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2023 DIGILAW 667 (TS)

United India Insurance Co. Ltd. v. Bathula Anil

2023-09-25

SAMBASIVA RAO NAIDU

body2023
JUDGMENT : Sambasiva Rao Naidu, J. 1. The parties in OP.No.496 of 2017 on the file of Motor Accidents Claims Tribunal cum Principal District Judge at Nalgonda, being aggrieved by the Award dated 21-01-2021, where under, the Court having accepted the contentions of claimants about the accident and death of one Bathula Kumari in a road traffic accident, awarded compensation of Rs.8,36,600/-, filed two separate miscellaneous appeals, one by the Insurance Company and the other by the claimants. 2. MACMA.No.754 of 2021 has been filed by the 3rd respondent in OP.No.496 of 2017 namely United India Insurance Company Ltd., through its Manager assailing the award and sought for setting aside the award. Whereas, MACMA.No.618 of 2021 has been filed by the petitioners of the above said O.P. questioning the quantum of compensation and sought for enhancement of the same on different grounds. Since both the appeals arose out of the same award, it would be convenient to dispose of both the appeals under a common judgment, thereby, this common judgment. 3. Before adverting to the contentions raised by the appellants in the two appeals, it is necessary to examine the contentions raised by them before the Tribunal through MVOP.No.496 of 2017. For convenience sake and to avoid the confusion, the parties will be referred to in the same ranking which was shown in the above said MVOP.No.496 of 2017. The following is the brief case of petitioners before the Court below. 4. On 15-05-2017, one Bathula Kumari, hereinafter will be referred as 'deceased' and her relative by name Orsu Raju had been to Jaggaiahpet town on a motor-cycle bearing No.TS 05 EK 6602 and after completing their work, they returned from Jaggaiahpet to Dondapadu village on the same motor-cycle. The bike was driven by Raju, whereas, deceased was the pillion rider. The petitioners have claimed that Raju was riding the bike in a slow manner by following traffic rules and when they reached the outskirts of Mukthyala village at about 1:30 p.m., the driver of a lorry bearing No.AP 16 TH 3989 which was coming in the opposite direction, drove the lorry in high-speed, in a rash and negligent manner and dashed the motor-bike due to which both rider and pillion rider fell on the road, received serious head injuries, fractures over the body and died on the spot. The motorcycle was completely damaged. The motorcycle was completely damaged. The petitioners have claimed that the accident took place due to the rash and negligent driving by the driver of lorry and they filed MVOP.No.496 of 2017 against the driver, owner of the vehicle and insurance company from which a policy was obtained and sought for a sum of Rs.10,00,000/- as compensation for the death of said Kumari. It appears from the record that the dependants of said Orsu Raju, the rider of the motorbike also filed another petition vide MVOP.No.495 of 2017 and sought for compensation. Out of the three respondents, respondents No.1 and 2 remained ex parte. 5. The insurance company disputed the contentions raised by the petitioners. According to the contention of the 3rd respondent, it was alleged that the owner of the vehicle failed to furnish the particulars of insurance policy, time, place of the accident, particulars of the injured, thereby, violated the mandatory provisions of Section 134 (c) of Motor Vehicles Act (for short 'M.V.Act'). There was failure on the part of the owner of the vehicle in furnishing the details which amounts to violation of Section 158 (6) of M.V.Act. They have also claimed that the driver of the lorry was not having a valid and effective license. The owner of the lorry who had a statutory obligation to see that the driver of the vehicle has valid license before allowing him to drive the vehicle, failed to observe the same. The 3rd respondent further contented that the compensation claimed by the petitioners is highly excessive and sought for dismissal of the petition. The Tribunal framed the following issues. 1. Whether the deceased Bathula Kumari died in the road accident occurred on 15-05-2017 at 1.30 p.m., at the outskirts of Mukthyala village of Jaggaiahpet mandal, Krishna District, due to rash and negligent driving by the driver of lorry bearing No. AP 16 TH 3989? 2. Whether the petitioners are entitled for compensation, if so, what amount and from whom? 3. To what relief and costs? 6. During inquiry, the maternal grandfather and guardian of the petitioners, who are children of the deceased Kumari has been examined as PW.1. Exs.P1 to P7 were marked. One Turaka Mariyanna, who was an eye-witness to the accident, was examined as PW.2. The 3rd respondent did not adduce any oral evidence but marked the certified copy of insurance policy as Ex.R1. 7. Exs.P1 to P7 were marked. One Turaka Mariyanna, who was an eye-witness to the accident, was examined as PW.2. The 3rd respondent did not adduce any oral evidence but marked the certified copy of insurance policy as Ex.R1. 7. The Tribunal having appreciated the oral and documentary evidence and contentions of both parties, came to the conclusion that though the accident occurred due to the rash and negligent driving by the driver of the lorry, since the rider of motorbike was not wearing helmet and there was no valid license, he too contributed his negligence for the accident and allowed the petition in part by awarding an amount of Rs.8,36,600/-. 