Telangana High Court
The New India Assurance Company Limited ... vs Zubeda Begum Zubeda Naaz And 9 Others on 25 July, 2018
THE HON'BLE MS.JUSTICE J.UMA DEVI
M.A.C.M.A.NO.387 OF 2010
JUDGMENT:
Against the award, dated 27.08.2009 in M.V.O.P.No.772 of 2007 passed by the Chairman, Motor Accident Claims Tribunal- cum-II Addl. District Judge, Warangal, the present appeal is filed by the New India Assurance Company Ltd.,
2. The parties hereinafter will be referred to as they were arrayed in the O.P. before the trial Court.
3. The facts of the case briefly are stated as under:
Petitioners 1 to 6 in MVOP No.772 of 2007 are the wife and minor children of the deceased-Sharifuddin and petitioners 7 and 8 are his parents. They laid the claim for compenation against the appellant herein and the respondents 9 and 10, who were driver and owner of the tractor and trailor bearing No. AP 15U 8794 and 8795 due to negligent driving of which, the death of deceased- Sharifuddin occurred. It was asserted by them in their pleadings that on 21.04.2000 at about 8.30 P.M., while the deceased and his friend were returning to Hanamkonda from Karimnagar in a Maruthi Car bearing No. ATO 8899 driven by the deceased, when the car reached near the outskirts of Munjampalli village situated near Manakondur Police Station, a tractor and trailor bearing No. AP 15U 8794 and 8795 driven by the 1st respondent came towards Maruthi Car driven by the deceased and dashed it and as the result of it, the deceased and inmates of the car received injuries and were shifted to Government Hospital, Karimnagar, for the purpose of treatment. Complaint was lodged against the 2 1st respondent in Manakondur Police Station in Cr.No.42 of 2000. They also asserted that the deceased was aged about 35 years by the date of his death and was earning Rs.3,300/- per month as Maruthi Car Mechanic. He was having good experience in driving and in mechanism and was running a work shop near Alankar Theatre, Hanamkonda and that he had good reputation as a mechanic in that area. The petitioners having lost the love and affection and the support of the deceased, laid the claim for compensation of Rs.7,05,000/-against the appellant-Insurance Company and the owner and insurer of the tractor and trailor bearing No. AP 15U 8794 and 8795
4. The petitioners to substantiate their contention raised in their claim petition, examined P.Ws. 1 and 2 and marked Exs.A1 and A2. On behalf of the appellant herein, the policy copy of the crime vehicle, sketch map of the place of accident drawn by the police, Manakondur and the final report submitted by the police were marked as Exs.B1 to B3.
5. The learned trial Judge on appreciation of oral and documentary evidence available in the case record, passed the award in favour of the petitioners 1 to 8 (respondents 1 to 8 herein) granting compensation of Rs.4,21,500/- in respect of death of the deceased-Sharifuddin, who died in the accident, dated 21.04.2000. Feeling aggrieved by the award passed by the Court below, New India Assurance Company Ltd., with whom the offending tractor and trailor bearing No. AP 15U 8794 and 8795 3 was insured by respondents 9 and 10 came before this Court by preferring the present appeal.
6. Insurance Company's contention is that the award passed by the Court below is contrary to law, weight of evidence and probabilities of the case. The Court below ought to have held that the deceased himself was negligent and due to the negligent driving of the car by him, the car was hit to the tractor and trailor belonging to respondents 9 and 10. It was also its contention that the trial Court failed to understand the evil intention of the petitioners in filing of application under Section 163-A of the M.V. Act to avoid the burden of proving the negligence. The petitioners-respondents 1 to 8 though filed the petition under Section 166 (1) (c) of the M.V. Act at the beginning, altered the section of law to Section 163-A of the M.V. Act and changed the income of the deceased from Rs.5,000/- per month to Rs.3,300/- per month to attract the provisions of Section 163-A of the M.V. Act and to escape from responsibility of establishing the negligence as not part of owner of the vehicle. The trial Court without understanding the evil intention of the respondents 1 to 8/claimants awarded compensation making this appellants and respondents 9 and 10 liable to pay compensation jointly and severally.
7. The Insurance Company's further contention is that the final report filed by the police clearly establishes that deceased himself was responsible for occurrence of the accident. As the facts which are established by this appellant are not 4 thoroughly appreciated by the Court below, the Insurance Company has come before this Court seeking its indulgence. The Insurance Company has placed reliance on a decision rendered by this Court reported in BAJAJ ALLIANZ GENERAL INS. CO. LTD., V GADDAM SWAMI REDDY AND ANOTHER 1 in support of its abovementioned contentions.
8. I have heard counsel of both sides and perused the award in MVOP No.772 of 2007, which has been challenged in this appeal by the Insurance Company.
