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2023 DIGILAW 1085 (AP)

New India Assurance Co. Ltd. v. Kommara Syamala

2023-07-17

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : V. GOPALA KRISHNA RAO, J. 1. Aggrieved by the impugned decree and order passed in M.V.O.P.No. 760 of 2006, on the file of the Motor Vehicle Accident Claims Tribunal-cum-Principal District Judge, Rajahmundry, East Godavari District, whereby the Tribunal awarded an amount of Rs.3,34,154/- towards compensation, this instant appeal is preferred. 2. Both the parties in the appeal will be referred to as they are arrayed in claim application. 3. The aforesaid M.V.O.P.No. 760 of 2006 was filed by the claimants, under Section 166 of the Motor Vehicles Act, claiming an amount of Rs.9,00,000/- with interest at the rate of 12% per annum towards compensation for the death of Kommara Mohana Rao in a motor vehicle accident that occurred on 12.07.2006. 1st claimant is the wife, 2nd and 3rd claimants are the children and 4th claimant is the mother of the deceased. 4. The brief averments of the claim petition are as follows: On 12.07.2006 while the deceased Kommara Mohana Rao started from Kovvur to Tallapudi on an Auto bearing No. AP 5V 8182 and at about 7:00 p.m. he reached near Chidipi sand ramp on Kovvur to Tallapudi Godavari bund road and then 1st respondent drove his Auto bearing registration No. AP 5V 8182 in a rash and negligent manner at high speed and dashed another Auto bearing No. AP 37W 4652 which was coming in the opposite direction due to which the deceased received grievous injuries and died on 13.07.2006 while undergoing treatment in the Government Hospital, Rajahmundry. A case in Crime No. 61/2006 was registered by the Police, Tallapudi Police Station against 1st respondent/driver of the offending vehicle Auto. 1st respondent is the driver and 2nd respondent is the owner and 3rd respondent is the insurer of the offending vehicle Auto. 5. The petition against 1st respondent has been dismissed for non-payment of process, 2nd and 4th respondents have remained ex-parte. 6. 3rd respondent filed a written statement denying the material pleas taken by the claimants. 7. Based on the above pleadings of both the parties, the Tribunal framed the following issues: 1. Whether the accident occurred due to the rash and negligent driving of the Auto bearing registration No. AP 5V 8182 and Auto bearing registration No. AP 37W 4652? 2. Whether the petitioners are entitled for the compensation amount as claimed? If so, from which of the respondents? 3. To what relief? 8. Whether the accident occurred due to the rash and negligent driving of the Auto bearing registration No. AP 5V 8182 and Auto bearing registration No. AP 37W 4652? 2. Whether the petitioners are entitled for the compensation amount as claimed? If so, from which of the respondents? 3. To what relief? 8. During the course of enquiry, on behalf of the claimants, P.Ws.1 to 3 were examined and got marked Exs.A1 to A6 and Exs.X1 to X3. On behalf of the contesting respondents, R.W.1 was examined and got marked Exs.B1 and B2. 9. At the culmination of the enquiry, on considering the entire material on record, the Tribunal awarded compensation of Rs.3,34,154/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization of the amount payable by 2nd respondent/owner of the offending vehicle Auto and if he fails to pay the same, 3rd respondent/Insurer of the offending vehicle Auto has to pay the amount and later the Insurance Company is at liberty to recover the amount from 2nd respondent/owner of the vehicle. Aggrieved thereby, 3rd respondent/Insurance Company has filed the present appeal. 10. Now, the point for consideration is: Whether the order of the Tribunal needs any interference in the appeal? If so, to what extent? POINT: 11. In order to prove the rash and negligent driving of the driver of the offending vehicle Auto, the claim petitioners relied on the oral and documentary evidence. The claim petitioners relied on Ex.A1-Copy of First Information Report and Ex.A5-Copy of Charge Sheet. The material on record proves that the accident in question is occurred due to rash and negligent driving of the driver of the offending vehicle Auto bearing No. AP 5V 8182. Ex.A1 goes to show that the First Information Report was registered against the driver of the driver of the offending vehicle Auto. After due investigation, the Investigating Officer laid the Charge Sheet against the driver of the offending vehicle Auto. The contents of the Ex.A1 and Ex.A5 supported the case of the claim petitioners that the accident is in question occurred due to rash and negligent driving of the driver of the offending vehicle Auto. To rebut the said evidence, no evidence is adduced by the respondents. The contents of the Ex.A1 and Ex.A5 supported the case of the claim petitioners that the accident is in question occurred due to rash and negligent driving of the driver of the offending vehicle Auto. To rebut the said evidence, no evidence is adduced by the respondents. On appreciation of the entire evidence on record, the Tribunal rightly came to conclusion that the accident in question is occurred due to pure negligent driving of the driver of the offending vehicle Auto bearing registration No. AP 5V 8182. I do not find any legal flaw or infirmity in the above finding given by the Tribunal. 