Dismissed

The Oriental Insurance Co. Ltd. v. Aluri Naga Lakshmi and 6 Others

Andhra Pradesh HC6 Sept 2023MACMA/3066/2014

Case brief

AI extract

What is this about?

The High Court dismissed insurance company appeals challenging a Motor Accident Claims Tribunal award of Rs.17.21 lakh for death compensation. The court upheld the finding of composite negligence by both drivers and the calculated compensation quantum.

What did the court decide?

Both appeals dismissed; insurers directed to deposit 50% compensation each with interest and costs.

The Oriental Insurance Co. Ltd. Vs Aluri Naga… — 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.Nos. 3066 and 3241 of 2014

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COMMON JUDGMENT:

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Questioning the legal validity of the award of the Tribunal dated 30.04.2014 passed by the Chairman, Motor Accident Claims Tribunal-cum-XII Additional District Judge, Vijayawada, in O.P.No.310 of 2007, the 4^th respondent/Oriental Insurance Co. Ltd. filed M.A.C.M.A.No.3066 of 2014 while the 2^nd respondent/Bajaj Allianz General Insurance Co. Ltd. filed M.A.C.M.A.No.3241 of 2014.

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Since both the appeals arose from out of one decree and order passed in O.P.310 of 2007, 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 read with Rule 455 of the A.P.M.V. Rules,

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VGKR,J

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1989 against the respondents claiming compensation of Rs.14,00,000/- for the death of Aluri Mani Kumar, who is husband of 1^st petitioner, father of 2^nd petitioner and son of petitioner Nos.3 and

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4, in a road accident that took place on 09.10.2006.

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

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On 09.10.20096 at about 10.45 a.m. the deceased was travelling in an auto bearing registration No.AP 7W 7132 of the 3^rd respondent from Epuri to Vinukonda and when the said auto reached near Chekkavagu of Vinukonda, an auto bearing registration No.AP 7W 7538 being driven by its driver in a rash and negligent manner at high speed came in opposite direction without following the rules and dashed the auto in which the deceased was travelling, as a result, the deceased sustained severe injuries and later succumbed to injuries. The 1^st respondent is owner and the 2^nd respondent is insurer of the auto No.AP 7W 7538, the 3^rd respondent is owner and the 4^th respondent is insurer of the auto

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No.AP 7W 7132, hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.

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Respondent Nos.1 and 3 were set ex parte . Respondent Nos.2 and 4 filed their individual counters by denying the allegations made in the claim petition.

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i) It is pleaded by the 2^nd respondent that the accident occurred by reason of head on collision of the vehicles of the 1^st respondent and the 3^rd respondent and in both the vehicles, more than the authorized number of passengers were travelling at the time of accident, therefore, it amounts to violation of terms and conditions of the policy, as such, the 2^nd respondent is not liable to pay any compensation.

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ii) It is pleaded by the 4^th respondent that the accident occurred by reason of rash and negligent driving of the driver of the auto of the 1^st respondent, therefore, the 4^th respondent is not liable to pay any compensation.

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MACMA.Nos.3066 & 3241 of 2014

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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 death of Mani Kumar in a motor vehicle accident on 9.10.2006 at 10.45 hours near Chekka Vagu Karampudi, Guntur District due to the rash and negligent driving of crime vehicle auto bearing No.AP 7W 7538 and AP 7W 7132 auto?

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1. If so, what is the correct age and income of the deceased by the date of accident?

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1. Whether petitioners are entitled to the compensation as prayed for? If so, from whom and for what amount?

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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.W. 1 was examined and Exs.A.1 to A.7 were marked. On behalf of respondent Nos.2 and 4, R.W.1 was examined and Exs.B.1 and B.2 were examined.

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At the culmination of the enquiry, based on the material on

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record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the drivers of both the autos involved in the accident and accordingly, allowed the petition

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in part and granted a total compensation of Rs.17,21,000/- with costs and interest at 7.5% p.a. from the date of petition till the date of payment against all the respondents. Aggrieved against the said order, the 4^th respondent/Oriental Insurance Co. Ltd. filed M.A.C.M.A.No.3066 of 2014 while the 2^nd respondent/Bajaj Allianz General Insurance Co. Ltd. filed M.A.C.M.A.No.3241 of 2014.

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Heard learned counsels for both the parties 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, if so, to what extent?

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POINT : In order to prove the accident, the petitioners got

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examined the 1^st petitioner as P.W.1. P.W.1 is none other than the wife of the deceased and she is not an eye witness to the accident. The petitioners did not examine any eye witness to the occurrence of the accident. The petitioners relied on the documentary evidence i.e., Ex.A.1-attested copy of first information report and Ex.A.4-

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attested copy of charge sheet. Ex.A.1 is the first information report issued by the Police based on a report given by one of the injured in the accident and the de facto complainant was a passenger in the auto of the 3^rd respondent at the time of accident and in the same auto, the deceased was travelling. As per Ex.A.1, the auto of the 1^st respondent being driven by its driver in a rash and negligent manner at high speed came in opposite direction and dashed the auto in which the deceased and the de facto complainant were travelling. Based on Ex.A.1, the Sub Inspector of Police took up the investigation in this case, examined the witnesses concerned and laid a charge sheet under Ex.A.4. As seen from the contents of Ex.A.4, the Investigating Officer examined all the witnesses in this case, visited the scene of offence immediately after occurrence of the accident, conducted scene observation panchanama in the presence of mediators and prepared a report to that effect, and also prepared a rough sketch of scene of offence. Ex.A.4 clearly discloses that the accident occurred in the middle of the road and the drivers of both the autos are negligent. Either of the parties in

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the claim petition did not file the scene observation report and rough sketch.

