Insurer appealed a compensation award for a fatal motor accident, arguing contributory negligence by the deceased rider and excessive interest. The High Court held head-on collision alone does not prove contributory negligence without positive evidence, upheld 9% interest, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
WEDNESDAY ,THE TENTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 948 OF 2019
Appeal filed Section 173 of M.V Act, aggrieved by the order passed in M.V.O.P.No.363 of 2013 on the file of VI Additional District Judge - cumMotor Accidents Claims Tribunal, Visakhapatnam, dated 29th day of November, 2018.
Between:
Reliance General Insurance Limited, Rep. By it Branch Manager Visakhapatnam.
...Appellant/3"^ Respondent
AND
...Respondents/Petitioners
/
...Respondents
lA NO: 2 OF 201Q
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed i in support of the petition, the High Court may be pleased to grant stay of operation of the decree and judgment passed in M.V.O.P.No. 363 of 2013 on the file of VI Additional District Judge - cumMotor Accidents Claims Tribunal Visakhapatnam, dated 29^^ day of November, 2018, pending disposal of the main M.A.C.M.A.
Counsel for the Appellant: Sri. Gudi Srinivasu
Counsel for the Respondents: Sri P Rama Sharana Sharma
The Court made the following:
*HON ’BLE SRI JUSTICE RAVI NATH TILHARI
AND
*HON 'BLE SRI JUSTICE NYAPATHY VIJAY
+M A.C.M.A. No.948 OF 2019
% 10.07.2024
Rep. By its Branch Manager, Visakhapatnam.
Appellant/3^'‘ Respondent
And;
$1. Ponga Geetha, W/o. late Tirupathi,
Hindu, aged 29 years, R/o. D.No.30-1-92, Puthivari Veedhi, South Jail Road, Visakhapatnam and others. . .Respondents/Respondents.
Sri Gudi Srinivasulu iCounsel for the appellant ; Sri T. Rama Sharana Sharma ^Counsel for the respondents
<Gist;
Head Note; 9 Cases referred; 1. 2003 (1)CCC 322(NS) 2 2006 ACJ 855 3 2013 see Online P&H 15780 4 2013 see Online Del 4340 5 M.A.C.M.A.No.945 of 2013, decided on 04.08.2023 6. (2009) 14 see 71 7 (2021) 1 see 171 8. (2013) 10 see 646 9. (2009) 14 see 71 10.(2021)6 see 188 11.(2021) 2 see 166 12. 2022 see Online SO 1441 13. 2022 see Online SO 1683
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HON-BLE SRI JUSTICE RAVI NATH TILHARI AND HON BLE SRI JUSTICE NYAPATHY VIJAY jVI.A.C.M.A. No.948 OF 9niQ
Rep. By its Branch Manager. Visakhapatnam.
And:
Appellant/3^'' Respondent
W/o. late Tirupathi, Hindu, aged 29 years,
R/o. D. No.30-1-92,
Puthivari Veedhi, South Jail Road, Visakhapatnam and others.
date of JUDGMENT PRONOUNCED,
SUBMITTED FOR APPROVAi •
the HON’BLE SRI JUSTICE RAVI NATH TILHARI AND
. «A,u HON’BLE SRI JUSTICE NYAPATHY VIJAY ■ of Local newspapers may be Allowed to see the judgments?
