Andhra Pradesh High Court - Amravati
Hdfc Ergo General Insurance Co. Ltd., vs Naripeddi Aruna Kumari Another on 17 April, 2023
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
M.A.C.M.A.No.1503 of 2015
JUDGEMENT:
The appellant is the second respondent in M.V.O.P.No.210 of 2013 on the file of the Motor Accident Claims Tribunal-cum-VII Additional District Judge, Ongole and the respondents are the petitioner and first respondent in the said case.
2. Both the parties in the appeal will be referred to as they are arrayed in claim application.
3. The claimant filed a Claim Petition under section 166 (1) (C) of Motor Vehicles Act, 1988 against the respondents praying the Tribunal to award an amount of Rs.5,00,000/- towards compensation for the death of Naripeddi Nageswara Rao in a Motor Vehicle Accident occurred on 28.03.2012.
4. The brief averments of the claim petition are as follows:
2 VGKR, J MACMA No.1503 of 2015 On 28.03.2012 at about 7.00 a.m. the deceased Nageswara Rao and other coolies were going to Kavali in a tractor and trailer bearing No.AP 27 TT 4000 and AP 26 TA 9706 of first respondent to bring husk and when the vehicle reached near Yerra Vagu on NH-5 road near T.Naidupalem village, the driver of the vehicle i.e., first respondent drove the same in a rash and negligent manner with high speed, resulting which he lost control over the vehicle, as a result, the tractor turned turtle and fell in a side canal and both the tractor and trailer were separated. In that accident the deceased received multiple injuries and died on the spot. So, the petitioner, who is the wife and legal representative of the petitioner, claimed an amount of Rs.5,00,000/- towards compensation.
5. The first respondent remained exparte. The second respondent filed counter pleading that the deceased was unauthorized passenger in the tractor and that the claimant is not entitled any compensation and the second respondent is not liable to pay any compensation to the petitioner.
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6. Based on the above pleadings, the Tribunal framed the following issues:
i. Whether the accident occurred due to rash and negligent driving of driver of the tractor and trailer bearing No.AP 27 TT 4000 and AP 26 TA 9706 on 28.03.2012 at about 8.00 a.m. near Yerra bridge, T.Naidupalem on NH-5 road, Tangutur Mandal?
ii. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
iii. To what relief?
7. On behalf of the petitioner, PW1 to PW3 were examined and Ex.A1 to Ex.A4 were marked. On behalf of 2nd respondent, RW1 and RW2 were examined and Ex.B1 and Ex.B2 and Ex.X1 to Ex.X3 were marked.
8. After considering the evidence on record, the Tribunal has given a finding that the accident occurred due to rash and negligent driving of driver of offending vehicle and the Tribunal granted an amount of Rs.4,41,000/- to the claimant towards compensation.
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9. Aggrieved by the same, the second respondent/ Insurance company filed this appeal.
10. Now, the point for consideration is:
Whether the Order passed by the Tribunal needs any interference?
11. POINT :-
As per the finding of the Tribunal, the accident was occurred due to rash and negligent driving of the driver of the tractor and trailer bearing No.AP 27 TT 4000 and AP 26 TA 9706. The oral testimony of PW1 and PW2 coupled with Ex.A1 attested copy of First Information Report and Ex.A4 attested copy of charge sheet reveals that the accident was occurred due to rash and negligent driving of driver of tractor and trailer. On perusal of Ex.A2 attested copy of Post Mortem certificate and Ex.A3 attested copy of Inquest report, it reveals that the deceased died due to injuries sustained in the accident. The learned Tribunal assigned valid and cogent reasons to its finding on issue No.1. Therefore, there 5 VGKR, J MACMA No.1503 of 2015 are no grounds, much less valid grounds, to modify the finding recorded by the Tribunal on issue No.1. Having regard to the facts and circumstances of the case, I am of the considered view that the accident occurred due to rash and negligent driving of the driver of the tractor and trailer, which resulted the instantaneous death of the deceased.
