Andhra Pradesh High Court - Amravati
M/S National Insurance Company ... vs Velchuri Venkataseshamma And Another on 9 July, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No.33 of 2011
Between:
M/s.National Insurance Company
Limited, rep. by its Divisional Manager,
Ongole, Prakasam District. ... Appellant/
Respondent No.2
and
Velchuri Venkata Seshamma and another ... Respondents
Counsel for the petitioner : Sri Venkateswarlu Paladu
Counsel for the respondent(s) : Sri Nuthalapati Krishna Murthy
This Court made the following:
JUDGMENT:
This appeal is filed by the appellant/National Insurance Company
Limited, under Section 173 of the Motor Vehicles Act, 1988 (for short
„the Act‟) against the award dated 09.11.2010 passed by the Chairman,
Motor Accident Claims Tribunal-cum-I Additional District Judge, Ongole,
in M.V.O.P.No.282 of 2009.
2. For convenience, both the parties in the appeal will be referred to
as they are arrayed in the claim petition.
JS,J
3. The petitioner filed the original petition against the respondents
under Section 166 of the Act claiming a compensation of Rs.7,00,000/-
with costs and interest at 24% p.a. from the date of petition till the date of
realization, for the injuries sustained by her in a motor vehicle accident. On
09.07.2007, the petitioner and others were travelling in a tractor bearing
No.AP-27L-4575 from Tangutur to attend a Christian meeting at
Vaviletipadu village. On the way near old Paleru Bridge on N.H-5 road, a
Hero Honda motorcycle bearing No.AP-27/N-1313, being driven by the 1st
respondent, came in a rash and negligent manner and at high speed on
the back side of the tractor and dashed against both the legs of the
petitioner, due to that impact, both the legs of the petitioner were fractured
and the petitioner also sustained bleeding injuries. Immediately, she was
shifted to the Government Hospital where her right leg was amputated up
to the knee. She was discharged from the hospital on 03.09.2007, and she
sustained 45% disability.
4. After evaluating the oral and documentary evidence on record, by
an order dated 09.11.2010, the Claims Tribunal allowed the original
petition awarding a total compensation of Rs.7,00,000/- with costs and
interest @ 6% per annum from the date of petition till the date of
realization. Felt aggrieved by the aforesaid order, the unsuccessful 2nd
respondent/Insurance Company filed the present Appeal.
JS,J
5. Heard both sides and perused the record. Now, in deciding the
present appeal, the point that arises for consideration is:
"Whether the impugned order is sustainable under law
and facts and there are any grounds to interfere with
the same?"
6. In order to establish her claim, the claimant got examined herself as
P.W.1 and the Doctors as P.Ws.2 and 3 and also got marked documents
as Exs.A.1 to A.19 and got marked documents as Exs.A.1 to A.19 and
Exs.X.1 and X.2. No oral evidence was adduced on behalf of the
respondents, but Ex.B.1-policy copy was marked.
7. The grounds raised by the learned Standing Counsel for the
appellant/Insurance Company are that the petitioner is an unauthorized
passenger in the tractor-trailer and she negligently sat on the back side of
the trailer by hanging her legs and thereby contributed to the accident. The
tractor has no valid insurance policy, and the petitioner did not make the
tractor driver a party to the original petition. Therefore, the original petition
is bad for the misjoinder/non-joinder of necessary party.
8. As per the record, except marking a copy of the insurance policy of
the crime vehicle as Ex.B.1 and filing a permission petition under Section
170 of the Act to take all the defences available to them, the appellant did
JS,J
not adduce any oral evidence or documentary evidence before the Claims
Tribunal.
9. It is the plea of the appellant/Insurance company that the petitioner
is an unauthorized passenger in the tractor-trailer and there was
contributory negligence on his part. To establish the same, they should
have adduced cogent evidence by examining at least the driver of the
tractor-trailer or the rider of the motor cycle who have knowledge about the
manner of accident. But, no evidence was adduced on behalf of the
appellant to discharge the burden cast upon them. In a decision reported
in J. Hemalatha & others Vs. S.Nagender1, it is held that when the driver
of a vehicle is not examined, the plea of contributory negligence fails. In
Padma Yadamma Vs. Gaddam Prabhakar Goud2, it is held that just as it
is incumbent upon and necessary for claimants to prove negligence on the
part of driver of vehicle, it is equally incumbent upon owner and insurer of
vehicle to plead and prove contributory negligence on the part of
deceased or injured, and in absence of such plea and evidence, Tribunal
not justified in drawing inference. Therefore, the Claims Tribunal rightly
answered the issue in favor of the petitioner.
10. The other issue about non-joinder of proper parties in the claim
petition, i.e., the insurer, insured, and driver of the tractor bearing No.AP-
1994 (1) Law Summary 19
2007 (1) Law Summary 107
JS,J
27L-4575. In this regard, the Hon'ble Supreme Court, in the case of
Khenyei Vs. New India Assurance Company Limited and others 3
observed that "where there are joint tortfeasors and where negligence
would have to be apportioned and interse liability has to be determined,
impleadment of joint tortfeasors is not necessary. Even if a sole tortfeasor
is implemented, it is sufficient. Interse liability of the tortfeasors would have
to be worked independently." Therefore, the non-joinder of the necessary
party in the present case does not arise.
11. In the cases of Oriental Insurance vs. Meena Variyal4 and Pawan
Kumar vs. Harkishan Dass Mohan5, the Hon'ble Apex Court has taken
the view that where a person is injured/expired in a motor vehicle accident
which occurs not on account of his negligence, but because the drivers of
collided vehicles were negligent, the claimants are entitled to damage
jointly and severally from the negligent respondents and such claimants
are not required to join all tortfeasors as party. It becomes clear that
claimant/s is/are not required to join all the tortfeasors as party opponent/s.
12. I do not find any manifest error in the findings arrived at by the
Tribunal, and I also see no force in the arguments advanced by the
learned counsel for the appellant. The appeal is devoid of merits, and it is
accordingly dismissed. There shall be no order as to costs.
(2017 ACJ 2011 (SC)
2007 ACJ 1284 (SC)
2014 ACJ 704 (SC) (FB)
JS,J
Miscellaneous petitions, if any pending, shall also stand closed as a
sequel thereto.
____________________
SUMATHI JAGADAM, J
9th July, 2024
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JS,J
THE HON‟BLE SMT. JUSTICE SUMATHI JAGADAM
9th July, 2024
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