Bajaj Aalianz General Insurance ... vs Buggaveeti Karuna Sree
2024 Latest Caselaw 1172 Tel

Telangana High Court

Bajaj Aalianz General Insurance ... vs Buggaveeti Karuna Sree on 19 March, 2024

                                      1
                                                                                 MGP,J
                                                              MACMA.No.1650 of 2018 and
                                                                 MACMA.No.3276 of 2018




     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

                    M.A.C.M.A.No.1650 OF 2018
                               AND
                    M.A.C.M.A.No.3276 OF 2018


COMMON JUDGMENT:

1. These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.1650 of 2018, filed by the claim

petitioners seeking for enhancement of compensation and

M.A.C.M.A.No.3276 of 2018 filed by Insurance Company

challenging the compensation awarded, both are directed against

the very same order dated 17.04.2018 passed in M.A.T.O.P.No.444

of 2012, on the file of the Motor Accidents Claims Tribunal-cum-VII

Additional District Judge, Khammam.

2. For the sake of convenience, the parties hereinafter be

referred as they were arrayed before the Tribunal.

3. The facts of the case in brief are that the claim petitioners,

who are wife, son and parents of Sri Buggaveeti Srinivasa Rao,

(hereinafter be referred to as "the deceased"), filed a petition

claiming compensation of Rs.25,00,000/- for the death of the

deceased who died in a road traffic accident that occurred on

20.02.2012. As per the version of the petitioners, the deceased

used to work as a Lecturer in Sacred Heart College of Arts &

Science, Thallampadu and at Gowthami Junior College,

MGP,J MACMA.No.1650 of 2018 and

Nelakondapalli. On 20.02.2012, when the deceased was proceeding

to his village on his Hero Honda Motor Cycle bearing No.AP-20J-

5466 and when reached near Sri Sai Rama Weigh Bridge, the

driver of the Tractor and Trailer bearing No.AP-20Y-1203/1204

drove the vehicle in a rash and negligent manner at a high speed

and dashed the deceased in the opposite direction. As a result, the

deceased sustained severe injuries on the head, left and right

hand, legs and other parts of body. Immediately, he was shifted to

Mamatha General Hospital, Khammam for treatment and later he

was succumbed to injuries. Based on a complaint, Police,

Khammam Rural Police Station, registered a case in Crime No.60

of 2012 under Section 304-A IPC against the driver of the said

Tractor-Trailer bearing No.AP-20Y-1203/1204. Due to the sudden

death of the deceased, the claimants have lost their source of

income, love and affection of the deceased and were put to mental

shock. Therefore, they filed a petition claiming compensation of

Rs.25,00,000/- from Respondents, who are the owner and Insurer

of the crime vehicle i.e., Tractor-Trailer bearing No.AP-20Y-

1203/1204, which involved in the accident.

4. Respondent No.1, who is the owner of the crime vehicle i.e.,

Tractor-Trailer bearing No.AP-20Y-1203/1204, filed counter and

denied all the averments made in the claim petition and stated that

MGP,J MACMA.No.1650 of 2018 and

there is no rash and negligence on part of the driver of crime

vehicle and further, the crime vehicle is having valid insurance

policy and the same was in force as on the date of accident and

further, the driver of crime vehicle was also holding valid and

effective driving license at the time of alleged accident and as such,

Respondent No.2 is liable to pay compensation. He also contended

that the petition is bad for non-joinder of necessary parties i.e., the

owner and insurer of motorcycle bearing No.AP-20J-5466.

5. Respondent No.2, who is the insurer of the crime vehicle,

filed his counter and denied all the averments made in the claim

petition including, age, avocation, earnings of the deceased and

further contended that the driver is not having valid driving license

at the time of accident and there is no insurance policy coverage to

the crime vehicle at the time of accident and as such, Respondent

No.2 is not liable to pay any compensation and that the

compensation claimed is excess and exorbitant and prayed to

dismiss the claim against it.

6. Based on the above pleadings, the learned Tribunal had

framed the following issues:-

(i) Whether the accident took place on 20.02.2012 due to the rash and negligent driving of the driver of Tractor-

Trailer bearing No.AP-20Y-1203/1204 by its driver?

