Andhra Pradesh High Court - Amravati
Chinta Sangam Naidu vs Allu Nirmala And 4 Others on 21 October, 2019
Author: M. Ganga Rao
Bench: M. Ganga Rao
HON'BLE SRI JUSTICE M. GANGA RAO
MACMA.No.601 of 2008
JUDGMENT:
This appeal is filed by the owner of the offending tractor trailor against the order and decree dated 26-11-2019 passed in MVOP.No.395 of 2004 by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Srikakulam, wherein and whereby the Tribunal granted compensation of Rs.2,29,000/- with interest at 7.5% p.a. for the death of the deceased Venkata Ramana @ Srinivasa Rao, in the accident occurred on 18.06.2000.
The respondents 1 to 4, wife, children and mother of the deceased Venkata Ramana, filed claim petition under Section 166 of the Motor Vehicles Act, 1988 read with Section 455 of the Rules, claiming compensation of Rs.3,00,000/- for the untimely death of the deceased in the motor accident occurred on 18.06.2000. They alleged that the accident occurred due to the rash and negligent driving of the driver of the offending tractor trailor owned by the appellant and registered with the 5th respondent. The police of Palakonda registered a case in Crime No.49 of 2003 under Sections 338 and 279 of IPC and later after the death of the deceased, section of law was altered to Section 304 A IPC, investigated into and later filed charge sheet numbered as C.C.No.255 of 2003 on the file of Judicial Magistrate of First Class, Palakonda and it is found that the accident was caused by the driver of the offending vehicle due to his rash and negligent driving. In view of sudden demise of the deceased, the respondents 1 to 4 lost their sustenance and 2 MGR, J MACMA.No.601 of 2008 claimed compensation of Rs.3,00,000/- and sought for decree against the appellant and the 5th respondent jointly and severally.
The first respondent-owner of the offending vehicle filed his counter denying the averments of the claim petition. He stated that the vehicle is covered by valid insurance policy and the driver was having a valid driving licence and if any compensation is awarded to the claimants, the insurance company is liable to pay the compensation. The 2nd respondent-insurance company filed its counter denying the averments of the claim petition. The 2nd respondent claimed that the deceased is an unauthorized passenger and in view of the breach of policy conditions, the insurance company is not liable to indemnify the owner of the offending vehicle. He further stated that the claim is excessive.
Based on the above pleadings, the Tribunal framed the following issues for trial.
1) Whether the accident occurred involving the deceased Allu Venkata Ramana @ Sreenivasa Rao and the tractor trailor bearing No.AP-30-T-8647 and 8648 due to the rash and negligent driving of the said tractor trailor by its driver Botcha Tavitinaidu, S/o late Gaddenadu working under respondent No.1/owner of the tractor trailer?
2) Whether the petitioners are entitled to any compensation and if so, to what amount and from whom?
3) To what relief?
In order to prove the case of the claimants/respondents, the 1st respondent, the wife of the deceased, was examined as PW.1. The brother of the deceased, who is eye-witness to the accident, was examined as PW.2. Exs.A.1-copy of FIR, Ex.A.2-copy of Post 3 MGR, J MACMA.No.601 of 2008 Mortem Certificate, Ex.A.3-copy of MVI Report, Ex.A.4-copy of charge sheet were marked. On behalf of the respondents, RWs.1 and 2 were examined and Exs.B.1 and B.2 were marked.
The Tribunal, considering the evidence of PW.1 and Exs.A.1- FIR and A.4-charge sheet coupled with the evidence of PW.2, came to the conclusion that the accident was occurred due to the rash and negligent driving of the driver of the offending tractor and trailor bearing No.AP-30-T-8647 and 8648 owned by the 1st respondent. The Tribunal granted compensation of Rs.2,29,000/- against the claim of Rs.3,00,000/- under different heads. The Tribunal taken the income of the deceased at Rs.50/- per day as daily labourer and arrived at monthly income of the deceased as Rs.1,500/- per month. Considering that the application was filed under Section 166 of the M.V. Act, the Tribunal taken the second schedule as envisaged under Section 163-A of the Act was applied. The deceased was aged about 32 years, as per Ex.A.2-Post Mortem certificate and the Tribunal deducted 1/3rd towards personal expenses of the deceased from Rs.1,500/- and the remaining amount would come to Rs.1,000/- . The Tribunal arrived at loss of dependency at Rs.2,04,000/- (1000/- X 12 X 17). The Tribunal also awarded an amount of Rs.5,000/- towards transport and funeral expenses and Rs.5,000/- towards loss of estate and Rs.15,000/- towards loss of consortium to the 1st respondent being the wife. In all the Tribunal granted compensation of Rs.2,29,000/- along with interest at 7.5% p.a. However, the Tribunal fixed the liability on the appellant, the owner of the 4 MGR, J MACMA.No.601 of 2008 offending tractor and trailor registered as goods vehicle and it covers six workmen, that is to say, the policy Ex.B.1 and the cover note Ex.B.2 make the insurance company liable only if the workmen are involved in the accident. The appellant filed this appeal questioning the quantum of compensation as well as his liability to pay compensation.
In view of above discussion, this court found that there is no illegality or irregularity in granting compensation of Rs.2,29,000/- with interest at 7.5% p.a. However, with regard to the fixing the liability on the appellant alone exonerating the 5th respondent insurance company, on perusal of the record, it is found that the offending tractor and trailor was registered as goods vehicle and that the deceased along with his brother and some others boarded the tractor and when the tractor trailor reached Kota Durga temple at Palakonda and taking a turn, the driver of the offending vehicle drove the vehicle in a rash and negligent manner and applied sudden brake due to which the deceased fell down and the front wheel of the trailer ran over the deceased. The Tribunal considered the nature of the insurance coverage that the offending vehicle was registered as goods vehicle and it covers six workmen and that Ex.B.1 policy and Ex.B.2 cover note makes the insurance company liable only if the workmen are involved in the accident. Considering the decision of the Hon'ble Supreme Court in Manuara Khaitun and others v. Rajesh Kumar Singh and others1, wherein the Supreme 1 (2017) 4 SCC 796 5 MGR, J MACMA.No.601 of 2008 Court held that even though the deceased is a gratuitous passenger in the goods vehicle and the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, the principle of "Pay and Recover" could be applied against the insurance company in such circumstances while making them liable to pay the award sum to the claimants and recover the same from the insured, the owner of the vehicle. Following the said decision of the Supreme Court, in the interest of justice, the principle of "pay and recover" is applied and the 5th respondent-insurance company is directed to pay awarded compensation amount to the respondents 1 to 4, who are claimants, and recover the same from the appellant, the owner of the tractor and trailor as per law.
Accordingly, the appeal is partly allowed and the 5th respondent-insurance company is directed to pay the entire awarded compensation amount within a period of eight (8) weeks from the date of receipt of copy of the order. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________ M. GANGA RAO, J Date: 21-10-2019 Ksn 6 MGR, J MACMA.No.601 of 2008 HONOURABLE SRI JUSTICE M. GANGA RAO MACMA.No.601 of 2008 21st October 2019 Ksn