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2022 DIGILAW 321 (TS)

K. Suguna v. Veladri Pulla

2022-04-27

SAMBASIVA RAO NAIDU

body2022
JUDGMENT : SAMBASIVA RAO NAIDU, J. 1. This appeal has been preferred by the appellants who are claimants/petitioners in M.V.O.P. No. 115 of 2013 on the file of Motor Accident Claims Tribunal-cum-Principal District Judge at Nalgonda. This appeal is preferred against the award passed by the Court below dated 30.05.2017 by which the petition filed by the appellants/petitioners herein was dismissed by the lower Court. 2. The said petition was filed by the petitioners claiming an amount of Rs. 6,00,000/- for the death of one Esthari (who herein after will be referred as deceased). The first appellant herein is the wife and other appellants are children of the deceased. According to the averments made in the above referred petition, it was the case of the appellants/petitioners that on 25-11-2012, the deceased went to Koppole village to attend the marriage of their relatives and returned home in the evening hours and at about 5.30 p.m. when he reached Gurrampude Village, the deceased fell down from Hero Honda Passion Pro Motorcycle, as a result, he received severe injuries and immediately, he was shifted to Hospital at Nalgonda. Later, he was shifted to Titan Hospital, Hyderabad, where he died while undergoing treatment on 29-11-2012. The appellants have claimed that the accident occurred due to the rash and negligent driving by the deceased himself. The bike belongs to the first respondent herein. A complaint was lodged with the police Gurrampude and a case was registered under Section 304-A of IPC. The appellants have filed the petition against the owner of the motorbike and insurance company, from which a policy was obtained against the said bike. The first respondent/respondent No. 1 remained ex-parte. The insurance company i.e. the present appellant contested the petition. They filed a counter denying the material averments of the petition including the policy issued against the vehicle, involvement of the bike in the accident and pleaded that the bike was falsely implicated in the case only for the purpose of insurance claim. Based on the above contentions, the trial Court framed the following four issues: 1. Whether the deceased died in the motor vehicle accident due to rash and negligent driving of the driver of the Hero Honda Passion Pro Motorcycle bearing No. AP-24-AJ-7460? 2. Whether the petitioner is entitled to claim compensation? If so, to what amount and from whom? 3. Based on the above contentions, the trial Court framed the following four issues: 1. Whether the deceased died in the motor vehicle accident due to rash and negligent driving of the driver of the Hero Honda Passion Pro Motorcycle bearing No. AP-24-AJ-7460? 2. Whether the petitioner is entitled to claim compensation? If so, to what amount and from whom? 3. Whether the age, occupation and income claimed by the Petitioner is true? 4. To what relief? 3. The wife of the deceased has been examined as PW-1 and she has marked Exs.A1 to A9. The contesting respondent examined RW-1 and marked Exs.B1 to B3. The trial Court did not accept the claim of the appellants herein and dismissed the petition vide order dated 31-5-2017. 4. The appeal is filed on the following grounds: The award passed by the Tribunal is contrary to law, weight of evidence. The Tribunal committed error in dismissing the petition on the ground of delay in lodging the F.I.R. The Tribunal failed to discuss the merits of the case and came to a wrong conclusion and that the Tribunal ought to have considered the deceased died due to the accident and as the petition was filed under Sections 163-A and 166 of Motor Vehicles Act, it ought to have been allowed. The Tribunal did not consider Exs.A1 to A9 and failed to appreciate the appellants have proved the negligence of the respondents, thereby, sought for setting aside of the award and sought for compensation against the respondents herein. 5. The learned counsel for the appellants has submitted that there is no dispute about the death of the deceased in a motor cycle accident. Since the petition is filed under Section 163 of Motor Vehicles Act, it is sufficient, if the appellants are able to show the involvement of a motor bike, insurance policy against the bike and death of an individual by use of the said vehicle. Even though, the appellants are able to prove all these aspects, the Tribunal came to a wrong conclusion and dismissed the appeal only on the ground of delay in lodging the complaint with the police, thereby sought to set aside the award and prayed for compensation from the appellant herein. 