Telangana High Court
National Insurance Company Limited vs Gonela Anitha on 20 January, 2025
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.442 OF 2023
JUDGMENT:
1. Aggrieved by the Award dated 21.10.2021 passed in
M.V.O.P.No.997 of 2017, on the file of Chairman, Motor Accident
Claims Tribunal - cum - V Additional District Judge :: II-FTC,
Warangal at Jangaon, the respondent No.3/Insurance Company in
the said M.V.O.P. preferred the present Appeal seeking to set-aside
the order of the learned Tribunal.
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the learned Tribunal.
3. The brief facts of the case are that the claim petitioners, who
are the wife, son, daughter and mother of Late Gonela Mallesham
(hereinafter referred as 'the deceased') filed a petition under Section
166 (1) (c) of the Motor Vehicles Act, 1988 read with Rule 455 of
A.P.Motor Vehicle Rules, 1989, seeking compensation of
Rs.18,00,000/- for the death of the deceased in a motor vehicle
accident that occurred on 21.08.2017. It is stated by the
petitioners that on 21.08.2017, in the evening around 17.00 hours,
when the deceased-Gonela Mallesham was proceeding on his
Splendor Plus Motor Cycle bearing No.AP-28-AG-1816 in order to
go to Bachannapet for fetching Kirana articles and when reached
near Kodvatur Arch, one Lorry bearing No.TS-34T-2299 which was
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driven by its driver in a rash and negligent manner at high speed,
dashed the motorcycle of the deceased, due to which, the deceased
fell down on the road and sustained fatal injuries. Immediately, he
was shifted to Government Hospital, Jangaon and from there to
Gandhi Hospital, Secunderabad and finally, while undergoing
treatment, the deceased succumbed to injuries on 22.08.2017 at
about 12.00 hours.
4. Based on the report given by the wife of the deceased, Police
of Bachannapet Police Station registered a case in Crime No.68 of
2017 under Section 304-A IPC, conducted investigation and filed
charge sheet against the driver of the crime Lorry bearing No.TS-
34T-2299.
5. It is stated by the petitioners that the deceased was aged 42
years and was hale and healthy and used to earn Rs.20,000/- per
month by working as a Centring Mestry and contribute his entire
earnings for the welfare of the family. Due to sudden demise of
the deceased, the petitioners lost their bread winner and became
destitute and penniless. As such, they filed claim petition seeking
compensation of Rs.18,00,000/- against the respondents 1 to 3,
who are the driver, owner and insurer of the subject Lorry bearing
No.TS-34T-2299.
6. Respondent No.1, driver of the crime Lorry, filed his counter
denying the averments made in the claim petition and contended
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that he is very cautious in driving the lorry and that the accident
occurred only due to the rash and negligent driving of the deceased
and that the subject Lorry was insured with respondent No.3 and
the policy was in force as on the date of accident and that the
claim of compensation is excess and exorbitant and prayed to
dismiss the claim against it.
7. Respondent No.3/Insurance Company filed its counter
denying the averments made in the claim petition including,
manner of accident, rash and negligent driving on part of
respondent No.1, age, avocation and income of the deceased. It
also contended that the petitioners failed to comply the mandatory
procedure prescribed under Section 134 (c) of M.V.Act. As such,
respondent No.3 is not liable to pay any compensation and that the
claim of compensation is excess and exorbitant and prayed to
dismiss the claim against it.
8. Based on the pleadings made by both the parties, the
Tribunal had framed the following issues:-
1. Whether the accident occurred on 21.08.2017 about
17.00 hours near Kodavatur Kaman, Bachannapet
Village and Mandal, Jangaon district, due to rash and
negligent driving of driver of lorry bearing No.TS-34T-
2299 and whether the deceased died due to fatal
injuries while undergoing treatment?
2. Whether the petitioners are entitled for compensation?
If so, to what amount and from whom?\
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3. Whether the petitioners paid proper Court fee?
4. To what relief?
9. Before the Tribunal, on behalf of the petitioners, petitioner
No.1 examined herself as PW1, got examined eye witness-PW2 and
got marked Exs.A1 to A7. On behalf of respondents, RW1 was
examined and Exs.B1 to B4 were marked.
10. After considering the entire evidence, both oral and
documentary, the learned Tribunal had partly-allowed the claim
petition by awarding compensation of Rs.11,10,000/- together with
interest @ 7.5% per annum from the date of petition till the date of
realization. Aggrieved by the same, the 3rd respondent in
O.P./Insurance Company preferred the present Appeal seeking to
set-aside the order of the learned Tribunal.
11. Heard arguments of Sri N.Mohan Krishna, learned Standing
Counsel for appellant/Insurance Company and Sri Vadlakonda
Kiran Kumar, learned counsel for respondents/claimants. Perused
the record.
12. The contentions of the learned Standing Counsel for
appellant/Insurance Company are that the learned Tribunal failed
to see that the driver of the crime vehicle do not possess valid
driving license at the time of accident. It also failed to consider the
owner and insurer of the motor cycle, on which the deceased was
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travelling, as proper and necessary parties to claim petition. It also
erred in taking the income of the deceased on higher side.
