Telangana High Court
Cholamandalam Ms General Insurance Co. ... vs Syed Ahmed on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.No.694 of 2023
JUDGMENT:
Heard Sri A.Ramakrishna Reddy, learned standing counsel for
the appellant-insurance company and Sri Kuriti Prem V.Swami Naidu,
learned counsel for respondent Nos.1 to 3-claimants.
2. The present appeal has been filed by the appellant/insurance
company challenging the Award passed by the Chairman, Motor
Accident Claims Tribunal-cum-II Additional District Judge,
Nizamabad (for short, 'Tribunal') in M.V.O.P.No.229 of 2021, dated
14.12.2022.
3. The appellant is the insurance company and respondent Nos.1
to 3 herein are the petitioners-claimants and respondent No.4 is the
owner of the crime vehicle.
4. The brief factual matrix of the case is as under.
On 29.04.2021 at about 8.40 a.m., one Syed Mahaboob
(hereinafter referred as "the deceased") along with one Habeeba
LNA,J
Begum and Fareeda Begum was proceeding towards Nizamabad from
Katepally village for medical check-up of Fareeda Begum in a Car
bearing No.AP-25-AA-0044 and the deceased was driving the said
Car in a cautious manner. When they reached Afandi Farm village
Shivar, Varni mandal, one Eicher Van bearing No.TS16-UB-8030
came in the opposite direction, driven by its driver in a rash and
negligent manner at high speed in the wrong side and dashed the Car,
due to which the deceased and Habeeba Begum died on the spot and
Fareeda Begum sustained grievous and crush injuries all over the
body and the claimants incurred Rs.2.00,000/- for medical treatment
and funeral.
4.1. The claimants stated that the deceased, aged 22 years, was
unmarried and was a driver by profession and he was also doing
Automobile business on commission basis and earning more than
Rs.30,000/- per month and was contributing his income to the
petitioners. Claimant Nos. 1 and 2 are the parents and Claimant No.3
is the unmarried sister of the deceased. As the deceased was the sole
bread winner of the family, due to his death, the claimants are
LNA,J
subjected to monetary loss and loss of caring due to his death. Hence,
the claim petition under Section 166(1) (c) of Motor Vehicles Act
r/w Rule 455 of A.P. Motor Vehicles Rules, 1989, seeking
compensation of Rs.15,00,000/- with an interest of 24% per annum
from the date of petition till the date of realization.
5. The driver of the crime vehicle i.e., respondent No.1 in the
O.P., filed counter before the Tribunal denying all the allegations in
the claim petition, particularly about the accident and prayed to
dismiss the petition.
6. The owner of the crime vehicle i.e., respondent No.2 in the O.P.
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 by the
driver, his holding valid and effective driving license to drive the car.
The Insurance company also denied the dependency of the petitioners
LNA,J
and their entitlement to compensation and prayed to dismiss the claim
petition against the insurance company.
7. Basing on the above pleadings, the following issues were
framed for trial:
1. Whether the deceased in this case by name Syed
Mahaboob died due to injuries sustained in the accident
which took place on 29.4.2021 at about 8.40 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?
4. To what relief?
8. 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.A-l to A-5 were marked. On behalf of the insurance company, its
legal Manager was examined as R.W-1 and Ex.B-1-insurance policy
and Ex.B-2-Scene of offence panchanama were marked.
LNA,J
9. 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.21,36,000/- 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 and owner of the crime vehicle, were jointly and severally
liable to pay the said compensation amount to the claimants.
10. 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 accident
occurred due to the rash and negligent driving of the Eicher van.
11. 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 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
LNA,J
negligent in causing the accident and therefore, there is contributory
negligence on the part of the driver of the car i.e., the deceased in
causing the accident. He further contended that though the claimants
did not prove the earnings of the deceased, the Tribunal fixed his
income as Rs.10,000/- per month and further deducted only 1/3rd of
the income towards personal expenses though the deceased was a
bachelor.