MGP,J MACMA.No.1650 of 2018 and

(ii) Whether the petitioners are entitled for compensation as prayed for? If so, to what amount and from which of the respondents?

(iii) To what relief?

7. Before the Tribunal, on behalf of the petitioners, PWs 1 to 3

were examined and Exs.A1 to A11 were marked. On behalf of

Respondent Nos.3 to 8, RW1 was examined. On behalf of

Respondent No.2-Insurance Company, RWs 2 & 3 were examined

and Exs.B1 to B11 were marked.

8. After considering the evidence and documents available on

record, the learned Tribunal held that the accident occurred due to

the rash and negligent driving of the crime vehicle i.e., Tractor-

Trailer bearing No.AP-20Y-1203/1204 and had awarded

compensation of Rs.15,67,000/- along with interest @ 7.5% per

annum payable by Respondent Nos.2 to 8 jointly and severally.

Challenging the same, the present appeals came to be filed by the

claimants and Insurance Company respectively.

9. Heard both sides and perused the material available on

record.

10. The contentions made by the learned counsel for the

appellants/claim petitioners in M.A.C.M.A.No.1650 of 2018 are

that though the petitioners have proved their case by adducing oral

MGP,J MACMA.No.1650 of 2018 and

and documentary evidence regarding income of the deceased, but

the learned Tribunal, without considering the same, fixed the

monthly income of the deceased @ Rs.12,000/- per month which is

very meagre and also erred in not awarding future prospects @

25% as per the decision of Hon'ble Supreme Court in AIR 2017 SC

5157. They also contended that the learned Tribunal ought to

have awarded Rs.15,000/- towards loss of estate and hence,

prayed to allow the appeal by setting aside the order of the learned

Tribunal.

11. On the other hand, the contention of the learned Counsel for

Respondent No.2/Insurance Company in M.A.C.M.A.No.3276 of

2018 is that as the owner of the crime vehicle knowing fully well

aware of the fact that the driver do not possess any valid driving

license, had handed over the crime vehicle to him and violated the

terms and conditions of the Insurance policy and hence, he is

alone liable to pay compensation. It is also contended that as the

deceased did not wore any helmet at the time of accident, it

resulted into his death and hence, the Insurance company is not

liable to pay any compensation and further contended that the

learned Tribunal ought to have apportioned rash and negligence on

both the vehicles and hence prayed to allow the appeal by setting

aside the order of the learned Tribunal.

MGP,J MACMA.No.1650 of 2018 and

12. Now the point that emerge for determination is,

Whether the order passed by the learned Tribunal requreis interference of this Court?

POINT:-

13. This Court has perused the entire evidence and documents

available on record. On behalf of the claim petitioners, PWs 1 to 3

were examined. Petitioner No.1, who is the wife of the deceased,

was examined as PW1. She reiterated the contents made in the

claim petition and deposed about the manner of accident. In

support of her contention, she got marked Exs.A1 to A11 on her

behalf. PW2, who is the brother of the deceased, deposed in his

evidence about the occupation and earning capacity of the

deceased. PW3, who is the Principal and Correspondent of

Gouthami Junior College, Nelakondapalli, deposed in his evidence

that the deceased used to work as Botany lecturer in their college

and they used to pay Rs.25,000/- per month and Ex.A7-Salary &

Service certificate was issued by him.

14. On behalf of Respondent No.1, i.e., owner of the crime

vehicle, his LR's were brought on record and his son who is

Respondent No.4 herein, was examined as RW1. He deposed in

his evidence that the crime Vehicle i.e, Tractor-Trailor bearing

NO.AP-20Y-1203/1204 is having valid insurance policy and the

MGP,J MACMA.No.1650 of 2018 and

same was in force at the time of accident and further stated that

the driver is holding valid and effective driving license at the time of

accident. In the cross-examination by Respondent No.2-Insurance

Company, RW1 denied the suggestion that the police filed charged

sheet against his father under EX.A2 alleging that his father

allowed the driver who is not having a valid driving license to drive

the vehicle and hence, they are only liable to pay the

compensation.

