Telangana High Court
Bajaj Allianz General Insurance Co. ... vs Jakeera Begum And 6 Others on 2 April, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
M.A.C.M.A.Nos.3831 of 2012 & 1271 of 2016
COMMON JUDGMENT:
M.A.C.M.A.No.3831 of 2012 has been filed by the Oriental
Insurance Company and M.A.C.M.A.No.1271 of 2016 has been
filed by the Bajaj Allianz General Insurance Company Limited,
aggrieved by the Award, dated 19.06.2012, in M.V.O.P.No.499
of 2007, passed by the Special Judge for Trial of Offences
under SC/ST (POA) Act-cum-V Additional District & Sessions
Judge, Medak, at Sangareddy. Therefore, they are being
disposed of by this common judgment.
2. Vide the impugned Award, the trial Court has awarded
compensation of Rs.3,95,000/- to the claimants together with
interest @ 7.5% per annum from the date of petition till the
date of deposit of the amount, to be payable by the appellants
herein/Insurance Companies jointly and severally.
3. The brief facts are that on 11.05.2007, the deceased
while proceeding as a driver in the auto bearing No.AP-23B-
0039, dashed against a lorry, which was parked on the road
without taking any precautionary measures. Due to the
impact, the deceased received grievous injuries and was
initially admitted in Osmania Hospital, Hyderabad and from
there, shifted to NIMS Hospital, where he died on 12.05.2007
while undergoing treatment.
4. The trial Court found that there was contributory
negligence on the part of the deceased and also on the part of
the driver of the lorry in not taking precautionary measures
while parking the lorry on the road and accordingly, the
liability was fixed at 50% on the part of the deceased and
50% on the part of the driver of the lorry.
5. Learned counsel appearing on behalf of both the
Insurance Companies would submit that firstly, the deceased
is not covered by the policy though it is a comprehensive
policy. Secondly, the driving license of the deceased was not
available and thirdly, once negligence is attributed at 50% on
the part of the deceased, the question of maintainability of
Section 166 of M.V. Act would not arise.
6. The burden to prove that there was no driving license of
the deceased would lie on the Insurance Companies. No
evidence is placed before the trial Court to show that the
driver of the lorry as well as the driver of the auto i.e.,
deceased were not having valid driving license.
7. The argument of the learned counsel for the Insurance
Company that the claim cannot be maintainable under
Section 166 of M.V. Act, when the negligence was fixed at
50% on the part of the deceased, cannot be accepted.
8. The learned counsel for the Insurance Company relied
on the judgment of the Hon'ble Supreme Court in the case of
Oriental Insurance Co. Ltd., Vs. Premlata Shukla and
others 1 and the judgment rendered by the Hon'ble High
Court of Karnakata in the case of Appaji and another Vs. M.
Krishna and another 2. The said judgments did not deal
with contributory negligence, therefore, the judgments cited
are not applicable to the facts of this case.
9. In the present case, the manner in which the accident
occurred was considered and the trial Court found that both
the parked vehicle and also the auto were responsible. The
finding of the trial Court is based on the evidence of PWs.1 to
2007 ACJ 1928
2004 ACJ 1289
3. PW-1 is the claimant. PWs.2 and 3 are the witnesses, who
were present when the accident has taken place and also
present during the scene of offence proceedings. The policies
issued to both the vehicles are comprehensive policies and
the finding of the trial Court that there was contribution of
both vehicles at 50% for the accident and both the Insurance
Companies are jointly and severally liable to pay the
compensation to the claimants, cannot be interfered with.
10. Accordingly, both the appeals are dismissed. There
shall be no order as to costs.
Consequently, miscellaneous applications, if any
pending shall stand closed.
____________________
K. SURENDER, J
April 02, 2024.
PVT
