Telangana High Court
Bookya Ramulu vs Mohammad Ali on 4 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
M.A.C.M.A.No.549 OF 2019
JUDGMENT :
Being aggrieved by the Judgment, dated 15.02.2018
in M.V.O.P.No.96 of 2015 on the file of Chairman, Motor
Accident Claims Tribunal-cum-Principal District Judge,
Karimnagar whereunder the learned Chairman, dismissed
their application for compensation on account of death of
one Bookya Naresh (hereinafter be referred as deceased) in
a road traffic accident, the petitioners in the above referred
Original Petition filed this appeal under Section 173 of
M.V.Act and sought for setting aside the impugned
Judgment and prayed for compensation on the following
grounds:
The Tribunal committed grave error in dismissing the
claim petition on the ground that the appellants herein did
not add the driver of the offending vehicle as party to the
proceedings. The appellants have claimed that though
there is no dispute regarding the accident with the vehicle
and the owner of the vehicle is arrayed as party. The 2
Tribunal ought to have allowed their application and ought
to have awarded appropriate compensation, thereby the
dismissal of their petition by the Tribunal is incorrect and
sought for setting aside the impugned Judgment and also
prayed for appropriate compensation. While placing
reliance on Judgment between Vaddepalli Rajesham vs.
A.P.S.R.T.C 1. Learned counsel for the appellants has
submitted that Court below having found that the
appellants herein are entitled to compensation of
Rs.5,00,000/-, dismissed their petition only on the ground
that they failed to add the driver of the offending vehicle as
respondent/party.
2. As could be seen from the impugned award the
appellants herein have filed M.V.O.P.No.96 of 2015
claiming an amount of Rs.10,00,000/- as compensation for
the death of deceased in road traffic accident.
3. The following was the brief case of the appellants as
per their petition:
1 2002 (2) ALT 720 (S.B.) 3
The deceased Nagesh who was the son of 1st
appellant and brother of the 2nd appellant, boarded one
auto bearing No.AP-15-TA-6776 to go to his house at
Yellareddypet from Marimadla village. When the auto
reached Kancharla X Roads at 01:00 P.M., the driver of the
said auto drove the same in high speed, in a rash and
negligent manner, thereby lost control over the auto as
such it turned turtle. In view of the accident, the deceased
and other passengers of the auto received grievous injuries.
Soon after the accident he was shifted to Government
Hospital, Siricilla and from there to Sairam Hospital at
Karimnagr and on medical advice he was referred to
Oxygen Hospital, Hyderabad. However, while he was on the
way to Hyderabad, he succumbed to the injuries. The
appellants have claimed that the deceased was aged about
19 years and studying 2nd year C.M.E in Polytechnic
College. Had there been no such accident, he would have
completed post graduation and by securing good job he
could have earned lakhs of rupees and contributed the
same for the maintenance of the family, thereby the 4
appellants sought for compensation of Rs.10,00,000/- from
the owner and insurer of the above referred auto.
4. The owner of the vehicle who is shown as 1st
responded disputed the ownership on the auto by saying
that he has already disposed the same in favour of the
driver, who himself purchased the auto. Thereby, he need
not pay any amount. However, it seems there was no valid
transfer of auto in favour of the driver.
5. Whereas the 2nd respondent Insurance Company filed
a separate counter, denying the liability. The 2nd
respondent has claimed that the appellants herein have to
prove that the driver of the auto was having valid driving
licence and a policy was in force. There was a valid permit
to run the auto, otherwise they need not pay any amount.
6. Based on the above claims, the Tribunal has framed
the following (3) issues:
1. Whether the accident had occurred due to rash
and negligent driving of auto rickshaw bearing
No.AP-15-TA-6776 by its driver?
5
2. Whether the petitioners are entitled to
compensation, if so, to what amount and from
which of the respondents?
