The Future General India Insurance ... vs Bandlamudi Vijaya Kumari 5 Others
2024 Latest Caselaw 1021 AP

Andhra Pradesh High Court - Amravati

The Future General India Insurance ... vs Bandlamudi Vijaya Kumari 5 Others on 7 February, 2024

MACMA No.3222 of 2012                                         BVLNC, J
Date 07.02.2024
                                Page 1 of 11



       HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

 THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                        M.A.C.M.A.No.3222 of 2012
Between:-
The Future General India Insurance
Company Limited, represented by its
Branch    Manager,  Branch   Office,
Vijayawada.
                         ...Appellant/Respondent No.2
                                  And
Bandlamudi Vijaya Kumari and five (05)
others
                                                      ...Respondents
                            JUDGMENT

Heard Sri Nagumantri Nageswara Rao, learned

counsel for the appellant/respondent No.2/Insurance

Company and Sri B.V.Krishna Reddy, learned counsel for

the respondent Nos.1 to 4/claimants.

2. This appeal directed by the appellant/respondent

No.2/Insurance Company challenging the Order and

Decree dated 28.06.2012 passed in M.V.O.P.No.1038 of

2010 by the Motor Accidents Claims Tribunal-cum-II

Additional District Judge, Eluru at West Godavari District

(hereinafter referred to „Tribunal‟).

 MACMA No.3222 of 2012                              BVLNC, J
Date 07.02.2024

3. Parties are referred to as they were arrayed in the

proceedings before the learned Tribunal, for the sake of

convenience.

4. The claim petition was filed under Section 166 of the

Motor Vehicles Act, 1988 (for brevity „the Act‟) claiming

compensation of Rs.6,00,000/- for the death of one

Bandlamudi Moshe (hereinafter referred to as „deceased‟) in

a motor vehicle accident occurred on 10.08.2010 at about

5.30 PM in the fields of one Nageswara Rao, Sirivada village

of Bapulapadu Mandal, Krishna District.

5. The case of the claimants is that the deceased was

driving a tractor bearing registration No.AP16 T 5973; while

ploughing the land, the tractor turned turtle and fell on the

deceased; as a result, the deceased died on the spot.

6. The respondent No.2/Insurance Company filed

counter contending that the deceased was not having valid

and effective driving license to drive the tractor; the

deceased is not a third party to the accident and he himself

was the insured and therefore, the legal representative(s) of MACMA No.3222 of 2012 BVLNC, J Date 07.02.2024

the insured cannot be a claimant as well as the respondent

and therefore, the Tribunal has no jurisdiction to entertain

the application.

7. It was also contended that as per police record, there

was rash and negligence on the part of the deceased, who

was driver of the tractor at the time of accident. Therefore,

the contention of the respondent No.2/Insurance Company

is that the accident occurred due to self-negligence of the

deceased and in that view of the matter, the legal

representatives of the deceased cannot maintain the

application as insured cannot be a claimant as well as

respondent.

8. The learned Tribunal, basing on the rival contentions,

framed the following issues for trial:

1. Whether the deceased-Bandlamudi Moshe died in a motor vehicle accident on 10.08.2010 due to rash and negligent driving of the Tractor bearing No.AP16 TB 5974 driven and owned by the deceased?

2. What was the age and income of the deceased?

 MACMA No.3222 of 2012                               BVLNC, J
Date 07.02.2024

3. Whether the petitioners are entitled to claim compensation? If so, to what amount and from which of the respondents?

4. To what relief?

9. During enquiry, on behalf of claimants, the 1st

claimant i.e., wife of the deceased was examined as P.W.1

and during her evidence, four (04) documents were marked

as Ex.A1 to Ex.A4 and one K.Rambabu was examined as

P.W.2. On behalf of respondents i.e., respondent No.2/

Insurance Company, its Senior Executive viz., K.Raghu

Babu was examined as R.W.1 and the Junior Assistant viz.,

K.Venkata Rao from RTA Office, Nuzvid was examined as

R.W.2. Ex.B2 and Ex.B3; Ex.X1 and Ex.X2 documents were

marked for the respondent No.2. Ex.B1, copy of Ration

Card was marked for the claimants.

10. The learned counsel for the insurance company,

would submit that the learned Tribunal, in the light of

evidence referred above, ought to have answered issue

No.1, whether the accident was occurred due to the self-

negligence of the deceased; But the learned Tribunal did MACMA No.3222 of 2012 BVLNC, J Date 07.02.2024

not answer the issue No.1; Simply closed the issue

observing that the Inquest Report and Post-Mortem

Certificate would establish the death of the deceased. The

learned Tribunal without answering the issue No.1, decided

issue Nos.2 and 3, assessed the compensation as if the

accident was occurred due to rash and negligent act of a

third party, and determined the compensation under

Section 166 of the Act.

11. Considering the rival contentions, the points that

would arise for consideration in this appeal are as under:

1. Whether the Order and Decree passed by the Motor Accident Claims Tribunal-cum-II Additional District Judge, West Godavari at Eluru in M.V.O.P.No.1038 of 2010 dated 28.06.2012 warrants interference of this Court?

