Telangana High Court
Cholamandalam Ms General Insurance Co. ... vs Syed Dawood on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.703 OF 2023
JUDGMENT:
Heard learned standing counsel Sri A.Ramakrishna Reddy
for the appellant-insurance company and Sri. Kuriti Prem V.Swami
Naidu, learned counsel for respondents-claimants.
2. The present appeal has been filed by the appellant/
insurance company challenging the award passed by the
Chairman, Motor Accident Claims Tribunal (I Additional District
Judge), Nizamabad (for short, 'Tribunal') in M.V.O.P.No.230 of
2021, dated 14.12.2022, thereby seeking to set-aside the award
against the insurance company.
3. The brief factual matrix of the present appeal is as under.
4. On 29.04.2021 at about 8.40 a.m., while the deceased-
Smt.Habeeba Begum, Mahaboob and Fareeda Begum were
proceeding towards Nizamabad from Katepally for medical checkup
of Fareeda Begum in a Car bearing registration No.AP-25-AA-0044,
which was driven by Mahaboob in a cautious manner and when
they reached Afandi Farm village shivar, one Eicher Van bearing
registration No.TS-17-UB-8030 came in opposite direction, driven
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by its driver, in rash and negligent manner at high speed in wrong
side and dashed the car, due to which, the deceased and
Mahaboob died on the spot and Fareeda Begum sustained grievous
and crush injuries. The Police, P.S. Varni registered a case in
Crime No.81 /2021 and filed charge sheet.
5. The claimants, i.e., husband and children of the deceased,
have filed claim petition against the owner of the crime vehicle and
insurance company under Section 166(1)(c) of MV Act, 1988, r/w
Rule 455 of MV Rules, 1989 before the Tribunal claiming
compensation of Rs.15,00,000/- together with costs and interest
from the date of petition till the date of realization.
6. The deceased was hale and healthy and aged 45 years and
was a tailor by profession and was also doing embroidery and
maggam works and was earning more than Rs.30,000/- per month
and contributing the same to the petitioners. Due to death of the
deceased, the claim petitioners lost their love and affection and
monitory loss.
7. The owner of the crime vehicle i.e., respondent No.6 herein,
filed counter before the Tribunal denying all the allegations made
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in the claim petition, particularly about the accident and prayed to
dismiss the petition.
8. The owner of the crime vehicle i.e., appellant herein filed
counter before the Tribunal denying all the allegations in the claim
petition as regards the accident to the deceased, his age, avocation,
health condition, earning capacity and involvement of the crime
vehicle in the said accident and the manner of driving of Van by its
driver, his holding valid and effective driving license to drive the
crime vehicle. The insurance company also denied the dependency
of the petitioners and their entitlement to compensation and
prayed to dismiss the claim petition against the insurance
company.
9. Basing on the above pleadings, the following issues were
framed for trial:
1. Whether the deceased in this case by name Haheeba @
Habeeba Begum died due to injuries sustained in the accident
which took place on 29.04.2021 at about 0840 hours on main
road, Afandi farm village shivar, Varni Mandal, Nizamabad
District?
2. Whether the accident in this case took place due to rash and
negligent riding of Driver of Eicher Van bearing No.TS-16-UB-
8030?
3. Whether the petitioners are entitled for compensation? If so,
to what amount and from which respondents?
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4. To what relief?
10. On behalf of the petitioners/claimants, petitioner No.1
herself was examined PW.I and also examined the eye witness as
PW.2 and Exs.Al to A5 were marked. On behalf of the insurance
company, its legal Manager was examined as RW.1 and Ex.B-1-
insurance policy and Ex.B-2-Scene of offence panchanama were
marked.
11. The Tribunal, on due consideration of the evidence and the
material placed on record, came to a conclusion that the accident
took place due to rash and negligent driving of the Eicher Van and
awarded compensation of Rs.14,21,200/- along with costs and
interest @ 8% per annum from the date of petition till the date of
realization. The Tribunal also held that respondent Nos.1 and 2
therein, who are the driver of the crime vehicle and insurance
company, were jointly and severally liable to pay the said
compensation amount to the claimants.
12. During the course of hearing of the appeal, learned Standing
Counsel for the appellant-insurance company contended that the
Tribunal committed serious irregularity in holding that the
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accident occurred due to the rash and negligent driving of the
Eicher Van; that the driver of the car, in which the deceased was
travelling, was also negligent in causing the accident and therefore,
there is contributory negligence in causing the accident.
13. He further contended that though the claimants did not
prove the earnings of the deceased, the Tribunal fixed his income
as Rs.7,500/- per month and further, the Tribunal ought not to
have awarded interest on future prospects for the reason that the
amount towards future prospects have already been awarded to
the claimants in lump sum and therefore, the insurance company
is not liable to pay compensation.
