The Oriental Insurance Company ... vs Dhupati Babu Raju 2 Others
2022 Latest Caselaw 5833 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                 M.A.C.M.A.No.2467 OF 2016
JUDGMENT:

This appeal is directed against the award dated 14.09.2015

in M.V.O.P.No.225 2014, on the file of the Chairman, Motor

Accidents Claim Tribunal-cum-VII-Additional District Judge,

Khammam (for short 'the Tribunal'), wherein the said claim

application filed by respondent Nos.1 and 2 herein seeking

compensation, was allowed-in-part, awarding compensation of

Rs.6,88,000/- with interest at 7.5% per annum from the date of

petition.

2. Heard learned counsel for the appellant-insurer and learned

counsel for respondent Nos.1 and 2-claimants. Perused the record.

3. Respondent Nos.1 and 2-claimants filed claim application

seeking compensation of Rs.7,00,000/- on account of death of

the deceased Vijaya Laxmi @ Vijaya Kumari in a motor vehicle

accident that occurred on 17.06.2013. Claimant No.1 is the

husband and claimant No.2 is the daughter of the deceased.

According to the claimants, on that day, while she was doing

fruit business at about 1230 hours, one trolley lorry bearing

No.AP 27-X 1122, driven by its driver in a rash and negligent

manner with high speed, coming from Thallada side and

proceeding towards Khammam, dash the deceased, resulting in

death of the deceased on the spot after receiving grievous injuries

to her head. Police, Thallada registered a case in Cr.No.71 of

2013 for the offences punishable under Sections 337 and 304-A

IPC against the driver of the trolley lorry. The deceased was aged

about 25 years at the time of accident and was earning Rs.500/- per

day on fruit business, besides doing other household works and

used to contribute her earnings for the welfare of her family.

Owing to the death of the deceased, the claimants lost love and

affection.

4. Respondent No.3-owner of the trolley lorry remained

ex parte before the Tribunal. The appellant-insurer filed counter

opposing the claim and denying its liability to pay the

compensation.

5. On a consideration of the evidence available on record, the

Tribunal held that the accident occurred due to the rash and

negligent driving of the trolley lorry by its driver. The Tribunal

further held that the claimants are entitled for a total compensation

of Rs.6,88,000/-. Accordingly, an award was passed for the said

amount with interest 7.5% per annum from the date of petition

till realization. Aggrieved by the said award of compensation,

the present appeal is filed by the appellant-insurer.

6. The main contention of learned counsel for the appellant-

insurer is that the appellant insurance company is not liable to pay

compensation, as the driver of the crime vehicle was in a drunken

state and the same amounts to violation of conditions of policy

by the owner. Learned counsel further contends that the insurer

adduced oral evidence of R.Ws.1 to 3 and documentary evidence

Exs.B-1 and B-2 and proved that the driver of the crime vehicle

was under the influence of alcohol at the time of accident and no

liability can be fastened on the insurer on par with the insured.

Therefore, the award of the Tribunal is erroneous and liable to be

set aside.

7. Per contra, learned counsel for the respondents-claimants

submits that the Tribunal had appreciated the evidence on record in

proper perspective and had rightly fastened the liability on the

appellant-insurer and the owner of the vehicle and the Tribunal had

not committed any error and the appeal is liable to be dismissed.

8. The appellant-insurer filed counter before the Tribunal

contending that the driver of the lorry was not holding driving

licence at the time of accident and the vehicle was not roadworthy

to ply and the accident occurred only due to the sole negligence on

the part of the deceased.

9. The appellant examined their Assistant Manager as R.W.1

and he stated that at the time of accident, the driver of the crime

vehicle was in a drunken state and same is evident from the charge

sheet filed by police against the driver of the crime vehicle for the

offences punishable under Sections 304-A, 338 IPC and Sections

185 and 189 of the Motor Vehicles Act.

