Dismissed

The Oriental Insurance Company Ltd. v. Kursheed and 4 Ors.

Andhra Pradesh HC4 Sept 2024MACMA/349/2011

Case brief

AI extract

What is this about?

Insurer appealed against a motor accident compensation award for the death of a scooter rider in a collision with a proclain. The court upheld the finding of negligence of the offending vehicle's driver, corrected the multiplier from 8 to 13 per Sarla Verma, and enhanced compensation from Rs.3,74,872/- to Rs.6,04,792/- payable to the widow.

What the court decided

AI extract

The Oriental Insurance Company Ltd. Vs Kursheed and 4 Ors. — Insurance | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI

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THE HON’BLE SMT. JUSTICE SUMATHI JAGADAM

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M.A.C.M.A.No.349 of 2011

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Between:

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The Oriental Insurance Company Limited.

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…Appellant/Respondent No.2

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and

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P.Kursheed and 4 others.

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…Respondents/Petitioners/Respondent No.1

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Counsel for appellant : Sri V.Raghu Counsel for respondent Nos.1 to 4 : Sri Venkata Durga Rao Counsel for respondent No.5 : None [[

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This Court made the following:

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ORDER:

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This appeal is filed by the Oriental Insurance Company Limited represented by its Divisional Manager, Guntur, under Section 173 of the Motor Vehicles Act 1988, against the Judgment dated 18.07.2008 passed by the Chairman, Motor Vehicle Accidents Claims Tribunal - cum - II Additional District Judge, Guntur, (hereinafter referred to as “the Tribunal”) in M.V.O.P.No.417 of 2005, awarding compensation of Rs.3,74,872/- to the 1^st respondent herein/1^st claimant as against the claim of Rs.10,00,000/-.

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JS,J M.A.C.M.A. No.349 of 2011

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For convenience and to avoid confusion, the parties hereinafter will be referred to as they are arrayed before the Tribunal.

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The brief facts of the case are that one Pattan Mansoor Khan died on 23.01.2005 due to rash and negligent driving of a proclaim bearing Registration No.AP 31W 0886 by its driver. Petitioner No.1 is the wife of the deceased, and petitioner Nos.2 to 4 are the children of the deceased. On the date of the accident, petitioners Nos.2 to 4 are majors and married and cannot be termed as dependents of the deceased. It was stated in the claim petition that on 23.01.2005, the deceased Pattan Mansoor Khan and his friend went to Perecherla on a scooter to attend a function and when they were returning to Guntur at about 07.00 or 07.30 p.m., near Perecherla Sri Sai Ram Service station petrol bunk, the offending vehicle was coming from petrol bunk in a rash and negligent manner. It hit the scooter of the deceased, because of which, he sustained grievous head injuries and died on the spot. It was further stated that the deceased was about 44 years old and was working as a driver in APSRTC, Guntur-2 depot, getting a salary of Rs.6,744/- per month, and the claimants are dependents on the deceased. As mentioned earlier, the claimants sought compensation of Rs.10,00,000/- for the death of the deceased. The case was registered in Crime No.12 of 2005 for the offences punishable under Sections 337 & 304 of IPC on the file of Medikonduru Police Station against the driver of the offending vehicle.

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JS,J M.A.C.M.A. No.349 of 2011

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The 1^st respondent, the owner of the offending vehicle, and the 2^nd respondent/insurance company contested the claim petition and filed their written statements. In their written statements, the owner of the offending vehicle denied the involvement of the offending vehicle in the accident and, inter alia , alleged that the scooter itself came in the wrong direction and hit the offending vehicle. The claimants filed the claim petition for wrongful gain. The owner of the offending vehicle inter alia stated that his vehicle was insured with the 2^nd respondent, the policy was in existence as of the date of the accident, and the driver had a valid driving licence. The insurance company has also denied the involvement of the offending vehicle in the accident and pleaded that the accident occurred because of the negligence of the deceased. The insurance company also pleaded that the offending vehicle's driver had no valid driving licence.