14. Learned counsel for the respondents/claimants submitted
that on due consideration of the evidence and material placed on
record, the Tribunal had rightly awarded the compensation and no
grounds are made out to interfere with the award passed by the
Tribunal and finally, prayed to dismiss the appeal.
Consideration:
15. The principal contentions raised by the learned counsel for
the appellant-insurance company are with regard to (i) non-
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fastening the liability of 50% towards contributory negligence since
the accident occurred due to negligence of the drivers of the Car
and the Eicher Van and (ii) assessing high monthly income by the
Tribunal without there being any material, evidence.
16. Insofar as the contributory negligence is concerned, a
perusal of Ex.B2-scene of offence panchanama with rough sketch
which was marked on behalf of the insurance company shows that
two vehicles, i.e., the Car in which the deceased was travelling and
the Eicher Van, which is coming in opposite direction were
involved in head-on collision. From the rough sketch, it suggests
that the car, in which the deceased was travelling, was driven in
zigzag fashion by its driver and came to wrong side of the road,
resulting in head-on collision with Eicher van, which is coming in
opposite direction.
17. P.W.2-Fareeba Begum, who was also present in the Car and
also injured, deposed that the driver of the Eicher Van drove it in
rash and negligent manner and dashed their car, due to which she
received injuries and deceased-Habeeba Begum died with the
injuries sustained in a fatal accident. During cross-examination,
she stated that she was sitting at backside of the car and there
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were three persons in the car including driver and the car belongs
to her relative, by name, Chand and it was driven by Mahaboob,
who also died in the said accident. She admitted that said driver is
brother-in-law of the said Chand. Obviously, P.W.2 would not
depose against the driver of the car since the car belongs to her
relative though there was negligence on the part of the driver of the
car.
18. In APSRTC vs. N.Krishna Reddi and others 1, the learned
single Judge of erstwhile High Court of Andhra Pradesh, held as
under:
"5. Since first respondent received injuries due to a
collision between the two vehicles, i.e., the van in which
he was travelling and bus coming in its opposite
direction, unless the drivers of both the vehicles are
negligent, the accident could not have taken place. Even
if one of them was careful, they could have easily averted
the accident. Obviously that is the reason why the
owners of both the vehicles involved in the accident were
made parties to the claim petition. So I hold that the
accident involving the first respondent took place due to
50% negligence of the driver of the van of second
respondent and due to 50% negligence of the driver of
2004 SCC Online AP 357
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the bus belonging to the appellant. The point is answered
accordingly."
19. In view of the above discussion, this Court is of the
considered opinion that the accident occurred due to negligence of
the driver of the Car and the driver of the Eicher Van and drivers of
both the vehicles should be held responsible to have contributed
equally to the accident. The said fact was not considered by the
Tribunal and thus, Tribunal committed error in not appreciating
the fact that accident occurred due to head-on collision and
therefore, 50% of the compensation amount can be deducted
towards contributory negligence on the part of both the drivers.
20. Insofar as the other contention raised by the learned counsel
for appellant that the Tribunal had erred in assessing the monthly
income of the deceased as Rs.7,500/- without there being any
evidence and material. Though it was contended in the claim
petition that deceased was earning Rs.30,000/- per month by
doing tailoring work and also embroidery and maggam works, in
the absence of any proof, the Tribunal had notionally taken the
monthly income of the deceased at Rs.7,500/-, which, in
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considered opinion of this Court, is just and proper and needs no
interference.
21. In view of the facts, circumstances, above discussion and
legal position, in considered opinion of this Court the
respondents/claimants are entitled to 50% of the compensation
amount awarded by the Tribunal since there was contributory
negligence on the part of the driver of the Car. Therefore, the
claimants are entitled to a sum of Rs.7,10,600/- as against
Rs.14,21,200/- awarded by the Tribunal.
22. In the result, the appeal is allowed in part. The award passed
by the Tribunal is modified and the respondents/claimants are
entitled to Rs.7,10,600/- towards compensation with interest at
the rate of 8% from the date of the petition till the date of
realization. The appellant-insurance company and the respondent
No.6 herein are jointly and severally liable to pay the said
compensation amount. The appellant is directed to deposit the
compensation amount within a period of six weeks from the date of
receipt of copy of this order, duly adjusting the amount already
deposited by the appellant. The claimants are entitled to the
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apportionment of the amount as directed by the Tribunal. There
shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
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LAXMI NARAYANA ALISHETTY,J
Date: 15.02.2024
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