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2024 DIGILAW 949 (AP)

United India Insurance Co. Ltd. v. V. Muragaiah

2024-08-05

SUMATHI JAGADAM

body2024
JUDGMENT : Sumathi Jagadam, J. This appeal is preferred by the 2nd respondent in M.V.O.P. No.644 of 2005 aggrieved by the order dated 10.03.2008 passed by the Chairman, Motor Accidents Claims Tribunal-III Additional District Judge, Tirupati (for short ‘the Tribunal’) awarding compensation of an amount of Rs.2,95,472/- to the petitioners. 2. For convenience sake, hereinafter the parties will be referred to as they were arrayed in the O.P. 3. The petitioners filed M.V.O.P. No.644 of 2005 under Section 166(1)(c) of the Motor vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.3,00,000/- against the respondents on account of the death of V. Subrahmanyam, who is son of petitioner Nos.1 & 2 and brother of petitioner Nos.3 to 7, in a motor accident that occurred on 17.02.2005 at about 8.30 AM while he was going in auto bearing No.AP 03 V 7817 to Tirupati, and when the said Auto reached M.R.F. show room on Tiruchanur by-pass road, a tractor bearing No.AP 26 T 6592 and trailer bearing No.AP 03 V 1087 (hereinafter referred as the offending vehicle) came in a rash and negligent manner and dashed the auto, as a result of which, the deceased and other inmates sustained grievous injuries. The deceased succumbed to injuries while taking treatment in SVRRGG Hospital, Tirupati. A case in Cr.No.32/2005 came to be registered against the driver of the offending vehicle under Section 304(A), 338 and 279 IPC. 4. The first respondent has remained ex parte and the 2nd respondent filed counter contending that while the driver of the offending vehicle was going on the left side of the road, the auto with over load came to the road and near to the tractor and due to the confusion, the driver of the auto dashed the tractor and the accident occurred due to the negligence of the driver of the auto and the driver of the offending vehicle was not negligent. 5. Basing on the pleadings, the Tribunal framed the following issues for consideration: 1) Whether the pleaded accident occurred resulting the death of the deceased and if so was it due to fault of the driver of tractor and trailer of first respondent bearing Nos.AP 03 T 6592 and AP 03V 1087 or due to the fault of the driver of auto of third respondent bearing No.AP 03V 7817? 2) Whether the tractor and trailer in question belongs to R.1 and stood insured with R.2 by the date of accident and if so whether the policy covers the risk of the deceased? 3) Whether the Auto in question belongs to R.3 and stood insured with R.4 by the date of accident and if so whether the policy coves the risk of the deceased? 4) Whether the petitioners are the legal representatives of the deceased and entitled to compensation and if so, to what amount, from which of the respondents? 5) To what relief? 6. Before the Tribunal, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.4 were marked. On behalf of the respondents, no evidence was adduced, however, Ex.B.1 copy of policy was marked with consent. 7. After considering the evidence on record, the Tribunal allowed the petition in part granting compensation of Rs.2,95,472/- with interest at 7.5% p.a. from the date of petition till the date of deposit against the respondents 1 and 2 and the claim is dismissed against the respondents 3 and 4 without costs. Being aggrieved by the same, the 2nd respondent/United India Insurance Company Limited preferred the instant appeal. 8. Heard the argument of both the learned counsel. Considering the rival contentions and on perusing the material available on record, the point that arises for consideration in this appeal is, Whether the Tribunal has justified in holding that the accident occurred due to the negligence of the driver of the offending tractor and in holding that the respondent/insurance company failed to establish the subsistence of policy at the time of accident? POINT: 9. Learned counsel for the appellant/insurance company contended that there was no negligence on the part of the tractortrailer bearing No.AP 26 T 6592 and the tractor and trailer was not insured at the time of accident i.e. at 8.30 AM on 17.02.2005 and the policy was taken by the owner of the tractor at 10.25 AM on 17.02.2005 that is after the accident. 10. Learned counsel appearing for the petitioners supported the findings and observations of the Tribunal. 11. After careful reading of the material on record, this Court is of the opinion that the deceased sustained injuries in the accident while he was proceeding in an auto bearing No.AP 03 V 7272 and later succumbed to injuries while taking treatment in SVRRGG Hospital, Tirupati. 11. After careful reading of the material on record, this Court is of the opinion that the deceased sustained injuries in the accident while he was proceeding in an auto bearing No.AP 03 V 7272 and later succumbed to injuries while taking treatment in SVRRGG Hospital, Tirupati. In support of their case, the petitioners relied on Ex.A.1-FIR, Ex.A.2-charge sheet, Ex.A.3- inquest report and Ex.A.4-post mortem report of the deceased and also the evidence of P.W.2 who is the eye witness of the accident. 