Partly allowed

Ch.Vijayamma and Anr. v. K.Subramanyam and 3 Ors.

Andhra Pradesh HC5 Sept 2023MACMA/2321/2013

Case brief

AI extract

What is this about?

This common judgment disposed of two motor accident appeals jointly. The High Court modified the Tribunal's compensation by correcting the multiplier applied to loss of dependency and adjusting conventional head awards in accordance with Supreme Court precedents. The insurance company was directed to pay the reduced amount first and recover it later.

What did the court decide?

Compensation reduced from Rs. 7,00,000/- to Rs. 6,82,000/-; Insurance company directed to pay compensation to petitioners first and recover from vehicle owner via execution petition.

Ch.Vijayamma and Anr. Vs K.Subramanyam and 3 Ors. — Motor Accident Claims | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT^{AMARAVAT4;a'~}

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TUESDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA^{KRISHNA RAO}

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MOTOR ACCIDENT CIVIL MISCELLANEOUS^{APPEAL Nos.308 and 2321 of 2013}

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MACMA No. 308 of 2013

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Appeal filed under Section 173 of M.V.Act, aggrieved by the decree and Judgment dated 22.10.2010 passed in MVOP No. 160 of 2005 on the^fileofthe Motor Accidents Claims Tribunal-Cum-Principal District Judge, Nellore, SPSR Nellore District.

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Between:

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United India Insurance Company Limited, Rep. by its Senior Divisional Manager Nellore.

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...Appellant/Respondent No.3

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AND

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Ch. Vijayamma, W/o Late Sampath Kumar Reddy, Hindu, age 32 years, Occ: Housewife,

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Ch. Prabhakar Reddy, S/o Late Sampath Kumar Reddy, Hindu, age 17 years, Occ: Student

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(Res. No.2 being minor, Rep. by his mother natural guardian Res. No.1 Ch. Vijayamma)

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Both R/o Kaluvoy Village and Mandal, Nellore District.

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...Respondents/Petitioners

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K. Subramanyam, S/o Polaiah, Hindu, R/o Toorpu Arundhathipalem, Kovur, Nellore District.

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P.V. Vara Prasad, S/o Balakrishnama Raju, Hindu, R/o 26-1-866, B.V.Nagar, Nellore

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T. Bhaskar, S/o Not known to appellant, Hindu, Owner of Mini Lorry AP 26 T 9666, R/o H.No. 3/2-9A, Vaddipalem Village, Kovur Mandal, Nellore District524316

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...Respondents/ Respondent Nos.1, 2 & 4

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I.A. NO: 2 OF 2011(MACMAMP. NO: 2039 OF 2011)

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of execution of the decree including all further proceedings in OP No. 160 of 2005 dated 22-10-2010 on the file of Motor Accident Claims Tribunal-Cum-Principal District Judge, Nellore.

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Counsel for the Appellant : Sri Vijaya Kumar Potturi

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Counsel for the Respondents : Sri K Vishnu Kumar Reddy

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MACMA No. 2321 of 2013

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Appeal filed under Section 173 of M.V.Act, aggrieved by the Judgment and decree dated 22.10.2010 passed in MVOP No. 160 of 2005 passed by the Principal Motor Accidents Claims Tribunal, Nellore, SPSR Nellore District.

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Between:

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Ch.Vijayamma, W/o.late Sampath Kumar Reddy, Hindu, aged 32 years, Housewife, R/o.Kaluvoy Village and Mandal, Nellore District.

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Ch.Prabhakar Reddy, S/o.late Sampath Kumar Reddy, Hindu, aged 21 years, Student, R/o.Kaluvoy Village and Mandal, Nellore District.

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...Appellants/Claimants

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AND

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K.Subramanyam, S/o.Polaiah, Hindu, R/o.Toorpu Arundhathi Palem, Kovur, Nellore District.

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P.V.Vara Prasad, S/o.Ba!akrishnam Raju, Hindu, R/o.26-1-866, B.V. Nagar, Nellore.

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M/s.United India Insurance Co Ltd, rep by its Senior Divisional Manager O/o.Nellore.

