Telangana High Court
M/S.National Insurance Company ... vs Duddeda Annapurna on 24 July, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
M.A.C.M.A.No.844 of 2023
JUDGMENT:
Heard, Sri G. Raj Kumar, learned standing counsel for the
appellant/respondent No.2/Insurance company and Ms. Amrutha
Sanjeeva, learned counsel for respondent Nos.1 to 3/claimants.
Perused the entire record.
2. This is an appeal preferred by the appellant/Insurance
company aggrieved by the order passed by the learned Chairman,
Motor Accident Claims Tribunal-cum-I Addl. District Judge at
Nizamabad (for short 'the Tribunal') in M.V.O.P.No.220 of 2021,
dated 27.02.2023, wherein, an amount of Rs.26,21,480/- was
awarded with interest at 8% per annum to claimant Nos.1 and 2 in
a claim petition filed seeking compensation of Rs.25,00,000/-. The
appellant/Insurance Company and respondent No.4/owner of the
offending vehicle were directed to deposit the said compensation
amount jointly and severally. Further, liberty is granted to the
Insurance company to recover the same from owner of the
offending vehicle through due process of law. The claim against
claimant No.3 was rejected.
3. The brief facts of the case are that claimant Nos.1 and 2 are
the parents and claimant No.3 is brother of the deceased. On
22.03.2021, the deceased Deddeda Sivashankar was proceeding on
his motorcycle bearing No.TS-16-EC-6072 from Mangalpahad
village towards Bodhan. When the deceased reached Yedpally
Pedda Bridge, at 6.45 am, one borewell lorry bearing No.AP-28-BS-
467 driven in rash and negligent manner at high speed came to the
wrong side, lost control and dashed the motorcycle of deceased,
causing multiple fractures to the skull, right shoulder, lefthand and
other multiple injuries all over the body causing his death on the
spot. Consequently, the claimants have filed the claim petition
seeking compensation of Rs.25,00,000/-.
4. The claim petition was opposed by the Insurance Company
denying the age, avocation, income, dependency of the claimants
and liability of Insurance Company to pay compensation.
Questioning the liability, the Insurance Company pointed that the
deceased was not wearing helmet at the relevant time of accident
and therefore, there is contributory negligence. The police filed
charge sheet under Section 181 of M.V.Act against respondent
No.4/owner of the offending vehicle due to driving license violation.
Since there is violation of terms and conditions of the policy, the
Insurance Company denied liability to pay compensation.
5. The claimants got examined PWs 1 to 4 and exhibited Exs.A1
to A16. The appellant/Insurance Company got examined RW1 and
exhibited Exs.B1 to B5.
6. Upon examining the oral and documentary evidence adduced
by both the parties, the Tribunal awarded compensation of
Rs.26,21,480/- with interest at 8% per annum which is to be paid
by the Insurance Company at first instance to be recovered from
respondent No.4/owner of the offending vehicle. Aggrieved by the
same, the present appeal is preferred.
7. In grounds of appeal, it is pleaded that the Tribunal failed to
consider the charge sheet and its contents wherein the
investigation revealed that the deceased fell under the rear tyres of
the lorry while overtaking the vehicle in front of him and therefore,
the Insurance Company ought to have been exonerated. The driver
and insurer of the lorry are proper and necessary parties, the driver
was not holding valid driving license and therefore, the order
passed by the Tribunal is liable to be set aside. The MVI report
discloses that there were no damages to the lorry i.e. there was no
direct collision between the motorcycle and the lorry and therefore,
no liability can be fastened on the Insurance company. The
appellant/Insurance company referred to the judgment of the
Hon'ble Supreme Court of India in Premkumari and others v.
Prahalad Dev and others 1, wherein, it is held that when there is
willful breach of the terms of policy, the Insurance company is
exonerated from liability and the liability is fixed only on the owner
of the vehicle. Further, reference is made to judgment of the
Hon'ble Supreme Court of India in United India Insurance Co.
Ltd. v. Patricia Jean Mahajan 2, wherein, it is held that
Rs.10,000/- given towards death benefits of the deceased have to
be reduced from income of the deceased while computing
compensation. Lastly, there is emphasis on the Tribunal's failure to
consider contributory negligence of the deceased leading to a
direction to the Insurance Company to pay the compensation at
first instance. Hence, prayed that the order passed by the Tribunal
be set aside.