15. On behalf of Respondent No.2/Insurance Company, RWs 2 &

3 were examined. RW2, who is the Assistant Manager, Legal

claims deposed in his evidence that at the time of accident, the

driver of the crime vehicle was not holding any driving license and

thereby contravened the provisions of M.V.Act and hence, violated

the policy conditions. Therefore, the Insurance Company is not

liable to pay any compensation. He also stated that the police filed

charge sheet against the driving of the crime vehicle for not

possessing valid driving license and that Respondent No.1 was also

charged u/s.180 of M.V.Act for allowing the driver to drive the

vehicle without possessing any driving license. Further the charge

sheet under Ex.A2 also shows that the driver is not holding any

valid license at the time of accident. He also stated that they

addressed letters to Respondent No.1-Owner of the crime vehicle

MGP,J MACMA.No.1650 of 2018 and

on 06.07.2012, 17.09.2012 and 17.12.2012 to produce driving

license particulars of the driver of the crime vehicle within a period

of ten days. But the respondent No.1-owner of the crime vehicle,

did not respond to the said letters. He also stated that the

deceased did not wear helmet while riding the motorcycle and

hence violated the provisions of Section 129 of MV Act. He also

stated that the claim petition is liable to be dismissed on the

ground of non-joinder of owner and insurer of Motor Cycle as

necessary parties to the petition. In his cross-examination, he

admitted that the crime vehicle is having valid insurance policy as

on the date of accident.

16. RW3, who is working as Junior Assistant in the Office of

RTA, Khammam, deposed that the chasis number of Tractor is

NPLW 1206. But as per FIR, the chasis number 00650543901

does not pertain to the crime vehicle and the RC number 0600901

as per FIR does not pertain to the crime vehicle. In the cross-

examination he admitted that the subject vehicle i.e., Tractor and

trailer was registered in the name of T.Seetha Ramaiah and

manufacture of the said vehicle is 2008. He also deposed that he

is not aware whether manual records are maintained in the year

2008. He also stated that Exs.B10 and B11 are computerized

MGP,J MACMA.No.1650 of 2018 and

records and he cannot say from which date, the records were

computerized.

17. The Insurance Company in support of their evidence got

marked Ex.B1-Insurance policy, Exs.B2 to B7 -Notices sent to

Respondent No.1 and its acknowledgments therein, Ex.B8-Copy of

crime details form, Ex.B9-Authorization letter, Exs.B10 & B11-

Extract of RC of Tractor and Trailer bearing Nos.AP-20Y-1203 and

1204.

18. It is pertinent to note that as per Ex.A1 -FIR, Police of

Khammam Rural Police station, registered a case in Crime No.60 of

2012 under Section 304-A IPC against the driver of the Tractor-

Trailer bearing No.AP-20Y-1203/1204. In Ex.A2-charge sheet it is

stated that the owner of the crime vehicle authorized and allowed

the driver of the crime vehicle to drive the said tractor and trailer

bearing No.AP20Y1203/1204 though he do not possess any valid

driving license and hence, he committed offence punishable under

Section 180 r/w.177 of M.V.Act. Ex.A3- Post mortem examination

report shows that the deceased suffered from internal and external

injures and died due to shock caused due to Hammoerage and

injuries to the vital organ-Brain. Ex.A4 is the certified copy of

Inquest report wherein the panchayatdars opined that the

deceased died while undergoing treatment in an accident that

MGP,J MACMA.No.1650 of 2018 and

occurred on 20.02.2012. Ex.A5 is the certified copy of MVI report

which concludes that the vehicle is not having any mechanical

defect, Exs.A6 and A7 are the salary certificates issued by Sacred

Heart College of Arts and Science and Gothami Junior College

which shows that the deceased used to earn Rs.9,200/- and

Rs.25,000/- towards salary per month. certified copy of Post

mortem examination report, Exs.A8 to A11 are the pattadar pass

books showing that the deceased is having agricultural land to an

extent of Ac.20.00 guntas.

19. The main contention of the learned counsel for Appellant/

Respondent No.2/Insurance Company in MACMA. 3276 of 2018

is that though the driver of the crime vehicle is not having valid

driving license, the owner of the crime vehicle had willfully handed

over the vehicle to him and committed breach of policy conditions.

