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2012 DIGILAW 49 (AP)

New India Assurance Co. Ltd. v. M. Santhosa

2012-01-19

G.V.SEETHAPATHY

body2012
Judgment : MA CMA No.1024 of 2007 is filed by New India Assurance Company Ltd., and MA CMA No.1586 of 2009 is filed by National Insurance Company Ltd., both against the order dated 06.12.2006 in OP No.1508 of 2004 on the file of the MACT cum III Additional Chief Judge, City Civil Court, Hyderabad, wherein the said application filed by the respondents 1 to 6 herein under section 166 of the Motor Vehicles Act, was allowed awarding compensation of Rs.7,55,000/-with interest at 7.5% per annum, fastening the joint and several liability against both the appellants in equal measure i.e., Rs.3,77,500/- each along with the owners of the respective vehicles. 2. As both the appeals arise out of the same order, between the same parties, they are heard together and are being disposed of by this common order. Heard both sides. Perused the record. 3. The respondents 1 to 6 herein filed claim application seeking compensation of Rs.18,00,000/-for the death of the deceased Narayana Reddy, who died in a motor vehicle accident that occurred on 20.08.2003. The first claimant is the wife, claimants 2 to 4 are the children and claimants 5 and 6 are the parents of the deceased. According to the claimants, on that day, the deceased was travelling in a jeep bearing No.AP 15 V 5699 belonging to the 3rd respondent-V.Nagaraju, insured with 4th respondent-National Insurance Company Ltd., in the OP, near Kondapak village and that the lorry bearing No.AP 23 T 1316 belonging to first respondent-Md. Chand Pasha, insured with 2nd respondent-New India Assurance Company Ltd., in the OP, coming in the opposite direction, driven in a rash and negligent manner, dashed against the jeep, as a result of which the deceased sustained head injury and died. According to the claimants, the driver of the jeep also drove the said vehicle in a rash and negligent manner and the accident occurred on account of the contributory negligence on the part of the drivers of both the vehicles. 4. The owners of both the vehicles remained ex-parte. Both the insurance companies filed counters, opposing the claim and denying their liability to pay the compensation. 5. During the course of trial, PWs.1 and 2 were examined and Exs.A.1 to A.17 were marked on behalf of the claimants and RW.1 was examined and Exs.B.1 and B.2 were marked on behalf of the respondents. Both the insurance companies filed counters, opposing the claim and denying their liability to pay the compensation. 5. During the course of trial, PWs.1 and 2 were examined and Exs.A.1 to A.17 were marked on behalf of the claimants and RW.1 was examined and Exs.B.1 and B.2 were marked on behalf of the respondents. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of both the vehicles by its drivers. The Tribunal estimated the quantum of compensation at Rs.7,55,000/-and passed the award against the owners and insurers of both the vehicles in equal measures, with interest at 7.5% per annum. Aggrieved by the same, the present appeals are filed by the insurance companies. 6. Admittedly, PW.1-wife of the deceased is not an eye witness to the accident. PW.2 who was travelling along with the deceased in the jeep, testified that the accident occurred due to the rash and negligent driving of both the vehicles i.e., jeep and lorry. Ex.A.1 FIR was registered on the basis of the complaint given by one K.Lingareddy. In the FIR Ex.A.1 and Ex.A.2 inquest report, it is stated that the accident occurred due to the rash and negligent driving of the lorry by its driver, which hit against rear side of the jeep. After due investigation, police filed charge sheet against the driver of the lorry wherein also it is stated that the accused drove the lorry bearing No.AP 23 T 1316 in a rash and negligent manner coming from Hyderabad side and dashed against the jeep. PW.2 K.Ravi, was also cited as a witness i.e., LW.3 in the charge sheet. The charge sheet Ex.A.4 was filed against T.Ramulu, who was the driver of the lorry alone, but not against the driver of the jeep. The evidence on record does not indicate that the driver of the jeep has in any way contributed to the accident. The Tribunal seems to have been carried by the averments in the claim application that the accident occurred due to the rash and negligent driving of both the vehicles by their drivers and also the evidence of PW.2 which is also to the same effect. PW.2 was examined by the police during the course of investigation and thereafter, the charge sheet was filed against only the driver of the lorry. PW.2 was examined by the police during the course of investigation and thereafter, the charge sheet was filed against only the driver of the lorry. It is not a case of head-on collision between the two vehicles. Even in the complaint Ex.A.1, it is stated that the lorry was driven in a rash and negligent manner, which scratched against the jeep while crossing the same. Ex.A.2 inquest report is also to the same effect. Even in the charge sheet Ex.A.4 it is stated that on that day at about 5 a.m. while the jeep was going to Hyderabad from Manthani, the lorry was coming in the opposite direction from Hyderabad on Rajiv Rahadari and in the outskirts of the village, the accused who was the driver of the lorry drove the said vehicle in a rash and