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2023 DIGILAW 1124 (AP)

Nakarikanti Abdul v. Gunjiboina Narsimha Rao

2023-07-25

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : 1. The appellants are claim petitioners and the respondents are respondents in M.V.O.P.No.1648 of 2012 on the file of the Chairman, Motor Accident Claims Tribunal-cum-III Additional District Judge, Guntur. 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 163-A of the Motor Vehicles Act, 1988 claiming compensation of Rs.6,00,000/- for the death of Shaik Hasanabi, who is wife of 1st petitioner, mother of petitioner Nos.2 & 3 and daughter-in-law of petitioner Nos.4 & 5, in a motor vehicle accident that took place on 21.10.2012. 4. The brief averments in the petition filed by the petitioners are as follows: On 21.10.2012 at about 6.00 p.m. the deceased along with others was proceeding on a tractor-trailer bearing registration Nos.AP 07TA 6030 & 6031, which was loaded with cotton bales, as a loading and unloading coolie from Devarampadu fields to go to Gullapalli and when they reached near Devarampadu fields, the driver of the tractor-trailer drove the same in a zig zag manner rashly and negligently and thereby, the tractor-trailer turned turtle, as a result, the deceased and others received grievous multiple injuries and later the deceased succumbed to injuries while undergoing treatment in the Government Hospital, Narasaraopet. The police, Rajupalem P.S. registered a case in crime No.141 of 2012 for the offences under Sections 304-A and 337 of IPC against the driver of the tractor-trailer. The 1st respondent is owner and the 2nd respondent is insurer of the offending tractor-trailer. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioners. 5. Both the respondents filed written statements by denying the manner of accident, age, avocation and income of the deceased. It is pleaded by the 1st respondent that the accident occurred during the subsistence of insurance policy with the 2nd respondent, as such, the 2nd respondent is liable to indemnify the 1st respondent. 5. Both the respondents filed written statements by denying the manner of accident, age, avocation and income of the deceased. It is pleaded by the 1st respondent that the accident occurred during the subsistence of insurance policy with the 2nd respondent, as such, the 2nd respondent is liable to indemnify the 1st respondent. It is pleaded by the 2nd respondent that the 1st respondent violated the conditions of the policy by allowing unauthorized passengers to travel in the offending tractor-trailer, the 1st respondent did not pay premium to cover the risk of coolies, the trailer was not insured with the Insurance company, the driver of the 1st respondent was not holding valid and effective driving licence at the time of accident, therefore, 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 death of Shaik Hasanabi was caused by the vehicle i.e., tractor-cum-trailer bearing No.AP 07TA 6030 and AP 07TA 6031? 2) Whether the petitioners are entitled for compensation, if so, to what amount against whom? 3) To what relief? 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.5 were marked. On behalf of the respondents, R.W.1 was examined and Exs.B.1 to B.3 were marked. 8. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the deceased died in the accident arose out of the use of the offending tractor-trailer and accordingly, allowed the petition in part awarding an amount of Rs.3,93,500/- 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, the appellants/petitioners preferred the present appeal. 9. Heard learned counsels for both the parties and perused the record. 10. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court and to what extent? 11. POINT: The claim is made under Section 163-A of the M.V. Act whereunder the petitioners need not prove the rash and negligent driving. 9. Heard learned counsels for both the parties and perused the record. 10. Now, the point for determination is: Whether the order of the Tribunal needs any interference of this Court and to what extent? 11. POINT: The claim is made under Section 163-A of the M.V. Act whereunder the petitioners need not prove the rash and negligent driving. It is sufficient to prove that the vehicle was involved in the accident. In order to establish the accident, the petitioners got examined P.Ws.1 and 2 and got marked Exs.A.1 to A.3 and A.5. P.W.1 is not an eye witness to the accident. As per the evidence of P.W.2, the deceased and others were proceeding on the offending tractor-trailer of the 1st respondent as loading and unloading coolies from Devarampadu to go to Gullapalli, and at that time, the driver of the tractor-trailer drove the same in a zig zag manner rashly and negligently and thereby, the tractor-trailer turned turtle, due to that, the deceased sustained grievous injuries and died. The evidence of P.W.2 coupled with Exs.A.1-first information report, Ex.A.2-inquest report, Ex.A.3-post mortem report and Ex.A.5-charge sheet clearly reveals that the deceased died in the accident that arose out of use of the offending tractor-trailer of the 1st respondent. On appreciation of the material on record, the Tribunal also came to the same conclusion. Therefore, there is no need to interfere with the said finding given by the Tribunal. 