20. In this regard, it is pertinent to refer the decision of the

Hon'ble Supreme Court in Rishi Pal Singh V.New India

Assurance Co.Ltd and others 1 , wherein, the Hon'ble Apex Court

at Para 10, held as under:-

"10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a

2022 ACJ 1868

MGP,J MACMA.No.1650 of 2018 and

driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver." Also in a decision reported by the High Court of Madhya Pradesh, Indore Bench in Gopalkrishna Vs.Santosh 2, the Court at paras 7 & 10 of the judgment held as under:

(7) Learned counsel appearing for the appellant has relied upon the judgment of the Supreme Court in the matter of Rukmani v.New India Assurance Co. 3 ,wherein it has been held that it is the burden of the insurance company to establish that the driver was not having a valid licence to drive the vehicle. In the said case the insurance company though had relied upon the evidence of the Investigating Officer, but the insurance company did not summon the driver and had not produced any record from the Regional Transport Authority, therefore, the Apex Court took a view that the insurance company cannot be exonerated. The Division Bench of this Court in the matter of Jagdish v.Rajkumar 4, has taken a view that when no record of the Licensing Authority is proved by the insurer it cannot be assumed that the driver of the offending vehicle was not having a valid licence to drive the vehicle. Even if no driving licence is produced on notice to owner and driver, then also no adverse inference against them can be drawn.

(10) In the present case, the insurance company though had taken a defence in the written statement that the driver

MACD 2010(2) (MP) 704

1999 ACJ 171 (SC)

2002 ACJ 1124 (MP)

MGP,J MACMA.No.1650 of 2018 and

of the offending vehicle was not having a valid license to drive the vehicle, but no evidence was produced by the insurance company to establish the said fact. The insurance company has not produced any certificate from the concerned Transport Authority to establish the said fact. No investigation report has been placed on record by the insurance company to show that there is any infirmity in the driving licence of the driver of offending vehicle."

21. From the above, it is clear that the Insurance Company

cannot be exonerated from its liability to pay the compensation

amount.

22. The other contention made by the learned Standing counsel

for the Insurance Company is that as the deceased did not wore

helmet at the time of accident, it resulted to his instantaneous

death and hence, the Insurance Company is exempted from its

liability to pay compensation.

23. In this regard, it is pertinent to refer the decision reported by

Karnataka High Court in The Manager vs Smt. Amruta W/o Ashok

Khadimani, wherein, the Hon'ble Court at Para 17 of the judgment

held as under:-

"17. Section 129 of the Motor Vehicles Act reads as under:-

MGP,J MACMA.No.1650 of 2018 and

"129. Wearing of protective headgear:- Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear 1[protective headgear conforming to the standards of Bureau of Indian Standards]:

Provided that the provision of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:

Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.

Explanation.--"Protective headgear" means a helmet which,--

(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and

(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear."

It is very clear from the provision that even though the rider of the motorcycle has violated Section 129 of the M.V. Act, the insurance company is liable to pay compensation. The M.V. Act contemplates wearing of helmet as mandatory and the non wearing of helmet with specifications mentioned as per Section 129 of the M.V. Act is illegal and the Act provides with a fine for Rs.1,000/- and the department can also disqualify the driving licence for three months. However, the Act does not provide for absolving the liability of the insurance company on the ground of non

MGP,J MACMA.No.1650 of 2018 and

wearing of helmet by the rider. However, bearing in mind the number of deaths and grievous injury sustained due to non wearing of helmet by the motorists, even though there being no attributable negligence on the part of the rider we cannot turn a blind non-wearing of helmets despite legal stipulation. In order to maintain some social measure, it is necessary that the rider should wear a helmet in order to save himself from the consequence of the accident. Driving without helmet is risking ones own life.