12. Learned counsel for the appellant-insurance company further
contended that 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.
13. Learned counsel for the respondents/claimants submitted that
on due consideration of the evidence and the material placed on
record, the Tribunal had rightly awarded the compensation and no
LNA,J
grounds are made out to interfere with the Award passed by the
Tribunal and finally, prayed to dismiss the appeal.
14.Consideration:
The principal contentions raised by the learned counsel for the
appellant-insurance company are two-fold; firstly, non-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 secondly, assessment of high monthly income of the
deceased by the Tribunal without there being any material or evidence
on record.
15. So far as the aspect of contributory negligence is concerned, a
perusal of Ex.B2-scene of offence panchanama along with rough
sketch, which was marked on behalf of the appellant-insurance
company, shows that the two vehicles, i.e., the Car which the
deceased was driving and the Eicher Van, which was coming in
opposite direction were involved in the head-on collision. Further, a
perusal of the rough sketch of the scene of offence reveals that the
LNA,J
deceased being driver of the car was driving the same in a zigzag
fashion and went to the wrong side of the road, resulting in head-on
collision with the Eicher van, which was coming in opposite direction.
16. P.W.2-Fareeba Begum, who was also present in the Car and
also injured, filed affidavit in lieu of her chief-examination, wherein
the averments made in the claim petition were reiterated. It was stated
that the driver of the Eicher Van drove it in a rash and negligent
manner and dashed their car, due to which she received injuries.
During cross-examination, she stated that she was sitting at backside
of the car and there were three persons in the car including the driver
and the car belongs to her relative by name, Chand and it was driven
by the deceased, who also died due to the fatal injuries sustained in
the said accident. She admitted that the deceased is the brother-in-law
of the said Chand. Obviously, since the car belongs to her relative,
P.W.2 would not depose against the driver of the car though there was
negligence on the part of the driver of the car.
LNA,J
17. In APSRTC vs. N.Krishna Reddi and others 1 , a learned single
Judge of the 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 the bus belonging to the appellant. The
point is answered accordingly."
18. In view of the above discussion, this Court is of the considered
opinion that the accident in question occurred due to negligence of the
driver of the Car as well as 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 lost sight of by the Tribunal
2004 SCC Online AP 357
LNA,J
and Tribunal erred in not observing that the accident occurred due to
head-on collision between the car and the Eicher van and therefore,
50% of the compensation amount should be deducted towards
contributory negligence on the part of the drivers of both the vehicles.
19. Insofar as the other contention raised by the learned counsel for
the appellant as regards the assessment of the monthly income of the
deceased on higher side by the Tribunal, it is to be noted that in the
claim petition, the claimants averred that deceased was working as
driver and also doing automobile business on commission basis and
earning Rs.30,000/- per month. However, in the absence of any proof,
the Tribunal had notionally taken the monthly income of the deceased
at Rs.10,000/-, which, in considered opinion of this Court, is just and
proper and needs no interference by this Court.
20. In view of the facts, circumstances, above discussion and legal
position, in the considered opinion of this Court respondent Nos.1 to
3/claimants are entitled to 50% of the compensation amount awarded
by the Tribunal since there was contributory negligence on the part of
LNA,J
the driver of the Car. Therefore, the claimants are entitled to a sum of
Rs.10,68,000/- as against Rs.21,36,000/- awarded by the Tribunal.
21. In the result, the Appeal is allowed in part. The award passed
by the Tribunal is modified and respondent Nos.1 to 3/ claimants are
entitled to Rs.10,68,000/- towards compensation with interest at the
rate of 8% per annum from the date of the petition till the date of
realization. The appellant-insurance company and the respondent
No.4 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
apportionment of the compensation amount as directed by the
Tribunal. There shall be no order as to costs.
22. Pending miscellaneous applications if any shall stand closed.
_________________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
15.02.2024
dr