9. Petitioners have laid the claim for compensation against the appellant and respondents 9 and 10 initially under Section 166 (1) (c) of the M.V. Act. Subsequently, they altered the section of law from Section 166 (1) (c) of the M.V. Act to Section 163-A of the M.V. Act and on these aspects, there is no controversy. The petitioners to prove their contention that while the deceased and his friend coming to Hanamkonda from Karimnagar in a Maruthi Car bearing No. ATO 8899, their car was hit by a tractor and trailor bearing No. AP 15U 8794 and 8795 driven by the 1st respondent in a negligent manner near the outskirts of Munjampalli village, examined P.W.2-Gottimukkala Keshava Rao, who was present in the car with the deceased at the time of accident. It was testified by P.W.2 that in the affidavit filed in lieu of his chief-examination that while himself, deceased and his other friends were on returning journey to Hanamkonda from Karimnagar in the Maruthi Car bearing No. ATO 8899, the 1 2013 ACJ 2586 5 car was driven by the deceased, who was efficient in driving. When the car in which they were travelling reached the outskirts of Munjampalli village, all of a sudden a tractor and trailor bearing No. AP 15U 8794 and 8795 driven by 1st respondent (respondent No.9 herein) came towards Maruthi Car with high speed and dashed the car in which himself, the deceased and his other friends were coming to Hanamkonda and in the said accident, the deceased received grievous injury and was shifted to Government Hospital, Karimnagar and there he succumbed to injuries. It was consistently deposed by P.W.2 in his cross- examination that he was examined by police of Manakondur and his statement was recorded by them. He denied the suggestion that the accident took place due to negligent driving of the Maruthi Car by the deceased. To disprove the evidence of P.W.2, no oral evidence was adduced by the respondents. Except the production of Ex.B3-final report submitted by the police of Manakondur, no other evidence was adduced by the appellant. The Insurance Company though examined D.Krupakar to mark Ex.B3, he was not the proper person to speak about the manner in which the accident took place. The position of Maruthi Car and tractor and trailor showed in the rough sketch prepared by the police would not indicate that there was head on collision between both the vehicles. The position of the tractor and trailor found in Ex.B2-rough sketch would indicate that the tractor went off the road after hitting the Maruthi Car. As the deceased died within 2 hours after the occurrence of accident, the case 6 registered against him was referred by the police as action abated as found from the contents of Ex.B3-report filed by the police.
10. The petitioners (respondents 1 to 8) having pleaded that there was negligence on the part of the driver of the tractor and trailor in causing the accident to the Maruthi Car driven by the deceased examined P.W.2 who was with the deceased at the time of accident. The contention of appellant was not that P.W.2 had not travelled in the Maruthi Car with the deceased at the relevant point of time. The claimants having attributed negligence on the part of the driver of the tractor and trailor made an endeavour to prove their contention by examining P.W.2 and his evidence appeared to be cogent. Admittedly, no evidence was adduced by the Insurance Company to disprove the testimony of P.W.2. The S.I., who registered the case against the deceased and as referred the case as action abated was not examined. The witnesses examined by the appellant-Insurance Company had no knowledge as to how the accident took place.
11. In the case law cited by the appellant the claimant having received compensation under Section 163-A of the M.V. Act, has laid the claim for compensation under Section 166 (1) of the M.V. Act also.
12. In the given case, the claimants have originally filed petition for compensation under Section 166 (1) (c) of the M.V. Act, later they have altered section of law to 163-A of the M.V. Act. They have discharged the burden of establishing the 7 negligence on the part of the driver of the tractor and trailor by examining P.W.2, who was one of the eye witnesses of the said accident. Examination of an eye witness by them to prove negligence on the part of driver of tractor and trailor itself shows that their intention is not to evade the responsibility of establishing the case which they filed under fault liability at the initial point of time.
13. Coming to the correctness or otherwise of compensation awarded is concerned, it is evident from the material on record that the deceased was running work shop near Alankar Theatre, Hanamkonda. The appellant-Insurance Company has not denied the plea that the deceased was motor mechanic. The claimants though have pleaded in the O.P. filed under Section 166 (1) (c) of the M.V. Act that the deceased was getting income of Rs.5,000/-per month reduced the income to Rs.3,300/- per month to bring their claim within Section 163-A of the M.V. Act. As the deceased was working mechanic at the time of his death, the Court below accepted the plea of the claimants that the deceased was getting Rs.3,300/- per month and duly deducting 1/3rd of his come towards personal expenditure, his income contributing to his family assessed at Rs.2,200/- per month. As the age of the deceased was 42 years by the date of his death (as mentioned in the inquest report), the Court applied multiplier '15'. If monthly contribution of income of the deceased to his family is Rs.2,200/-, annual contribution of his income to his family comes to Rs.26,400/-. If the same is multiplied by 15 8 (as the deceased was 42 years by the death of his death) loss of income contribution of the deceased to his family comes to Rs.3,96,000/-.
14. I did not find any flaw in the order of the Court below. The Court below had rightly awarded a sum of Rs.10,000/- towards consortium as the 1st respondent lost the company of the deceased. The Court below had rightly awarded Rs.10,000/- towards loss of love and affection, Rs.2,500/- towards loss of estate, Rs.2,000/- towards funeral expenses and Rs.1,000/- towards transportation charges. Since no patent irregularity is found in the award passed by the Court below, the award under challenge needs no intervention. As it is opined by this Court that the Court below has not committed any error in ordering the appellant to pay compensation of Rs.4,21,500/- to the claimants together with interest at 7.5% p.a., along with the owner of tractor and trailor, the order under challenge deserves to be confirmed.
15. Accordingly, this appeal is dismissed confirming the award, dated 27.08.2009 in M.V.O.P.No.772 of 2007 passed by the Chairman, Motor Accident Claims Tribunal-cum-II Addl. District Judge, Warangal. No order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_________________ J.UMA DEVI, J DATED: 25-07-2018.
Hsd 9