Yes/No
Yes/No
Yes/No
RAVI NATH TILHARI, J
NYAPATHY VIJAY,J
3
APHC010290342019
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
[3470]
(Special Original Jurisdiction)
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 948/2019
Between:
Reliance General Insurance Limited ...APPELLANT
AND
Ponga Geetha and Others ...RESPONDENT(S)
Counsel for the Appellant:
1.GUDI SRINIVASU
Counsel for the Respondent(S):
The Court made the following order:
Heard Sri Gudi Srinivasulu, learned counsel for the appellant and Sri T. Rama Sharana Sharma, learned counsel for the respondents appearing through virtual mode. 2. This appeal under Section 173 of the Motor VehiclesAct has been filed challenging the Award dated 29.11.2018 of the MACT in M.V.O.P.No.363of2013. 3. The appellant is Reliance General Insurance Limited represented by its Branch Manager, Visakhapatnam. The respondentNos.1 to 3 are the claimants. Respondent Nos.1 to 3 filed M.V.O.P.No.363 of 2013 under Section 166 of the Motor Vehicles Act (in short, M.V. Act) claiming compensation of Rs.40,00,000/- on account of the death of Ponga Tirupathi,
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husband of the respondent No.1 and father of the respondent Nos.2 and 3, in Motor Accident which took place on 29.09.2012 near Bangalavalasa Village, Sunkara Metta Panchaithi, Arakuvally within the jurisdiction limits of Arakuvally Police Station, Visakhapatnam District.
- The case of the claimant/respondents was that the deceased aged about 38 years was working as employee/technician in Indian Railways, Visakhapatnam Divison earning Rs.19,855A,P.M. by thedateofdeath. On 29.09.2012 he was going to Araku Valley from Vizianagaramon his motor bike bearing No.AP 31 X 3942 and the driver of the offending vehicle while coming from the opposite direction, Araku Valley to Visakhapatnam City, driving in a high speed and in negligent manner dashedthemotorbikeofthe deceased, due to which, the deceased and the claimant/respondentNo.1 fell down and sustained injuries. They were shifted to Srungavarapu Kota Hospital where Ponga Tirupathi was declared as dead. The case Crime No.80 of 2012 under Section 304-A and 337 of IPC was registered against the driver/ respondent No.4. The claimants claimed compensation against the respondent Nos.4 and 5 and the appellant herein.
- The respondent Nos.4 and 5 (respondent Nos.1 and 2 in M.V.O.P) remained exparte.
- The appellant (respondent No.3 in M.V.O.P) filed counterinter alia submitting that the claimants shall prove their relationship with the deceased, his age, income and their entitlement for the claim amount. They shall also prove that the accident took place in the manner as claimed by them; the negligence of the driver, the valid drivinglicenceatthetimeofthe accident with the driver and that he was working undertheownerofthe offending vehicle. The claimants shall also prove thattherewerenoviolations of the conditions of the terms of the policy. Pleawas also taken that the accident occurred only due to the rash and negligent driving of the deceased, and that the insurer of the bike on which the deceased was travelling was not impleaded. The amount of compensation claimed was saidasexcessive.
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- The MACT, Visakhapatnam framed the following issues and additional issues in Para No.5 of the Award which reads as under:-
- Basing on the above pleadings, the following issues and additional are settled for trial:
1, Whether the deceased was died in the motor accident occurred on 29.09.2012 due to rash and negligent act of driver of jeep bearing No.AP 31 X 3942 ?
- Whether the petitioners are entitled for compensation? If so, to what amount and from which of the Respondents?
- Whether the case is non-joinder of necessary party?
- To what relief ?”
- The appellant (respondent No.3 in MVOp) did not adduce any evidence but on his behalf Ex.B1 (Policy Copy) was marked by consent.
- The Motor Accidents Claims Tribunal allowed the claim petition on 29.11.2018. The Tribunal recorded the finding on issue No.1, that the accident occurred only due to the rash and negligent driving of the driver of the offending vehicle. The Tribunal rejected the contention of the appellant that there was contributory negligence on the partofthedeceased.Onissue No.2, the claimants were held entitled for the compensation. It awarded compensation of Rs.39,52,810/- with interest @ 9% P.A.fromthedateofthe petition till the date of the payment, against the appellant and the respondent Nos.4 and 5 herein with joint and several liability.TheTribunalalsomade
6
apportionment of the compensation amount amongst the claimants. The operative portion of the Tribunal’s award is as underl
- Learned counsel for the appellant raised the following submissions;-
i) that there was contributory negligence on the part of the deceased. The Tribunal erred in holding that there was no contributory negligence. He submitted that it was head on collusion and took us to the evidence of PW.1 in cross examination which shall be referred while considering this argument to contend that, that evidence proved the contributory negligence of the deceased. ii) that the Tribunal has awarded 9% interest which is on the higher side.
