The United India Insurance Co Ltd vs Rayapudi Sudhakar Rao 2 Others
2022 Latest Caselaw 6365 Tel

           THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                        MA.CMA.NO.70 OF 2015

                               JUDGMENT

Assailing the order and decree dated 04.09.2014 passed by the

Court of the Motor Accidents Claims Tribunal (Judge, Family Court -

cum - Additional District Judge) at Khammam in MVOP.No.908 of 2012,

the United India Insurance Company Ltd., which is the insurer of the

crime vehicle filed the present appeal.

2. The deceased is one R. Sunitha Rani and the claimants are her

parents.

3. The case of the claimants is that on 9.3.2012 in the morning

hours Sunitha Rani along with her friend P.Aruna and mother of Aruna

were going to Bethupally Gangaram to attend the marriage of a relative

and they were waiting at Tiruvur Bus Stand for bus. In the meanwhile,

the friend of the deceased by name R.Kishore and deceased Sunitha Rani

went to Bethupally Gangaram on motor cycle bearing No. AP 16 BE 426.

After attending marriage and going to DD at Kankaram at N.S.P. canal,

V.M. Banjara, they started for Tiruvuru through SNP canal bunk. When

they crossed main road at about 5.30 p.m., the driver of the oil tanker

lorry, bearing No. AP 11 V 2333 drove the lorry in a rash and negligent

manner at high speed, and dashed against the motor cycle. As a result

of which, Sunitha Rani and her friend Kishore fell down on the road and

sustained multiple injuries. Sunitha Rani sustained head injury and

died on the spot. Police V.M.Banjara registered a case in Cr.No.42/2012

under Section 304-A and 337 IPC against the driver of the lorry.

4. The further case of the claimants is that the deceased was a

meritorious student and would have got good job in private organizations

and earned Rs.30,000/- per month. Due to sudden death of deceased,

claimants have lost their daughter and source of income. Since the

deceased was unmarried, the average income of the deceased has to be

assessed based on the age of her mother, who is 45 years. The notional

income of the deceased has to be taken at Rs.10,000/- per month. With

these averments, the claimants filed the claim petition under Section 166

of the Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/-,

against respondents 1 and 2 before the Tribunal, who are the insured

and the insurer of the lorry.

5. The 1st respondent, owner of the vehicle remained ex parte, and

the insurance company filed counter affidavit and disputing the manner

of accident pleaded by the claimants, the age of the deceased, her

notional income and further contending that the driver was not having

valid driving licence to drive the crime vehicle and sought for dismissal of

the claim petition.

6. The Tribunal considering the evidence of P.W.1, the father of

the deceased, and also the evidence of P.W.2, who is the eye witness to

the accident, coupled with Exs.A-1 to A-6, held that the accident

occurred due to rash and negligent driving of the driver of the crime

vehicle and that the deceased died due to the accident. As no income

proof is filed by the claimants, the Tribunal has taken her income as

Rs.4,500/- per month, and by deducting 50% towards her personal

expenses, and by taking the age of the mother of the deceased, who was

45, applied the multiplier of 14, and arrived at Rs.4,86,000/- towards

loss of dependency, and further granted Rs.10,000/- towards loss of

estate, Rs.4,000/- towards transport and funeral expenses, and thus, in

all, granted an amount of Rs.5,00,000/-.

7. The Tribunal, considering the admission of R.W.2, who is

working as Senior Assistant in the office of R.T.O., Nalgonda, that a

person having licence like Ex.B-4, which is the extract of the driving

licence of the driver of the vehicle, can drive the crime vehicle, held that

driver was possessing valid licence and that there is no violation of policy

conditions, and hence made both the respondents i.e., insured and

insurer, as jointly and severally liable to pay the compensation.

8. As stated above, aggrieved by the order of the Tribunal in fixing

the liability on the insurer as well, the present appeal is filed.

9. Sri V.Samba Siva Rao, learned counsel appearing for the

Insurance - Company mainly contended that the crime vehicle, which is

an oil tanker, is a hazardous vehicle, and R.W.2, Who is a Senior

Assistant in the Office of Road Transport Authority, Nalgonda, though in

his cross-examination deposed that a person having licence like Ex.B-4

can drive crime vehicle, in his re-examination has categorically stated

that there is a different between HTV and Hazardous vehicle and to drive

Hazardous vehicle, a person should have specific license and should take

15 days training. Learned counsel further submits that in the present

case no evidence is placed on record by the insured that the driver of the

crime vehicle has taken such training and there is no such endorsement

on Ex.B-4 driving licence. But the Tribunal has ignored the evidence of

R.W.2 in his re-examination. This clearly shows that the driver of the

crime vehicle was not having valid driving licence to drive the oil tanker,

which is a hazardous vehicle, and this amounts to violation of policy

conditions, and as such, the insurance company cannot be made liable

to pay the compensation. In support of this contention, learned counsel

relied on the judgment of the High Court of Karnataka reported in

VISWANATH SETTY vs. VINCENT PINTO1

10. On the other hand Sri K.Pavan Kumar, learned counsel

appearing for the respondents - claimants supporting the impugned

order, sought for dismissal of the appeal.

11. In the present appeal there is no dispute that the accident was

occurred due to rash and negligent driving of the driver of the crime

212 ACJ 1717

vehicle, which is an oil tanker lorry, and that the deceased died in the

said accident. Though in the grounds of appeal, it is sought to be

contended that the notional income of the deceased cannot be taken as

Rs.10,000/- per month and that awarding of Rs.5,00,000/- is without

any basis, a perusal of the impugned order, shows that the deceased is

25 years and is studying M.Sc. II year and however, as there is no

evidence with regard to her future earnings, the Tribunal has taken her

income only as Rs.4,500/- per month. Hence, this ground is drafted

without even perusing the entire award of the Tribunal, which cannot be

appreciated. Hence, the only dispute in the present appeal is with regard

to the alleged violation of the policy condition.

12. To consider the above ground, it is necessary to look into the

evidence of R.W.2, who is the Senior Assistant in the office of Road

Transport Authority, Nalgonda. In his cross-examination he has

categorically stated that having licence like Ex.B-4, a person can drive

Heavy Goods carrier vehicles and heavy passengers vehicle. He also

admitted that the crime vehicle comes within the definition of goods

carriage vehicle. He further admitted that a person having licence like

Ex.B-4 can drive crime vehicle.

13. Further, a careful perusal of the re-examination of R.W.2,

shows that no specific provision of law is quoted to support the

contention of the Insurance Company and as noted above, he has

categorically admitted that the crime vehicles falls within the definition of

goods carriage vehicle and that a person holding Ex.B-4 licence can drive

crime vehicle. Further, the Apex Court in NATIONAL INSURANCE CO.

LTD. vs. SWARAN SINGH2 held that if a person has been given a

licence for a particular type of vehicle as specified therein, he cannot be

said to have no licence for driving another type of vehicle, which is of the

same category but of different type. The Tribunal considering the

evidence on record and in the light of the above judgment, has rejected

the contention of the insurance company that there is any violation of

policy conditions.

14. Having regard to the facts and circumstances of the case, I do

not find any merits in the appeal and the same is accordingly dismissed.

15. Interlocutory Applications pending, if any, shall stand closed.

No order as to costs.

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M.G.PRIYADARSINI,J DATE: 02--12--2022 avs

(2004)3 SCC 297