Andhra Pradesh High Court - Amravati
Chitluru Sreelakshmi 3 Others vs N.Vijay Kumar Another on 11 October, 2022
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATHI
****
M.A.C.M.A.No.2644 of 2011
Between:
1. Chitluru Sreelakhsmi, W/o.Late Chinna Veeraiah,
Aged about 34 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
2. Chitluru Veerabhadra Rao, S/o.Late Chinna Veeraiah,
Aged about 11 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
3. Chtluru Sai Kumar, S/o.Late Chinna Veeraiah,
Aged about 11 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
4. Chitluru Rachaiah, S/o.Veeraiah, Aged 69 years,
R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District. ... Appellants
And
1. N.Vijay Kumar, S/o.Rama Naidu, R/o.D.No.27/11/788,
A.C.Nagar, Nellore-2.
2. The New India Assurance Company Limited,
Represented by its Branch Manager,
Subedarpet, Nellore. ... Respondents
DATE OF JUDGMENT PRONOUNCED: 11-10-2022
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
* THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
+ M.A.C.M.A.No.2644 of 2011
% 11-10-2022
Between:
1. Chitluru Sreelakhsmi, W/o.Late Chinna Veeraiah,
Aged about 34 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
2. Chitluru Veerabhadra Rao, S/o.Late Chinna Veeraiah,
Aged about 11 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
3. Chtluru Sai Kumar, S/o.Late Chinna Veeraiah,
Aged about 11 years, R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District.
4. Chitluru Rachaiah, S/o.Veeraiah, Aged 69 years,
R/o.Vuyyalapalli Village,
Kaluvai Mandal, Nellore District. ... Appellants
And
1. N.Vijay Kumar, S/o.Rama Naidu, R/o.D.No.27/11/788,
A.C.Nagar, Nellore-2.
2. The New India Assurance Company Limited,
Represented by its Branch Manager,
Subedarpet, Nellore. ... Respondents
! Counsel for Appellants : Sri T.C.Krishnan
^ Counsel for 2nd Respondent : Sri Naresh Byrapaneni
< Gist:
> Head Note:
? Cases referred:
1) 2017 ACJ 2011 (SC)
2) (2022) 1 SCC 317
3) 2009 ACJ 1298 (SC)
4) 2017 ACJ 2700 (SC)
This Court made the following:
3
HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
M.A.C.M.A.No.2644 of 2011
JUDGMENT:
This appeal under Section 173 of Motor Vehicles Act, 1988 (for short 'M.V.Act') has been filed by the appellants/petitioners challenging the judgment and award dt.10.05.2011 delivered by the Motor Accidents Claims Tribunal-cum-Principal District Judge, Nellore in M.V.O.P.13 of 2006 granting compensation of a sum of Rs.2,97,500/- along with interest @ 7.5% per annum thereon from the date of presentation of the claim till the date of realization of the amount, against the 1st respondent by exonerating the 2nd respondent i.e., New India Assurance Company Limited on account of the death of Chitluru Chinna Veeraiah (hereinafter referred to as 'the deceased') in the road accident occurred on 02.09.2005 at Katavaralla Centre, Uyyalapalli, Nellore District.
2. For the sake of convenience, the parties are referred to as they are arrayed before the Motor Accidents Claims Tribunal (hereinafter referred to as "the Tribunal").
3. The factual context of the case is as follows:
(a) On 02.09.2005 at about 5.30 a.m., while the deceased was proceeding on his Hero Honda motorcycle bearing 4 registration No.AP 26 D 1182 from Uyyalapalli Village along with his friends to Kaluvoi on business purpose and when they reached near Katavaralla Village centre, Uyyalapalli, at about 6.00 a.m., an auto bearing registration No.AP 26 W 6652 being driven by its driver in a rash and negligent manner at a high speed without blowing horn came in opposite direction and dashed the motorcycle of the deceased as a result he received injuries and died instantaneously and two other pillion riders sustained severe bleeding injuries. The matter was reported to the police, alleging that the accident took place due to the rash and negligent driving of the said auto, and based on the F.I.R lodged by the wife of the deceased, a case in Cr.No.39 of 2005 was registered. After investigation of the case, a charge sheet was filed against the accused/driver for having committed the offence punishable under Sections 304-A, 337 & 338 IPC.
