Allowed

D.Prabhavathi and 4 Ors. v. M.Yalladri and Anr.

Andhra Pradesh HC12 Sept 2023MACMA/3190/2012

Case brief

AI extract

What is this about?

, this court allowed the appeal and enhanced compensation to Rs.5,00,000. Relying on Mukund Dewangan, it held a non-transport L.M.V. validly covers transport vehicles without endorsement, mandating the insurer to pay at first instance and recover later from the owner.

What did the court decide?

Compensation enhanced to Rs.5,00,000 with 6% interest. Insurance company directed to deposit amount and recover from owner via execution petition.

D.Prabhavathi and 4 Ors. Vs M.Yalladri and Anr. — 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.3190 of 2012

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JUDGMENT:

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Aggrieved by the impugned order dated 21.09.2011 on the file of Motor Accident Claims Tribunal -cum-VII Additional District Judge (FTC), Madanapalle, passed in M.V.O.P.No.196 of 2009, whereby the Tribunal partly allowed the claim of claimants against the first respondent, the instant appeal is preferred by the appellantsclaimants against the exoneration of the Insurance company from the liability of payment of the compensation amount.

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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 application.

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The claimants filed a Claim Petition under section 166 of Motor Vehicles Act, 1988 against the respondents praying the Tribunal to award an amount of Rs.5,00,000/towards compensation on account of death of deceased Lakshminarayana in a Motor Vehicle Accident occurred on 12.01.2009.

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Facts germane to dispose of this appeal may be briefly stated as follows:

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On 12.01.2009 at about 2.00 p.m. Mr.Lakshminarayana, hereinafter referred to as ‘deceased’, and V.Reddappa were proceeding on a motor cycle bearing registration No.AP09R 8820 and when they reached Ramiganipalle on ThamballapalleMadanapalle road, the driver of Tata Van bearing registration No.AP03X 6011, hereinafter referred to as ‘offending vehicle’, which belongs to first respondent and insured with second respondent Insurance company, drove the same in a rash and negligent manner and dashed against the motor cycle of the deceased, resulting which, the deceased sustained grievous injuries, later succumbed to injuries.

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The first and second respondents filed counters denying the claim of the claimants and contended that the claimants are not entitled any compensation and the first and second respondents are not liable to pay any compensation to the claimants.

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Based on the above pleadings, the Tribunal framed the following issues:

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i. Whether the accident occurred due to rash and negligent driving of Tata Van bearing No.AP03X 6011 involved resulting the death of D.Lakshminarayana?

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ii. Whether the petitioners are entitled for compensation? If so, by whom and to what amount?

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iii. To what relief?

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During the course of enquiry in the claim petition, on behalf of the petitioners, PW1 and PW2 were examined and Ex.A1 to Ex.A5 were marked. On behalf of second respondent, RW1 and RW2 were examined and Ex.B1 to Ex.B3 and Ex.X1 were marked.

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At the culmination of the enquiry, after considering the evidence on record and on appreciation of the same, the Tribunal has given a finding that the accident was occurred due to rash and negligent driving of driver of offending vehicle and the Tribunal granted an amount of Rs.4,41,500/- to the claimants towards compensation from the respondent No.1 and claim against the respondent No.2/Insurance Company is dismissed. Aggrieved against the exoneration of the Insurance company from the liability of payment of the compensation amount and for enhancement of

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compensation amount, the appellants/petitioners preferred the present appeal.

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

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Now, the points for consideration are:

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1. Whether the Order of Tribunal needs any interference?

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2. Whether the claimants/ appellants are entitled for enhancement of compensation as prayed for?

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11. POINT Nos.1 and 2 :-

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In order to prove the rash and negligent driving of the driver of

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the offending vehicle, the petitioners relied on the evidence of PW1 and PW2. PW1 is the wife of the deceased and she is not an eye witness to the accident. PW2 is the eye witnesses to the accident. As per the evidence of PW2, at the time of accident, the driver of the offending vehicle drove the same in a rash and negligent manner and dashed against the motor cycle of the deceased and caused instantaneous death of the deceased. The same is supported by Ex.A1 copy of First Information Report and Ex.A4 copy of charge

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sheet. Ex.A1 and Ex.A4 clearly reveal that a case was registered against the driver of the offending vehicle and after completion of investigation, charge sheet was laid against the driver of the offending van for the offences under Sections 337 and 304-A of Indian Penal Code, 1860. By giving cogent reasons, the Tribunal held in its order that the accident in question was occurred due to rash and negligent driving of the driver of the offending van. 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 Tribunal granted an amount of Rs.4,41,500/- to the claimants towards total compensation against the first respondent. As per the case of the petitioners, the deceased used to earn Rs.200/- per day on tractor-trailer and Rs.1,25,000/- per annum from agriculture. But no oral or documentary evidence was adduced to prove the said quantum, however by giving cogent reasons, the Tribunal arrived the monthly income of the deceased as Rs.3,000/- i.e., Rs.36,000/- per annum. The accident in question occurred in the year 2009. In those days an ordinary coolie can easily earn Rs.100/- per day i.e., Rs.3,000/-

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per month. Accordingly, monthly income of the deceased arrived by the Tribunal as Rs.3,000/- is just and proper. I do not find any legal flaw or infirmity in the said finding given by the Tribunal.