6. Even though, the appellants are able to prove all these aspects, the Tribunal came to a wrong conclusion and dismissed the appeal only on the ground of delay in lodging the complaint with the police, thereby sought to set aside the award and prayed for compensation from the appellant herein. 6. On the other hand, the counsel for the respondent/insurance company has argued that when once the deceased had stepped into the shoes of owner of a vehicle, Section 163-A of Motor Vehicles Act, cannot apply, thereby, the legal representatives of the deceased are not entitled to seek compensation under Section 163-A of Motor Vehicles Act and for this proposition he relied on a Judgment reported in (2009) 13 SCC 710 . The Insurance company while relying on a Judgment reported in 2021 (1) ALD 450 (TS), further argued that when the claim petition is filed under Sections 163-A, 146, 147, 166 of Motor Vehicles Act, by legal representatives of the deceased who died while proceeding on a motorbike belonging to the first respondent herein, and when the accident occurred due to the negligence and fault of rider of the bike, and when no third party is involved, such a claim petition is not maintainable. He has also relied on another Judgment reported in 2013 (4) ALT 574 (SB). The learned counsel has submitted that the claim under Section 163-A of Motor Vehicles Act, be founded on Fault Liability Principle seeking relief on structured formula basis, to fasten liability on insurer, the claimant has to establish that he is a third party or his risk is covered by terms and conditions of the policy. When the claimant is not a third party and when there is no evidence by the claimant that the accident occurred in the course of employment and that such a risk is covered under the terms and conditions of the policy, no amount can be awarded against the insurance company. 7. As per the record placed before this Court, it is very clear that the deceased died in a road accident that occurred on 25-11-2012. 7. As per the record placed before this Court, it is very clear that the deceased died in a road accident that occurred on 25-11-2012. It was the specific case of the appellants that the deceased having obtained the motorbike of the first respondent, which was insured with the second respondent went to Koppole Village to attend a marriage and returned on the same bike and while he was crossing the out-skirts of Gurrampude, he accidentally fell from the bike and sustained injuries. It appears that soon after the accident, the deceased was shifted to Nalgonda from where he was taken to Hyderabad and he died four days after the accident i.e. on 29-11-2012. As per the evidence of PW-1, who is no other than the wife of the deceased, the motorbike belongs to respondent No. 1 and she was not an eye-witness to the accident. The contesting respondent has examined RW-1 and according to his evidence, the accident occurred due to the own negligence of the deceased. There is no contractual liability between the deceased and the insurance company. The owner of the vehicle who is first respondent, no other than brother-in-law of the deceased did not pay any additional premium for covering the risk of a third person. It is elicited from RW-1 that the policy covered by Ex. B1 in force and though it was suggested to RW-1 that premium was paid for the compensation of owner and driver of the vehicle, he denied the suggestion. 8. According to the evidence placed before the Court, it is quite clear that the deceased was not the owner of the vehicle involved in the accident. The alleged accident took place at 5.30 p.m., on 25-11-2012. He was immediately shifted to a Hospital at Nalgonda and then shifted to Titan Hospital, Hyderabad. It is not known as to whether the occurrence of the accident was disclosed to either of the above hospitals. Admittedly, complaint about the accident was first lodged only on 29-11-2012. The appellants herein disputed the accident and involvement of the motorbike. The owner of the vehicle remained ex-parte before the Court below. It is true, the delay in lodging the complaint with the police in all accident cases may not always be fatal. Admittedly, complaint about the accident was first lodged only on 29-11-2012. The appellants herein disputed the accident and involvement of the motorbike. The owner of the vehicle remained ex-parte before the Court below. It is true, the delay in lodging the complaint with the police in all accident cases may not always be fatal. It is also true that the relatives of the injured involved in a motor accident might have concentrated in admitting the