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

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Whether the accident took place due to rash or negligent driving of the driver of Proclain No. AP 31W 866?

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To what compensation the petitioners are entitled and from whom?

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To what relief?

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In order to establish their claim, the petitioners examined P.Ws.1 to 3 and marked documents as Exs.A.1 to A.8. The respondents examined R.Ws.1 to 3 and marked documents as Exs.B1 and B2.

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JS,J M.A.C.M.A. No.349 of 2011

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The Tribunal, by an order dated 18.07.2008, allowed the claim petition in part by granting compensation of Rs.3,74,872/- to the 1^st petitioner with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of realization and dismissed the claim petition in respect of petitioner Nos.2 to 4. Questioning the same, the appellant filed the present appeal.

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Sri V. Raghu, learned Standing Counsel for the appellant/Insurance company, argues that the final report of the police marked as Ex.B2 coupled with the evidence of R.W.3 reveals that the accident occurred due to negligent driving of the scooter by the deceased and the appellant/insurer is not liable to pay compensation to the claimant.

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On the other hand, learned counsel for respondent Nos.1 to 5/claimants submits that before the Tribunal, petitioner No.3 deposed as P.W.1 and one Tirumala Srinivas Rao, who is the pillion rider and the eyewitness of the incident, deposed as P.W.2 that when the deceased and P.W.2 were returning on a scooter, the offending vehicle came suddenly from petrol bunk to main road in a negligent manner and hit the scooter, as a result of which, the deceased fell into proclain bucket and sustained grievous injuries on his head and died on the spot. The Tribunal, after considering the testimony of P.W.2, the FIR, the inquest-cum-crime scene report and the post-mortem report of the deceased (Exs.A1 to A3), and also the charge-sheet filed against the owner of the offending vehicle

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JS,J M.A.C.M.A. No.349 of 2011

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(Ex.B2) has rightly decided issue No.1 that the accident took place due to rash and negligent driving of the driver of Proclain No.AP 31W 0866, in favour of the claimants and against the respondents and accordingly awarded compensation to the claimants. Therefore, the award passed by the Tribunal cannot be interfered with.

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Now, the point for consideration is:

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Whether the accident occurred due to negligent driving of the scooter by the deceased? If so, is the compensation awarded by the tribunal to the 1^st claimant just and fair?

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The case of the appellant/insurance company is that the driver of the offending vehicle is not negligent. The deceased scooter hit the offending vehicle in the wrong direction, and the claimant filed the claim petition for wrongful gain. The insurance company denied the involvement of the offending vehicle in the accident and pleaded that the accident occurred because of the deceased negligence. The appellant insurance company is not liable to pay compensation.

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The panchanama of the scene of the offence, photos, and MVI report during the investigation by police substantially supported the case of the claimant, who stated that the accident happened due to the negligent driving of the offending vehicle. The offending vehicle was meant for the personal use of the 1^st respondent, and the vehicle was moving at the time of the accident. P.W.2, the eyewitness to the entire episode,

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JS,J M.A.C.M.A. No.349 of 2011

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described as to how the accident occurred. Moreover, the motor vehicle inspector's report shows that the offending vehicle is free from mechanical defects. R.Ws.1 to 3 are not the eye-witnesses of the said accident. Given this, it can be safely concluded that the accident happened due to the negligence of the offending vehicle's driver.

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Coming to the award of compensation, the Tribunal has wrongly applied the multiplier “8” instead of “13”. As per Ex.A7, the date of birth of the deceased is 02.04.1956, and as of the date of the accident, the deceased was aged 49 years and 03 months. As per Sarla Verma’s case, the multiplier “13” has to be applied. The annual income of the deceased comes to Rs.68,976/- as fixed by the Tribunal, out of which 1/3^rd of the said yearly net income comes to Rs.22,992/-. If the 1/3^rd amount is deducted towards the personal expenses of the deceased, the actual contribution to the family comes to Rs.45,984/-, and if the multiplier “13” is applied, the loss of dependency comes to Rs.5,97,792/-. The compensation awarded under other heads remains unaltered. Thus, the total compensation to which the petitioners are entitled is Rs.6,04,792/-. The legal heirs of the deceased are majors and married as of the date of the accident, and they are leading independent lives. Given the same, the said compensation is awarded only to the 1^st petitioner, the deceased's wife.

