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2024 DIGILAW 1148 (AP)

United India Insurance Co. Ltd. v. Kolavemi Subbarao

2024-08-20

V SRINIVAS

body2024
JUDGMENT : V Srinivas, J. These appeals are directed against the orders of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-VIII Additional District Judge, West Godavari at Eluru (hereinafter called as ‘the Tribunal’) in M.V.O.P.Nos.29 and 494 of 2013, 523 and 671 of 2012, dated 30.08.2019. 2. Since these appeals arise out of same accident and as the material facts are common, the same are being disposed of by this common judgment. 3. M.A.C.M.A.No.427 of 2020 is preferred by the insurer of Auto bearing No.AP 16 TX 7220 (hereinafter referred as “auto”). The respondent Nos.1 to 5 herein are parents, unmarried sister, daughter, and son of one Kolaventi Rambabu (hereinafter called as ‘the deceased No.1’). The respondent Nos.6, 7 and 10 are driver, insurer and owner of Ambassador Car bearing No.AP 31 V 5898 (hereinafter referred as “car”). The respondent Nos.8 and 9 are driver and owner of the said auto. 4. M.A.C.M.A.No.362 of 2020 is preferred by the insurer of the auto. The respondent Nos.1 and 2 herein are wife and son of one M.D.V.Prasada Raju (hereinafter called as ‘the deceased No.2’). The respondent Nos.3 and 6 are driver-cum-owner and insurer of Ambassador Car. The respondent Nos.4 and 5 are driver and owner of the said auto. 5. M.A.C.M.A.No.430 of 2020 is preferred by the insurer of the auto. The respondent Nos.1 and 2 herein are wife and daughter of one Chowtapalli Joji (hereinafter called as ‘the deceased No.3’). The respondent Nos.3 and 4 are driver-cum-owner and insurer of Ambassador Car. The respondent Nos.5 and 6 are driver and owner of the said Auto. 6. M.A.C.M.A.No.503 of 2020 is preferred by the insurer of the auto. The respondent Nos.1 and 2 herein are daughter and son of one Kolaventi Mary (hereinafter called as ‘the deceased No.4’). The respondent Nos.3 and 4 are driver-cum-owner and insurer of Ambassador Car. The respondent Nos.5 and 6 are driver and owner of the said Auto. 7. For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal. 8. The case of the claimants, in the petitions before the Tribunal is that: On 16.01.2012, the deceased Nos.1 to 4 boarded an auto and at about 07.00 p.m., when the auto reached near Srinivasa Hatchery in Yepura Village of Pedapadu Mandal, West Godavari District collided with Ambassador Car coming from Hanuman Junction, resulted, all the deceased died on the spot. 9. 9. The insurer of the Ambassador Car filed written statement denying the averments in the petition and pleaded that no policy was in existence for the said Ambassador car and the owner of the said car is stranger to the contract of insurance; that the accident occurred due to the rash and negligent driving of the driver of the auto only; that the driver of the car is not having valid driving license to drive the same and thereby, prays to dismiss the petitions against this respondent. 10. The insurer of the auto/appellant filed written statement denying the averments in the petition and pleaded that the driver of the auto is not authorized to drive the same and thereby, prays to dismiss the petition. 11. The Tribunal settled the following issues for enquiry basing on the material in all the claim petitions: “1.Whether the accident was occurred on 16.1.2012 at about 07.00 PM near Srinivasa Hatchery, Yepuru Village of Pedapadu Mandal, West Godavari District, due to rash and negligent driving of the Ambassador Car bearing No.AP 31 V 5898 being driven by its driver-cum-owner/respondent No.1 herein or due to rash and negligent driving of the Auto bearing No.AP 16 TX 7220 being driven by its driver/respondent No.3 herein? 2.Whether the petitioners are entitled for compensation? If so, to what amount against which of the respondents? 3.What is the age, income, and occupation of the deceased? and 4.To what relief? 12. During enquiry, on behalf of the claimants, in M.V.O.P.No.29 of 2013, PWs.1 to 3 were examined, Exs.A.1 to A.6 and X.1 were marked. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.15 were marked. 13. During enquiry, on behalf of the claimants, in M.V.O.P.No.494 of 2013, PWs.1 and 2 were examined, Exs.A.1 to A.4 and X.1 were marked. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.14 were marked. 14. During enquiry, on behalf of the claimants, in M.V.O.P.No.523 of 2012, PWs.1 and 2 were examined, Exs.A.1 to A.5 were marked. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.17 were marked. 15. During enquiry, on behalf of the claimants, in M.V.O.P.No.671 of 2012, PWs.1 to 3 were examined, Exs.A.1 to A.6 and X.1 were marked. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.14 were marked. 16. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.17 were marked. 15. During enquiry, on behalf of the claimants, in M.V.O.P.No.671 of 2012, PWs.1 to 3 were examined, Exs.A.1 to A.6 and X.1 were marked. On behalf of the respondents, R.Ws.1 to 4 were examined, Exs.B.1 to B.14 were marked. 