8. The 3rd respondent-insurance company being aggrieved by the said finding filed MACMA.No.754 of 2021 on the following grounds: The Tribunal failed to appreciate the evidence on record and committed an error in awarding compensation with interest @ 12% per annum against all the respondents. In view of the finding by the Tribunal that there is 50% negligence on the part of rider of the bike, the Tribunal ought to have deducted 50% of the compensation amount from the total compensation. The Tribunal was wrong in assessing the income of the deceased as Rs.8,000/- per month based on Minimum Wages Act. The deceased was neither a labourer nor a working women, as such, the Court below could not have considered her monthly income as Rs.8,000/-. The rate of interest allowed by the Tribunal is high, thereby, could have been 6% per annum. On these grounds, the 3rd respondent sought for setting aside the award. Whereas, these petitioners have filed MACMA No.618 of 2021 on the following grounds. 9. The judgment and decree dated 21-01-2021 is contrary to law, weight of evidence, against their claim of Rs.10,00,000/- a meager amount of Rs.8,36,600/- alone was awarded. According to judgment reported in 2013 (9) SCC 54 , there is a duty cast on the Court to award just compensation is equitable, fair and reasonable. The Court below ought to have considered the oral evidence of PWs. 1 and 2, Exs.A1 to A7 and could have awarded more compensation. The appellants have also claimed that the finding of the Court below with regard to the alleged contribution of 50% negligence by the other deceased Orsu Raju was incorrect. The Court below ought to have considered the oral evidence of PWs. 1 and 2, Exs.A1 to A7 and could have awarded more compensation. The appellants have also claimed that the finding of the Court below with regard to the alleged contribution of 50% negligence by the other deceased Orsu Raju was incorrect. In view of the accident, the petitioners, who are minors lost their mother, the Court below could have considered this aspect and awarded some more amount. They have also contended that according to the settled principle of law, the Court below could have considered the income of the deceased as Rs.10,000/- per month since she was 30 years old with good health, thereby, they prayed for enhancement of the compensation. 10. As already stated in the previous paragraphs, these two Civil Miscellaneous Appeals have been filed by the petitioners/claimants and respondent/insurance company on different grounds. The Insurance company which is shown as respondent No.3 claimed that the Court below having come to a conclusion that there is contributory negligence by rider of the motor-bike which involved in the accident could not have granted compensation and the quantum of compensation based on the calculations of the Tribunal on the notional income of the deceased also questioned by the insurance company. 11. Whereas, the petitioners/claimants have contented that the Tribunal without there being any acceptable evidence to conclude that the death of the deceased was due to the failure of rider of motor-cycle in wearing helmet and the Court ignored the evidence of the other witnesses which clearly shows that the accident took place due to the rash and negligent driving by the driver of the opposite vehicle. Therefore, it could not have reduced the compensation on the ground of contributory negligence. The petitioners further contended that the Tribunal came to an incorrect conclusion about the monthly income of the deceased by ignoring the evidence of the material witnesses. 12. It is true while appreciating the rival contentions of both parties, the Tribunal was of the opinion that there was contributory negligence by the rider of the motor-bike namely Orsu Raju on the ground that he failed to wear helmet and petitioners/claimants failed to produce valid license of the rider of the bike. 13. In order to prove the accident, the petitioners/claimants have examined PW.2, who witnessed the accident. 13. In order to prove the accident, the petitioners/claimants have examined PW.2, who witnessed the accident. According to the evidence of PW.2, on 15-05-2017 at about 1.00 p.m., while deceased Orsu Raju and his pillion rider Bathula Kumari were proceeding on a motorbike and when they reached Mukthyala village at 1.30 p.m., the driver of a lorry which was coming in the opposite direction, drove the lorry in high speed, in a rash and negligent manner and dashed the motor-bike. PW.2 categorically deposed before the Court that the accident occurred due to the rash and negligent driving by the driver of the lorry. The Court below found that PW.2 was cited as a witness in the charge sheet filed against the lorry driver vide CC.No.682 of 2017. However, without there being any basis and in spite of the fact that nothing could be elicited from PW.2 to show that the deceased Orsu Raju contributed his negligence for the accident, simply held that the evidence of PWs. 1 and 2 prima facie show the accident occurred due to the contributory negligence of the rider and pillion rider of the motorcycle. In order to come to a conclusion about the alleged contributory negligence, the Court could have noticed some material evidence either from the witnesses examined by the petitioners or by the respondent/insurance company. PW.2 categorically deposed before