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T.Bhaskar, S/o.Not Known, Hindu, Owner of Mini Lorry No.AP 26 T 9666, R/o.3-219A, Vaddipalem Village, Kovur Mandal, Nellore District.

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RR's 2 and 4 are dismissed for default vide court order dated 10.07.2013 RR's 2 and 4 are restored vide court order dated 18.02.2014.

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...Respondents/ Respondents

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Counsel for the Appellants Sri K Vishnu Kumar Reddy

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Counsel for the Respondent No.1 Sri C Subodh

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Counsel for the Respondent No.3 Sri Potturi Vijaya Kumar

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The Court made the following:

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THE HON'BLE SRI JUSTICE V.GOPALA^{KRISHNA RAO}

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M.A.C.M.A.Nos. 308 and 2321 of 2013

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COMMON JUDGMENT:

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M.A.C.M.A.No.308 of 2013 is filed by the 3~a respondent/Insurance company and M.A.C.M.A.No.2321 of 2013 is filed by the petitioners in O.P.No.160 of 2005 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District

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Judge, Nellore.

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Since both the appeals arose from out of one decree and order passed in O.P.No.160 of 2005, they are heard together and are being disposed of by this common judgment.

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For the sake of convenience, both the parties in the appeals will be referred to as they are arrayed in the claim petition.

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The claim petitioners filed the petition under Section 166 of the Motor Vehicles Act, 1988 against the respondents claiming

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VGKR) MACMA.Nos.308 & 2321 of 2013

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compensation of Rs.20,00,000/- for the death of Challa Sampath Kumar Reddy, who is husband of 1St petitioner and father of 2"d petitioner, in a road accident that took place on 30/31.10.2003.

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Facts germane to dispose of the appeals may briefly be stated as follows:

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On 30/31.10.2003 the deceased was proceeding towards Nellore on his motor bike after completion of personal work at Ongole and when he reached near 243 km stone, a mini lorry bearing registration No.AP 26T 9666 being driven by its driver in a rash and negligent manner with high speed came and hit the motor bike of the deceased resulting in the instantaneous death of the deceased. The S.H.O., Gudlur P.S, registered a case in crime No.61 of 2003 against the driver of the mini lorry for the offence punishable under Section 304-A of IPC. The accident occurred due to rash and negligent driving of the driver of the mini lorry only, hence, the petitioners are entitled to compensation of Rs.20,00,000/- against all the respondents.

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VGKR,1 MACMA.Nos.308 & 2321 of 2013

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Respondent Nos.1, 2 and 4 did not choose to file^counters. The 3rd respondent/Insurance company filed a counter by denying the manner of accident, age, avocation and income of the deceased. It is pleaded that there is no contract of insurance between the Insurance company and respondent Nos.1 & 2 in relation to the offending vehicle, the driver of the offending mini lorry had no valid and effective driving licence at the time of accident, as such, the Insurance company is not liable to pay any compensation.

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Based on the above pleadings, the following issues were framed for trial by.the Tribunal:

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1. Whether the accident occurred due to rash and negligent driving of the Mini lorry bearing No.AP 26T 9666 by its driver?

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1. Whether the petitioners are entitled to claim any compensation? If so, how much amount and against which of the respondents?

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1. To what relief?

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During the course of enquiry in the claim petition, on behalf of the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.6 were

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VGKR,1 MACMA.Nos.308 & 2321 of 2013

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marked. On behalf of the^3rd respondent/Insurance company, R.Ws.1 and 2 were examined and Exs.B.1 and X.1 were marked.

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At the culmination of the enquiry, based on the material on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending lorry and accordingly, allowed the petition in part and granted a total compensation of Rs.7,00,000/- with proportionate costs and interest at 9% p.a. against respondent Nos.3 and 4 and dismissed the claim petition against respondent Nos.1 and 2. Aggrieved against the said order, the claim petitioners filed M.A.C.M.A.No.2321 of 2013 for enhancement of compensation, 3rd while the respondent/Insurance Company filed M.A.C.M.A.No.308 of 2013 questioning the legal validity of the order of the Tribunal.

