Telangana High Court

The United India Insurance ... vs Aluru Venkatamma 4 Ors on 31 March, 2022

Bench: G Sri Devi

             HONOURABLE JUSTICE G. SRI DEVI

                  M.A.C.M.A.No. 1804 of 2008

JUDGMENT:

This appeal is preferred by the appellant/Insurance

Company questioning the order and decree, dated 28.09.2007,

passed in O.P.No.2682 of 2004 on the file of the XVI Additional

Chief Judge-cum-II Additional Metropolitan Sessions Judge,

Hyderabad.

Succinctly, the case of the claimants is as under:

Respondents 1 to 4, who are the claimants before the

Tribunal, filed a petition under Section 166 of the Motor Vehicles

Act, claiming compensation of Rs.4,00,000/- for the death of the

deceased-Aluru Venkataiah, due to the injuries sustained by him

in a motor vehicle accident. It is stated that on 26.01.2004 at

about 9.00 P.M., while the deceased along with his family

members was crossing the road at Bus Stand, Balanagar,

Mahaboobnagar District, he met with an accident, sustained

injuries and succumbed to the injuries while undergoing

treatment in Osmania General Hospital, Hyderabad. It is stated

that the accident occurred due to the rash and negligent driving

of the driver of the Ambassador Car bearing No. ADX 1530. The

Police, Balanagar, registered a case in Crime No.16 of 2004 for the

offences punishable under Sections 304-A and 337 of I.P.C.

against the driver of the Car. It is also stated that the deceased

was earning Rs.4,500/- per month by doing coolie work and was

contributing the same to his family. Due to sudden death of the

deceased, respondents 1 to 4 herein lost their source of income

and love and affection. The 5th respondent herein being the

owner of the Car and the appellant being the insurer are jointly

and severally liable to pay the compensation.

The 5th respondent herein, who is the owner of the Car,

filed counter admitting the ownership, factum of accident and the

death of the deceased. It is stated that the driver of the vehicle

was having valid and subsisting driving licence at the time of

accident. It is also stated that the offending car was insured with

the appellant/Insurance Company and the same was in force at

the time of the accident and the compensation amount, if any, is

liable to be paid by the appellant/Insurance Company.

The appellant/Insurance Company, filed counter while

traversing the material allegations in the petition. It is also

denied the manner of the accident, involvement of the Car, death

of the deceased due to the injuries sustained, age, avocation,

earnings, dependency and insurance coverage etc. It is further

contended that the petition is liable to be dismissed for not

impleading the parents of the deceased. It is also stated that the

deceased was not supposed to cross the road without observing

the traffic on the high way and there is contributory negligence

on the part of the deceased. It is further stated that the driver of

the Car was not holding valid driving licence. In the additional

counter, it is denied the involvement of the Car in the alleged

accident and contended that respondents 1 to 4/claimants in

collusion with the police, implicated the offending car and that as

per F.I.R. unknown vehicle dashed the deceased while crossing

the road and the police filed charge sheet after lapse of eight

months.

Basing on the above pleadings, the Tribunal framed the

following issues:-

1. Whether the accident on 26.01.2004 at about 9.00 P.M., took place due to the rash and negligent driving on the part of the driver of Ambassador Car bearing registration No. ADX 1530?

2. Whether the petitioners 1 to 4 are entitled for compensation. If so, to what amount and from whom?

3. To what relief?

On behalf of respondents 1 to 4/claimants, P.Ws.1 to 3

were examined and Exs.A1 to A3 were marked. On behalf of the

Insurance Company, no oral evidence was adduced, but Ex.B1-

copy of Insurance Policy was marked.

After considering the oral and documentary evidence

available on record, the Tribunal held that the accident was

occurred solely due to the rash and negligent driving of the

driver of the offending Ambassador Car bearing registration No.

ADX 1530 resulting in the death of the deceased Aluru

Venkataiah and accordingly awarded an amount of Rs.3,65,000/-

with interest @ 7.5% per annum from the date of petition till the

date of realization. Aggrieved by the said judgment, the

appellant/Insurance Company filed the present appeal.

Learned Standing Counsel for the appellant/Insurance

Company would submit that the alleged vehicle i.e. Ambassador

Car bearing No. ADX 1530 was falsely implicated for the purpose

of claiming compensation. It is also submitted that initially F.I.R.

was lodged on 27.01.2004 by one Aluru Chennaiah against an

unknown vehicle and in the F.I.R. it is nowhere mentioned

whether it is a Car, two wheeler, van or lorry or bus and it is

simply stated that an unknown vehicle dashed against the

deceased. It is further submitted that the police filed Ex.A2-

charge sheet against the driver of the Ambassador Car on

06.12.2004 with an inordinate delay of 10 months. It is also

submitted that the accident in question has occurred at 9.00 P.M.,

and that there are three witnesses to the accident even according

to the claim petitioners. The wife of the deceased i.e., P.W.1 also

witnessed the accident and if at all what has been stated in the

chief-affidavit of P.Ws.1 to 3 is correct with regard to the

occurrence of the accident and involvement of the Car, what

prevented the police to file charge sheet against the driver and

owner of the said vehicle immediately and why there was a lapse

of ten months in filing Ex.A2-charge sheet. It is also submitted

that Ex.B1-Insurance policy was issued in the name of D.Bheem

Lingam and his name was reflected as owner of the vehicle in the

claim-petition. If at all, the owner/insured of the alleged Car is

one D.Bheema Lingam, why the police have mentioned the name

of Syed Jahangir as owner of the Car ADX 1530 in the list of

witnesses appended to Ex.A2-charge sheet. It is further

submitted that according to the chief-affidavit of the eye

witnesses, though they have witnessed the accident, it is only

after a long gap of 10 months, the charge sheet was filed and the

police have arrested the accused driver K.Balaswamy, but

nowhere it was stated that how they got information with regard

to the details of the vehicle number and driver of the Car. It is

also stated that the claimants by colluding with the owner, have

filed the present case only for the purpose of claiming

compensation from the appellant. It is further submitted that the

amount of compensation granted by the Tribunal is according to

the parameters and the law which is in vogue at that time and as

such, it needs no interference since there is no cross

appeal/objections filed by the claim-petitioners. Therefore,

prayed to allow the appeal by setting aside the order passed by

the Tribunal.