Thus, it is difficult agree with the contention of the insurance company that non wearing of "helmet" could be taken as a ground for fixing contributory negligence on part of the rider, though non wearing of "helmet" is an offence under the relevant provisions of M.V.Act, what is relevant to consider with regard to apportionment of negligence is whether the party concerned had any role/part in causing of contribution to the accident. Negligence cannot be fixed on the shoulders of the rider of the vehicle merely for not wearing the helmet. Non wearing of 'helmet' and resulting death due to the injury, it is only a 'consequence' leading to the death of the deceased. Probably wearing a helmet, his life could have been saved or the severity of the injury could be less. However, the said accident is not due to the non wearing of 'helmet', therefore, it cannot be said that there was contributory negligence on part of the rider due to which the accident has occurred. Thus, this contention of the insurance company is not acceptable. In order to have social legislation the fact should be coordinated that the wearing of helmet is a prime objective of the legislative to see that even if an accident has occurred, he would have

MGP,J MACMA.No.1650 of 2018 and

been saved from the accident, if he would have worn the helmet. Though there being no negligence on part of the rider of the vehicle, but, due to non wearing of helmet he had to succumbed to the injuries sustained due to the accident. Thus, there may be a lapse which could be attributable to the deceased. But however, in view of the present facts and circumstances of the case, for the reasons stated supra, we are of the considered view that non wearing of helmet by the deceased will not absolve the liability of the Insurance company."

24. Hence, based on the above finding, it is clear that the

Insurance Company cannot be exempted from its liability to pay

compensation.

25. Coming to the aspect of compensation awarded, it is the

contention of the learned counsel for the appellants/claim

petitioners in MACMA.1650 of 2018 that though the deceased used

to earn Rs.9,200/- and Rs.25,000/- per month by working as

Botany Lecturer in Sacred Heart College of Arts and Science and

Gauthami Junior College, Nelakondapalli, besides having

agricultural income of Rs.3,00,000/- per annum and produced

documentary proof to that effect, but the learned Tribunal, without

considering the same, had taken the income of the deceased @

Rs.12,000/- per month which is very meagre. This Court, by

considering the salary certificates marked under Exs.A6 & A7, is

MGP,J MACMA.No.1650 of 2018 and

inclined to take the average of two salary certificates and fix the

monthly income of the deceased as Rs.17,100/-. As the deceased

was aged 44 years at the time of accident, he is entitled for

addition of 25% towards future prospects to the established

income, as per the decision of the Hon'ble Supreme Court in

National Insurance Company Limited Vs. Pranay Sethi and

others 5. Hence, the future monthly income of the deceased comes

to Rs.21,375/-. As the number of dependants are four, after

deducting 1/4th towards personal and living expenses of the

deceased, the net monthly income that was being contributed to

the family of the deceased comes to Rs.16,031/- per month. As the

age of the deceased was 44 years at the time of the accident, the

appropriate multiplier is '14' as per the decision reported in Sarla

Verma v. Delhi Transport Corporation 6. Adopting multiplier 14,

the total loss of dependency works out to Rs.26,93,208/-

(Rs.16,031/- x 12 x 14). That apart, the learned Tribunal had

awarded an amount of Rs.40,000/- towards loss of consortium and

Rs.15,000/- towards funeral expenses to the claim petitioners.

Thus, in all, the appellants/claim petitioners in MACMA.No.1650

of 2018 are entitled to an amount of Rs.27,48,208/-

2017 ACJ 2700

2009 ACJ 1298 (SC)

MGP,J MACMA.No.1650 of 2018 and

26. In the result, MACMA.No.1650 of 2018 is allowed enhancing

the compensation awarded by the Tribunal from Rs.15,67,000/- to

Rs.27,48,208/- and M.A.C.M.A.No.3276 of 2018 filed by Insurance

company stands dismissed. The enhanced amount shall carry

interest at 7.5% per annum from the date of filing of petition till the

date of realization payable by respondent Nos.2 to 8 jointly and

severally. The respondents are directed to deposit the enhanced

amount within a period of two months from the date of receipt of a

copy of this order. On such deposit, the appellants in

M.A.C.M.A.1650 of 2018 are entitled to withdraw the same as per

the apportionment made by the Tribunal. However, the appellants

shall pay the deficit court fee on the enhanced compensation.

There shall be no order as to costs.

27. Miscellaneous petitions, if any, pending shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI Dt.19.03.2024 ysk