Bharati Axa General Insurance ... vs Jella Chandrakala
2022 Latest Caselaw 6103 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                     M.A.C.M.A. No. 3070 of 2018

JUDGMENT:

Being dissatisfied with the order and decree passed by the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-XXIV

Additional Chief Judge, City Civil Court, Hyderabad, in

M.V.O.P.No.2138 of 2011 dated 06.10.2017, Bharati Axa General

Insurance Company limited has filed the present appeal.

2. For the sake of convenience, the parties have been referred to

as arrayed before the Tribunal.

3. Brief facts of the petitioners' case are that on 29.07.2011 when

the deceased-J.Bhargavi along with her friends and others returning by

walk from Sanjay Gandhi Memorial Government Polytechnic College,

situated beside National Highway No.9 to Abdullapurmet village bus

stop to go to their village and when they reached in front of Ramoji

Film City Main Gate at about 3-15 p.m., a cement Heavy Mix Tanker

bearing No. AP 4 X 4723 being driven by its driver came in a rash and

negligent manner and dashed the divider hymax light pole, deceased

and college students. Due to which, the deceased and her friend

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N.Mamatha died on the spot and others sustained injuries. According

to the petitioners, the deceased was aged 19 years and used to earn

Rs.8,000/- per month by offering tuitions to students in Mathematics

in her village. Thus, the petitioners claimed compensation of

Rs.8,00,000/- under various heads.

4. Respondent No.1 remained ex parte; Respondent No.2 filed

counter disputing the manner of accident, age, avocation and income

of the deceased. It is further contended that the compensation claimed

by the petitioners is highly excessive and prays to dismiss the petition.

5. Based on the above pleadings, the Tribunal framed the

following issues:

1. Whether the deceased died in the accident on 29.06.2011 due to rash and negligent driving of the driver of Cement Heavy Mix Tanker bearing No. AP 4 X 4723?

2. Whether the petitioners are entitled to any compensation, if so, to what extent and from whom?

3. To what relief?

6. In order to prove the issues, PWs.1 and 2 were examined and

Exs.A1 to A8 got marked on behalf of the petitioners. On behalf of

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respondent No.2, RW.1 was examined and Exs.B1 to B3 were

marked.

7. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.8,09,000/- towards

compensation to the claimants directing the respondent No.2 to satisfy

the decree at the first instance and recover the same by initiating

execution proceedings against respondent No.1 along with

proportionate costs and interest @ 6% per annum from the date of

petition till realization.

8. Heard the learned Standing Counsel for the appellant-Insurance

Company and the learned Counsel for the respondent Nos.1 to

3/claimants. Perused the material available on record.

9. The learned Standing Counsel for the appellant-Insurance

Company contended that the accident occurred due to the contributory

negligence; that the Tribunal without any basis took the monthly

income of the deceased at Rs.4,000/- and the Tribunal failed to see

that the driver of the offending vehicle had no driving license at the

MGP,J Macma_3070_2018

time of accident and the amount awarded is exorbitant. Accordingly,

prayed for setting aside the impugned order in the O.P.

10. The learned Counsel appearing on behalf of respondent Nos.1

to 3-claimants submitted that the Tribunal after considering the oral

and documentary evidence available on record, has awarded

reasonable compensation and the same needs no interference by this

Court. Therefore, the learned counsel sought for dismissal of the

appeal.

11. With regard to the manner of accident, the learned Standing

counsel for the Insurance Company pleaded that the accident occurred

due to the contributory negligence. However, the evidence of PW-2

who is eyewitness to the accident shows that the accident occurred

due to the negligence of the driver of the crime vehicle and the

deceased died on the spot. Further Ex.A1 F.I.R. and Ex.A4 charge

sheet categorically shows that the police after thorough investigation

filed charge sheet against the driver of the offending vehicle.

Therefore, considering the evidence of PWs.1 and 2 coupled with the

documentary evidence available on record, the Tribunal rightly held

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that the accident occurred due to the rash and negligent driving of the

driver of the offending vehicle.

12. With regard to the quantum of compensation is concerned,

according to the petitioners, the deceased was a Polytechnic student,

aged 19 years and used to earn Rs.10,000/- per month by running

tutorial. However, since there is no income proof, the Tribunal had

taken the income of the deceased at Rs.4,000/- per month, added 50%

of future prospectus on it and by deducting 50% towards personal and

living expenses of the deceased who is a bachelor, awarded an amount

of Rs.6,84,000/- towards loss of dependency. Further the Tribunal

awarded an amount of Rs.1,00,000/- towards loss of love and

affection and Rs.25,000/- towards cremation charges and in total, the

Tribunal awarded an amount of Rs.8,09,000/-, which is just and

reasonable.

13. With regard to the liability, as stated above, the accident

occurred due to the rash and negligent driving of the offending

vehicle. However, as per Ex.B3 Report given by R.T.A., Mathura

shows that the driving license particulars furnished by Insurance

Company was verified and RTA contended that the said driving

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license was not issued. Therefore, following the decision of National

Insurance Company Limited vs. Swaran Singh and others,1 the

Tribunal rightly directed the respondent No.2 to satisfy the decree at

the first instance and recover the same by initiating execution

proceedings against respondent No.1. Therefore, in view of the above

discussion, this Court is of the opinion that there are no valid grounds

to interfere with the cogent findings given by the Tribunal and the

appeal is liable to be dismissed.

14. In the result, the M.A.C.M.A. is dismissed. There shall be no

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

______________________ M.G.PRIYADARSINI,J

23.11.2022 pgp

2003 (2) ALD-36(SC)