13. On the other hand, learned counsel for the respondents
contended that the learned Tribunal after considering all the
aspects, had awarded reasonable compensation for which
interference of this Court is not necessary.
14. Now the point that emerges for determination is,
Whether the order passed by the learned Tribunal requires
interference of this Court?
POINT:-
15. This Court has perused the documents available on record.
On behalf of the petitioners, petitioner No.1, who is the wife of the
deceased, was examined as PW1 and filed affidavit in lieu of her
chief examination reiterating the contents mentioned in the claim
petition. As she is not an eye witness to the incident, she got
examined PW2, who is an eye witness to the incident. PW2
deposed that the alleged accident took place when he was
returning to his village and that the accident occurred due to the
rash ad negligent driving of the driver of Lorry bearing No.TS-34T-
2299.
16. As far as documentary evidence is concerned, a perusal of
Ex.A1- FIR shows that Police of Bachannapet Police Station
registered a case in Crime No.68 of 2017, under Section 304-A IPC,
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conducted investigation and laid charge sheet under Ex.A3 against
the driver of the crime Lorry for his rash and negligent driving
which resulted into the death of the deceased. Ex.A2 is the
inquest report. Ex.A4 is the Crime Details Form. Ex.A5 is the
Post-mortem examination repot wherein the cause of death of
deceased was shown as "due to Head Injury". Ex.A6 is the MVI
report which clearly shows that there are no mechanical defects to
the crime vehicle at the time of accident. Ex.A7 is the copy of
Insurance Policy. Though PWs 1 & 2 were cross-examined,
nothing worthwhile was elicited to disbelieve their testimony.
17. Therefore, from the evidence of PWs1 & 2 coupled with the
documents marked under Exs.A1 to A7, it is clearly established
that the alleged accident occurred due to the rash and negligent
driving of the driver of the crime Lorry which resulted into the
death of the deceased. As the accident occurred due to whole and
sole negligence of driver of crime lorry, the question of making the
owner and insurer of motorcycle as necessary parties to the claim
petition does not arise. Therefore, the contention of the learned
counsel for appellant/Insurance Company that the Tribunal failed
to consider the owner and insurer of the motor cycle as proper and
necessary parties to the claim petition becomes unsustainable.
18. On the other hand, a perusal of Ex.B1-Insurance policy
shows that it was issued in the name of respondent No.2, who is
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the owner of the crime Lorry and the policy was valid from
31.03.2017 to 30.03.2018, covering the date of accident.
19. The other contention of the learned counsel for the
appellant/Insurance Company is with regard to Driving License.
Though learned counsel for the appellant/Insurance Company
contended that the driver of the crime vehicle do not possess valid
driving license at the time of accident, but it had not taken any
steps to examine RTA Authorities to substantiate their contention
except giving mere suggestions to PW1. It is well settled law that
the RTA officials are the competent persons to adjudicate as to
whether a person is having valid driving license or not. In the
present case, the respondents failed to examine any of the RTA
officials to establish that the driver of the crime vehicle was not
holding valid driving license. Hence, the contention of the leanred
counsel for appellant in this regard is unsustainable.
20. Further, a perusal of attested copy of Driving License issued
by Karnataka State, which is an unmarked document enclosed in
the list of documents, would reveal that it was in the name of
Mohd. Hussain, who is the driver of crime Lorry and it was valid
throughout India till 16.03.2024. Since it is an attested copy, the
Court below might not have considered the same for marking
purpose. Moreover, the policy conditions regarding driver not
holding valid and effective driving license at the time of accident
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cannot be considered as fundamental breach that had contributed
to the cause of the accident to discharge the appellant/Insurance
Company from its liability. In such circumstances, as stated
supra, mere absence, fake or invalid driving license or
disqualification of the driver for driving at the relevant time, are not
in themselves defences available to the insurer against either the
insured or the third parties, more particularly when no material is
placed by the Insurance Company to substantiate their contention.
21. In view of the above discussion, it is made clear that the
Insurance Company cannot be exonerated from its liability in
paying compensation.
22. The other contention of the learned counsel for the
appellant/Insurance Company is that the court below fixed the
annual income of the deceased on higher side.
23. A perusal of quantum of compensation awarded in the
impugned judgment would reveal that though the petitioners
contended that the deceased used to earn Rs.20,000/- per month
by working as Centring Mason, but they failed to produce any
documentary proof to that effect. Hence, the learned Tribunal,
taking into consideration the cross-examination of PW1 wherein
she deposed that they are white ration card holders which are
issued to people who come under below poverty line and whose
income cannot exceed Rs.1,00,000/- per annum, fixed the income
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of the deceased @ Rs.1,00,000/- per annum, deducted 1/4th
towards personal expenses and applied relevant multiplier and
awarded a total compensation of Rs.11,10,000/- under various
Heads along with interest @ 7.5% per annum payable by all the
respondents jointly and severally. This Court do not find any
reason to interfere with the finding of the learned Tribunal which is
in proper perspective. Hence, the Appeal is devoid of merits and
substance and is liable to be dismissed.
24. In the result, the Appeal is dismissed. There shall be no
order as to costs.
25. Miscellaneous petitions pending, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.20.01.2025
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