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2023 DIGILAW 1107 (AP)

United India Insurance Co. Ltd. v. Bhukya Laxmi

2023-07-19

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : V. GOPALA KRISHNA RAO, J. 1. The appellant is 3rd respondent/Insurance company and the respondents are claim petitioners and respondent Nos.1, 2, 4 and 5 in M.V.O.P.No. 624 of 2005 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, West Godavari at Eluru. The appellant filed the instant 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, 1994 claiming compensation of Rs.2,00,000/- for the death of their mother, namely, Bharothu Mangamma, in a motor vehicle accident that took place on 04.01.2005. 4. The brief averments in the petition filed by the petitioners are as follows: On 04.01.2005 the deceased was proceeding from Vissannapet in an auto bearing registration No. AP 16TU 4733 and when the auto reached near Kudapa, Madhavaram village, a tractor-trailer bearing registration Nos. AP 16AK 6894 & AP 16AK 6895 being driven by its driver in a rash and negligent manner at high speed came in opposite direction and dashed against the auto, resulting in the instantaneous death of the deceased. The accident occurred due to rash and negligent driving of the drivers of both the tractor and the auto. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the tractor-trailer. The 4th respondent is driver-cum-owner and the 5th respondent is insurer of the auto. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners. 5. Respondent Nos.1, 2 and 4 were set ex-parte. 6. Respondent Nos.3 and 5/Insurance companies filed counters separately by denying the manner of accident, age, avocation and income of the deceased. It is pleaded by the 3rd respondent that respondent Nos.1 and 4 were not having valid driving licences at the time of accident and there was no insurance coverage to the tractor-trailer. 6. Respondent Nos.3 and 5/Insurance companies filed counters separately by denying the manner of accident, age, avocation and income of the deceased. It is pleaded by the 3rd respondent that respondent Nos.1 and 4 were not having valid driving licences at the time of accident and there was no insurance coverage to the tractor-trailer. It is pleaded by the 5th respondent that there was a clear violation of terms and conditions of the policy as 15 passengers were travelling in the auto at the time of accident, the first information report and the charge sheet were against the 1st respondent but not against the 4th respondent, the 1st respondent was not having a valid driving licence at the time of accident, and there was no insurance coverage to the auto. 7. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: (1) Whether the accident occurred due to rash and negligent driving of the tractor-cum-trailer bearing No. AP 16AK 6894 and AP 16AK 6895 driven by its driver-the 1st respondent? (2) Whether the petitioners are entitled to claim any compensation? If so, to what amount and against which of the respondents? (3) To what relief? 8. 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.11 were marked. On behalf of respondent Nos.3 & 5, R.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked. 9. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred only due to rash and negligent driving of the driver of the tractor-trailer and, accordingly, allowed the petition granting compensation of Rs.2,00,000/- against respondent Nos.1 to 3, while dismissing the claim petition against respondent Nos.4 & 5. Aggrieved against the said order, the appellant/3rd respondent-Insurance company preferred the present appeal. 10. Heard learned counsels for both the parties and perused the record. 11. Learned counsel for the appellant/Insurance company contended that as per the averments of the claim petition and contents of the first information report and the inquest report, the accident took place because of contributory negligence on the part of both the drivers of the tractor and the auto, therefore, the Tribunal ought to have fixed the liability on respondent Nos.4 & 5 also. 12. 12. Now, the point for determination is: (1) Whether the order of the Tribunal needs any interference of this Court? (2) To what extent? 