the Court that the rider of the motor-cycle was going on the extreme left side of the road very consciously and he did not attribute either rashness or negligence to the rider of the bike. The Tribunal while appreciating the evidence and contentions of respondent No.3 - insurance company found that since the petitioners did not add the owner and insurance company of the motorbike driven by Raju and since he did not possess effective driving license, rode the motor-bike without wearing helmet or headgear, it amounts to contributory negligence and violation of the provisions of Section 129 of Motor Vehicles Act. It may be true that the failure of rider of the bike in wearing helmet may be violation of the provisions of Motor Vehicles Act. But absolutely, there is no evidence to conclude that such failure led the rider of the bike to involve in the accident. 14. It may be true that the failure of rider of the bike in wearing helmet may be violation of the provisions of Motor Vehicles Act. But absolutely, there is no evidence to conclude that such failure led the rider of the bike to involve in the accident. 14. In a judgment relied on by the petitioners/claimants in the case of 'Bajaj Allianz General Insurance Co., Ltd., vs. N.S.Balaji through LRs' 2021 ACJ 2744, the High Court of Madras observed that 'as per the Motor Vehicles Act, non-wearing of the helmet is considered as an offence. But the same could not be considered as a contributory negligence. While supporting the observations made by Tribunal in favour of the claimants in the said case, the High Court at Madras was of the opinion that there is no necessity to interfere with the finding of the Tribunal regarding fixation of the liability'. 15. In another judgment in the case of 'National Insurance Company Ltd., vs. Kadeeja Musliyar' 2021 (2) ILR (Kerala) 810, the High Court of Kerala also held that 'though the failure of wearing helmet is violation of Section 129 of M.V.Act, it was not reasoned for knock down motor-cycle. In order to attribute contributory negligence, some other additional evidence is required, as such, that failure of wearing helmet may not amount to contributory negligence'. In this case, there is no evidence before the Court to believe that the failure of rider of the bike in wearing helmet landed him in trouble and let the motor-cycle to involve in the accident. On the other hand, the evidence of PW.2 goes to show that the accident occurred due to the rash and negligent driving by the lorry driver. 16. Therefore, there is no necessity to add the owner, an insurance company of the motor-cycle as parties to the petition and finding of the Tribunal about 50% contributory negligence by the rider of the bike is liable to be set aside. 17. The insurance company disputed the quantum of compensation mainly on the ground that the Tribunal accessed the monthly income of the deceased at higher side. In fact, the evidence place before the Court clearly indicates that the deceased was young in age and notional income arrived at by the Tribunal cannot be treated as higher income as contended by the insurance company. In fact, the evidence place before the Court clearly indicates that the deceased was young in age and notional income arrived at by the Tribunal cannot be treated as higher income as contended by the insurance company. Therefore, there are no grounds to set aside the order under which the Tribunal granted compensation to the claimants. 18. In fact the petitioners/claimants filed counter appeal disputing the contentions of the insurance company as well as findings of the Tribunal by which the Tribunal attributed 50% of the contributory negligence to the rider of the bike. As already stated in the previous paragraphs, in the light of the above judgments and in view of the evidence placed before the Court, it is very clear that the accident occurred because of the rash and negligent driving by the driver of the lorry but not due to the failure of Mr.Orsu Raju in wearing helmet. On that ground, the finding of the Tribunal attributing 50% contributory negligence to the rider of the motor-cycle is liable to be set aside and petitioners are entitled to the total compensation. 19. The Tribunal assessed the monthly income of the deceased as Rs.8,000/-. It is true, the petitioners/claimants did not produce any evidence but claimed that the deceased was earning Rs.10,000/- per month. The Tribunal taking the age of the deceased into consideration was of the opinion that being an able bodied young lady, the deceased even by attending domestic work as a servant can easily earn Rs.8,000/- per month which in my opinion is appropriate income of the person like deceased in the present case. 20. In view of the above discussion, there is no need to deduct any amount towards contributory negligence and petitioners are entitled to entire amount determined by the Tribunal i.e., Rs.15,23,200/- and Rs.77,000/- towards loss of estate, loss of consortium and funeral expenses. Therefore, total compensation is Rs.16,00,200/- (Rs.15,23,200+77,000). The petitioners are entitled to receive the said amount with costs of the petition and interest @ 7.5% per annum from the date of petition till the amount is realized and they are entitled to share the above amount @ 50% each equally. 21. In the result, MACMA No.754 of 2021 is dismissed and MACMA No.618 of 2021 is partly allowed. Consequently, Miscellaneous applications if any, are closed. No costs.