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2024 DIGILAW 1111 (AP)

New India Assurance Co. Ltd. v. Shaik Mastan

2024-08-14

K SREENIVASA REDDY

body2024
JUDGMENT : K Sreenivasa Reddy, J. Challenge in this M.A.C.M.A, filed by the appellant herein/ Insurance Company, is to the Award, dated 03.08.2011, in M.V.O.P. No.276 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal – cum – V Additional District Judge, Rayachoty (‘Tribunal’ for short), whereunder the Tribunal, allowed the claim for compensation made by respondent Nos.1 and 2 herein/claimants for a sum of Rs.2,00,000/-, on account of the death of one S.Mubarak (hereinafter referred to, as ‘the deceased’), in a motor vehicle accident occurred on 13.12.2005 at 12.30 p.m. 2. The parties to this M.A.C.M.A. will hereinafter be referred to, as described before the Tribunal, for the sake of convenience. 3. The case of the claimants before the Tribunal, in brief, according to the averments set out in the claim petition, is as follows: The deceased was aged 8 years, studying First Class in Rayachoty by the time of the accident. On 13.12.2005, at about 12.30 p.m., the deceased came out of school and was playing near Chandra Brick kiln on Rajula Colony-Pemmadapalli-Dullavaripalli metal road in Rayachoty Town; at that time, a tractor bearing registration No.AP04 T 0420 belonged to respondent No.1 along with tanker bearing registration No.AP04 U 6804 belonged to respondent No.2 (hereinafter referred to, as ‘the offending vehicle’), driven by one Shaik Imam Khasim, in a rash and negligent manner at high speed without blowing horn, dashed the deceased; as a result, the left tyre of the tractor ran over the head of the deceased and he died on the spot. Respondent Nos.1 and 2 insured the offending vehicle with respondent No.3. Basing on the report, a case in Crime No.178 of 2005 of Rayachoty Urban Police Station for the offence punishable under Section 304A IPC was registered against the driver of the offending vehicle. It is contended that the respondent Nos.1 to 3 are jointly and severally liable to pay the compensation of Rs.2,00,000/- to the claimants. Hence, the claim petition. 4. Respondent No.2/owner of the tanker remained ex parte. 5. Respondent No.1/owner of the tractor filed counter concurring with manner of occurrence of accident and death of the deceased, but it is contended that the accident occurred only due to negligence of the deceased as well as the driver of vehicle of respondent No.2. Hence, the claim petition. 4. Respondent No.2/owner of the tanker remained ex parte. 5. Respondent No.1/owner of the tractor filed counter concurring with manner of occurrence of accident and death of the deceased, but it is contended that the accident occurred only due to negligence of the deceased as well as the driver of vehicle of respondent No.2. He further contended that the tractor was insured with respondent No.3 and it was in force at the material point of time. 6. Respondent No.3/Insurance Company filed counter denying the rash and negligent driving on the part of the driver of the offending vehicle. It is contended that the respondent No.1 used the vehicle for commercial purpose carrying water tank and violated the policy conditions and the driver is also not qualified to drive the offending vehicle, hence, the respondent No.3 is not liable to pay the compensation as claimed. The claim of the claimants is excessive. Hence, prays to dismiss the claim petition. 7. Basing on the above pleadings, the Tribunal framed the following issues for inquiry: 1. Whether the pleaded accident was occurred due to the fault of the driver of the Tractor No.AP04 T 0420 of the first respondent or due to the fault of the driver of the tanker bearing No.AP04 U 6804 of the second respondent? 2. Whether the first respondent violated the terms and conditions of the Insurance policy by the third respondent for the tractor No.AP04 T 0420? 3. Whether the driver of the Tractor No.AP04 T 0420 was having valid driving license as on the material date of accident? 4. Whether the second respondent violated the terms and conditions of the Insurance policy issued by third respondent for the tanker No.AP04 U 6804? 5. Whether the petitioner is entitled for any compensation, if so at what rate and against which of the respondents? 6. To what relief? 8. During the course of inquiry before the Tribunal, on behalf of the claimants, 1st claimant was examined as P.W.1 and got marked Exs.A1 to A4. On behalf of the respondent No.3, the Assistant Manager of Insurance Company was examined as R.W.1 and got marked Exs.B1 to B3. 9. The Tribunal, on hearing both sides and on considering the oral as well as documentary evidence, on issue No.1 held that the pleaded accident occurred due to fault driving of driver of the offending vehicle. On behalf of the respondent No.3, the Assistant Manager of Insurance Company was examined as R.W.1 and got marked Exs.B1 to B3. 9. The Tribunal, on hearing both sides and on considering the oral as well as documentary evidence, on issue No.1 held that the pleaded accident occurred due to fault driving of driver of the offending vehicle. In respect of issue Nos.2 to 6, the Tribunal arrived at conclusion that respondent No.3/Insurance Company failed to prove that respondent Nos.1 and 2 violated the terms and conditions of the insurance policy and held that the driver of the offending vehicle was having valid driving license. The Tribunal assessed the compensation to a sum of Rs.1,60,000/- apportioning the same equally at Rs.80,000/- each, between claimant Nos.1 and 2, permitting them to withdraw their entire respective shares. Further, the Tribunal held that the awarded compensation amount is to be recovered from respondent Nos.1 to 3 jointly and severally. Felt aggrieved of the said Award, respondent No.3/Insurance Company filed the present M.A.C.M.A. Appeal against respondent No.3 herein/owner of the offending vehicle, was dismissed for default by this Court on 02.03.2015. 