13. POINTS 1 & 2: The Tribunal held in its order that a case was booked against the 1st respondent/driver of the tractor-trailer for his rash and negligent act, but, the said finding was given by the Tribunal without any basis of evidence. Ex.A.1-first information report goes to show that a case in crime No. 1 of 2005 was registered by the S.H.O., A.Konduru P.S., against the driver of the tractor-trailer i.e., 1st respondent and also the driver-cum-owner of the auto i.e., 4th respondent. For the reasons best known to the petitioners, they did not choose to file a copy of charge sheet filed before the Criminal Court by the police. In Ex.A.3-inquest report also, it is mentioned that the accident occurred due to rash and negligent driving of both the drivers of the tractor-trailer and the auto. In Ex.A.1-first information report, it is also mentioned that 14 passengers along with the de facto complainant, by name, B. Balaji, were travelling in the auto. But, the Tribunal ignored the contents of Ex.A.1-first information report as well as Ex.A.3-inquest report. In view of the above reasons, this Court finds that the accident occurred due to contributory negligence on the part of the drivers of the tractor-trailer and the auto and, therefore, the finding of the Tribunal that the accident occurred only due to rash and negligent driving of the driver of the tractor-trailer, is liable to be set aside. 14. Coming to the compensation, the Tribunal, by giving cogent reasons, arrived the monthly income of the deceased at Rs.3,000/- i.e., Rs.36,000/- per annum. As per Ex.A.2-post mortem certificate, the age of the deceased was 47 years at the time of accident. After deducting 1/3rd from out of the annual income towards personal expenses of the deceased and by applying the appropriate multiplier ‘7.68’ to the age group of the deceased as per the decision reported in 1987 (2) ALT 137 , the Tribunal rightly arrived the loss of dependency to the family members of the deceased at Rs.1,84,320/- (Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier “7.68”). In addition to that, the Tribunal awarded Rs.30,000/- towards loss of love and affection, Rs.2,000/- towards funeral expenses of the deceased, and Rs.2,000/- towards transport of dead body of the deceased. In addition to that, the Tribunal awarded Rs.30,000/- towards loss of love and affection, Rs.2,000/- towards funeral expenses of the deceased, and Rs.2,000/- towards transport of dead body of the deceased. By giving cogent reasons, the Tribunal came to the conclusion that the petitioners are entitled to a total compensation of Rs.2,18,320/-. Since the claim of the petitioners is Rs.2,00,000/- the Tribunal awarded the said amount of Rs.2,00,000/- towards compensation to the petitioners. There is no legal flaw or infirmity in the said finding given by the Tribunal and, therefore, it warrants no interference. 15. Admittedly, the 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the tractor-trailer under Ex.B.1-insurance policy, the 4th respondent is driver-cum-owner and the 5th respondent is insurer of the auto under Ex.B.2-policy, the policies were also in force as on the date of accident, and no violations of conditions of the policies were attributed by respondent Nos.3 & 5. 16. As stated supra, the accident occurred on account of contributory negligence on the part of both the drivers of tractor-trailer and the auto. The maximum passengers to be travelled in the auto are three in number except the driver, but 15 passengers were travelling in the auto at the time of accident. The auto is a small vehicle when it is compared with the tractor. The material on record reveals that the negligence on the part of the driver of the tractor-trailer is more than the negligence on the part of the driver of the auto. In view of the foregoing discussion and on considering the overall circumstances of the case, 75% contributory negligence is fixed on the part of the 1st respondent/driver of the tractor-trailer and 25% contributory negligence is fixed on the part of the 4th respondent/driver of the auto. Therefore, the finding of the Tribunal that respondent Nos.1 to 3 are jointly and severally liable to pay the compensation to the petitioners, is liable to be set aside. Since the 1st respondent is driver and agent of the 2nd respondent and the 3rd is the insurer of the 2nd respondent, the 3rd respondent has to indemnify the 2nd respondent. Likewise, the 5th respondent being the insurer of the 4th respondent has to indemnify the 4th respondent. 17. In the result, the appeal is partly allowed. Since the 1st respondent is driver and agent of the 2nd respondent and the 3rd is the insurer of the 2nd respondent, the 3rd respondent has to indemnify the 2nd respondent. Likewise, the 5th respondent being the insurer of the 4th respondent has to indemnify the 4th respondent. 17. In the result, the appeal is partly allowed. The order of the Tribunal is modified by directing the 3rd respondent to deposit Rs.1,50,000/- and the 5th respondent to deposit Rs.50,000/- with proportionate costs and interest @ 7.5% p.a. as ordered by the Tribunal, before the Tribunal, within two months from the date of this judgment. The order of the Tribunal in all other respects regarding apportionment of amount shall stands confirmed. No order as to costs. 18. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.