10. R.W.2, Dr.P.Asardharan of Karthik Superspeciality Hospital,

Khammam, deposed that on the requisition of police, he examined

the patient and his breath was smelling alcohol at the time

of admission on 17.06.2013. Ex.B-2 is the requisition filed by the

Sub-Inspector of Police, Thallada Police Station to the doctor of

Telangana Hospital, Khammam to examine the driver of the lorry

to ascertain whether he was in a drunken state or not and Ex.B-3 is

copy of the medical certificate issued by the doctor-R.W.2.

11. A perusal of Ex.B-2 would disclose that the driver was

examined by the doctor on 17.06.2013 at 02:50 p.m., and his breath

was smelling alcohol at the time of admission. The doctor, who

issued the medical certificate, was examined as R.W.2 and in

cross-examination, R.W.2 categorically admitted that in order to

prove whether a person is alcoholic, a breath test or breath analyzer

shall be made to know the actual condition and what was

the percentage of alcohol found in the body of the individual.

Since the blood samples of the driver of crime vehicle was not

tested so also the breath analyzer test was not done and R.W.2 had

specifically stated that he found smell of alcohol and with such

evidence, it cannot be said that the driver of the crime vehicle was

found in a drunken state and due to the said reason only, the

alleged accident occurred.

12. Undisputedly, R.W.2 is an important witness to prove the

drunken condition of the driver of the crime vehicle at the time

of accident. The doctor himself admitted that normally testing

for assessment of whether a person is alcoholic, blood test or breath

analyzer test has to be done and the same is not done in this case.

Ex.A-2 charge sheet filed by the police against the driver of the

crime vehicle shows that the driver was in a drunken state at the

time of accident. Mere filing of charge sheet is not sufficient to

conclude that the driver was in a drunken state and since accusation

is made against the driver of the crime vehicle, the same depends

upon proof beyond reasonable doubt in a criminal case. It settled

principle of law that mere filing of charge sheet against the driver

of the crime vehicle is not sufficient to conclude that the accident

occurred due to the rash and negligent driving of the lorry and the

Tribunal has to independently decide rashness and negligence

basing on attending circumstances of each case. Admittedly, the

Tribunal had taken into consideration the evidence of R.Ws.1 to 3

and also the charge sheet Ex.A-2 and independently, uninfluenced

by the contents of the charge sheet held that the driver was not in a

drunken state at the time of accident.

13. Coming to the computation of compensation, the Tribunal

had taken into consideration the income of the deceased at

Rs.4,500/- per month and Rs.54,000/- per annum and after

deducting one-third towards personal and living expenses, as per

the decision of the Hon'ble Apex Court in SARLA VARMA v.

DELHI TRANSPORT CORPORATION1, calculated the annual

income at Rs.36,000/- (Rs.54,000/- - Rs.18,000/- i.e., one third of

Rs.54,000/-). By applying appropriate multiplier '18' as per the

above said decision, the Tribunal had assessed the loss of future

income at Rs.6,48,000/- (Rs.36,000 x 18). The Tribunal had

granted Rs.5,000/- towards transportation charges, Rs.25,000/-

towards loss of consortium, Rs.10,000/- towards funeral expenses,

making up a total compensation of Rs.6,88,000/ (Rs.5,000/- +

Rs.25,000/- +, Rs.10,000/-)-. The said award of compensation

under the difference heads is just compensation and it does not

warrant interference. No cross-appeal is filed by the claimants

against the award of compensation.

14. On a careful perusal of the material on record, I am of the

view that as the blood samples of the driver were not collected or

breath analyzer test was not done and basing on the evidence of

2009(6) SCC 121

R.W.2 and Ex.B-3, it cannot be said that the driver of the crime

vehicle was in a drunken state at the time of accident. Therefore,

I find no force in the contention of learned counsel for the appellant

that the Tribunal had committed error in not holding that the driver

was in a drunken state at the time accident. Consequently, the

appeal fails and is liable to be dismissed.

15. In the result, the appeal is dismissed. There shall be no order

as to costs.

16. Pending miscellaneous applications, if any, shall stand

closed.

_______________________ A.SANTHOSH REDDY, J 15.11.2022 Lrkm