injured to Hospital rather than lodging a complaint with police. But in the presence case, even after the shifting the injured to Hyderabad and admitting him to Hospital, no complaint was presented to police. The appellant herein has claimed that the vehicle belongs to the brother-in-law of the deceased, but according to PW-1 the vehicle belongs to one Vedadri and she had no relationship with him. However, RW-1 who is examined on behalf of the appellant herein categorically stated before the Court that the owner of the vehicle is brother-in-law of the deceased. Ex.A1 complaint was presented soon after the death of the deceased and the same was registered as Crime No. 114 of 2012 for the offence under Section 304-A of IPC. Normally, in a case like one on hand, the complaint is lodged even before the injured admitting into the Hospital and the same will be registered as a case under Section 337 of IPC and after receipt of the death intimation, police used to alter the Section of law to 304-A of IPC. The appellant has examined RW-1 and through him, it is claimed that the owner of the vehicle did not pay additional premium to cover the risk of the owner. In view of the inordinate delay in lodging police report till the death of the deceased, there is every possibility of implicating a motor vehicle for the purpose of filing false insurance claim. If the owner of the vehicle is a close relative, it creates any amount of doubt, whether the vehicle is really involved or the relatives of the deceased lodged a complaint only for the sake of filing insurance claim. 9. Even if it is believed that the deceased took the bike of another person and died while riding the said bike, the claimants have to prove that there is insurance coverage. In the above referred Judgment between Ningamma and Another vs. United India Insurance Co. 9. Even if it is believed that the deceased took the bike of another person and died while riding the said bike, the claimants have to prove that there is insurance coverage. In the above referred Judgment between Ningamma and Another vs. United India Insurance Co. Ltd. (2009) 13 SCC 710 the Hon’ble Apex Court was pleased to observe that in a case where the deceased borrowed motor vehicle of other person, he has stepped into the shoe of owner of a vehicle and Section 163-A of Motor Vehicles Act cannot apply. The legal representatives of the deceased could not have claimed compensation under Section 163-A of Motor Vehicles Act. In Para-25 of the above Judgment, the Hon’ble Apex Court held that: “When a claim is made under Section 166 of the Act, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It is also necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the legal heirs.” In this case, the claimants have alleged that at the time of accident, the deceased himself was riding the bike and soon after his death, a case was registered under Section 304-A of IPC. RW-1 has deposed that no additional amount was paid to cover the risk of owner. In another Judgment reported in 2013 (4) ALT 574 , it was observed that: “a claim under Section 163-A of Motor Vehicles Act, be founded on Fault Liability Principle seeking relief on structured formula basis and to fasten the liability on insurer. The claimant has to establish that he is a third party or that the risk is covered by terms and conditions of the policy.” 10. In the present case, the deceased cannot be treated as third party and in the absence of evidence that the owner of the vehicle paid extra premium to cover the risk of owner, claimants are not entitled to any compensation from the insurer i.e. the Insurance company under Sections 163 of 166 of Motor Vehicles Act. Except, the evidence of PW-1, who is no other than the wife of the deceased, there is no evidence before the Court about the actual accident. Except, the evidence of PW-1, who is no other than the wife of the deceased, there is no evidence before the Court about the actual accident. PW-1 claims that she has no relation with the owner of the vehicle but RW-1 has stated that the bike belongs to the brother-in-law of the deceased. It is not explained why no complaint was lodged till the death of the deceased. Therefore, the delay assumes importance and it creates any amount of doubt as to the genuineness of claim. In view of its finding in the first two issues, the court below without giving any finding to other issues dismissed the petition filed by the appellants/petitioners. Therefore, there are no merits in the appeal, as such, it is liable to be dismissed. 11. Accordingly, the appeal is dismissed. 12. Consequently, Miscellaneous applications if any, are closed. No costs.