(b) The wife, two minor children and mother of the deceased filed an application claiming compensation of a sum of Rs.5,00,000/- before the Tribunal on account of the death of the deceased in the said road accident.
(c) The 1st respondent/owner of the auto did not choose to file counter and did not contest the matter before the Tribunal. The 2nd respondent/Insurance Company filed counter contending 5 inter alia disputing the alleged motor accident due to the rash and negligent driving of the driver of the auto. The 2nd respondent has no liability to pay any amount of compensation to the petitioners unless it was proved that the insurance policy was in operation on the date of occurrence and the driver of the offending vehicle was holding valid driving licence and the vehicle was duly registered and further pleaded that the accident occurred due to the negligent act of the deceased himself and further pleaded that the amount of compensation claimed by the petitioners is exorbitant and excessive.
(d) In view of the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether the death of the deceased was due to the rash and negligent driving of the driver of the Auto AP 26 W 6652 or due to the rash and negligent driving of the motorcycle by the deceased?
(2) Whether the petition is liable to be dismissed for non-joinder of the owner and insurer of the motorcycle as pleaded by the 2nd respondent?
(3) Whether the claimants are entitled for any compensation, if so, how much amount and against which of the respondents?
(4) To what relief?
(e) At the time of enquiry, in order to establish their claim, P.Ws.1 to 3 were examined and Exs.A.1 to A.5 were got marked 6 on behalf of the petitioners. None were examined on the side of the 1st respondent/owner and no documentary evidence was adduced. On behalf of the Insurer, R.W.1 was examined and Exs.B.1 and X.1 & X.2 were got marked.
(f) On appreciation of the evidence, the Tribunal awarded a compensation amount of Rs. 78,000/- with interest at 9% per annum from the date of the petition till the date of realisation of the amount recoverable by the petitioner from the 3rd respondent.
(g) Appreciating the evidence of P.W.1/claimant and placing reliance on Exs.A.1 to A.5 i.e., attested copy of F.I.R, attested copy of inquest report, attested copy of Post Mortem Certificate, attested copy of charge sheet and partnership agreement deed, respectively, the learned Tribunal was of the view that the accident, in the instant case, was due to the rash and negligent driving of the driver of the auto 70% and the contributory negligence on the part of the deceased 30%. The Tribunal passed the impugned award granting compensation of Rs.
2,97,500/- in favour of the claimants against the 1st respondent by exonerating the 2nd respondent/Insurance Company on considering the evidence of R.W.1 and Ex.X.1 that the driver of the auto had a licence to drive the motor car with gear, L.M.V 7 and auto rickshaw, non-transport only, and he had no valid licence to drive the transport auto, and the driver had no valid and effective driving licence as on the date of the accident. Hence, the Insurance Company was exempted from its liability since there was a clear violation of the policy condition.
4. Being aggrieved by the award passed by the learned Tribunal, the appellants/claimants have preferred the present appeal and pleaded that the Tribunal committed grave error in fixing the contributory negligence and the Tribunal committed grave error in fixing the liability against the 1st respondent by exonerating the 2nd respondent, which amounts to erroneous and arbitrary. The Tribunal ought to have ordered directing the 2nd respondent to pay and recover from the 1st respondent. The learned Tribunal, instead of taking the income of the deceased as stated in the petition, in contra to the same, had taken the income of the deceased as Rs.100/- per day. It is further pleaded that the Tribunal failed to appreciate that the driver of the auto had driving licence to drive the motor car with gear, Light Motor Vehicle and auto rickshaw, and that itself is sufficient that the driver of the offending vehicle was having valid licence on the date of the accident to drive light motor vehicle, and he can drive the transport vehicle of such class of 8 vehicle and covered with insurance policy. But, instead of directing to pay the awarded amount by the 2nd respondent, exonerated to pay the compensation amount which is erroneous and arbitrary and the Tribunal failed to award compensation under conventional heads by following the judgment of the Hon'ble Supreme Court in Sarla Verma and Pranay Sethi cases. Further sought for enhancement of compensation and to direct the 2nd respondent/Insurance Company to pay the compensation first and recover from the owner of the vehicle by following the principal of "Pay and Recovery".