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Heard the learned counsels for both the parties and perused the record.

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VGKR,1 MACMA.Nos.308 & 2321 of 2013

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Now, the points for determination are:

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1. Whether the claim petitioners are entitled for^{enhancement of} compensation as prayed for? and

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1. Whether the order of the Tribunal needs any interference, if so, to what extent?

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POINT Nos.1 & 2: The case of the petitioners is that the accident in question occurred because of rash and negligent driving of the driver of the offending mini lorry. In order to prove the rash and negligent driving of the driver of the offending mini lorry, the petitioners relied on the evidence of P.Ws.1 and 3. P.W.1 is none other than the wife of the deceased and she is not an eye witness to the accident. P.W.3 is an eye witness to the accident. As per his evidence, on the intervening night of 30/31.10.2003 the deceased was proceeding towards Nellore on his bike and when he reached Veerapalli Microwave tower near 243 km stone, the driver of the mini lorry drove the same in a rash and negligent manner with high speed and hit the deceased, as a result, the deceased sustained head injury and died on the spot. The evidence of P.W.3 clearly d

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VGKR,! MACMA.Nos.308 & 2321 of 2013

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proves about the rash and negligent driving of the driver of the offending mini lorry. The petitioners also relied on Ex.A.1-attested copy of first information report and Ex.A.2-attested copy of charge sheet. Ex:AT1 shows that the first information report was registered against the driver of the offending vehicle. Ex.A.2 goes to show that after completion of investigation, the Investigating Officer filed a charge sheet against the driver of the offending vehicle. The evidence of P.Ws.1 and 3 coupled with Exs.A.1 and A.2 clearly proves that the accident in question occurred due to rash and negligent driving of the driver of the offending mini lorry. On considering the material on record, the Tribunal also came to the same conclusion. Therefore, there is no need to interfere with the said finding given by the Tribunal.

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Coming to the compensation awarded by the Tribunal, the Tribunal held in its order that though it is the case of the petitioners that the deceased was running a wine shop under the name and style "Meghamala Wines" and thereby earning Rs.12,000/- p.m.,

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VGKR,1 MACMA.Nos.308 & 2321 of 2013

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they failed to produce any documentary^{proof to establish the same.} However, by giving cogent reasons, the Tribunal arrived the monthly income of the deceased at Rs.4,500/-. The dependents on the deceased are two in number. Therefore,^1/3r d from out of the monthly income has to be deducted towards personal expenses of the deceased, in view of the judgment of the Hon'ble Supreme Court in Sarla Varma Vs. Delhi Transport Corporation'. Having so deducted, the Tribunal arrived the net monthly income of the deceased at Rs.3,000/- (Rs.4,500/- - Rs.1,500/-) i.e., Rs.36,000/per annum. As per Ex.A.4-post mortem certificate, the deceased was aged 30 years. As per Sarla Varma case, the relevant multiplier applicable to the age group of the deceased is '17'. But, the Tribunal applied the multiplier `18' for computation of loss of dependency and hence, the same has to be rectified. Accordingly, an amount of Rs.6,12,000/- (Rs.36,000/- x multiplier '17') is awarded towards loss of dependency to the petitioners.

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1 2009 (4) SCJ~1

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VGKA,I MACMA.Nos.308 & 2321 of 2013

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Further, the Tribunal awarded compensation of Rs.52,000/under conventional heads i.e., Rs.10,000/- towards loss of consortium to the 1st petitioner, Rs.40,000/- towards loss of estate and Rs.2,000/- towards funeral expenses of the deceased. As per the decision of the Hon'ble Supreme Court in National Insurance

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Company Limited Vs. Pranay Sethi2, the maximum amount to be awarded under conventional heads is Rs.70,000/-. In view of the same, an amount of Rs.15,000/- is awarded towards loss of estate, Rs.40,000/- is awarded towards loss of consortium to the^1st petitioner and Rs.15,000/- is awarded towards funeral expenses of the deceased. In total, a sum of Rs.6,82,000/- is awarded towards compensation to the petitioners.