8. The Tribunal considered the contents of Ex.A1/FIR,
Ex.A2/Charge sheet, wherein, respondent No.4/owner of the
offending vehicle is charged under Section 304-A of IPC and Section
181 of M.V.Act and held that the relevant police record shows that
the accident occurred due to rash and negligent driving of driver of
Bore well lorry bearing No.AP-28-BS-4678. The Tribunal did not
(2008) 3 SCC 193
(2002) 2 SCC 281
consider the oral evidence of RW1 wherein it is deposed that there
is driving licence violation and that as per 161 Cr.P.C statements,
the accident occurred due to negligent driving of motorcycle by the
deceased who was overtaking two lorries in the same direction and
has dashed the rear wheel of the lorry.
9. Coming to the documentary evidence, as per FIR/Ex.A1, an
unknown vehicle dashed the motorcycle of the deceased causing
his death on the spot. As per the charge sheet/Ex.A2, the deceased
works as Operator of Dialysis machine at Government Hospital,
Bodhan; on 22.03.2021 at 0600 hours, the deceased left the house
on his motorcycle to attend his duties at Bodhan; at 0630 hours,
when he reached near Bridge in Yedapally shivar on Bodhan to
Nizamabad Road, while overtaking his front vehicle, the accused
who was coming in the opposite direction from Bodhan to
Nizamabad by driving the crime vehicle in rash and negligent
manner dashed the motorcycle of the deceased and thus, the
deceased sustained bleeding injuries and died on the spot. The
appellant/Insurance Company in its counter has taken specific
plea about the contributory negligence as well as the violation of
terms and conditions of the policy due to driving licence violation.
In support of the pleadings, the Insurance Company also examined,
RW1 who deposed about both contributory negligence on account
of the deceased overtaking the lorry in front and being dashed by
the bore well lorry which was coming in the opposite direction.
Since there is consistent defence taken by the Insurance Company
about there being negligence on the part of the deceased in the
form of pleadings, in the form of oral evidence and documentary
evidence which is filed by the claimants themselves, the negligence
on the part of the deceased cannot be brushed aside. On the basis
of the evidence adduced by the Insurance company and Charge
sheet marked by the claimants themselves under Ex.A2, it is held
that there is 30% contributory negligence on the part of the
deceased.
10. Coming to the aspect of liability of the appellant/Insurance
company to pay the compensation, as per judgment of the Hon'ble
Supreme Court of India in National Insurance Co. Ltd v. Swaran
Singh 3, when there is a valid policy in force and when there is
violation of the terms and conditions of the policy, more
particularly in the form of driving licence violation, the Insurance
Company has been directed to pay the compensation amount at the
first instance and to recover the same from the owner of the
vehicle. The same principle is applicable to the facts and
circumstances of the present case. Lastly, the Insurance company
(2004) 3 SCC 297
sought deduction of Rs.10,000/- as the claimants are getting the
same as monthly death benefit of the deceased relying Patricia
Jean Mahajan case (2 supra). However, the death benefits
received by theclaimants have no correlation to the accidental
death of the deceased and such benefits cannot be deducted while
determining compensation payable under the M.V.Act.
11. As stated above, the contributory negligence for occurrence of
the accident has been fixed at 70%:30% i.e. 70% on part of the
appellant/Insurance company and respondent No.4/owner of the
offending vehicle and 30% on the part of the deceased. Therefore,
the appellant and respondent No.4 are jointly and severally liable to
pay 70% of the compensation amount i.e. Rs.18,35,036/-
(Rs.26,21,480/- minus Rs.7,86,444/-).
12. Accordingly, the appeal is partly allowed by reducing the
compensation amount awarded by the Tribunal from
Rs.26,21,480/- to Rs.18,35,036/-, which shall carry interest @ 9%
per annum from the date of petition till the date of realization. The
appellant/Insurance Company is directed to pay the said
compensation at first instance and then recover the same from
respondent No.4/owner of the offending vehicle. The time to deposit
the said amount is two months from the date of receipt of a copy of
this Judgment. On such deposit, the claimant Nos.1 and 2 are
entitled to withdraw their apportioned amount, without furnishing
any security. There shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this appeal, shall
stand closed.
___________________
RENUKA YARA, J
Date: 24.07.2025
gvl
