs to R.3 and
stood insured with R.4 by the date of accident and if
so whether the policy coves the risk of the
deceased?
4) Whether the petitioners are the legal
representatives of the deceased and entitled to
compensation and if so, to what amount, from
which of the respondents?
5) To what relief?
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6. Before the Tribunal, 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 respondents, no evidence was adduced,
however, Ex.B.1 copy of policy was marked with consent.
7. After considering the evidence on record, the Tribunal
allowed the petition in part granting compensation of
Rs.2,95,472/- with interest at 7.5% p.a. from the date of
petition till the date of deposit against the respondents 1 and 2
and the claim is dismissed against the respondents 3 and 4
without costs. Being aggrieved by the same, the 2 nd
respondent/United India Insurance Company Limited
preferred the instant appeal.
8. Heard the argument of both the learned counsel.
Considering the rival contentions and on perusing the material
available on record, the point that arises for consideration in
this appeal is,
Whether the Tribunal has justified in holding that the
accident occurred due to the negligence of the driver of
the offending tractor and in holding that the
respondent/insurance company failed to establish the
subsistence of policy at the time of accident?
POINT:
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9. Learned counsel for the appellant/insurance company
contended that there was no negligence on the part of the tractor-
trailer bearing No.AP 26 T 6592 and the tractor and trailer was
not insured at the time of accident i.e. at 8.30 AM on
17.02.2005 and the policy was taken by the owner of the
tractor at 10.25 AM on 17.02.2005 that is after the accident.
10. Learned counsel appearing for the petitioners supported
the findings and observations of the Tribunal.
11. After careful reading of the material on record, this Court is
of the opinion that the deceased sustained injuries in the
accident while he was proceeding in an auto bearing No.AP 03
V 7272 and later succumbed to injuries while taking treatment in
SVRRGG Hospital, Tirupati. In support of their case, the
petitioners relied on Ex.A.1-FIR, Ex.A.2-charge sheet, Ex.A.3-
inquest report and Ex.A.4-post mortem report of the deceased
and also the evidence of P.W.2 who is the eye witness of the
accident.
12. As seen from the grounds of appeal and the contention
raised by the appellant-insurance company, the insurance
company mainly contends that the accident occurred due to
the negligence of the driver of the auto, but no evidence was
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adduced to substantiate the same. The evidence of P.W.2
that the accident occurred due to negligence of the driver of
the first respondent is supported and corroborated by the
contents of Ex.A.1 certified copy of F.I.R. and Ex.A.2 certified
copy of charge sheet as rightly pointed out by the Tribunal and
as against the evidence of P.W.2 there is no contrary evidence.
13. The appellant/insurance company has not chosen any
witness in support of its contention and also not taken any steps
to examine the driver of the offending vehicle to show the
manner of the accident. In the absence of such evidence on
record, the T ribunal has come to a correct conclusion by holding
that the accident occurred on account of the negligence of the
first respondent driver and the third respondent driver is not
negligent. Therefore, the said finding of the Tribunal cannot be
interfered with.
14. As rightly observed by the Tribunal, it is not in dispute that
the offending vehicle belongs to the first respondent. According
to the case of the petitioners, the offending vehicle was insured
with the 2nd respondent. According to the pleas taken in the
counter filed by the 2nd respondent that it reliably came to know
after thorough investigation that the first respondent obtained
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policy after the accident. Here, according to the case of the
petitioners, the accident occurred on 17.02.2005 at 8.30 AM,
whereas the stand taken by the 2nd respondent - insurance
company is that by suppressing the accident, the 1st respondent
obtained policy and the policy comes into effect from 10.25 AM
on 17.02.2005 and therefore it is not liable to indemnify the 1st
respondent.
15. For the reasons best known to the insurance company,
it has not placed copy of insurance policy before the Court.
Further, the insurance company has not chosen to examine its
officials or staff who had personal acquaintance with the facts
of the case. It is supposed to take such pleas in the counter
by relying on the contents of the insurance policy. When the
case of the petitioners is that the accident occurred on
17.02.2005 at 8.30 AM, there is difficulty in placing the
insurance policy before the Court by the 2 nd respondent in
support of its contention that the insurance policy came to the
effect from 10.25 AM on 17.02.2005. No explanation is
forthcoming in support of the pleas taken by the insurance
company. The burden is on the insurance company to prove its
case. In the absence of any policy or any authenticated
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evidence, the stand taken by the 2nd respondent cannot be
accepted. In the said facts of the case, the Tribunal has
come to a correct conclusion that the 2nd respondent failed to
produce a copy of the policy and an adverse inference is to be
drawn that the policy issued by the 2nd respondent was
subsisting at the time of accident and the accident is covered
by the said policy. After considering the entire material on
record, as the case of the insurance company is not supported
by either oral or documentary evidence, it is difficult to come to
a conclusion that the owner of the offending vehicle has
obtained insurance policy subsequent to the accident by
suppressing the fact relating to the accident.
16. According to the petitioners, the deceased is a bachelor and 19
years old as on the date of the accident and earning Rs.150/- per day
as a tea master. As the deceased was a bachelor, by giving cogent
reasons, the Tribunal took the age of the 2nd petitioner, who is mother
of the deceased, into consideration to arrive at the loss of dependency,
and considered the age of the mother of the deceased as 35 years by
the date of accident and the multiplier applicable to this age group is
"17" as per II Schedule to Section 163-A of the Act. Relying on Ex.A.3-
certified copy of inquest report that the deceased was a cooli, the
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Tribunal fixed the annual income of the deceased at Rs.23,423/- as per
G.O.Ms.No.33, Labour, Employment, Training and Factories, (Lab.II),
dated 17.07.2004 and after deducting 1/3rd from out of the annual
income towards personal expenses of the deceased, arrived the loss of
dependency to the family members of the deceased at Rs.2,65,472/-
(Rs.15,616/- (Rs.23,423/- minus Rs.7,807/-) x multiplier "17"). Besides,
the Tribunal awarded Rs.10,000/- towards funeral expenses of the
deceased and Rs.20,000/- for loss of estate. In total, the Tribunal
granted compensation of Rs.2,95,472/-. This Court feels that the
compensation awarded by the Tribunal is just and proper. Therefore,
there is no need to interfere with the quantum of compensation
awarded by the Tribunal.
17. As already observed in the preceding paragraphs, I am
of the considered opinion that the 2nd respondent - insurance
company has not made out any case so as to interfere with the
judgment of the Tribunal and the appeal is liable to be
dismissed.
18. In the result, the appeal is dismissed and the judgment
and decree dated 10.03.2008 in M.V.O.P. No.644 of 2005
passed by the Chairman, Motor Accidents Claims Tribunal-
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cum-III Additional District Judge, Tirupati are hereby
confirmed. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall
also stand closed.
____________________
SUMATHI JAGADAM, J
5th August, 2024
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JS,J
THE HON‟BLE SMT. JUSTICE SUMATHI JAGADAM
5th August, 2024
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