10. Sri T.V.P.Sai Vihari, learned counsel for the appellant/ Insurance Company would contend that the evidence on record would establish that the driver of the offending vehicle was not holding valid driving licence at the time of the accident, and there was breach of policy conditions. The compensation awarded by the Tribunal is excessive and the Insurance Company is not liable to pay the same. 11. Sri Ponnada Sree Vyas, learned counsel for the respondent Nos.1 and 2/claimants submits that the driver of the offending vehicle holds Heavy Transport Vehicle license at the time of the accident and Ex.B3 filed by the appellant/Insurance Company supports the same. Therefore, at the time of the accident, the driver of the offending vehicle, who was working under respondent Nos.3 and 4, owners of the offending vehicle at the material point of time, was having valid driving license. It is further submitted that the Award of the Tribunal is on correct lines and there are no grounds to interfere with the impugned Award. Hence, prays to dismiss the appeal. 12. It is further submitted that the Award of the Tribunal is on correct lines and there are no grounds to interfere with the impugned Award. Hence, prays to dismiss the appeal. 12. Now, in deciding the present M.A.C.M.A., the point for determination is whether the Award, dated 03.08.2011, in M.V.O.P.No.276 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal–cum-V Additional District Judge, Rayachoty, in awarding the compensation of Rs.1,60,000/-, is sustainable under law and facts and whether there are any grounds to interfere with the same? POINT : 13. There is no dispute with regard to occurrence of accident and death of the deceased in the said accident. To establish the manner of occurrence of the accident, 1st claimant i.e. father of the deceased was examined as P.W.1. P.W.1, in his evidence deposed that on 13.12.2005 the deceased went to school and at about 12.30 noon, the deceased was playing near Chandra Brick kiln along with other children. He further deposed that the driver of the offending vehicle in a rash and negligent manner at high speed without blowing horn, came from Rajula colony dashed the deceased and the rear side wheel of the tractor ran over the head of the deceased and caused his instantaneous death. In the cross-examination of P.W.1, it is elicited that the distance between the house of the deceased and the place of pleaded accident was about one furlong. P.W.1 denied the suggestion that the accident occurred due to the negligence of the deceased. Except mere formal suggestions, nothing concrete has been elicited during the cross-examination of P.W.1. 14. A perusal of evidence of P.W.1, it is evident that the deceased sustained head injury in a road traffic accident and succumbed to the same. 15. A perusal of Ex.A1 FIR would reveal that police registered a crime against the driver of the offending vehicle and charge sheeted him alleging that he drove the offending vehicle in a rash and negligent manner and dashed the deceased and caused his instantaneous death by running over the rear side wheel of the tractor. Therefore, this Court has no hesitation to hold that the subject accident occurred due to rash and negligent driving of driver of the offending vehicle. 16. Therefore, this Court has no hesitation to hold that the subject accident occurred due to rash and negligent driving of driver of the offending vehicle. 16. It is not the contention of respondent No.3/insurer that the offending vehicle is not insured with them, but it is their contention that the driver of the offending vehicle was not having valid and effective driving license at the time of the accident. In this regard, it is pertinent to refer the evidence of R.W.1, who is Assistant Manager of respondent No.3/Insurance Company. He, in his evidence, deposed that to drive the offending vehicle, one must hold Light Motor Vehicle licence and the driver of the offending vehicle was not holding the same at the time of the accident. Through R.W.1, Exs.B1 to B3 were exhibited. A perusal of Ex.B3, copy of driving licence would reveal that the driver of the offending vehicle holds Heavy Transport Vehicle licence. 17. The Hon’ble Supreme Court in the case of Sant Lal Vs. Rajesh and others 2017 (8) SCC 590 held that “driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement”. 18. In the appeal on hand, the driver of the offending vehicle holds licence to driver Heavy Transport Vehicle, which is higher than the class of licence pertaining to Light Motor Vehicle and he can as well eligible to drive the offending vehicle. In that view of the matter, the contention of the respondent No.3/Insurance Company that the driver of the offending vehicle was not holding valid and effective driving license to drive the offending vehicle at the time of the accident, is devoid of merit. Therefore, this Court has no hesitation to hold that the Tribunal rightly came to conclusion that respondent Nos.1 to 3 are jointly and severally liable to pay compensation amount to the claimants. 19. Coming to the quantum of compensation, it is the evidence of P.W.1 that the deceased was aged 8 years and he was studying First class at the time of the accident. The Tribunal, considering the ratio laid down by the Hon’ble Apex Court in Latha Wadhwa and others Vs. State of Bihar and others 2001 (8) SCC 197 , awarded a sum of Rs.1,60,000/- towards compensation to the claimants. The Tribunal, considering the ratio laid down by the Hon’ble Apex Court in Latha Wadhwa and others Vs. State of Bihar and others 2001 (8) SCC 197 , awarded a sum of Rs.1,60,000/- towards compensation to the claimants. A perusal of the judgment, the Tribunal, having regard to the fact that the academic pursuits, achievements in career of the deceased cannot be assumed with reasonable certainty, arrived to such a conclusion. Therefore, this Court has no hesitation to hold that the Tribunal had taken into account all the relevant aspects and provided for just and proper compensation as are permissible and it is not excessive as contended by the respondent No.3/Insurance Company. 20. In the result, M.A.C.M.A.No.2171 of 2015 is dismissed, confirming the Order and Decree, dated 03.08.2011 passed in M.V.O.P.No.276 of 2008, Chairman, Motor Accident Claims Tribunal – cum – V Additional District Judge, Rayachoty. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.