3. To what relief?
7. During the trial, though the 1st petitioner filed his
evidence by way of an affidavit, failed to attend the Court
for cross examination, thereby the Court below eschewed
the affidavit of the witness. The younger brother of the
deceased was examined as PW2 and one more witness was
examined as PW3. Exs.A1 to A7 were marked for the
appellants herein. The 1st respondent did not adduce any
oral evidence. However, the Insurance company has
examined its Administrative Officer as RW1 and marked
Exs.B1 to B3. The Court below having appreciated the
pleadings and evidence, though opined that the claimants
are entitled to as sum of Rs.5,00,000/- in view of failure to
implead the driver of the auto as party to the petition,
dismissed the claim.
8. Heard both parties.
6
9. Now the point for consideration is:
Whether the Court below was wrong in dismissing the petition on the ground of non impleadement of the driver of auto as party to the petition?
10. POINT:
As could be seen from the impugned order, there is
no dispute about the accident in which the deceased died
due to the injuries caused in the above referred accident.
Even though the 1st respondent who did not adduce any
evidence, made a claim that he has already alienated his
auto in favour of the driver, did not chose to place any
material or evidence in support of his claim. Thereby, the
contention of the 1st respondent that the auto was
alienated in favour of the driver cannot be considered.
11. The 2nd respondent Insurance Company disputed the
claim by putting the appellants herein to strict proof of
their contentions. The oral evidence of PWs 2 and 3 as well
as Exs.A1 to A7 goes to show that there was an accident
when the deceased was travelling in the above referred
auto, and he died due to the injuries caused to him in the 7
said auto. Exs.A1 to A6 are the certified copies of FIR,
Inquest, post mortem report of the deceased, report of the
Motor Vehicle Inspector about the auto and charge sheet
filed by the police concerned. These documents would
show that the accident occurred due to the rash and
negligent driving by the auto driver.
12. The learned Chairman, Motor Accident Claims
Tribunal, Karimnagar dismissed the claim solely on the
ground that the appellants herein failed to add the driver of
the auto as party to the proceedings. In the above referred
Judgment between Vaddepalli Rajesham vs A.P.S.R.T.C.,
this Court made an observation that the non-joinder of
driver of accident vehicle is not a ground to dismiss the
claim which was filed for compensation. The Court while
making the said observation further found that whether a
claim for compensation is made against the owner of a
truck or a motor vehicle, the driver is not a necessary party
to the proceedings, as the driver was only a servant of the
owner and owner's vicarious liability does not cease
because the servant was not made as a party to the claim. 8
The Court further observed that according to Section 166
of M.V.Act the relief is against the owner only. The
principle underlying is, the owner is liable for the tortuous
acts committed by the servant during the course of
employment.
13. In the case on hand, even though the owner claims
that he has sold his vehicle to the driver, in view of his
failure to produce any proof, the same cannot be
considered. In fact, the vehicle was insured and the 2nd
respondent/Insurance company did not dispute the said
policy. Even though the driver of the auto is not made as
party, the 1st respondent being owner of the vehicle is
vicariously liable for the acts done by his servant. Since the
1st respondent obtained insurance policy, if any amount is
found to be paid as compensation, the insurance company
has got liability by virtue of the policy, thereby both the
respondents shall be made liable to pay compensation. The
Court below while dismissing the petition based on the oral
and documentary evidence, came to the conclusions that
the claimants are entitled to an amount of Rs.5,00,000/-. 9
The appellants herein did not raise any objection, nor have
they placed any material to claim that they are entitled to
more compensation. Therefore by setting aside the
observations made by the Court below with regard to the
failure of appellants showing the driver as party, the
petition deserves to be allowed by awarding compensation
of Rs.5,00,000/-.
14. In the result, the appeal is allowed. The impugned
order is set aside. An amount of Rs.5,00,000/- is awarded
as compensation and both the respondents are jointly and
severally liable to pay the amount with interest @ 7% per
annum from the date of accident, till the entire amount is
realized. The respondents shall deposit the amount within
(2) month from the date of Judgment.
As a sequel, pending Miscellaneous Applications, if
any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 04.01.2024 PSSK
