Andhra Pradesh High Court - Amravati
The vs New India Assurance Company on 26 June, 2023
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
M.A.C.M.A.No. 4252 of 2012
JUDGEMENT:
The appellant is 2nd respondent/Insurance company and the respondents are claim petitioners and 1st respondent in M.V.O.P.No.201 of 2011 on the file of the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Ongole. The appellant filed the appeal questioning the legal validity of the order of the Tribunal.
2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim application.
3. The claim petitioners filed a petition under Section 163-A of the Motor Vehicles Act, 1988 (for short „the Act‟) claiming compensation of Rs.5,00,000/- for the death of Tella Phanitapu Nagaraju in a road accident that took place on 15.10.2010. 2
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4. The brief averments in the petition filed by the petitioners are as follows:
On 15.10.2010 at about 11.00 p.m. the deceased was going towards Eluru from J.R.Gudem in his auto along with passengers and when the auto reached near Tookala bridge, a tractor-trailer bearing registration Nos.AP 37AF 3852 & AP 37Y 2241 being driven by its driver in a rash and negligent manner without observing the vehicles, came in opposite direction and hit the auto of the deceased, as a result, the deceased sustained multiple injuries and died on the spot. The 1st respondent is the owner and the 2nd respondent is the insurer of the tractor-trailer. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioners.
5. The respondents filed their written statements separately by denying the manner of accident and age, occupation and income of the deceased. It is pleaded by the 1st respondent that the accident occurred only due to rash and negligent driving of the driver of the 3 VGKR,J MACMA No.4252 of 2012 auto. It is pleaded by the 2nd respondent/Insurance company that the driver of the tractor-trailer was not having a valid driving licence to drive the same and therefore, the 1st respondent violated the provisions of the Motor Vehicles Act and Rules.
6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:
1) Whether the deceased Phanitapu Nagaraju died in motor vehicle accident i.e., in the accident caused by the tractor & trailer bearing No.AP 37AF 3852 and AP 37Y 2241 on 15.12.2010 at about 10.00 p.m. near Milk Product Company, Tookala Bridge between Eluru and J.R.Gudem?
2) Whether the petitioners are entitled to claim compensation? If so, to what amount and from whom?
3) To what relief?
7. During the course of enquiry in the claim petition, on behalf of the petitioners, P.W.1 was examined and Exs.A.1 to A.5 were marked. On behalf of the respondents, R.Ws.1 to 3 were examined and Exs.B.1 to B.3 were marked.
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8. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending tractor-trailer and accordingly, granted an amount of Rs.4,45,000/- with interest at 9% p.a. from the date of petition till the date of deposit by both the respondents. Aggrieved against the said order, the appellant/Insurance company preferred the present appeal.
9. Heard learned counsels for both the parties.
10. The appellant/Insurance company mainly contended that the driver of the tractor-trailer was holding learner‟s licence at the time of accident and he was not authorized to drive the said vehicle and therefore, the owner of the tractor-trailer/1st respondent committed breach of the terms and conditions of Ex.B.3-insurance policy, and that the Tribunal erred in awarding interest @ 9% p.a. which is exorbitant and therefore, the same may be reduced. 5
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11. Now, the point for determination is:
Whether the order of the Tribunal needs any interference of this Court?
12. POINT: The claim petition was filed under Section 163-A of the Act. As per Section 163-A of the Act, involvement of vehicle in the accident is sufficient for granting compensation and there is no need to prove rash and negligent driving of the driver of the offending vehicle. In order to establish their case, the petitioners got examined the 1st petitioner as P.W.1 and relied on Exs.A.1 and A.5. Ex.A.1-certified copy of first information report goes to show that the police registered a case against the driver of the offending tractor- trailer. Ex.A.5-certified copy of charge sheet also goes to show that after due investigation into the accident, the concerned S.H.O. laid a charge sheet against the driver of the tractor-trailer holding him responsible for the accident. The evidence of P.W.1 coupled with Exs.A1 and A.5 shows that the accident occurred because of rash and negligent driving of the driver of the tractor-trailer. The Tribunal 6 VGKR,J MACMA No.4252 of 2012 also gave the same finding. Therefore, there is no need to interfere with the said finding given by the Tribunal.
13. According to the petitioners, the deceased was aged 28 years by the date of accident and Ex.A.2-certified copy of inquest report proves the same. By adhering to the guidelines issued under Schedule-II of Section 163-A of the Act and by giving cogent reasons, the Tribunal taken the notional income of the deceased as Rs.36,000/- per annum as well as the multiplier applicable to the age group of the deceased as "18" and by deducting 1/3rd from out of annual income towards personal expenses of the deceased, rightly came to the conclusion that the petitioners are entitled loss of dependency of Rs.4,32,000/- (Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier „18‟), apart from Rs.5,000/- towards loss of consortium to the 1st petitioner, Rs.6,000/- towards loss of estate, and Rs.2,000/- towards funeral expenses of the deceased and in total, the petitioners are entitled to Rs.4,45,000/- towards compensation. This Court feels that the compensation awarded by 7 VGKR,J MACMA No.4252 of 2012 the Tribunal is just and proper. Therefore, there is no need to interfere with the quantum of compensation awarded by the Tribunal.
