Andhra Pradesh High Court - Amravati
Kondapaturi Subbayamma vs Shaik John on 30 August, 2022
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATHI
****
M.A.C.M.A.No.553 of 2010
Between:
1. Kondapaturi Subbayamma, W/o.Punnaiah, aged about 45
years, Kankatapalem Village, Near Mosque, Bapatla Mandal,
Guntur District.
2. Madira Sambrajyam, W/o.Kotireddy, aged about 50 years,
R/o.Issapalem Village, Narasaraopet Mandal, Guntur
District.
... Petitioners
And
1. Shaik John, S/o.Saidulu @ Sydasaheb, Pamidipadu Village,
Narasaraopet Mandal, Guntur District.
2. The United India Insurance Company Limited,
Rep. by its Divisional Manager, Divisional Office,
Kubera Towers, 15/1, Arundelpet, Guntur.
.. Respondents
DATE OF JUDGMENT PRONOUNCED: 30-08-2022
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes
DUPPALA VENKATA RAMANA, J
2 DVR, J
MACMA No.553/2010
* THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
+ M.A.C.M.A.No.553 of 2010
% 30-08-2022
Between:
1. Kondapaturi Subbayamma, W/o.Punnaiah, aged about 45
years, Kankatapalem Village, Near Mosque, Bapatla Mandal,
Guntur District.
2. Madira Sambrajyam, W/o.Kotireddy, aged about 50 years,
R/o.Issapalem Village, Narasaraopet Mandal, Guntur
District.
... Petitioners
And
1. Shaik John, S/o.Saidulu @ Sydasaheb, Pamidipadu Village,
Narasaraopet Mandal, Guntur District.
2. The United India Insurance Company Limited,
Rep. by its Divisional Manager, Divisional Office,
Kubera Towers, 15/1, Arundelpet, Guntur.
.. Respondents
! Counsel for Appellants : Sri G.V.S.Mehar Kumar
^ Counsel for Respondents : Sri E.Venugopala Reddy- R.2
< Gist:
> Head Note:
? Cases referred:
1) 2009 ACJ Page 88
2) 2017 ACJ 2700 (SC)
3) (2003) 2 SCC 274
This Court made the following:
3 DVR, J
MACMA No.553/2010
HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
M.A.C.M.A.No.553 of 2010
JUDGMENT:
Challenging the order dt.29.12.2009 in M.V.O.P.No.217/2009 passed by the Motor Accidents Claims Tribunal-cum-IV Addl.District Judge, Guntur granting compensation of Rs.55,000/- against the claim of Rs.1,00,000/-, the appellants-claimants preferred the instant M.A.C.M.A.
2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal.
3. On 15.10.2008 at 8.00 p.m., while the deceased by name Podili Kotamma was trying to cross the road on the National Highway at Mahakali Ammavari Temple, the motorbike bearing No.AP 07 R 4647 of the 1st respondent driven by its driver at high speed in a rash and negligent manner, dashed the deceased as a result, she fell on the ground and sustained severe injuries due to which, she died on the spot. The deceased was aged about 65 years, she was hale and healthy and was working as a washer woman and earning Rs.100/- per a day. Due to the sudden death of their mother, the petitioners lost their dependency and they claimed compensation of Rs.1,00,000/- and filed M.V.O.P.217/2009 against the 1st and 2nd respondents.
4 DVR, J MACMA No.553/2010
4. The 1st respondent did not contest the matter. The 2nd respondent filed a written statement opposing the claim mainly contending that the deceased herself was a dependent upon the petitioners and there is no loss of dependency. The accident occurred due to the fault of the deceased. The 1st respondent violated the terms and conditions of the policy by giving the vehicle to an unknown person who was not holding a driving licence. The 1st respondent is liable to pay the compensation and the claim against the 2nd respondent is liable to be dismissed.
5. During trial, P.Ws.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the petitioners-claimants. R.Ws.1 and 2 were examined on behalf of the 2nd respondent-Insurance Company and Exs.B.1 to B.3 and Ex.X.1 were marked.
6. The Tribunal having regard to the oral and documentary evidence, held that the accident occurred due to the fault of the driver of the offending vehicle, who was not holding a valid driving licence, and awarded compensation of Rs.55,000/- in lump sum with proportionate costs and interest @ 7.5% per annum against the 1st respondent and since the 1st respondent-owner of the vehicle breached the conditions of the policy, the claim against the 2nd respondent-Insurer was dismissed.
5 DVR, J MACMA No.553/2010
7. Heard the arguments of Sri G.V.S.Mehar Kumar, learned counsel for the appellants, and Sri E.Venugopal Reddy, learned counsel for the 2nd respondent-Insurance company.
8. Learned counsel for the appellants mainly argued that the Tribunal had not taken the correct earnings of the deceased. The Tribunal had not added the future prospects and not awarded amounts under various heads and he relied on the decision reported in the case of National Insurance Company Limited Vs. Parital Venkateswarlu. The insurer is liable to pay the compensation since the insurer failed to prove that the driver of the offending vehicle was not holding a valid licence at the time of the accident. He further argued that the offending vehicle was having an insurance policy that was in force at the time of the accident, but the Tribunal committed an error in fixing the liability against the 1st respondent directing him to pay the awarded amount in contra to the judgment stated supra.
9. Per contra, the learned counsel for the 2nd respondent/Insurance Company argued that there was no record to show that the driver of the offending vehicle has a valid driving licence and it is an admitted fact that the deceased died in the accident due to the rash and negligent driving of the offending vehicle by its driver. He further argued that the Tribunal had 6 DVR, J MACMA No.553/2010 rightly taken a view that the driver of the offending vehicle had no valid driving licence and the 1st respondent had committed a breach of the policy conditions, though the policy was in force and therefore, the 2nd respondent is not at all liable to pay the compensation and dismissed the petition against the 2nd respondent-Insurance Company.
