United India Ins Co Ltd, Hyderabad vs Manda Jyothi, Adilabad Dist 7 5 ...
2023 Latest Caselaw 2513 Tel

    THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

                  M.A.C.MA. No.763 of 2017

ORDER:

Being aggrieved by the judgment and decree of chairman,

Motor Accident Claims Tribunal cum Principal District Judge,

Adalibad dated 23.03.2015 in M.V.O.P. No.316 of 2011

whereunder the tribunal awarded a sum of Rs.14,21,040/- as

compensation on account of the death of one Manda Srinivas

hereinafter referred as deceased with costs and interest etc., the

second respondent in the said OP, filed this Civil Miscellaneous

Appeal under section 173 of M.V.Act on the following grounds:

The tribunal while granting compensation against the 6th

respondent and appellant herein failed to see that the deceased

in the case was riding the motor cycle having borrowed the

same from his friend i.e. insured of the motor cycle and was

going on the work with his friend and met with an accident

within the police station limits of Regonda. The Tribunal failed

to note that the deceased was not an employee of the insured

for fixing liability in the case against the insured and the

insurer of the motor cycle and by riding a motor cycle he

stepped into the shoes of the owner/insured. Therefore the MACMA.No.763 of 2017

deceased or his legal representatives are barred from claiming

compensation against the vehicle and its insurer but the

Tribunal without going into this settled aspect and without

following the settled law wrongly fastened the liability of

payment of compensation on the present appellant. Therefore it

is liable to be set aside.

2. The appellant further claimed that the Tribunal failed to

consider that the accident caused because of the rash and

negligent driving of the deceased itself, when the deceased was

riding the bike on the material time there by for the own fault of

the deceased neither he nor his legal representatives can seek

remedy under section 166 of M.V.Act but the Tribunal ignored

the settled principles of law and committed a grave error in

fixing the liability on the appellant thereby sought for setting

aside the award.

3. The following is the brief case of claim filed by the

respondents/claimants before the Court below:

On 19.02.2009 at about 8.30 pm the deceased was

proceeding on a motor cycle bearing No.AP01 P 2928 along with

his friend under the instructions of one Mr.Venugopal the owner

of the motor bike who is shown as first respondent in the OP MACMA.No.763 of 2017

and 6th respondent in the present appeal. While he was on the

way all of a sudden he found a pig coming across the road

thereby the deceased applied sudden brake due to which he lost

control over the bike and fell down along with the pillion rider

and he received head injury on the left side apart from other

factures. He was immediately shifted to Singareni hospital,

Bhoopalapalli and after first aid he was taken to Medicity

hospitals, but while under going treatment he died on

05.03.2009.

4. The family members of the deceased filed this petition

claiming that the deceased was aged about 42 years he was

working as an employee in Singareni Collieries Company

Limited, Bhoopalapalli, he was hale and healthy and earning

Rs.17,765.67/- ps. and contributing his earnings for the welfare

of the respondents/claimants. In view of the accident they lost

the breadwinner of the family and thereby they filed the petition

against the owner and also insurer from whom a policy was

obtained for the bike and sought for Rs.25,00,000/- towards

compensation. The present appellant contested the petition,

filed a counter disputing the material averments including the MACMA.No.763 of 2017

manner of accident, age, income etc. of the deceased and prayed

for dismissal of the petition.

5. The tribunal framed the following issues:

1. Whether the accident took place as alleged by the petitioners on 19.02.2009 near Regonda police station of Warangal district resulting in the death of Manda Srinivas while the deceased was going by motorcycle bearing No. AP.01P 2928 as per the directions of first respondent?

2. Whether there was any insurance coverage for the motor cycle bearing No. AP.01P.2928 and if so, does the policy cover the risk of deceased and if so, was there any breach of policy condition alleged by the second respondent?

