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2012 DIGILAW 801 (AP)

V. Jyothi v. Pioneer Builders

2012-08-31

C.PRAVEEN KUMAR

body2012
Judgment :- The unsuccessful claimant preferred the present appeal aggrieved by the order dt. 9-2-2005 passed in MVOP No.262/2001 on the file of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor. 2. The facts which led to filing of the appeal are as follows: The appellant is the owner of the tractor and trailer bearing registration Numbers AP 21 V 0306 and AP 21 V 0307 respectively. The driver of the said tractor was one Guntappa. He was having driving licence No.5081. While the said driver was driving the tractor slowly from Tirupati to Anjaneyapuram and when the tractor reached Karakambadi, he noticed lorry bearing registration No. AP 02 1835 of the first respondent coming in high speed in a zig zag manner. On seeing the said vehicle, the tractor driver slowed down the vehicle and moved it to the left side of the road. In spite of taking all precautions, the lorry driver who was driving the vehicle in a rash and negligent manner lost control of the vehicle and dashed against the tractor. As a result of the said accident, the vehicle ie., tractor and trailer got badly damaged and one Babu died on the way to the hospital. In respect of the said incident, a case in Cr.No.32/2001 under Section 304-A and 337 IPC of Renigunta Police Station was registered against the driver of the lorry. 3. Immediately, after the incident, the said tractor and trailer was shifted to Sri Lakshmi Venkateswara Tractor Works, situated at Tiruchanur Road, Tirupati for effecting repairs. The damage caused to the tractor was assessed at Rs.99,187/-. Sri Rama Krishna Engineering Works assessed the damage to the trailer at Rs.24,665/-. Both of them issued their estimations. The lorry of the first respondent company was insured with the second respondent and thus, both of them are jointly and severally liable to pay compensation to the appellant. 4. On 20-2-2001, the appellant got issued a notice to the respondents informing them about the damage caused to the tractor and trailer and that both tractor and trailer were kept for inspection at garage in Tirupati. The notice further indicates the demand of Rs.1,24,852/-towards cost and expenditure to effect repairs and Rs.20,000/-towards loss of income for keeping the vehicle idle together with interest at 18% per annum. 5. The notice further indicates the demand of Rs.1,24,852/-towards cost and expenditure to effect repairs and Rs.20,000/-towards loss of income for keeping the vehicle idle together with interest at 18% per annum. 5. Though the respondents received notice, they have neither inspected the vehicle nor paid the amount, as such; the appellant filed the above OP claiming damages to an extent of Rs.1,44,852/-. 6. The first respondent, who is the owner of the lorry, in OP, remained ex parte before the tribunal. The second respondent, who is the insurer of the vehicle-lorry, in OP, filed counter alleging that the contents in the OP are neither true nor correct. According to them, the lorry of the first respondent is not insured with them and that a false claim is raised with regard to the damage caused to the tractor and trailer. It is stated that their liability shall be subject to existence of policy issued, the terms and conditions of the policy and compliance of Section 65(V) (B) of the Insurance Act. It is further mentioned in the counter that the accident occurred only due to the rash and negligent driving of the driver of the tractor and not by the lorry driver. They also pleaded that there are no grounds to pass any order, much less for Rs.1,44,852/-and prays for dismissal of OP with costs. 7. Basing on the pleadings of the parties, the Tribunal framed the following issues for trial: 1. Whether the accident in question was caused due to the rash and negligent driving of the lorry bearing NO.AP 02 1835? 2. Whether the petitioner is entitled for any compensation towards damage of the vehicle bearing No. AP 21 V 0306 and AP 21 V 0307 (tractor and trailer), if so, to what quantum and from whom? 3. To what relief? 8. Heard the learned counsel for the appellant-claimant, Sri R.V. Chalapathi, and also Sri P.Harinatha Guptha, the learned Standing Counsel for the second respondent-Insurance Company. 9. In order to substantiate her claim, the appellant/claimant testified herself as P.W.1 and also examined P.Ws.2 to 4. She also got marked Exs.A-1 and A-2. On behalf of the respondents, except marking Ex.B-1-insurance policy, no oral evidence has been let in. 10. 9. In order to substantiate her claim, the appellant/claimant testified herself as P.W.1 and also examined P.Ws.2 to 4. She also got marked Exs.A-1 and A-2. On behalf of the respondents, except marking Ex.B-1-insurance policy, no oral evidence has been let in. 10. In so far as issue No.1 is concerned, the tribunal after taking into consideration the evidence of P.Ws.1 and 2 and Exs.A-3 and A-4 held that the accident in question was caused due to the rash and negligent driving of the lorry bearing registration No. AP 02 1835. The said finding has become final as the same is not challenged either by the owner of the lorry or the insurance company. 