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2023 DIGILAW 1033 (AP)

Vaddi Phaneendra Kumar v. T. Nagarjunudu

2023-07-11

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : 1. The appellants are claim petitioners and the respondents are respondents in M.V.O.P.No.396 of 2006 on the file of the Chairman, Motor Accident Claims Tribunal-cum-IV Additional District Judge, East Godavari at Kakinada. The appellants filed the appeal questioning the legal validity of the order of the Tribunal. 2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition. 3. The claim petitioners filed the petition under Section 166 of the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.v. Rules, 1989 claiming compensation of Rs.3,50,000/- for the death of their father, namely, Vaddi Arjuna Rao, in a motor vehicle accident that took place on 09.02.2004. 4. The brief averments in the petition filed by the petitioners are as follows: On 09.02.2004 at about 2.00 a.m. the deceased was proceeding on his bicycle and when he reached near the Driver’s colony at Pithapuram, an auto bearing registration No.AP 5Y 4515, which was coming from uppada and proceeding towards Pithapuram, being driven by its driver in a rash and negligent manner came and dashed against the deceased, as a result, the deceased sustained injuries and later succumbed to injuries on the way to hospital. The 1st respondent is the driver cum owner and the 2nd respondent is the insurer of the offending auto, hence, both the respondents are jointly and severally liable to pay compensation to the petitioners. 5. The 1st respondent was set ex parte. The 2nd respondent/Insurance company filed a written statement by denying the manner of accident and age, avocation and income of the deceased. It is pleaded that the 1st respondent did not have a valid driving licence at the time of accident, the auto involved in the accident was not having a valid permit and it was not in road worthy condition, the accident occurred because of negligence on the part of the deceased himself, as such, the Insurance company is not liable to pay any compensation. 6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: 1) Whether the accident occurred by the use of the auto rickshaw bearing No.AP 5Y 4515 by its driver in a rash and negligent manner, who is employee under the 1st respondent herein, resulting in the death of the deceased-Vaddi Arjunarao? Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: 1) Whether the accident occurred by the use of the auto rickshaw bearing No.AP 5Y 4515 by its driver in a rash and negligent manner, who is employee under the 1st respondent herein, resulting in the death of the deceased-Vaddi Arjunarao? 2) Whether the petitioners are entitled to claim compensation, if so, to what amount and from which of the respondents. 7. During the course of enquiry in the claim petition, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 were marked. On behalf of the 2nd respondent/Insurance company, R.W.1 was examined and Exs.B.1 and B.2 were marked. 8. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending auto and accordingly, allowed the petition in part and awarded an amount of Rs.2,30,000/- with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of deposit against the 1st respondent only and dismissed the claim petition against the 2nd respondent/Insurance company. Aggrieved against the exoneration of the Insurance company from the liability of payment of the compensation amount and granting of meager compensation, the appellants/petitioners preferred the present appeal. 9. Heard learned counsels for both the parties and perused the record. 10. Learned counsel for the appellants/petitioners mainly contended that the 3rd respondent/Insurance company cannot escape from liability of payment of compensation on mere absence, fake or invalid license or disqualification of the driver and the Insurance company has to pay third party risks and recover the same from the owner of the offending vehicle. It is also contended that the Tribunal erred in arriving the monthly income of the deceased at Rs.2,000/-. 11. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court? 12. POINT: On considering the evidence of P.W.2, who is an eye witness to the accident, and on considering Exs.A.1-attested copy of first information report and Ex.A.6-certified copy of charge sheet, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the 1st respondent/driver of the offending auto. 12. POINT: On considering the evidence of P.W.2, who is an eye witness to the accident, and on considering Exs.A.1-attested copy of first information report and Ex.A.6-certified copy of charge sheet, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the 1st respondent/driver of the offending auto. No appeal was filed by the respondents against the said finding. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. Though it is the case of the petitioners that the deceased was earning Rs.40,000/- per annum by doing brick kiln business, no documentary evidence was placed on record by them. The accident occurred in the year 2004. In those days, an ordinary coolie can easily earn Rs.2,500/- per month. Therefore, the monthly income of the deceased is arrived at Rs.2,500/- i.e., Rs.30,000/- per annum. The dependants on the deceased are four in number. So, 1/4th from out of the annual income has to be deducted towards personal expenses of the deceased. Having deducted as such, the annual contribution to the family members of the deceased is arrived at Rs.22,500/- (Rs.30,000/- - Rs.7,500/-). The material on record discloses that the deceased was aged 50 years as on the date of accident. The relevant multiplier applicable to the age group of the deceased is “13”, as per the judgment of the Hon’ble Supreme Court in Sarla Varma Vs. Delhi Transport Corporation, 2009 (4) SCJ 91 and the loss of dependency is arrived at Rs.2,92,500/- (Rs.22,500/- x multiplier ‘13’). The Tribunal awarded an amount of Rs.5,000/- towards funeral expenses of the deceased, which is just and reasonable, therefore, there is no need to interfere with the said finding given by the Tribunal under this head. In all, the petitioners are entitled to Rs.2,97,500/- towards compensation. 14. Coming to the liability, it is not in dispute that the 1st respondent is driver cum owner and the 2nd respondent is insurer of the offending auto under Ex.B.1-insurance policy and the policy was also in force as on the date of accident and the 1st respondent was prosecuted by the police for not having a valid driving licence to drive the auto as on the date of accident. 15. 15. It is contended by the learned counsel for the 2nd respondent/Insurance company that the 1st respondent being driver cum owner of the offending auto was not having a valid driving licence at the time of accident and thereby, the 1st respondent violated terms and conditions of the policy, therefore, the Insurance company is not liable to pay any compensation to the petitioners. 16. In order to establish its case, the 2nd respondent/Insurance company got examined its Senior Assistant as R.W.1, through him, Exs.B.1 and B.2 were got marked. In Ex.B.2/Ex.A.6-copy of charge sheet, it was mentioned that the 1st respondent was the driver cum owner of the offending auto and he was not having driving licence at the time of accident and Section 181 of the Motor Vehicles Act was also added to Section 304-A of IPC. The evidence of R.W.1 coupled with Ex.B.2/Ex.A.6 clearly proves that the 1st respondent was not having a valid driving licence at the time of accident. 17. The principle laid down in the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, 2004 (2) ALD (SC) 36 is that even in case of absence, fake or invalid licence or disqualification of the driver for driving, the Insurance company is liable to satisfy the award in favour of 3rd party at the first instance and later recover the award amount from the owner of offending vehicle, even when the Insurance company could able to establish breach of terms of policy on the part of the owner of the offending vehicle. 18. For the foregoing discussion, the 2nd respondent/Insurance Company is liable to pay the compensation to the petitioners in the first instance and later recover the same from the 1st respondent/owner of the offending auto, by filing an execution petition and without filing any independent suit. 19. In the result, the appeal is partly allowed enhancing the compensation from Rs.2,39,000/- awarded by the Tribunal to Rs.2,97,500/-. The 2nd respondent/Insurance company is directed to deposit the entire compensation amount, with costs and interest as awarded by the Tribunal, before the Tribunal in the first instance within two months from the date of this judgment and later recover the same from the 1st respondent/owner of the offending auto by filing an execution petition and without filing any independent suit. On such deposit, the petitioners are entitled to withdraw the compensation amount along with costs and interest equally. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.