12. The learned Tribunal by giving cogent reasons granted an amount of Rs.3,84,000/- to the petitioner towards contribution of the deceased to the petitioner who is the wife of the deceased. The learned Tribunal also granted an amount of Rs.25,000/- towards consortium, Rs.25,000/- towards loss of estate, Rs.5,000/- towards funeral expenses and Rs.2,000/- towards transportation. The learned Tribunal rightly came to conclusion that the petitioner is entitled an amount of Rs.4.41,000/- towards total compensation. Therefore, there is no need to interfere with the said quantum of compensation awarded by the Tribunal.
13. As per the evidence of RW2, Senior Assistant of RTO Office, the seating capacity of the tractor is one i.e., driver 6 VGKR, J MACMA No.1503 of 2015 only and no seating capacity for trailer and that no person is authorized to travel in the trailer including coolies also. As per the admissions of own witness of petitioner i.e., PW3, at the time of accident there were six passengers in the trailer. Therefore, it is clear that there is a violation of terms and conditions of policy insured with 2nd respondent. In cross examination, RW2 admitted that at the time of accident, the policy is on force. Here the crime vehicle is a Tractor. As per the evidence of RW2, the driver of crime vehicle is having driving licence non-transport Light Motor Vehicle and the driver did not possess valid and effective driving licence at the time of accident.
14. It is the contention of the learned counsel for Insurance Company that the deceased was travelling in the offending vehicle as an unauthorized passenger. As per the material available on record, the crime vehicle/Tractor was insured with Insurance Company under Ex.B1 copy of policy and the driver of the tractor and trailer also possessed valid driving licence to drive the tractor as the tractor and trailer will come 7 VGKR, J MACMA No.1503 of 2015 under the definition of light motor vehicle. Therefore, since the driver of tractor is having valid and effective driving licence by the date of accident and the crime vehicle is insured with 2nd respondent Insurance Company and the policy is also on force and in view of the decision of Hon'ble Supreme Court of India (three Judge Bench) of Singh ram Vs., Nirmala and others1, the Insurance Company shall pay the claim at first instance and later recover the same from the owner of the crime vehicle.
15. In the judgment of Manuara Khatun and others Vs. Rajesh Kumar Singh and others2 it was held that the direction to United India Insurance Company Limited being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company Limited/ respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid 1 2018 Law Suit (SC) 191, 2 (2017) 4 Supreme Court Cases 796 8 VGKR, J MACMA No.1503 of 2015 awarded sum from the owner of the offending vehicle without filing any independent suit by filing an Execution Petition against the owner of the crime vehicle.
16. As per the material available on record, it shows that 50% of the claim amount, with interest and costs, was deposited before the Tribunal, therefore the 2nd respondent/ Insurance company is directed to pay the remaining claim amount with interest of 9% p.a. with proportionate costs to the petitioner at first instance, later recover the total compensation amount from respondent No.1 by filing Execution Petition without filing independent suit, since first respondent is the owner of the offending vehicle at the time of accident.
17. In the result, this appeal is disposed of, by modifying the order dated 11.05.2015 passed in M.V.O.P.No.210 of 2013 on the file of the Motor Accident Claims Tribunal-cum- VII Additional District Judge, Ongole. The 2nd respondent/ Insurance Company is directed to pay the remaining balance 9 VGKR, J MACMA No.1503 of 2015 of compensation with interest of 9% p.a. with proportionate costs within one month from the date of this judgment, to the claimant at first instance and later recover the total compensation amount from respondent No.1 by filing an Execution Petition and without filing any independent suit. On such deposit, the claimant is entitled to withdraw the same along with costs and accrued interest thereon. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_______________________________ JUSTICE V.GOPALA KRISHNA RAO Date : 17.04.2023 SJ 10 VGKR, J MACMA No.1503 of 2015 50 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO M.A.C.M.A.No.1503 of 2015 Date :17.04.2023 sj