Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Ltd vs Kursheed 4 Ors on 5 September, 2024
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No.349 of 2011
Between:
The Oriental Insurance Company Limited.
...Appellant/Respondent No.2
and
P.Kursheed and 4 others. ..... (S)
...Respondents/Petitioners/Respondent No.1
Counsel for appellant : Sri V.Raghu
Counsel for respondent Nos.1 to 4 : Sri Venkata Durga Rao
Counsel for respondent No.5 : None
[ [
This Court made the following:
ORDER:
This appeal is filed by the Oriental Insurance Company Limited
represented by its Divisional Manager, Guntur, under Section 173 of the
Motor Vehicles Act 1988, against the Judgment dated 18.07.2008 passed
by the Chairman, Motor Vehicle Accidents Claims Tribunal - cum - II
Additional District Judge, Guntur, (hereinafter referred to as "the Tribunal")
in M.V.O.P.No.417 of 2005, awarding compensation of Rs.3,74,872/- to
the 1st respondent herein/1st claimant as against the claim of
Rs.10,00,000/-.
JS,J
2. For convenience and to avoid confusion, the parties hereinafter will
be referred to as they are arrayed before the Tribunal.
3. The brief facts of the case are that one Pattan Mansoor Khan died
on 23.01.2005 due to rash and negligent driving of a proclaim bearing
Registration No.AP 31W 0886 by its driver. Petitioner No.1 is the wife of
the deceased, and petitioner Nos.2 to 4 are the children of the deceased.
On the date of the accident, petitioners Nos.2 to 4 are majors and married
and cannot be termed as dependents of the deceased. It was stated in the
claim petition that on 23.01.2005, the deceased Pattan Mansoor Khan and
his friend went to Perecherla on a scooter to attend a function and when
they were returning to Guntur at about 07.00 or 07.30 p.m., near
Perecherla Sri Sai Ram Service station petrol bunk, the offending vehicle
was coming from petrol bunk in a rash and negligent manner. It hit the
scooter of the deceased, because of which, he sustained grievous head
injuries and died on the spot. It was further stated that the deceased was
about 44 years old and was working as a driver in APSRTC, Guntur-2
depot, getting a salary of Rs.6,744/- per month, and the claimants are
dependents on the deceased. As mentioned earlier, the claimants sought
compensation of Rs.10,00,000/- for the death of the deceased. The case
was registered in Crime No.12 of 2005 for the offences punishable under
Sections 337 & 304 of IPC on the file of Medikonduru Police Station
against the driver of the offending vehicle.
JS,J
4. The 1st respondent, the owner of the offending vehicle, and the 2nd
respondent/insurance company contested the claim petition and filed their
written statements. In their written statements, the owner of the offending
vehicle denied the involvement of the offending vehicle in the accident
and, inter alia, alleged that the scooter itself came in the wrong direction
and hit the offending vehicle. The claimants filed the claim petition for
wrongful gain. The owner of the offending vehicle inter alia stated that his
vehicle was insured with the 2nd respondent, the policy was in existence as
of the date of the accident, and the driver had a valid driving licence. The
insurance company has also denied the involvement of the offending
vehicle in the accident and pleaded that the accident occurred because of
the negligence of the deceased. The insurance company also pleaded that
the offending vehicle's driver had no valid driving licence.
5. Based on the above pleadings, the Tribunal framed the following
issues for trial:
1. Whether the accident took place due to rash or negligent driving of
the driver of Proclain No. AP 31W 866?
2. To what compensation the petitioners are entitled and from whom?
3. To what relief?
6. In order to establish their claim, the petitioners examined P.Ws.1 to
3 and marked documents as Exs.A.1 to A.8. The respondents examined
R.Ws.1 to 3 and marked documents as Exs.B1 and B2.
JS,J
7. The Tribunal, by an order dated 18.07.2008, allowed the claim
petition in part by granting compensation of Rs.3,74,872/- to the 1st
petitioner with proportionate costs and interest at 7.5% p.a. from the date
of petition till the date of realization and dismissed the claim petition in
respect of petitioner Nos.2 to 4. Questioning the same, the appellant filed
the present appeal.
8. Sri V. Raghu, learned Standing Counsel for the appellant/Insurance
company, argues that the final report of the police marked as Ex.B2
coupled with the evidence of R.W.3 reveals that the accident occurred due
to negligent driving of the scooter by the deceased and the
appellant/insurer is not liable to pay compensation to the claimant.