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The 1^st respondent’s auto driver was examined as R.W.1. As per the evidence of R.W.1, at the time of accident he was proceeding on the road on his left side in a slow manner and the auto of the 3^rd respondent driven by its driver in a rash and negligent manner came in opposite direction and dashed his auto. The accident in question occurred in broad daylight and both the autos involved in the accident came in opposite direction. As per Ex.A.4, the accident occurred in the middle of the road. The same is not denied by the driver of the auto of the 1^st respondent. As the accident occurred in broad daylight, there is every possibility for the drivers of both the autos to take steps to avoid the accident. The evidence of R.W.1 is silent as to what steps are taken by him to avoid the accident. On considering the entire material on record, by giving cogent reasons, the Tribunal came to the conclusion that there was composite negligence on the part of the drivers of both

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the autos for occurrence of the accident. I do not find any legal flaw or infirmity in the said finding given by the Tribunal.

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Coming to the compensation, the case of the petitioners is that during the lifetime of the deceased, he worked as a Police Constable and used to earn gross salary of Rs.8,200/- p.m. As per Ex.A.7, the Government deductions are Rs.871/-. Therefore, the net salary of the deceased is Rs.7,329/- p.m. i.e., Rs.87,948/- per annum which is rounded off to Rs.88,000/-. Since the deceased was a permanent employee and aged in between 25-30 years, as per the decision of the Hon’ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi¹ , 50% from out of annual income has to be added towards future prospects and accordingly, the annual income of the deceased is arrived at Rs.1,32,000/(Rs.88,000/- + Rs.44,000/-). The dependants on the deceased are four in number. So, 1/4^th from out of the annual income has to be deducted towards personal expenses of the deceased. Having deducted as such, the annual contribution to the family members of

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1 2017 (16) SCC 680

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the deceased is arrived at Rs.99,000/- (Rs.1,32,000/- - Rs.33,000/-). As stated supra, the deceased was aged in between 25-30 years on the date of accident and the relevant multiplier applicable to the age group of the deceased is “17”, as per the judgment of the Hon’ble Supreme Court in Sarla Varma Vs. Delhi Transport Corporation² and the loss of dependency is arrived at Rs.16,83,000/- (Rs.99,000/-

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x 17). The 1^st petitioner lost her husband at the age of 25 years, therefore, Rs.30,000/- is awarded towards loss of consortium to the 1^st petitioner. Apart from that, an amount of Rs.8,000/- is awarded towards funeral expenses of the deceased. In total, the petitioners are entitled to a compensation of Rs.17,21,000/-. Therefore, the compensation of Rs.17,21,000/- awarded by the Tribunal is just and proper and there is no need to interfere with the quantum of compensation awarded by the Tribunal.

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Since it is proved that the accident occurred by reason of composite negligence on the part of the drivers of both the autos involved in the accident, on considering the overall circumstances of

2 2009 (4) SCJ 91

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the case, 50% contributory negligence is fixed on the driver of the auto of the 1^st respondent and 50% contributory negligence is fixed on the driver of the auto of the 3^rd respondent.

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As per Ex.B.1-copy of policy, the auto of the 1^st respondent was insured with the 2^nd respondent/Bajaj Allianz General Insurance Company Limited, and as per Ex.B.2-copy of policy, the auto of the 3^rd respondent was insured with the 4^th respondent/Oriental Insurance Company Limited and the policies were also in force as on the date of accident. As per the evidence on record, there are no violations of the terms and conditions of the policies issued by respondent Nos.2 and 4. Therefore, respondent Nos.2 and 4 are liable to indemnify respondent Nos.1 and 3 respectively. On appreciating the evidence on record, the Tribunal came to the conclusion that all the respondents are jointly and severally liable to pay the compensation and respondent Nos.2 and 4 being insurers of the offending autos are liable to indemnify respondent Nos.1 and 3 respectively. Therefore, there is no need to interfere with the said finding given by the Tribunal.

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MACMA.Nos.3066 & 3241 of 2014

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Accordingly, both the appeals are dismissed. The 2^nd respondent/Bajaj Allianz General Insurance Company Limited is directed to deposit 50% of the compensation i.e., Rs.8,60,500/- after deducting the amount deposited if any, and the 4^th respondent/Oriental insurance Company Limited is directed to deposit the remaining 50% of the compensation i.e., Rs.8,60,500/after deducting the amount deposited if any, along with costs and interest as ordered by the Tribunal, before the Tribunal within two months from the date of this judgment. No order as 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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______________________________ V.GOPALA KRISHNA RAO,J

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6^th September, 2023 cbs

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MACMA.Nos.3066 & 3241 of 2014

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