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It is not in dispute that the offending mini lorry of the^4tn respondent was insured with the 3Fd respondent/Insurance company under Ex.B.1-policy and the policy was also in force as on the date

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of accident.

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2 2017 (16) CC 680

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VGKR,J MACMA.Nos.308 & 2321 of 2013

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Learned counsel for the appellant/Insurance^companywould contend that the driver of the offending vehicle was^{not having valid} driving licence at the time of accident. In^{order to prove the same,} the Insuranbe company examined R.W.1 and also^{relied on Ex.X.1-} driving licence of the 2nd respondent issued by the Additional Licencing Authority, Nellore. As per the evidence of R.W.1, the Junior Assistant in R.T.A. Office, Nellore, the driver of the offending mini lorry was having driving licence of light motor vehicle (nontransport), but the endorsement transport' is not on the driving licence of the driver. In this case, the offending vehicle is a mini lorry. From the evidence of R.W.1 and on a perusal of Ex.X.1, it is clear that the driver of the offending mini lorry was not having valid and effective driving licence at the time of accident.

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The principle laid down in the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others3 is that even in case of absence, fake or invalid licence or

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3 2004 (2) AID (SC) 36

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VGKR,I MACMANos.308 & 2329 of 2013

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disqualification of the driver for driving, the Insurance company is liable to satisfy the award in favour of^3d party at the first instance and later recover the award amount from the owner of offending vehicle, even when the Insurance company could able to establish breach of terms of policy on the part of the owner of the offending vehicle.

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For the foregoing discussion, the^3rd respondent/Insurance Company is liable to pay the compensation to the petitioners in the first instance and later recover the same from the 4th respondent/owner of the offending mini lorry, by filing an execution petition and without filing any independent suit.

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Accordingly, both the appeals are disposed of. The compensation of Rs.7,00,000/- awarded by the Tribunal is reduced to Rs.6,82,000/-. The 3rd respondent/United India Insurance Company Limited is directed to pay the compensation of Rs.6,82,000/-, with costs and interest as ordered by the Tribunal, to the petitioners in the first instance within two months from the date

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VGKR,1 MACMA.Nos.308 & 2321 of 2013

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of this judgment and later recover the same from the^4th respondent/owner of the offending mini lorry by filing an execution petition and without filing any independent suit. The order passed by the Tribunal is modified to the extent indicated above. The order of the Tribunal in all other respects shall remain intact. No order as

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to costs in both the appeals.

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Miscellaneous petitions, if any, pending in the appeals shall stand closed.

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Sd/- S SRINIVASA PRASAD ASSISTAN REGISTRAR

//TRUE COPY//

SECTION OFFICER

The Principal Motor Accidents Claims Tribunal-Cum-Principal District Judge, Nellore, SPSR Nellore District. (With record if any)

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One CC to Sri Vijaya Kumar Potturi, Advocate [OPUC]

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One CC to Sri K Vishnu Kumar Reddy, Advocate [OPUC]

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One CC to Sri C Subodh, Advocate [OPUC]

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The Section Officer, VR Section, High Court of Andhra Pradesh, Amaravathi. (To dispatch the lower court record)

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Two CD Copies

HIGH COURT

DATED:05/09/2023

COMMON JUDGMENT + DECREE

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MACMA.Nos.308 & 2321 of 2013

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DISPOSING OF THE MACMA's

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IN THE HIGH COURT OF^{ANDHRA PRADESH AT AMARAVATI}

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TUESDAY, THE FIFTH^{DAY OF SEPTEMBER} TWO^{THOUSAND AND TWENTY THREE}

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PRESENT

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s~ .
t
'^'~~~ig !~• ''

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HONOURABLE SRI JUSTICE^{VENUTHURUMALLI GOPALA KRISHNA RAO}

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MOTOR ACCIDENT CIVIL^{MISCELLANEOUS APPEAL Nos.308 and 2321 of 2013}

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MACMA No. 308 of 2013

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Between:

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United India Insurance Company Limited, Rep. by its^{Senior Divisional Manager} Nellore.