- Learned counsel for the respondents submitted that the finding that there was no contributory negligence on the partofthedeceased is correct. There was no evidence to prove the appellant’s case of contributory negligence. He submitted that the evidence of PW.1 in the cross examination as referred by the learned counsel for the appellant also does not prove any contributory negligence of the deceased.
7
- On the second submission, learned counsel for the respondent submitted that the interest @ 9% is not on the higher side. In many cases the interest @ 9% has been awarded which has been upheld.
- We have considered the submissions advanced by thelearned counsels for the parties and perused the material onrecord.
- The following points arise for determination:-
A. Whether there was contributory negligence on the part of the deceased ?
B. Whether the award of interest @ 9% is on the higherside?
- On the point of contributory negligence, the Tribunalobserved that the appellant did not examine the driver of the offending vehicle to prove that there was contributory negligence on the part of the deceased. Any eye witness was also not examined. Rough sketch was alsonotfiledtoshowthat the accident took place in the middle of the road and due to the negligence of the drivers of both the vehicles. Even no suggestion was given to PW.1 that the accident took place in the middle of the road or that the motor cycle of the deceased was on the wrong side. The Tribunal also observed that on the ground that the accident took place, head on collusion,noconclusioncanbe drawn about the contributory negligence. Several exhibits are necessary to arrive at such conclusion and in-the absence of any proof the contributory negligence could not be attributed to the deceased. The Tribunal also considered the judgment in the case of Renukadevi H. Etc vs. Bangalore Metropolitan TPT Corporation Etc. ^ as also the case of Agnurujaya Ramulu vs. Mohammed Afzal Miyan and another^.
^2003(1) CCC 322 (NS) ^2006ACJ 855
8 .
- At the time of accident my husband was driving thebikeand I was the pillion driver. It is not true to suggest that the deceased was not holding driving licence that the accident occurred only due to his negligence, that there was no negligence for the accident on behalf of R1 at all, that the deceased was aged more than 40 years, that Ex.A4 andA5arecreatedfor the purpose of the case. So far I did not file the driving licence of my husband in court including proof of the date of birth. Names of my parents in law is not mentioned in Ex.A6. Witness volunteers that they are not alive. It is true there is no mention in Ex.A6 that they have pre deceased my husband. Now am doing job in the Railways given on compassionate grounds. Besides salary I am drawing family pension. I do not know that as per Ex.A3 the offending vehicle was not having fitness certificate, that fine was imposed on the incharge of the vehicle, after vehicle check report. It is not true to suggest that as R1 and R2 plying the transportvehiclewithout fitness certificate on the roads, R3 is not liable to pay any compensation and that R1 and 2 alone are having such liability.”
- The aforesaid evidence of PW.1 in our view does not support the case of the appellant of contributory negligence ofthe deceased. PW.1 deposed: “it is not true to suggest that there was no negligence for the accident on behalf of R1 at all ..
Learned counsel for the appellant appears to have misreadthesame as: that there was no negligence for the accident on behalf of the R1at all
R1 in the claim petition is the driver. Based on such misreading of the PW.1 in cross examination the argument was advanced that PW.1 (Claimant No.1) admitted that there was no negligence of the driver (R1) of the offending vehicle. This is not correct reading. The deposition in cross examination starts from:
it is not true to suggest that.....
No other evidence could be brought to our notice even to suggest that the finding of the Tribunal is perverse or based on ignoring the material evidence.
9
- On point no. 2, the submission of Ms. Pooja Arora isthat in view of the site plan, there was contributory negligence ofthe deceased, which was not considered by the Tribunal. 24. There can be no Rule of thumb that a head on collision must always be taken as resultant to contributory negligence of both vehicles. It depends on facts of each case which are required to be proved like any other fact. A finding of contributory negligence turns on a factual investigation whether the deceased contributed to his or her own loss by failingtotakereasonable care of his or her own person or property. What is reasonable care, depends on the circumstances of the case. There are variable factors in determining whether contributory negligence exists, and if so, to what degree. The breach or failure on the part of the deceased, if any, has to be proved by the Insurance Company, as it was its burden to prove that.