12. Coming to the award of compensation, by giving cogent reasons the Tribunal arrived the monthly income of the deceased at Rs.3,000/- i.e., Rs.36,000/- per annum. Based on Exs.A.2 and A.3, the Tribunal took the age of the deceased as 31 years as on the date of accident. The claim petition is filed under Section 163-A of the M.V.Act. So, as per II Schedule to Section 163-A of the M.V.Act, the appropriate multiplier applicable to the age group of the deceased is ‘16’. After deducting 1/3rd from out of annual income towards personal expenses of the deceased and by applying the multiplier ‘16’ to this case, the Tribunal arrived the loss of dependency of family members of the deceased at Rs.3,84,000/- (Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier ‘16’). In addition to that, the Tribunal awarded Rs.2,500/- towards loss of estate, Rs.2,000/- towards funeral expenses of the deceased and Rs.5,000/- towards loss of consortium to the 1st petitioner. In addition to that, the Tribunal awarded Rs.2,500/- towards loss of estate, Rs.2,000/- towards funeral expenses of the deceased and Rs.5,000/- towards loss of consortium to the 1st petitioner. By giving cogent reasons, the Tribunal came to the conclusion that the petitioners are entitled to a total compensation of Rs.3,93,500/-. There is no legal flaw or infirmity in the said finding given by the Tribunal. 13. Learned counsel for the 2nd respondent/Insurance company would contend that the offending trailer was not insured with their company and the policy of the trailer was expired, therefore, the Insurance company is not liable to pay the compensation to the petitioners. 14. On the other hand, learned counsel for the appellants/petitioners would contend that the 2nd respondent/Insurance company cannot escape from liability of payment of compensation on mere absence of insurance coverage to the trailer and the Insurance company has to pay third party risks and recover the same from the owner of the offending tractor-trailer. 15. A reliance has been placed by the counsel for the appellants/petitioners on the decision of the Hon’ble Apex Court in Manuara Khatun Vs. Rajesh Kr. Singh (Civil Appeal No.3047 of 2017 dated 21.02.2017 arising out of SLP (C) No.5805/2013) wherein it is held that “The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as ‘gratuitous passengers’ in the offending vehicle and it as for this reasons, the Insurance companies were exonerated. In Saju P. Paul’s case (supra) also, having held that the victim was ‘gratuitous passenger’, this Court issued directions against the insurer of the offending vehicle to fist satisfy the awarded sum and then to recover the same from the insured in the same proceedings”. 16. Another reliance has been placed by the counsel for the appellants/petitioners on the decision of the Hon’ble Supreme Court in Anu Bhanvara Vs. Iffco Tokio General Insurance Company Limited (Civil Appeal Nos.6231-6232 of 2019 dated 09.08.2019 arising out of SLP (C) Nos.19090-19092/2019) wherein it is held that “The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties, the claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of ‘pay & recovery’ should be directed to be invoked in the present case”. 17. In this case, the dependents on the deceased are the husband and the minor children and they are fighting for just compensation since 2012. It is not in dispute that the 1st respondent is owner of offending tractor-trailer and the 2nd respondent is insurer of the offending tractor under Ex.B.1-copy of policy and the policy was also in force at the time of accident. There is no evidence on record that the trailer was insured with the 2nd respondent. It is well settled that the trailer cannot move on roads without tractor, because there is no separate engine to the trailer. No evidence is produced by the 2nd respondent to show that the driver of the offending vehicle is not having valid driving licence. 18. In view of the above reasons and in the light of the decisions of the Hon’ble Apex Court referred supra, I am of the considered opinion that the principle of ‘pay & recovery’ has to be applied to the case on hand. 19. Accordingly, the 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.3,93,500/- with costs and interest as ordered 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 tractor-trailer by filing an execution petition and without filing any independent suit. The order passed by the Tribunal with regard to the liability is modified to the extent indicated above. The order of the Tribunal in all other respects shall remain intact. 20. The appeal is accordingly disposed of. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.