5. Learned counsel for the appellants/claimants would submit that the driver of the offending vehicle was holding an effective and valid driving licence at the time of the accident which was proved through the evidence of R.W.1 and Ex.X.1. He would further submit that, at the time of accident, the policy was in force. Therefore, in case of any liability being fastened, the claimants would be entitled to be indemnified by the Insurance Company. It is further submitted that the Tribunal had committed error while exonerating the Insurance Company from its liability instead of applying the principal of "Pay and Recovery" from the owner of the offending vehicle. He would further submit that the Tribunal had not awarded the amount in 9 accordance with the judgments of the Hon'ble Supreme Court of India in the cases of Sarla Verma and Pranay Sethi and therefore, the compensation needs to be enhanced.
6. Learned counsel for the 2nd respondent/Insurance Company would submit that the Insurance Company has examined the Officer of R.T.O who specifically stated that the driver was not having valid licence to drive the transport vehicle. He was having driving licence to drive the motor car with gear, L.M.V and auto rickshaw for non-transport only from May, 2005 to May, 2025. He further submitted that, since the driver was not holding valid licence to drive the transport vehicle, the Insurance Company is not liable to pay the compensation. He further submitted that the Tribunal has given reasoned order by exonerating the Insurance Company and awarded compensation against the 1st respondent/Owner of the offending vehicle. Hence, the order of the Tribunal has not suffered from any illegality or infirmity and needs no interference of this Court and the appeal is liable to be dismissed by confirming the order the Tribunal.
7. In the light of the above rival arguments, the points for determination in this appeal are:
10
(1) Whether the compensation awarded by the Tribunal is not in accordance with the principles of law and requires enhancement?
(2) Whether in the facts and circumstances of the instant case, what shall be the appropriate direction to be given to the Tribunal in the alternative?
8. POINT No.1: In the present case, the accident, involvement of the motorcycle bearing registration No.AP 26 D 1182 driven by the deceased and the auto bearing registration No.AP 26 W 6652 driven by its driver (N.Surender) and the death of the deceased, are not in dispute, as stated supra. The appellants/claimants are mainly challenging the quantum of compensation awarded by the learned Tribunal and exonerating the Insurance Company from its liability without following the principal of Pay and Recover, inspite of the driver of the offending vehicle having valid driving licence and the policy of the offending vehicle was in force.
9. In the present case, the notices of admission were served to the respondents. But, the 1st respondent/owner had not chosen to appear before this Court and the 2nd respondent/Insurance Company appeared through its counsel. The learned counsel for the Insurance Company submitted their arguments as mentioned supra and I have also perused the 11 impugned judgment and the reasoning given by the Tribunal and also gone through the record and proceedings of the Tribunal. It is clearly found from the record that the issue involved in the present appeal is only with regard to the driver of the offending vehicle not having valid driving licence to drive the transport vehicle and possessed licence for non-transport vehicle as per Ex.X.1. Accordingly, at the relevant point of time, the position of law was different and, therefore, the appeal was admitted. Now the position of law is well settled by the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited1 more particularly in Paragraphs 43, 45 and 46 as follows:
43. Section 10(2) (a) to (j) lays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty (supra) that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no 1 2017 ACJ 2011 (SC) 12 licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle.
The ultimate conclusion in Nagashetty (supra) is correct, however, for the reasons as explained by us.
44. .................................
45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are 13 several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of „light motor vehicles‟ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act „Transport Vehicle‟ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to
(h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
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(i) „Light motor vehicle‟ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, „unladen weight‟ of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle"
in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression „transport vehicle‟ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to 15 the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
10. In view of the above, now, position of law is well settled. It is noted that merely in absence of endorsement to drive the transport vehicle on the licence does not amount to lead to the interpretation that the driver was not holding a valid and effective driving licence. Therefore, in view of the settled legal position as noted above, if the driver holds licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. Hence, there is no substance in the submissions made by the learned counsel for the Insurance Company that the driver was not holding valid driving licence. In the facts of the case and looking into the beneficial purpose of the enactment of the Motor Vehicles Act, Insurance Company cannot avoid its liability. Even assuming that the driver of the offending vehicle was not holding valid licence to drive the transport vehicle, inspite of possessing valid driving licence to drive motor car with gear, light motor vehicle 16 and auto rickshaw, in the recent decision in the case of Kurvan Ansari @ Kurvan Ali & Another Vs. Shyam Kishore Murmu & Another2 Hon'ble Apex Court at Para No.17 held as follows:
"..............The entire compensation shall be paid to the appellants by Respondent 2 insurance company, and we keep it open to the insurance company to recover the same from Respondent 1 owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident.
