Partly allowed

National Insurance Company Limited v. Jallumuri Kameswari and 4 Ors.

Andhra Pradesh HC1 Sept 2023MACMA/246/2014

Case brief

AI extract

What is this about?

This appeal by an insurance company against a Motor Accident Claims Tribunal order was dismissed. The High Court applied the 'pay and recover' principle, directing the insurer to deposit the awarded compensation first and later recover the amount via an execution petition, upholding liability despite the deceased being classified as a gratuitous passenger.

What did the court decide?

Insurance company directed to deposit Rs.3,65,000 plus costs and interest with the Tribunal within two months; recovery from owner via execution petition.

National Insurance Company Limited Vs Jallumuri… — Motor Accident Claims | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

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M.A.C.M.A.No.246 of 2014

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JUDGMENT:

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Aggrieved by the order dated 13.07.2011 passed by the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, East Godavari at Rajahmundry, in M.V.O.P.No.132 of 2008, whereby an amount of Rs.3,65,000/- was awarded towards compensation to the petitioners, this instant appeal has been preferred by the 3^rd respondent/Insurance company.

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For the sake of convenience, both the parties in the appeal 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 claiming compensation of Rs.4,00,000/- for the death of Jalluri Nageswara Rao, who is husband of 1^st petitioner and father of petitioner Nos.2 and 3, in a motor vehicle accident that took place on 25.10.2002.

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The brief averments in the petition filed by the petitioners are as follows:

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On 25.10.2002 at about 2.30 p.m. in Kadiyam village the deceased along with others was proceeding as loading and unloading coolies in the tractor-trailer bearing registration Nos.AP 5X 3201 and 3202 belonging to the 2^nd respondent with a load of hay by sitting on the load, and while overtaking a double bullock cart, due to rash and negligent driving of the tractor-trailer at high speed by its driver, the driver lost control over the tractor and thereby, the tractor-trailer turned turtle and the deceased sustained grievous injuries and later succumbed to injuries on 09.02.2003. The S.H.O., Kadiyam P.S. registered a case in crime No.186 of 2002 against the driver of the offending tractor-trailer for the offence punishable under Section 304-A of IPC. The 1^st respondent is driver, the 2^nd respondent is owner and the 3^rd respondent is insurer of the offending tractor-trailer, hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.

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Respondent Nos.1 and 2 were set ex parte . The 3^rd respondent/Insurance company filed a counter by denying the manner of accident, age, avocation and income of the deceased. It is pleaded that the driver of the tractor-trailer was not holding valid and effective driving licence at the time of accident, as per the terms of the policy, the loading and unloading coolies were not covered under the policy while the vehicle was in motion, as such, the Insurance company is not liable to pay any compensation.

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Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:

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1. Whether the accident occurred due to rash and negligent driving of the tractor and trailer Nos.AP 5X 3201 and 3202 by its driver the 1^st respondent herein?

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1. Whether the petitioners are entitled for compensation amount claimed? If so, from 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.7 and Ex.X.1 were marked. On behalf of the 3^rd respondent/Insurance company, R.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked.

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At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending tractor-trailer and accordingly, allowed the petition in part and granted an amount of Rs.3,65,000/- towards compensation to the petitioners with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of deposit against all the respondents. Questioning the legal validity of the said order, the 3^rd respondent/Insurance company preferred the instant appeal.

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Heard Smt. A. Jayanthi, learned counsel for the appellant/Insurance company, and Sri B. V. Rama Rao, learned

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counsel for respondent Nos.1 to 3/petitioners, and perused the record.

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Now, the point for determination is:

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Whether the order of the Tribunal needs any interference of this Court, if so, to what extent?

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POINT : The case of the petitioners is that on 25.10.2002 at about 2.30 p.m. in Kadiyam village, the deceased along with other labourers was proceeding as a loading and unloading coolie in the tractor-trailer bearing registration Nos.AP 5X 3201 and 3202 belonging to the 2^nd respondent with a load of hay by sitting on the load, and while overtaking a double bullock cart, due to rash and negligent driving of the tractor-trailer at high speed by its driver, the driver lost control over the tractor and thereby, the tractor-trailer turned turtle and the deceased sustained grievous injuries and later succumbed to injuries on 09.02.2003.

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In order to prove the rash and negligent driving of the driver of the offending tractor-trailer, the petitioners relied on the evidence of P.Ws.1 and 2. Admittedly, P.W.1 is none other than the wife of the deceased and she is not an eye witness to the accident. P.W.2 is another labourer who travelled in the tractor-trailer along with the deceased at the time of accident and he is the best person to speak about the manner of accident. As per his evidence, the accident in question occurred due to rash and negligent driving of the driver of the tractor-trailer at high speed. In his entire cross-examination, except suggesting that the accident occurred due to negligence of the deceased, nothing has been elicited to disprove the evidence of P.W.2 in his chief-examination affidavit. Though the 3^rd respondent/Insurance company examined R.Ws.1 and 2, their evidence is not useful to prove that there was no rashness and negligence on the part of the driver of the offending tractor-trailer. The petitioners also relied on Ex.A.1-attested copy of first information report and Ex.A.2-attested copy of M.V.I. report. Ex.A.1

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goes to show that first information report was registered against the driver of the offending vehicle and the accident occurred due to rash and negligent driving of the driver of the offending vehicle. Ex.A.2 clearly goes to show that the accident not occurred due to any mechanical defects in the offending vehicle. The evidence of P.W.2 coupled with Exs.A.1 and A.2 clearly proves that the accident occurred due to rash and negligent driving of the driver of the offending tractor-trailer. On appreciation of the entire material on record, the Tribunal also came to the same conclusion. Therefore, this Court feels that there is no need to interfere with the said finding given by the Tribunal.