2. To what relief?

POINT N O.1:

12. It is an admitted fact that the deceased died in a

motor vehicle accident occurred on 10.08.2010, when the

deceased was ploughing the land with the offending tractor MACMA No.3222 of 2012 BVLNC, J Date 07.02.2024

and when the vehicle turned turtle, the body of the tractor

fell on him and, he succumbed to injuries, on the spot.

13. Indisputably, the claimants filed application under

Section 166 of the Motor Vehicles Act, 1988. An application

under Section 166 of the Act is maintainable where death

has resulted from the accident by all or any of the legal

representatives of the deceased, or and when the accident

was occurred as a result of rash or negligent act of the

respondent. But, in the case on hand, the contention of the

respondent No.2/Insurance Company is that the accident

was occurred due to self-negligence of the deceased and

therefore, an application under Section 166 of the Act is not

maintainable.

14. The learned Tribunal unfortunately did not answer

whether the accident was occurred due to negligence of the

deceased or any other person. The Hon‟ble Apex Court in

Ningamma v. United India Insurance Company

Limited1 dealt with the similar issue, whether the legal

(2009) 13 SCC 710.

 MACMA No.3222 of 2012                                           BVLNC, J
Date 07.02.2024

representatives of a person who was driving a vehicle after

borrowing it from the owner meets with accident without

involving any other vehicle, would be entitled to claim

compensation under Section 163-A of M.V.Act? The Hon‟ble

Supreme Court held that "No borrower steps into the shoes

of the owner and the owner cannot himself be a recipient of

compensation as liability to pay the same is on him."

15. Section 304A of the Indian Penal Code (Amendment)

Act, 1870 (for brevity „IPC‟) deals with homicidal death by

rash or negligent act. It does not create a new offence. It is

directed against the offences outside the range of Sections

299 and 300 of IPC and covers those cases where death has

been caused without „intention‟ or „knowledge‟. The doing of

a rash or negligent act, which causes, death is the essence

of section 304A. There is a distinction between

a rash act and a negligent act. 'Rashness' conveys the idea

of recklessness or doing an act without due consideration

and 'negligence' connotes want of proper care. A rash act,

therefore, implies an act done by a person with

recklessness or indifference to its consequences. The doer, MACMA No.3222 of 2012 BVLNC, J Date 07.02.2024

being conscious of the mischievous or illegal consequences,

does the act knowing that his act may bring some

undesirable or illegal results but without hoping or

intending them to occur. A negligent act, on the other hand,

refers to an act done by a person without taking sufficient

precautions or reasonable precautions to avoid its probable

mischievous or illegal consequences.

16. Now a question arises as to what would constitute

a rash or negligent act. At this stage, reference may be

taken from the decision of the Hon'ble Supreme Court in

the case of Mohammed Aynuddin @ Miyam Vs State of

Andhra Pradesh2 wherein it was held as under:

The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.

2 2000 (7) SCC 72.

 MACMA No.3222 of 2012                              BVLNC, J
Date 07.02.2024

17. The claimant shall plead and prove the negligence or

rashness act committed by the person, who drove the

offending vehicle at the time of accident. In the case on

hand, admittedly, the petition was filed under Section 166

of the Act on the ground that the deceased drove the

offending vehicle at the time of accident. Therefore, the

Tribunal ought to have answered the issue No.1 as to

whether the accident was occurred due to rash or negligent

act committed by any person/deceased or the accident was

occurred due to mechanical defect of the offending vehicle.

But, the learned Tribunal failed to answer issue No.1.

18. The learned Tribunal simply observed that the

deceased died in a motor vehicle accident and did not

further deliberate the manner in which the accident

occurred and responsibility for the accident. Therefore, the

Order and Decree of the learned Tribunal assessing

compensation under Section 166 of the Act without

deciding as to whether the accident was occurred due to

rash or negligent act of third-party or the deceased or due

to mechanical failure of the offending vehicle, is not MACMA No.3222 of 2012 BVLNC, J Date 07.02.2024

sustainable in law. Hence, it is liable to be set-aside.

Accordingly, point No.1 is answered.

POINT N O.2:

19. In the light of finding on point No.1, the appeal in

M.A.C.M.A.No.3222 of 2012 is liable to be „Remitted to the

Tribunal with a direction for fresh disposal‟.

20. IN THE RESULT, the Appeal is „Disposed of‟ setting-

aside the Order and Decree dated 28.06.2012 passed in

M.V.O.P.No.1038 of 2010 on the file of Motor Accidents

Claims Tribunal-cum-II Additional District Judge, West

Godavari at Eluru, remitting the matter to the learned

Tribunal to dispose of the case afresh after giving

opportunity to both parties to adduce further evidence if

any, with regard to issue No.1 framed by the learned

Tribunal.

21. The petition pertains to the year 2010. In that view of

the matter, the learned Tribunal is directed to dispose of

the petition within a period of three (03) months from the

date of his notice. There shall be no order as to costs.

 MACMA No.3222 of 2012                                          BVLNC, J
Date 07.02.2024




22.    Needless         to   say,      that     any   observation   made

hereinabove is only for the purpose of adjudicating the

appeal and the same shall not be construed as an

expression on the merits of the matter before the learned

Tribunal.

As a sequel, miscellaneous applications pending, if

any, shall stand closed.

JUSTICE B.V.L.N. CHAKRAVARTHI

7th February 2024.

DNB