12. As seen from the grounds of appeal and the contention raised by the appellant-insurance company, the insurance company mainly contends that the accident occurred due to the negligence of the driver of the auto, but no evidence was adduced to substantiate the same. The evidence of P.W.2 that the accident occurred due to negligence of the driver of the first respondent is supported and corroborated by the contents of Ex.A.1 certified copy of F.I.R. and Ex.A.2 certified copy of charge sheet as rightly pointed out by the Tribunal and as against the evidence of P.W.2 there is no contrary evidence. 13. The appellant/insurance company has not chosen any witness in support of its contention and also not taken any steps to examine the driver of the offending vehicle to show the manner of the accident. In the absence of such evidence on record, the Tribunal has come to a correct conclusion by holding that the accident occurred on account of the negligence of the first respondent driver and the third respondent driver is not negligent. Therefore, the said finding of the Tribunal cannot be interfered with. 14. As rightly observed by the Tribunal, it is not in dispute that the offending vehicle belongs to the first respondent. According to the case of the petitioners, the offending vehicle was insured with the 2nd respondent. According to the pleas taken in the counter filed by the 2nd respondent that it reliably came to know after thorough investigation that the first respondent obtained policy after the accident. Here, according to the case of the petitioners, the accident occurred on 17.02.2005 at 8.30 AM, whereas the stand taken by the 2nd respondent - insurance company is that by suppressing the accident, the 1st respondent obtained policy and the policy comes into effect from 10.25 AM on 17.02.2005 and therefore it is not liable to indemnify the 1st respondent. 15. 15. For the reasons best known to the insurance company, it has not placed copy of insurance policy before the Court. Further, the insurance company has not chosen to examine its officials or staff who had personal acquaintance with the facts of the case. It is supposed to take such pleas in the counter by relying on the contents of the insurance policy. When the case of the petitioners is that the accident occurred on 17.02.2005 at 8.30 AM, there is difficulty in placing the insurance policy before the Court by the 2nd respondent in support of its contention that the insurance policy came to the effect from 10.25 AM on 17.02.2005. No explanation is forthcoming in support of the pleas taken by the insurance company. The burden is on the insurance company to prove its case. In the absence of any policy or any authenticated evidence, the stand taken by the 2nd respondent cannot be accepted. In the said facts of the case, the Tribunal has come to a correct conclusion that the 2nd respondent failed to produce a copy of the policy and an adverse inference is to be drawn that the policy issued by the 2nd respondent was subsisting at the time of accident and the accident is covered by the said policy. After considering the entire material on record, as the case of the insurance company is not supported by either oral or documentary evidence, it is difficult to come to a conclusion that the owner of the offending vehicle has obtained insurance policy subsequent to the accident by suppressing the fact relating to the accident. 16. According to the petitioners, the deceased is a bachelor and 19 years old as on the date of the accident and earning Rs.150/- per day as a tea master. As the deceased was a bachelor, by giving cogent reasons, the Tribunal took the age of the 2nd petitioner, who is mother of the deceased, into consideration to arrive at the loss of dependency, and considered the age of the mother of the deceased as 35 years by the date of accident and the multiplier applicable to this age group is “17” as per II Schedule to Section 163-A of the Act. Relying on Ex.A.3- certified copy of inquest report that the deceased was a cooli, the Tribunal fixed the annual income of the deceased at Rs.23,423/- as per G.O.Ms.No.33, Labour, Employment, Training and Factories, (Lab.II), dated 17.07.2004 and after deducting 1/3rd from out of the annual income towards personal expenses of the deceased, arrived the loss of dependency to the family members of the deceased at Rs.2,65,472/- (Rs.15,616/- (Rs.23,423/- minus Rs.7,807/-) x multiplier “17”). Besides, the Tribunal awarded Rs.10,000/- towards funeral expenses of the deceased and Rs.20,000/- for loss of estate. In total, the Tribunal granted compensation of Rs.2,95,472/-. This Court feels that the compensation awarded by the Tribunal is just and proper. Therefore, there is no need to interfere with the quantum of compensation awarded by the Tribunal. 17. As already observed in the preceding paragraphs, I am of the considered opinion that the 2nd respondent - insurance company has not made out any case so as to interfere with the judgment of the Tribunal and the appeal is liable to be dismissed. 18. In the result, the appeal is dismissed and the judgment and decree dated 10.03.2008 in M.V.O.P. No.644 of 2005 passed by the Chairman, Motor Accidents Claims Tribunal- cum-III Additional District Judge, Tirupati are hereby confirmed. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.