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Coming to the compensation, P.W.3 is Dr. R. Pardha Saradhi who initially treated the deceased in the Government Hospital, Rajahmundry and referred the deceased to Government General Hospital, Kakinada. As per his evidence, on account of spinal injury, the lower limbs of the deceased were totally paralyzed and he anticipated the risk in future and in the event the injuries are not

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healed, there is possibility of death due to the injuries. The evidence of P.W.3 coupled with Ex.A.3-wound certificate, Ex.A.1-x-

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ray films, and Ex.A.4-death certificate of the deceased clearly proved that the direct cause of death was the injury sustained by the deceased to spine which resulted in paralyzing the lower limbs. By giving cogent reasons, the Tribunal came to the conclusion that the cause of death of the deceased was the injury sustained by him in the road accident.

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On appreciating the material available on record, the Tribunal fixed the notional income of the deceased as Rs.3,000/- per month i.e., Rs.36,000/- per annum and also fixed the age of the deceased as 26 years. The dependents on the deceased are three in number. As per the judgment of the Hon’ble Supreme Court in Sarla Varma Vs. Delhi Transport Corporation¹ , having deducted 1/3^rd from out of annual income towards personal expenses of the deceased and by applying the multiplier ‘17’ to the age group of the deceased, the

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1 2009 (4) SCJ 91

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Tribunal arrived the loss of dependency to the family members of the deceased at Rs.4,08,000/- (Rs.24,000/- (Rs.36,000/- - Rs.12,000/-) x multiplier ‘17’). Since the petitioners claimed in the claim petition a sum of Rs.3,50,000/- under the head of loss of future dependency, the Tribunal granted the said amount of Rs.3,50,000/- towards loss of dependency. In addition to that, the Tribunal granted an amount of Rs.5,000/- towards loss of estate, Rs.5,000/- towards loss of consortium to the 1^st petitioner and Rs.5,000/- towards love and affection to the petitioners. By giving cogent reasons, the Tribunal came to the conclusion that the petitioners are entitled to a sum of Rs.3,65,000/- towards compensation. No appeal or cross-objections is filed by the petitioners for enhancement of the compensation. There is no legal flaw or infirmity in the said finding given by the Tribunal, therefore, it warrants no interference.

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Admittedly, the offending tractor-trailer of the 2^nd respondent was insured with the 3^rd respondent/Insurance company under

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Ex.B.2-policy and the policy was also in force as on the date of the accident.

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The Tribunal held in its order that as seen from the certificate of insurance, the 3^rd respondent/Insurance company collected premium of Rs.105/- to cover the risk of seven employees to pay compensation as workmen compensation The Tribunal also held in its order that the deceased was a workman engaged for loading and unloading purpose and the coolies are engaged for loading and unloading the goods from the vehicle.

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It is the contention of the appellant/Insurance company that

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the deceased was travelling as a gratuitous passenger on the offending tractor-trailer, therefore, the Insurance company is not liable to pay the compensation.

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In Manuara Khatun Vs. Rajesh Kr. Singh (Civil Appeal No.3047 of 2017 dated 21.02.2017 arising out of SLP (C) No.5805/2013), the Hon’ble Apex Court held as under:

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“This question also fell for consideration recently in Manager, National Insurance Co. Limited V. Saju P. Paul and Anr, (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as “gratuitous passenger” and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of “pay and recover”.”

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In the light of the principle laid down by the Hon’ble Apex Court in the aforesaid judgment, since premium was collected by the 3^rd respondent/Insurance company to cover the risk of the deceased under Ex.B.2-policy and the offending tractor-trailer was insured with

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the 3^rd respondent/Insurance company under Ex.B.2-policy and the policy was also in force by the date of accident, the Insurance

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company is liable to first pay the awarded sum to the petitioners and then to recover the paid awarded sum from the owner of the offending tractor-trailer/2^nd respondent by filing an execution petition and without filing any independent suit.

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Accordingly, the 3^rd respondent/Insurance Company is directed to deposit the compensation amount of Rs.3,65,000/- with costs and interest as ordered by the Tribunal, before the Tribunal in the first instance within two months from the date of this judgment and later recover the same from the 2^nd respondent/owner of the offending tractor-trailer by filing an execution petition and without filing any independent suit. The order passed by the Tribunal with regard to the liability is modified to the extent indicated above. The order of the Tribunal in all other respects shall remain intact.

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