Learned Counsel for respondents 1 to 4/claimants would

submit that the Tribunal, after considering the oral and

documentary evidence, has categorically held that the accident

was occurred solely due to the rash and negligent driving of the

driver of the offending Ambassador Car bearing registration No.

ADX 1530 resulting in the death of the deceased Aluru

Venkataiah. It is also submitted that the Tribunal erred in

deducting 1/3rd towards personal and living expenses of the

deceased instead of 1/4th since the dependents are four in

number. It is further submitted that as per the principles laid

down by the Apex Court in National Insurance Company

Limited Vs. Pranay Sethi and others1, respondents 1 to

4/claimants are also entitled to future prospects. It is also

submitted that recently the Apex Court held that in the absence of

cross appeal/objections, the High Court should award just

compensation to the affected persons or the claimants. Therefore,

it is argued that the income of the deceased may be taken into

consideration by adding future prospects and prayed to enhance

the same. He relied upon the following judgments:-

1. P.Suneela and others v. Shaik Kamal and another2

2. Surekha and others v. Santosh and others3

3. Anita Sharma and others v. New India Assurance Co.

Ltd. And another4

The main contention of the learned Standing Counsel for

the appellant/Insurance Company is that the said Ambassador

Car was not involved in the accident, but the claimants in

collusion with the police, as an after thought, implicated the said

Car in order to gain compensation and in the charge sheet, which

2017 ACJ 2700

(2019) 2 ALD 390 (DB)

2020 ACJ 2156

(2021) 1 ALD 267 (SC)

was filed ten months after the accident, the name of the owner of

the said Ambassador Car was mentioned as Syed Jahangir

though the actual owner of the said car was D.Bheem Lingam.

A perusal of the impugned judgment would show that the

Tribunal has framed Issue No.1 as to whether the accident took

place due to the rash and negligent driving on the part of the

driver of the Ambassador Car bearing registration No. ADX 1530,

to which the Tribunal, after considering the evidence of the eye

witnesses to the accident coupled with the documents, has

categorically observed that the accident has occurred due to the

rash and negligent driving of the driver of the Ambassador Car

and has answered the issue in favour of the claimants and against

the respondents. It is apt to reproduce the following findings of

the Tribunal in paragraph Nos.10 to 13 of the impugned order for

better appreciation of the matter:

"10. As can be seen from the evidence of P.W.1, the 1st petitioner is the de facto complainant, who set the criminal law into motion by lodging the original of Ex.A1 before the concerned police. The contents of Ex.A1 would support the case of the petitioners that at the time of the

accident, P.W.1, the 1st petitioner was accompanying the deceased. Therefore, her presence at the time of accident cannot be doubted.

11. The name of P.W.3-B.Balaiah S/o. Chinnaiah, as one of the eye witnesses mentioned in Ex.A2-charge sheet. Therefore, his presence at the time and place of accident also cannot be doubted. It is pertinent to note that the 1st respondent/owner with whom the petitioners have neither relationship nor friendship clearly admitted about the accident in question. Nothing substantial is elicited from P.Ws.1 to 3 to discard their testimony and to disbelieve their version that the accident occurred only due to the rash and negligent driving on the part of the driver of Ambassador Car bearing registration No. ADX

159. It is pertinent to note that the second respondent as can be seen from the original counter did not choose to deny the involvement of the Ambassador car (offending Car) in the accident, but taking the said plea by way of additional written statement during the pendency of the claim petition which is nothing but an after thought.

12. The driver of the offending car is a proper and material witness to speak whether it was involved in the accident or not. Nothing can be prevented the second respondent from examining the driver of the offending car even through process of Court. But for the reasons

best known did not initiate any steps, for which an adverse inference can be drawn.

13. The evidence of P.Ws.1 to 3, eyewitnesses to the accident corroborated by the contents of Exs.A1 to A3 clearly and clinchingly go to prove that the accident occurred solely due to the rash and negligent driving on the part of the driver of the offending car resulting in the death of the deceased Venkataiah, as is evident from Ex.A3, certified copy of Post Mortem Report.

14. In the light of the above discussion, I hold on issue No.1 that the accident, on 26.01.2004 at about 9.00 p.m. at Bus Stand Balanagar, Mahaboobnagar District on NH7, occurred solely due to the rash and negligent driving on the part of the driver of the offending Ambassador Car bearing registration No. ADX 1530 resulting in the death of the deceased Aluru Venkataiah."

Further, the Insurance Company has not adduced any

contra evidence to show that the said Car was not involved in the

accident and that the Insurance Company has not taken any steps

to examine the driver of the said Ambassador Car or the said

Syed Jahangir, whose name was shown as owner of the said Car

in the charge sheet. Therefore, I see no reason to interfere with

the finding of the Tribunal with regard to the involvement of the

Ambassador Car and that the accident occurred due to the rash

and negligent driving of the driver of the said Ambassador Car.

Insofar as the quantum of compensation is concerned, a

perusal of the order of the Tribunal reveals that it has passed a

well considered order by taking into consideration all the aspects