11. The ground on which the tribunal dismissed the OP was that FIR which has been lodged by the husband of the appellant herein stated in the said report that he is the owner of the tractor and is eking out his likelihood by running the said tractor. The tribunal further found that the age of the appellant was 45 years and the informant was 41 years. Hence, it was held that the appellant could not be the wife of Damodaram Naidu and that she is not the owner of the said vehicle. Aggrieved by the said findings, the present appeal has been preferred by the claimant in OP. 12. The contention of the learned counsel for the respondent that there is no evidence to show that the appellant is the owner of the vehicle has no legs to stand. In the claim petition filed by the appellant, she has specifically stated that she is the owner of the vehicle. The said fact was not denied in the counter filed by the respondents. It means and implies that the said averment in the claim petition is not disputed. As per Rule 5 of Order VIII CPC allegation in plaint which are not specifically denied in the written statement should be deemed to be admitted. It is also well known that admitted facts need not be proved. 13. Further, the tribunal did not even frame an issue with regard to the ownership of the vehicle.. The tribunal proceeded on the footing that the appellant is the owner of the vehicle. It is also well known that admitted facts need not be proved. 13. Further, the tribunal did not even frame an issue with regard to the ownership of the vehicle.. The tribunal proceeded on the footing that the appellant is the owner of the vehicle. Surprisingly, without even framing an issue and without giving an opportunity to the appellant to lead evidence, the tribunal held that the appellant is not the owner of the vehicle. It is necessary to mention here that along with the OP the appellant also filed registration certificate of the tractor and trailer. The said certificate was available in the case records, but inadvertently the said certificate was not marked. Though P.W.1 in her evidence categorically stated that she is the owner of the vehicle bearing registration Nos. AP 21 V 0306 and AP 21 V 0307, nothing is elicited in her cross-examination to show that she is not the owner of the vehicle. It is not even suggested to P.W.1 that she is not the owner of the vehicle and that one Damodaram Naidu is the owner of the vehicle. Relationship between Damodaram Naidu and the appellant is also not in dispute. The cross-examination was mainly on the ground that the drive of the tractor was negligent and not the lorry driver and also with regard to the amount of compensation which the claimant is entitled to. As the tractor-cum-trailer is in the name of his wife, he identified himself as owner of the vehicle. 14. A perusal of entire record would indicate that at the earliest point of time ie., within 10 days from the date of accident, the appellant issued a notice to the respondents informing them about the accident, damage caused to the said vehicle and also demanding payment towards cost and expenditure to effect repairs. The said notice issued by the appellant was received by both the respondents. Having received the said notice, neither the owner nor the insurance company of the said vehicle gave any reply. Ex.A-5 is the office copy of the registered notice and the acknowledgment. Ex.A-1 is the estimate certificate issued by Smt. Lakshmi Venkateswara Tractor works and Ramakrishna Engineering Works. Both the certificates dt. 17-2-2001 disclose that the appellant is the owner of the tractor and trailer. Ex.A-5 is the office copy of the registered notice and the acknowledgment. Ex.A-1 is the estimate certificate issued by Smt. Lakshmi Venkateswara Tractor works and Ramakrishna Engineering Works. Both the certificates dt. 17-2-2001 disclose that the appellant is the owner of the tractor and trailer. Further, one person by name M. Mallikarjuna Rao, who is the licensed insurance surveyor and loss assessor submitted his survey report. In the said survey report, which is brought on record as Ex.A-2, it is mentioned that the insured is the appellant herein and she is also described as the wife of V. Damodaram Naidu. It may be noted here that the issuance of notice and receipt of the same neither disputed nor challenged. 15. The learned counsel for the respondent contends that without marking the registration certificate, ownership of the vehicle cannot be established. 16. Merely because registration certificate has not been marked, it cannot be said that the appellant is not the owner of the vehicle, when other circumstances in the case establish that the appellant is the owner of the vehicle. It is not in dispute that the registration certificate was filed along with OP and the same is available on record. Though P.W.1 deposed that she is the owner of the vehicle but due to oversight the said registration certificate was not marked. Neither the insurance company nor the owner of the lorry raised any dispute at any point of time with regard to the ownership of the vehicle. As stated earlier, no suggestion was given to P.W.1, with regard to ownership of the vehicle. Further, no third person has come forward claiming the ownership of the vehicle. 17. For the foregoing reasons, the Civil Miscellaneous appeal is allowed by setting aside the order of the tribunal dt.9-2-2005 passed in MVOP No.262/2001 and the matter is remanded back to the tribunal to dispose of the same after hearing both sides and also give an opportunity to both the parties to lead evidence on all aspects. Since the OP relates to the year 2001, the tribunal is advised to dispose of the matter as expeditiously as possible, preferably within a period of three (3) months from the date of receipt of a copy of the order. No order as to costs.