16. On the material, the Tribunal, having concluded that the accident occurred due to the composite negligence of the driver of Ambassador car as well driver of the auto and the 2nd respondent i.e., insurer of the Ambassador car is exonerated from its liability as the policy of the said car, which is said to be in the name of the 6th respondent is not in existence and found to be fake, held that claimants are entitled for the compensation of Rs.18,08,000/-, Rs.22,30,000/-, Rs.4,32,000/- and Rs.14,40,000/- respectively, with interest at 7.5% per annum from the date of petition till the date of realization against the driver and owner of the Ambassador car as well driver, owner and insurer of the auto, for the death of the deceased Nos.1 to 4 in the accident. 17. It is against the said order; these appeals are preferred by the insurer of the Auto. 18. Heard Srinivasa Rao Vutla, learned counsel for the appellant/insurer of the auto, Sri Gudi Srinivasu, learned counsel appearing for ICICI Lombard General Insurance Company Limited and Sri Bayyarapu Raja Kumar, learned counsel for the claimants. 19. Now, the point arise for determination is “whether the awards passed by the Tribunal, dated 30.08.2019 are liable to be set aside, if so, to what extent? 20. POINT: It is not in dispute that all the deceased boarded the Auto on 16.01.2012 to go to Hanuman Junction at about 07.00 p.m. when the auto reached near Srinivasa Hatchery, Yepuru Village of Pedapadu Mandal, West Godavari District, collided with the Ambassador Car coming from Hanuman Junction, resulted all the deceased died on the spot. 21. The Tribunal after evaluating the material on record, found that the accident occurred due to composite negligence of drivers of both the vehicles. Against which, the present appeals were preferred by the appellant/insurer of the said auto. 22. 21. The Tribunal after evaluating the material on record, found that the accident occurred due to composite negligence of drivers of both the vehicles. Against which, the present appeals were preferred by the appellant/insurer of the said auto. 22. The foremost contention of the appellant is that the negligence is only on the part of the driver of the Ambassador car, but not the driver of the auto, as such, the appellant is not liable to pay any compensation to the claimants. 23. To appreciate the same, there is no record placed before the Tribunal to say that the incident was occurred only due to the rash and negligence on the part of the driver of the Ambassador Car. Furthermore, the Tribunal after elaborately discussing the material placed on record, came to the conclusion that the accident occurred due to composite negligence of drivers of both the vehicles. Thereby, the said contention has no legs to stand. 24. The other ground urged by the appellant is that the driver of the auto by name Lanka Chanti has no driving license to drive the same at the particular point of time. Except pleaded in the counter that the driver of the auto has no driving license, nothing was placed on record to support of the said contention. 25. Moreover, the Tribunal by relying on the judgment of Hon’ble Supreme Court in Khenyei v. New India Assurance Company Limited AIR 2015 SC 2261 categorically held that “liability of tortfeasors was joint and several and claimant can sue both or anyone of joint tortfeasors and at his option recover entire damages from anyone of them.” 26. From the above, it is very clear that it would be appropriate for the appellant to satisfy the award in-limine at first instance though it was no liability, then recover from the insured even without filing the suit, can initiate proceedings against the concerned by filing execution petition as the dispute between insurer and owner of the subject matter, after determination by the Tribunal that as it is a case of composite negligence, the liability of the tortfeasors was joint and several. 27. Even in the present case also in all the orders categorically observed that the accident occurred due to rash and negligent driving of Ambassador car as well auto. 27. Even in the present case also in all the orders categorically observed that the accident occurred due to rash and negligent driving of Ambassador car as well auto. Therefore, both the drivers as well insured and insurer are jointly and severally liable to pay compensation awarded to the claimants. It is needless to say that, as per the categorical findings of the Tribunal the insurer of the auto is exonerated from its liability in the absence of any contract of insurance and no contra material was produced against the said finding. 28. Having regard to the above discussion, this Court could not find any fault in the awards passed by the Tribunal to interfere with the same. Thereby, the present appeals have no merits and the same are liable for dismissal. 29. In the result, the M.A.C.M.A.Nos.427, 362, 430 and 503 of 2020 are dismissed. There shall be no order as to costs. Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.