14. Insofar as awarding of interest @ 9% p.a. is concerned, this Court finds merit in the submission of the learned standing counsel for the appellant/Insurance company that the Tribunal awarded exorbitant rate of interest and therefore, the same has to be reduced from 9% p.a. to 7.5% p.a.
15. Admittedly, the 1st respondent is the owner of the offending tractor-trailer and the said vehicle was insured with the 2nd respondent/Insurance company under Ex.B.3-copy of insurance policy and the policy was also in force as on the date of the accident.
16. It is contended by the appellant/Insurance company that the driver of the tractor-trailer was holding a learner‟s licence at the time of accident and he was not authorized to drive the said vehicle and therefore, the owner of the tractor-trailer/1st respondent committed breach of the terms and conditions of Ex.B.3-insurance policy. It 8 VGKR,J MACMA No.4252 of 2012 was held in a decision of the Division Bench of the High Court of Kerala in K.P.Abdul Gafoor Vs. New India Assurance company Limited1, in that decision it is held as under:
"Going by Rule 3(b) of the Rules, holder of an effective learner's licence while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, has to satisfy all the other conditions specified thereunder including the requirement to be accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor sitting in such a position to control or stop the vehicle. The purpose of relaxation of the rigour of Section 3(1) of the MV Act as per Section 3(2) is only for the aforesaid purposes. There can be no doubt that the purpose of granting a 'driving licence' is to authorise the person concerned to drive the class of vehicle concerned in public place in contradistinction to the purpose of authorising a holder of learner's licence to drive the motor vehicle as a learner. In the contextual situation some relevant aspects are worthy to be considered. Driving/riding a motor vehicle on any public place may cause fatal accident or bodily injury to both pedestrians and passengers inside the said vehicle or other vehicle/vehicles coming in its way. Hence a certain degree of expertise is required to drive a motor vehicle of any class or to ride a motor vehicle. If the insured owner fails to discharge the statutory liability under Section 5 of the M.V. Act, it should visit him with all inevitable consequences. In this context, in this case, the insured-owner himself violated all the 1 2018 ACJ 577 9 VGKR,J MACMA No.4252 of 2012 aforesaid relevant statutory provisions though, in the light of the conditions in Ext.B1 certificate of insurance as also the condition in Ext.B2 learner's certificate, he was also to scrupulously follow the provisions under Rule 3 of the Rules. In such circumstances, it can be safely concluded that the appellant had violated the conditions of policy as also the condition specifically incorporated in Ext.B2 learner's driving licence besides violating the provisions under 'the Rules' as also 'the M.V. Act' as mentioned above. Above all, in this case, the categorical finding of the Tribunal is to the effect that the claimant, who was a pedestrian, was knocked down or in other words, the accident was caused, solely due to the negligence of the appellant in riding the motor vehicle and as noticed hereinbefore, he rode the vehicle on that crucial day on the strength of a leaner's licence issued hardly ten days ago. In such circumstances, it can be said that the respondent herein, the insurer has succeeded in establishing that the appellant herein, who was the owner cum driver of the offending vehicle had violated not only the conditions of policy but also the conditions in the learner's driving licence on the strength of which he has driven the vehicle at the time of accident. In the light of the discussions, we do not find any illegality or error in the judgment of the Tribunal making the insurance company liable to pay the compensation to the third party and at the first instance and at the same time granting the insurance company the right to recover the amount paid to satisfy the award in favour of the third party, from the insured owner".
17. The driver of the tractor-trailer, by name, Regulagadda Srinu, was examined as R.W.2. In his evidence he admitted that he was having Learner‟s Licence by the time of accident and it was valid from 23.08.2010 to 22.02.2011 and that he used to put "L-Board" in 10 VGKR,J MACMA No.4252 of 2012 the front and back portions of the tractor and used to take the assistance of a person having permanent licence as per the rules of the L.L.R. who used to sit beside him and give instructions. In this case, the accident occurred on 15.12.2010. From the above, it is clear that during the period of learner‟s licence of the driver of the offending vehicle, the accident occurred.
18. In view of the above reasons and also the decision of the High Court of Kerala referred supra, the 2nd respondent is liable to pay the compensation to the petitioners in the first instance and later recover the same from the 1st respondent, who is owner of the offending vehicle, by filing an execution petition and without filing any independent suit.
19. Accordingly, the appeal is disposed of and the order of the Tribunal is modified by directing the appellant/Insurance company to pay the compensation amount with costs and interest to the claim petitioners in the first instance within two months from the date of 11 VGKR,J MACMA No.4252 of 2012 this judgment and later recover the same from the 1st respondent/owner of the offending vehicle by filing an execution petition and without filing any independent suit, and also by reducing the rate of interest awarded by the Tribunal @ 9% p.a. to 7.5% p.a. The order of the Tribunal in all other respects shall remain intact. No order as to costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.
_______________________________ V.GOPALA KRISHNA RAO, J th 26 June, 2023 cbs 12 VGKR,J MACMA No.4252 of 2012 HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO M.A.C.M.A.No. 4252 of 2012 26th June, 2023 cbs