- The Tribunal has recorded finding on Issue no. 1 thatthedriverofthe appellant's bus was negligent. The accident was causedasresultanttoa rash driving of the Bus. Nothing could be pointed outevenfromtheevidence of P.W. 1 or P.W. 2 that there was any negligence on the part of the driver of the Maruti Car which contributed, to the happening of the accident. As mentioned above, no oral evidence was produced to provethatfact.The Insurance Company failed to discharge its burden.
- So far as the site plan, prepared by the Police is concerned, it only has its face value for the purpose of satisfaction of the Tribunal in the summary proceedings for the purpose of determination of compensation, as has beeen observed in the case of Smt. Meena (supra), upon which reliance
10 - Vi—"'
was placed by Ms. Pooja Arora. Merely on the basis of the site plan, the finding of contributory negligence cannot be arrived, as for determining contributory negligence, various factors are required to be proved. The site plan may prove the spot of accident, where the vehicle colluded but that by itself cannot prove the contributory negligence, as the possibility of the vehicles, in the accident going to a wrong direction or side during accident cannot be ruled out. The contributory negligence has to be proved by positive evidence and it would not be safe to draw inference merely on the basis of site plan.
"20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey KunvargiTak [(2002) 6 see 455: 2002 SCC (Cri) 1355] That wasalsoa case of collision between a car and a truck. It was observed in SCC p. 458, para 8: ^ "8. ... The question of contributory^negligence ariseswhen there has been some act or omission on the claimant's part, which has materially contributed to the damage caused,and is of such a nature that it may properly be described as "negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong'.'
"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed tohisorher own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpatethe plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on theconductof the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself thatitfailedtotake reasonable care for the safety of its person or property.'
11
^ 2013 see OnLine P&H 15780
"2013 500 Online Del 4340
^ M.A.e.M.A.No.945 of 2013, decided on 04.08.2023
® (2009) 14 see 71
12
Negligence ordinarily means breach of a legal duty to care, but when used in the expression 'contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an ‘author of his own wrong’.
- Even, R.W.1, in his cross-examination, by seeing the accident photo deposed “that the lorry came on wrong side and dashed against the Car.” Though he added that he was not at fault on the accident. 40. In Usha Rajkhowa and others vs. Paramount Industries and others^, the Hon'ble Apex Court observed and held that the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially, contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression 'contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of
^ (2021) 1 see 171 *(2013) 10 see 646 ® (2009) 14 see 71
13
either himself or his property, so that he becomes blameworthy in part as an ‘author of his own wrong’.”
- The finding of the Tribunal on the point of contributory negligence and that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle only does not call for any interference.
- On the point of interest @ 9%, we are of the view thatthesameis not on the higher side but is a reasonable rate ofinterest. 29. In Rahul Sharma and another vs. another vs. National Insurance Company Limited and others^^, 9% interest of compensation from the date of filing of the claim petition tillrealizationwasmaintained.
“15. For the reasons aforestated, the appeals are allowed inpart. The total motor accident compensation of Rs 22 lakhs awarded by the High Court to the claimantappellants is increased by Rs 11.20 lakhstoreachanewtotalof Rs 33.20 lakhs. The enhanced amount of compensation shall be paid within two months along with interest @ 9% p.a. from the date of filing of the Detailed Accident Report i.e. 23.05.2014, and shall be apportioned per the terms laid down by the Tribunal.”