12. Coming to the compensation awarded by the Tribunal, the Tribunal awarded an amount of Rs.3,34,154/- with interest at the rate of 7.5% per annum towards compensation to the claimants by fixing the liability on 2nd respondent/owner of the offending vehicle Auto and further directed 3rd respondent/Insurance Company to pay the quantum amount with interest to the claimants in first and later recover the same from the owner of the offending vehicle/2nd respondent by applying pay and recovery principle. 13. As seen from the material on record, the claim petitioners are wife, children and mother of the deceased, deceased was aged about 53 years and working as a attender in Boys Hostel, Kovvur, West Godavari District. He was earning net salary of Rs.6,936/- and his gross salary is Rs.8,896. Because of the sudden death of the deceased, the claim petitioners lost their dependency. On appreciation of the entire material on record, after deducting the statutory deduction of Profession Tax of Rs.80/-, the Tribunal arrived at the monthly salary of the deceased is Rs.8,816/- i.e. Rs.1,05,792/- (Rs.8,816/- x 12) per annum from out of that 1/3rd income was deducted towards personal expenses of the deceased. Therefore, Rs.35,264/- (1/3rd of Rs.1,05,792/- = Rs.35,264/-) was deducted and arrived an amount of Rs.70,528/- (Rs.1,05,792/- - Rs.35,264/-) towards contribution to the family members of the deceased. I do not find any legal flaw or infirmity in the said finding given by the Tribunal. On appreciation of the entire material on record, the Tribunal applied the multiplier of “4.27” by relying on the decision of Bhagawan Das vs. Mohd. Arif, AIR 1988 A.P. 99 , came to conclusion that an amount of Rs.3,01,154/- (Rs.70,528/- x 4.27) is awarded towards loss of dependency. On appreciation of the entire material on record, the Tribunal applied the multiplier of “4.27” by relying on the decision of Bhagawan Das vs. Mohd. Arif, AIR 1988 A.P. 99 , came to conclusion that an amount of Rs.3,01,154/- (Rs.70,528/- x 4.27) is awarded towards loss of dependency. No appeal is filed by the claimants against the said finding. Therefore, there is no need to interfere with the said quantum of compensation awarded by the Tribunal towards loss of dependency. In addition to that Rs.15,000/- is awarded towards loss of consortium, an amount of Rs.15,000/- is awarded towards loss of estate and an amount of Rs.500/- is awarded towards transportation of the dead body to their house at the end and an amount of Rs.2,500/- is awarded towards funeral expenses by the Tribunal. In total, an amount of Rs.3,34,154/- is awarded towards total compensation to the claim petitioners by the Tribunal. 14. In this case, 1st respondent/driver of the offending vehicle Auto is not having valid driving license by the date of accident and he is having learner license only. The principle laid down in National Insurance Co. Ltd. vs. Swaran Singh and Others, AIR 2004 SC 1531 case is that “even in case of absence, fake or invalid license or disqualification of the driver for driving, the Insurance Company is liable to satisfy the award in favour of third party at the first instance and later recover the award amount from the owner of the offending vehicle, even when the Insurance Company could establish breach of terms of the policy, on the part of the owner of the vehicle.” 15. By applying the Judgment of the Apex Court in New India Assurance Co. Ltd. vs. Roshanben Rahemansha Fakir and Another, AIR 2008 SC 2266 the Tribunal directed 3rd respondent/ Insurance Company to pay the compensation in first and later recover the same from the owner of the vehicle/2nd respondent. As stated supra, the offending vehicle is insured with 3rd respondent/Insurance Company under valid policy and the policy is in force. Therefore, for the foregoing reasons, I do not find any legal flaw or infirmity in the finding given by the Tribunal and it warrants no interference. 16. In the result, the appeal is dismissed confirming the award of the Tribunal. There shall be no order as to costs. 17. Therefore, for the foregoing reasons, I do not find any legal flaw or infirmity in the finding given by the Tribunal and it warrants no interference. 16. In the result, the appeal is dismissed confirming the award of the Tribunal. There shall be no order as to costs. 17. As a sequel, miscellaneous petitions, if any pending, shall stand closed.