negligent manner and dashed against the jeep. Ex.A.5 certified copy of the M.V. Inspector’s report shows that it was only the lorry that was inspected. The Tribunal opined that the drivers of both the vehicles have contributed to the accident by their negligence on the premise that it was a head on collision of the two vehicles, which is incorrect. If it was a case of head on collision, the question of the lorry just touching on the rear side of the jeep and going away without stopping does not arise. Ex.B.1 certified copy of panchanama of the observation of the scene of offence does not also support the contention that it was a head on collision of two vehicles. As per the earliest version in Ex.A.1, the lorry touched the rear side of the jeep and went away without stopping and therefore, its number also could not be noted. Simply because PW.2 who was travelling in the jeep along with the deceased stated that the driver of the jeep was also responsible, no liability can be fasted on the owner and insurer of the jeep without there being any material in the criminal case to support the version of PW.2, especially when the police filed charge sheet against the driver of the lorry alone taking into consideration the statement of PW.2 recorded during the course of investigation. Under those circumstances, the finding of the Tribunal that the accident occurred due to the contributory negligence of both the vehicles is unsustainable and the same is accordingly set aside and it is held that the evidence on record establishes that the accident occurred solely due to the rash and negligent driving of the lorry bearing No.AP 23 T 1316 alone. Mr. Chand Pasha-owner of the lorry and New India Insurance Company Limited, with which it was insured (Appellant in MA CMA No.1024 of 2007) alone are jointly and severally liable to pay the compensation and no such liability can be fastened on the owner of the Jeep-Mr. Nagaraju and its insurer-National Insurance Company Ltd.,-appellant in MA CMA No.1586 of 2009. 7. Regarding the quantum of compensation, the evidence on record shows that by the date of the accident, the deceased was aged 48 years. According to the claimants, the deceased was an agriculturist, owning lands and raising commercial crops and was also doing business in chits in the name of ‘Ramagiri Chit Funds’ at Godavarikani and he was also doing hotel business in the name of ‘Mamatha Hotel and Preethi Hotel’ at Manthani and was also having a share in the rice mill at Manthani and was earning Rs.1,50,000/- per annum from all sources. The claimants further pleaded that the deceased was an income tax assessee. The claimants filed Ex.A.12 income tax assessment, Ex.A.13 Pan Card of the deceased, Ex.A.14 is the partnership deed of Balaji Rice Mill, Ex.A.15 is the pahani book, Ex.A.16 agriculture pass book and Ex.A.17 licence for running Maharaja Hotel. As per the ryot pass book, the deceased was having an extent of Ac.1.12 guntas in Sy.No.6, Ac.9.15 guntas in Sy.No.21/6 and Ac.3.37 guntas in Sy.No.24 of Pandulapalli village of Manthani Mandal. As rightly observed by the Tribunal, on account of death of the deceased, the claimants would suffer only loss by way of personal supervision of cultivation by the deceased and such loss of supervision alone would have to be compensated. The Tribunal estimated the same at Rs.3,000/-per month, which is considered just and reasonable having regard to the extent of the land. 8. The Tribunal has taken the income of the deceased from other sources, like business in rice mill and hotels at Rs.4,000/- per month, which is also considered just and reasonable. The Tribunal estimated the same at Rs.3,000/-per month, which is considered just and reasonable having regard to the extent of the land. 8. The Tribunal has taken the income of the deceased from other sources, like business in rice mill and hotels at Rs.4,000/- per month, which is also considered just and reasonable. After deducting 1/3rd thereof, estimated the contribution of the deceased to the family at Rs.4,665/-, which comes to Rs.55,980/-, rounded to Rs.56,000/- per annum and applying the multiplier ‘13’ which is appropriate to the age of the deceased, the Tribunal estimated the loss of dependency in a sum of Rs.7,28,000/-, which is just and reasonable. 9. As pert he decision of the Apex Court in SarlaVerma’s case [(2009)6 SCC 121], the claimants are entitled for a sum of Rs.5,000/- towards loss of estate, Rs.5,000/- towards funeral expenses and first claimant is entitled for Rs.10,000/- towards loss of consortium. Thus, the claimants are entitled for a total compensation of Rs.7,48,000/- with interest at 6% per annum as per the above decision, from the date of petition, till the date of realization. 10. In view of the findings that the accident occurred only on account of the rash and negligent driving of the lorry, the owner of the lorry-Mr.Md. Chand Pasha and the insurer of the said lorry-New India Assurance Company-Appellant in MACMA No.1024 of 2007 are therefore held liable to pay the said compensation jointly and severally. The owner of the jeep-Mr.Nagaraju and the insurer-National Insurance Company Ltd.,-appellant in MA CMA No.1586 of 2009 are held not liable to pay the compensation. The impugned award is modified accordingly. 11. In the result, MA CMA No.1586 of 2009 is allowed and the MACMA No.1024 of 2007 is disposed of. No order as to costs.