10. Now, the points, therefore, that arise for determination in this appeal are:
(1) Whether 1st respondent/owner of the vehicle committed breach of the condition of the policy?
(2) Whether the 2nd respondent placed any material documentary evidence to show that the driver of the offending vehicle was not having a valid licence at the time of the accident?
(3) With the facts and circumstances of the instant case, what shall be the appropriate direction to be given by the Tribunal in the alternative?
(4) Whether the 2nd respondent-Insurer is liable to pay the compensation?
11. It is appropriate to set forth the certain facts before adverting to the other facts touching the contentious issues. The 1st respondent, who is the owner of the offending vehicle, is not contesting the matter. The 1st respondent insured the offending vehicle bearing No.AP 07 R 4647 with the 2nd respondent/Insurer.
7 DVR, J MACMA No.553/2010 The motorcycle was driven by one Penuboyina Lingaiah. There was an accident that occurred on 15.10.2008 at about 8.00 p.m. The 2nd respondent-Insurer reiterated and denied its liability on the premise that the driver of the motorcycle was not having a subsisting valid licence to drive the vehicle at the time of the accident.
12. It is relevant to assess the evidence of the Assistant of the 2nd respondent-Insurer who was examined as R.W.1. He deposed that the Insurance Company issued a notice to the owner and driver of the motorcycle to produce the licence particulars of the driver and the vehicle records. But, they had not produced the same. Ex.B.1 is the copy of the insurance policy, Ex.B.2 is the copy of the registered notice, and Ex.B.3 is the postal receipt. In cross- examination R.W.1 stated that he had not filed the postal acknowledgment to show that Ex.B.2 was served either on the owner or the driver of the offending vehicle.
13. R.W.2 who was examined on behalf of the R.T.O authorities deposed that Ex.X.1 is the endorsement to the effect that "no licence was issued to the said person". He further deposed that any person can obtain licence anywhere in India subject to filing proof of residential address within the jurisdiction of the office.
8 DVR, J MACMA No.553/2010
14. While evaluating the evidence of R.Ws.1 and 2, the insurer failed to prove that the driver of the offending vehicle was not holding a valid licence, and no evidence on record to show that the notice was served either on the 1st respondent or the driver of the offending vehicle and they failed to prove the proof of service of notice. At this juncture, the learned Counsel for the appellants- claimants relied on the decision reported in the case of National Insurance Company Limited Vs. Parital Venkateswarlu1 wherein it was held as follows:
"...........In the event the insurer is absolved from any liability, the direction to deposit in the first instance and recover the same at a later point of time is not germane. Having regard to the discussion hereinabove made and since the appellant-insurer failed to prove that it was a case of breach of condition of the policy by the insured and therefore it cannot validly avoid the liability, it is obvious, therefore, that it is a case of joint and several liability of respondents 1 and 2. Therefore, any direction to pay in the first instance and recover the same at a later point of time is quite irrelevant to the eventual conclusion of joint and several liability.........."
15. The above decision is squarely applicable to the present facts of the case since the insurer failed to adduce any evidence as to the nature of the enquiry that was conducted and its consequent result that the driver of the vehicle had no licence at the relevant time. Therefore, the Tribunal had committed an error in dismissing the 1 2009 ACJ Page 88 9 DVR, J MACMA No.553/2010 liability against the 2nd respondent-insurer and it is a fit case of joint and several liability of respondents 1 and 2. As per the decision of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi2, the Hon'ble Supreme Court of India held that in a case of death, reasonable figures on the conventional heads namely loss of estate, loss of consortium, and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.
16. In view of the foregoing discussion, in the instant case the computation of the compensation is made as follows:
17. Loss of dependency awarded by the Tribunal is reasonable. Since the deceased was aged about 65 years, the loss of estate should be awarded as Rs.15,000/-. Funeral expenses of Rs.15,000/- (Rs.10,000 + Tribunal granted amount of Rs.5,000), transportation charges of Rs.2,000/-, loss of consortium of Rs.40,000/- in total Rs.1,22,000/-. Thus, the total compensation payable to the petitioners is as follows:
Loss of dependency Rs.50,000
Loss of estate Rs. 15,000
Funeral Expenses Rs. 15,000 (Rs.10,000 + Rs.5,000)
2
2017 ACJ 2700 (SC)
10 DVR, J
MACMA No.553/2010
Transport Charges Rs. 2,000
Loss of Consortium Rs. 40,000
-----------------
Rs. 1,22,000
-----------------
18. As per the decision of the Hon'ble Supreme Court of India in the case of Nagappa Vs. Gurudayal Singh and others3, under the provisions of the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record, if Tribunal / Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award.
19. In view of the above decision of the Hon'ble Supreme Court of India, this Court finds that it is a fit case to enhance the compensation awarded by the Tribunal by awarding more compensation than claimed.
20. Therefore, in view of the foregoing discussion, the appeal is allowed in part enhancing the quantum of compensation from Rs.55,000/- to Rs.1,22,000/- with proportionate costs and interest at 7.5% per annum from the date of the petition till the date of 3 (2003) 2 SCC 274 11 DVR, J MACMA No.553/2010 realization against the respondent Nos.1 and 2 jointly and severally. The respondents are directed to deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against them.
As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.
JUSTICE DUPPALA VENKATA RAMANA Date: 30.08.2022 L.R Copy to be marked.
Dinesh 12 DVR, J MACMA No.553/2010 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA M.A.C.M.A.No.553 OF 2010 30.08.2022 Dinesh