9. On the other hand, learned counsel for respondent Nos.1 to
5/claimants submits that before the Tribunal, petitioner No.3 deposed as
P.W.1 and one Tirumala Srinivas Rao, who is the pillion rider and the eye-
witness of the incident, deposed as P.W.2 that when the deceased and
P.W.2 were returning on a scooter, the offending vehicle came suddenly
from petrol bunk to main road in a negligent manner and hit the scooter,
as a result of which, the deceased fell into proclain bucket and sustained
grievous injuries on his head and died on the spot. The Tribunal, after
considering the testimony of P.W.2, the FIR, the inquest-cum-crime scene
report and the post-mortem report of the deceased (Exs.A1 to A3), and
also the charge-sheet filed against the owner of the offending vehicle
JS,J
(Ex.B2) has rightly decided issue No.1 that the accident took place due to
rash and negligent driving of the driver of Proclain No.AP 31W 0866, in
favour of the claimants and against the respondents and accordingly
awarded compensation to the claimants. Therefore, the award passed by
the Tribunal cannot be interfered with.
10. Now, the point for consideration is:
Whether the accident occurred due to negligent driving of
the scooter by the deceased? If so, is the compensation
awarded by the tribunal to the 1st claimant just and fair?
11. The case of the appellant/insurance company is that the driver of
the offending vehicle is not negligent. The deceased scooter hit the
offending vehicle in the wrong direction, and the claimant filed the claim
petition for wrongful gain. The insurance company denied the involvement
of the offending vehicle in the accident and pleaded that the accident
occurred because of the deceased negligence. The appellant insurance
company is not liable to pay compensation.
12. The panchanama of the scene of the offence, photos, and MVI
report during the investigation by police substantially supported the case
of the claimant, who stated that the accident happened due to the
negligent driving of the offending vehicle. The offending vehicle was meant
for the personal use of the 1st respondent, and the vehicle was moving at
the time of the accident. P.W.2, the eyewitness to the entire episode,
JS,J
described as to how the accident occurred. Moreover, the motor vehicle
inspector's report shows that the offending vehicle is free from mechanical
defects. R.Ws.1 to 3 are not the eye-witnesses of the said accident. Given
this, it can be safely concluded that the accident happened due to the
negligence of the offending vehicle's driver.
13. Coming to the award of compensation, the Tribunal has wrongly
applied the multiplier "8" instead of "13". As per Ex.A7, the date of birth of
the deceased is 02.04.1956, and as of the date of the accident, the
deceased was aged 49 years and 03 months. As per Sarla Verma's case,
the multiplier "13" has to be applied. The annual income of the deceased
comes to Rs.68,976/- as fixed by the Tribunal, out of which 1/3rd of the
said yearly net income comes to Rs.22,992/-. If the 1/3rd amount is
deducted towards the personal expenses of the deceased, the actual
contribution to the family comes to Rs.45,984/-, and if the multiplier "13" is
applied, the loss of dependency comes to Rs.5,97,792/-. The
compensation awarded under other heads remains unaltered. Thus, the
total compensation to which the petitioners are entitled is Rs.6,04,792/-.
The legal heirs of the deceased are majors and married as of the date of
the accident, and they are leading independent lives. Given the same, the
said compensation is awarded only to the 1st petitioner, the deceased's
wife.
JS,J
14. For the reasons above, the compensation awarded by the Tribunal
is enhanced from Rs.3,74,872/- to Rs.6,04,792/-, and the 1st
respondent/claimant is entitled to the enhanced compensation amount of
Rs.2,29,920/- with interest @7.5% p.a. from the date of filing of the claim
petition till realisation. The 1st respondent/claimant is entitled to the rest of
the compensation amount. The appellant/insurance company is directed
to deposit the compensation amount within two months from the date of
receipt of a copy of this order after deducting the amount deposited earlier,
if any. On such deposit, the 1st respondent/claimant can withdraw the
compensation amount with accrued interest by filing a proper application.
However, the claimants shall pay the requisite Court fee for the amount
awarded over and above the compensation claimed.
15. As a result, the appeal is dismissed, but with modifications in the
award passed by the Tribunal concerning the amount of compensation, as
made herein above, in favour of the 1st respondent/1st claimant. No order
as to costs.
As a sequel, miscellaneous petitions, if any, pending shall stand
closed.
_____________________
SUMATHI JAGADAM, J
Date: 05.09.2024
BSK
JS,J
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
Date: 05.09.2024
BSK