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JS,J M.A.C.M.A. No.349 of 2011

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For the reasons above, the compensation awarded by the Tribunal is enhanced from Rs.3,74,872/to Rs.6,04,792/-, and the 1^st respondent/claimant is entitled to the enhanced compensation amount of Rs.2,29,920/- with interest @7.5% p.a. from the date of filing of the claim petition till realisation. The 1^st respondent/claimant is entitled to the rest of the compensation amount. The appellant/insurance company is directed to deposit the compensation amount within two months from the date of receipt of a copy of this order after deducting the amount deposited earlier, if any. On such deposit, the 1^st respondent/claimant can withdraw the compensation amount with accrued interest by filing a proper application. However, the claimants shall pay the requisite Court fee for the amount awarded over and above the compensation claimed.

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As a result, the appeal is dismissed, but with modifications in the award passed by the Tribunal concerning the amount of compensation, as made herein above, in favour of the 1^st respondent/1^st claimant. No order as to costs.

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As a sequel, miscellaneous petitions, if any, pending shall stand closed.

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SUMATHI JAGADAM, J

Date: 05.09.2024

BSK

JS,J M.A.C.M.A. No.349 of 2011

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THE HON’BLE SMT. JUSTICE SUMATHI JAGADAM

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M.A.C.M.A.No.349 of 2011

Date: 05.09.2024

BSK

JS,J M.A.C.M.A. No.349 of 2011

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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M.A.C.M.A. No. 349 of 2011

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Between:

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The Oriental Insurance Company Ltd., rep. by its Divisional Manager, Divisional Office-I, D.S. Complex, 1^st Floor, Post Box No.36, Main “Road, Guntur. (Policy Cover Note No.432300/2005/438 Valid from 30.04.2004 to 29.04.2005)

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…Appellant/Respondent No.2

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and

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Kursheed.P, W/o. Late Pathan Mansoor Khan, Aged about 42 years, Muslim, R/o. 15-6-113, Redla Bazar, Old Guntur, Guntur & 4 others

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…Respondents/Petitioners/Respondent No.1

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DATE OF JUDGMENT PRONOUNCED: 05.09.2024

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SUBMITTED FOR APPROVAL:

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THE HON'BLE SMT JUSTICE SUMATHI JAGADAM

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Whether Reporters of Local newspapers may be allowed to see the Judgments?

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Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments? 2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals?

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Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment?

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___________________ SUMATHI JAGADAM, J

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JS,J M.A.C.M.A. No.349 of 2011

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THE HON'BLE SMT JUSTICE SUMATHI JAGADAM

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M.A.C.M.A. No. 349 of 2011

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Between:

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…Appellant/Respondent No.2

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and

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Kursheed.P, W/o. Late Pathan Mansoor Khan, Aged about 42 years, Muslim, R/o. 15-6-113, Redla Bazar, Old Guntur, Guntur & 4 others

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…Respondents/Petitioners/Respondent No.1

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<GIST:

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HEAD NOTE:

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! Counsel for the petitioner : Sri V.Raghu ^ Counsel for respondent Nos.1 to 4 : Sri Venkata Durga Rao ^ Counsel for respondent No.2 : None appeared ? CASES REFERRED :

The Oriental Insurance Company Ltd. v. Kursheed and 4 Ors.

Case brief

What is this about?

What the court decided

The Oriental Insurance Company Ltd. v. Kursheed and 4 Ors.

Case brief

What is this about?

What the court decided

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