3. What were the age, avocation and the earnings of deceased?

4. What is the appropriate multiplier applicable in this case?

5. Whether the petitioners are entitled to any compensation if so to what extent and against whom?

6. To what relief?

6. During enquiry the wife of the deceased was examined as

PW1, two more witnesses were examined. They have marked

Ex.A1 to A9 and Ex.X1 to X4. The respondents including the

appellant herein did not adduce any oral or documentary

evidence. The learned Chairman of the Tribunal having

appreciated the contentions of both parties and evidence placed

before him believed the case of respondents and allowed the

petition in part granting a sum of Rs.14,21,040/- as MACMA.No.763 of 2017

compensation with costs and interest at the rate of 7.5% per

annum from the date of accident till realisation.

7. Heard both parties.

8. Now the point for consideration is

Whether the tribunal committed any error in allowing the

petition filed by the respondents in part and by granting a sum

of Rs.14,21,040/- against the claim filed by the respondents for

Rs.25,00,000/-, if so whether the order is liable to be set aside?

9. The appellant who is an insurance company from which

the 6th respondent owner of the bike obtained a policy against

the motor bike that involved in the accident filed this appeal

mainly on the ground that the respondents cannot maintain

petition under section 166 of M.V.Act, since the accident was

caused without involvement of any other vehicle and according

to the appellant the accident occurred due to the own

negligence of the deceased. Therefore petition under section 166

of M.V.Act is not maintainable. The appellant further contended

that when once the deceased obtained motor bike of his friend

and used the same on the work entrusted by the owner of the

bike was a third party policy. Therefore the deceased cannot be MACMA.No.763 of 2017

treated as a third party and no petition can be allowed for

compensation under the above stated circumstances, as such,

they prayed for setting aside the order.

10. The learned counsel for the respondents has submitted

that the Court below having appreciated the entire oral and

documentary evidence considered the contention of the

appellant herein and categorically held that though the petition

was filed under section 166(1) (c) of M.V.Act the Court below

treated the petition as a petition under section 163(a) of M.V.Act

and having appreciated the oral and documentary evidence

passed a reasoned order thereby there are no grounds to

interfere with the findings and sought for dismissal of the

appeal.

11. As per the entire oral and documentary evidence now

available before this Court, it is very clear that the vehicle

involved in the accident belongs to the 6th respondent herein.

There is no doubt about the deceased obtaining the bike and

about the accident while he was proceeding on the bike. It is a

fact that no other vehicle involved in this case and it was a

specific contention of the respondents that having noticed a pig

crossing the road, the deceased tried to control the vehicle by MACMA.No.763 of 2017

applying sudden brakes but the deceased fell on the road and

received fatal injuries.

12. The tribunal appreciated the above circumstances and

after perusing the record came to the conclusion that in-spite of

the fact that the petition was filed under section 166 (1) (c) of

M.V.Act but he has treated the petition as if under section 166

(a) of M.V.Act.

13. The Court below placed reliance on a judgment between

Royal Sundaram Alliance Insurance Company Limited Vs.

A.Meenakshi and others 1 and came to conclusion that since

the deceased obtained the motor cycle from his friend died in an

accident he can be treated as third party and claim filed by the

respondents is covered under the policy obtained from the

appellant herein. The learned chairman, Motor Accident Claims

Tribunal considered the contentions of the appellant herein and

by treating the deceased as a third party answered the issue

against the appellant and other respondent being owner of the

vehicle, therefore the appellant herein cannot claim any relief

under this ground.

2009 ACJ 2218 MACMA.No.763 of 2017

14. The appellant did not raise any objection with regard to

the quantum of the compensation. In fact the Court below

having appreciated the oral and documentary evidence and

salary certificate of the deceased assessed the compensation

following the settled principles of law and awarded proper

amount. Therefore, there are no merits to interfere with the said

findings. Consequently the appeal is liable to be dismissed.

15. In the result the appeal is dismissed. No order as to costs.

Miscellaneous applications, if any pending, shall also

stands closed.

_________________________________ JUSTICE SAMBASIVARAO NAIDU Date: 20.09.2023 BV