18. Accordingly, this civil appeal is allowed partly with directions as indicated above. No order as to costs."
11. In view of the above decision, the Insurance Company cannot escape from its liability. Therefore, the learned Tribunal has committed error in awarding compensation against the 1st respondent by exonerating the 2nd respondent/Insurance Company, which is not proper that the principle laid down in the afore mentioned judgments, a direction to pay and recover deserves to be given against the 2nd respondent/Insurance Company which would serve the ends of justice.
12. POINT No.2: The Tribunal having regard to the oral and documentary evidence, awarded compensation of Rs.2,97,500/- with proportionate costs and interest @ 7.5% per annum from the date of petition till realization of the amount, against the 1st 2 (2022) 1 SCC 317 17 respondent. As already stated, the Insurance Company cannot be exempted from its liability since the driver of the offending vehicle was possessing valid driving licence on the date of accident and as he was having licence to drive motor car with gear, L.M.V and auto rickshaw, he can drive the transport vehicle of such class without any endorsement to that effect and that the learned Tribunal erred in exonerating the Insurance Company from its liability to pay the compensation. The Tribunal had awarded Rs.2,97,500/- without granting the amount under conventional heads for which they are entitled to. Even according to the calculations made by the Tribunal by following the decision of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation3, the income of the deceased was taken at Rs.100/- per a day even according to minimum wages and the amount towards loss of dependency comes to Rs.100 x 30 x 12 x 3/4 x 15 = Rs.4,05,000/-. But, in the case of National Insurance Co. Ltd., Vs. Pranay Sethi4, Hon'ble Apex Court directed to grant compensation of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- under the conventional heads Loss of Estate, Loss of Consortium and 3 2009 ACJ 1298 (SC) 4 2017 ACJ 2700 (SC) 18 Funeral Expenses respectively. Therefore, having failed to consider the judgments cited above, the Claims Tribunal has committed an illegality in awarding a meager amount of compensation payable to the claimants in support of the reliance upon the decisions rendered by the Hon'ble Apex Court in the matters of Sarla Verma and Pranay Sethi stated supra. Therefore, by applying the aforesaid principles to the case on hand as referred above, it would be just and proper to issue a direction to the 2nd respondent/Insurance Company to first pay the award sum to the claimants and then recover the paid award sum from the owner of the alleged offending vehicle.
13. In view of the above discussion, in the instant case, the computation of compensation is made as follows:
Loss of dependency ...... Rs.4,05,000/-
Loss of Estate ...... Rs. 15,000/-
Funeral Expenses ...... Rs. 15,000/-
Loss of Consortium ...... Rs. 40,000/-
Loss of love and affection ...... Rs. 15,000/-
Transport charges ...... Rs. 2,000/-
-----------------
Total ...... Rs.4,92,000/-
-----------------
14. Therefore, in view of the foregoing discussions, the appeal is partly allowed with proportionate costs enhancing the 19 quantum of compensation from Rs.2,97,500/- to Rs.4,92,000/-
with interest at 6% per annum from the date of the petition till the date of realization. The 2nd respondent/Insurance Company is directed to deposit the award amount, within a period of two months from the date of this judgment, at the first instance, and recover the same from the 1st respondent. The appellants/petitioners are directed to pay necessary Court-fee for the enhanced amount of compensation. Rest of the directions given by the Tribunal shall remain unaltered.
The impugned award of the Tribunal stands modified to the aforesaid extent and in the terms and directions as above.
As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.
JUSTICE DUPPALA VENKATA RAMANA Date: 11.10.2022 L.R.Copy to be marked.
Dinesh 20 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA M.A.C.M.A.No.2644 OF 2011 11.10.2022 Dinesh