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...Appellant/Respondent No.3

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AND

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Ch. Vijayamma, W/o Late Sampath Kumar Reddy, Hindu, age 32 years, Occ: Housewife,

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Ch. Prabhakar Reddy, S/o Late Sampath Kumar Reddy, Hindu, age 17 years, Occ: Student

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(Res. No.2 being minor, Rep. by his mother natural guardian Res. No.1 Ch. Vijayamma)

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Both R/o Kaluvoy Village and Mandal, Nellore District.

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... Respondents/Petitioners

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K. Subramanyam, S/o Polaiah, Hindu, R/o Toorpu Arundhathipalem, Kovur, Nellore District.

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P.V. Vara Prasad, S/o Balakrishnama Raju, Hindu, R/o 26-1-866, B.V.Nagar, Nellore

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T. Bhaskar, S/o Not known to appellant, Hindu, Owner of Mini Lorry AP 26 T 9666, R/o H.No. 3/2-9A, Vaddipalem Village, Kovur Mandal, Nellore District524316

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...Respondents/ Respondent Nos.1, 2 & 4

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Appeal filed under Section 173 of M.V.Act, aggrieved by the decree and Judgment dated 22.10.2010 passed in MVOP No. 160 of 2005 on the file of the Motor Accidents Claims Tribunal-Cum-Principal District Judge, Nellore, SPSR Nellore District.

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment of the Lower Court and the material papers in the suit and upon hearing the arguments of Sri Vijaya Kumar Potturi, Advocate for the Appellant and of Sri K Vishnu Kumar Reddy, Advocate for the Respondents.

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MACMA No. 2321 of 2013

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Between:

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Ch.Vijayamma, W/o.late Sampath Kumar Reddy, Hindu, aged 32 years, Housewife, R/o.Kaluvoy Village and Mandal, Nellore District.

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Ch.Prabhakar Reddy, S/o.late Sampath Kumar Reddy, Hindu, aged 21 years, Student, R/o.Kaluvoy Village and Mandal, Nellore District.

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...Appellants/Claimants

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AND

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K.Subramanyam, SIo.Polaiah, Hindu, R/o.Toorpu Arundhathi Palem, Kovur, Nellore District.

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P.V.Vara Prasad, S/o.Balakrishnam Raju, Hindu, R/o.26-1-866, B.V.Nagar, Nellore.

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M/s.United India Insurance Co Ltd, rep by its Senior Divisional Manager O/o. Nellore.

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T.Bhaskar, S/o.Not Known, Hindu, Owner of Mini Lorry No.AP 26 T 9666, R/o.3-2/9A, Vaddipalem Village, Kovur Mandal, Nellore District.

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RR's 2 and 4 are dismissed for default vide court order dated 10.07.2013 RR's 2 and 4 are restored vide court order dated 18.02.2014.

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...Respondents/ Respondents

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment of the Lower Court and the material papers in the suit and upon hearing the arguments of Sri K Vishnu Kumar Reddy, Advocate for the Appellants and of Sri C Subodh, Advocate for the Respondent No.1 and of Sri Potturi Vijaya Kumar, Advocate for the Respondent No.3.

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This Court doth order and decree as follows:

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That both the appeals be and hereby are disposed of.

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That the order dated 22-10-2010, in M.V.O.P. No.160 of^{2005passedby the} Motor Accidents Claims Tribunal-Cum-Principal District Judge, Nellore,^SPSR Nellore District be and hereby is modified.

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That the compensation of Rs.7,00,000/- as awarded by the Tribunal be^and hereby is reduced to Rs.6,82,000/-.

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That the 3`d respondent/United India Insurance Company Limited be and hereby is directed to pay the compensation of Rs.6,82,000/-, with costs and interest as: ordered by the Tribunal, to the petitioners in the first instance within two months from the date of this judgment.

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That later the^3d res~ondent/United India Insurance Company Limited recover the same from the 4t respondent/owner of the offending mini lorry by filing an execution petition and without filing any independent suit.

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