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Coming to the multiplier applied by the Tribunal, the age of the deceased was 25 years and the Tribunal applied multiplier of 18, therefore, it warrants no interference. The Tribunal deducted 1/3^rd income towards personal expenses of the deceased. Since the dependents on the deceased are five in number, as per the decision

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of Sarla Verma’s case, 1/4^th income has to be deducted towards personal expenses of the deceased. If 1/4^th income is deducted, the net income available to the dependents on the deceased is Rs.27,000/- (36,000 – 9,000) per annum. Since the deceased was aged about 25 years, the relevant multiplier applicable to the age group of the deceased is 18. Accordingly, an amount of Rs.4,86,000/- (27,000 x 18) is awarded to the claimants towards loss of dependency. In addition to that, an amount of Rs.30,000/- is awarded towards loss of consortium to the first petitioner and an amount of Rs.10,000/- is awarded towards funeral expenses of the deceased. In total, the claimants are entitled an amount of

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Rs.5,26,000/- towards compensation. But the claimants claimed an amount of Rs.5,00,000/- only. Therefore, the claim is restricted to Rs.5,00,000/- only.

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Learned counsel for the appellants would submit that the offending vehicle is Tata Ace transport vehicle and the driver of the offending vehicle is having Light Motor Vehicle driving licence and the policy is in force. As per the evidence of RW1 and Ex.B1 to Ex.B3, the driver of the first respondent had no transport driving licence and he possessed Light Motor Vehicle non-transport driving licence only. The material on record reveals that the offending vehicle is Light Motor Vehicle transport and the driver of the offending vehicle possessed the driving licence of Light Motor Vehicle non-transport and the transport endorsement is not there on the driving licence of the driver of the offending vehicle. No doubt the offending vehicle is a light Motor Vehicle transport, but the driving skills of transport Light Motor Vehicle and non-transport Light Motor Vehicle are one and the same.

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15. In a decision of Hon’ble Supreme Court of India in Mukund

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Dewangan Vs. Oriental insurance Company Limited¹ held that

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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.

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(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.

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(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

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transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

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(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to 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.

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Therefore, in view of the above decision of the Hon’ble Supreme Court of India, the driving licence of driver of 1^st respondent is sufficient to drive the crime vehicle/van. Therefore, objection taken by the 2^nd respondent/ Insurance Company cannot be accepted. Accordingly, the driver of first respondent is having valid and effective driving licence to drive the offending vehicle/ van on the date of accident. Since the offending vehicle is insured with the second respondent/ Insurance Company, the second respondent is directed to pay the compensation amount to the claimants at first instance and later recover the same from the first respondent/ owner of the offending vehicle.

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In the result, this appeal is allowed, modifying the order dated 21.09.2011 passed in MVOP No.196/2009 on the file of the Motor Accident Claims Tribunal-cum-VII Additional District Judge (Fast Track Court), Madanapalle, consequently the claim amount is enhanced from Rs.4,41,500/- to Rs.5,00,000/-. The appellants/ claimants are entitled an amount of Rs.5,00,000/- towards total compensation with interest @6% p.a. from the date of petition, till the date of realization. The 2^nd respondent/ Insurance Company is directed to deposit the compensation amount of Rs.5,00,000/- with interest as ordered above within two months from the date of this judgment, before the Tribunal at first instance and later recover the total compensation amount with interest from the first respondent/ owner of the offending vehicle, by filing an Execution Petition and without filing any independent suit. The first petitioner is entitled an amount of Rs.2,00,000/- along with accrued interest thereon, the second and third petitioners are entitled an amount of Rs.1,00,000/each along with accrued interest thereon, the fourth petitioner is entitled an amount of Rs.40,000/- along with accrued interest thereon and the fifth petitioner is entitled an amount of Rs.60,000/along with accrued interest thereon. The petitioners 2 and 3 are

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entitled to withdraw their share of compensation amount after attaining majority. Until they attain majority, their share of compensation amount along with accrued interest thereon shall be kept in Fixed Deposit in any nationalized bank. After depositing the compensation amount along with accrued interest, the petitioners 1, 4 and 5 are entitled to withdraw their share of compensation amount along with accrued interest thereon. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this appeal shall stand closed.

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________________________________ V.GOPALA KRISHNA RAO, J

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Dated: 12.09.2023. sj

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