10 {2021} 6 see 188
11 (2021) 2 see 166
12 2022 see Online se 1441
14
the date of filing of the claim petition till the dateofrealisation. Para No.26 reads as under-
“26. The Insurance Company is directed to pay the enhanced compensation amount of Rs.29,73,520/to the Appellants along with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation. The aforesaid amount shall be apportioned among the Appellants in the ratio fixed by the Tribunal in the award. The Insurance Company shall pay the said amount either by way of demand draft in favour of the Appellants or depositthesamebeforethe Tribunal, after deducting the amount already paid by it, if any, within six weeks from the date of receipt of the copy of this judgment.”
'21. Thus the total compensation payable to the Appellants is Rs.25,91,388/- with interest at 9% per annum-from the date of filing of the application till the date of payment of the compensation to the Appellants.”
- Thus considered on the points for determination we hold that,
B. rate of interest @ 9% is not on the higher side.
- Thus considered the appeal has no merit and is accordingly dismissed.
- The appellant is directed to make the payment of theamount under the award to the claimant/respondents with interest adjusting the amount, if any already paid, as also the statutory deposit for filing appeal, within a period of two (02) weeks from today by depositingthesame in the
13 2022 see Online Se 1683
15
Tribunal. The Tribunal shall proceed to pay the sameintermsoftheaward.
As a sequel thereto, miscellaneous petitions, if anypending,shallalso
stand closed.
SDI- S SRINIVASA PRASAD ASSISTANT REGISTRAR
Note; The last sentence in para No.35 is deleted as per Court Order dated 26.07.2024 made in MAGMA No.948 of 2019
SDI- S SRINIVASA PRASAD ASSISTANT REGISTRAR
//TRUE COPY//
—
SECTION OFFICER
One fair copy to the Honourable Sri Justice Ravi NathTilhari
(For His Lordships’ kind perusal)
AND
One fair copy to the Honourable Sri Justice Nyapathy Vijay
(For His Lordships’ kind perusal)
To,
Stu sree
HIGH COURT DATED:10/07/2024
JUDGMENT + DECREE
MACMA.No.948 of 2019
■0' V
^•<5S
DISMISSING THE M.A.C.M.A. WITHOUT COSTS
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
WEDNESDAY ,THE TENTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
jVIOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 948 OF 2019
Between:
Reliance General Insurance Limited, Rep. By it Branch Manager, Visakhapatnam.
...Appellant/3'^° Respondent
AND
...Respondents
Appeal filed Section 173 of M.V Act, aggrieved by the order passed in M.V.O.P.No. 363 of 2013 on the file of VI Additional District Judge - cumMotor Accidents Claims Tribunal, Visakhapatnam, dated 29th day of November, 2018.
This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and material papers in the Suit and upon hearing arguments of Sri. Gudi Srinivasu, Advocate for the Appellant and of Sri P Rama Sharana Sharma, Advocate for Respondents.
This Court doth Order and decree as follows:
SDI- S SRINIVASA PRASAD ASSISTANT REGISTRAR
//TRUE COPY//
—
SECTION OFFICER
To,
Psr sree
HIGH COURT DATED; 10/07/2024
DECREE
MACMA.No.948 of 2019
DISMISSING THE M.A.C.M.A. WITHOUT COSTS
2 issues framed by the court
Whether the Tribunal's finding that there was no contributory negligence on the part of the deceased was sustainable?
Whether the award of interest at 9% per annum was excessive?
Colour shows how this judgement treated each authority
Renukadevi H. vs. Bangalore Metropolitan TPT CorporationRelied on¶16
2003 (1) CCC 322 (NS)
Agnurujaya Ramulu vs. Mohammed Afzal MiyanRelied on¶16
2006 ACJ 855
Usha Rajkhowa and Others vs. Paramount Industries and OthersRelied on¶20
(2009) 14 SCC 71 · Who else cites this
New India Assurance Company Limited vs. Ram NarainRelied on¶21
2013 SCC OnLine P&H 15780 · Who else cites this
New India Assurance Company Limited vs. Ram PartapRelied on¶22
2013 SCC OnLine Del 4340 · Who else cites this
Rahul Sharma vs. National Insurance Company LimitedRelied on¶29
(2021) 6 SCC 188 · Who else cites this
Kirti vs. Oriental Insurance Company LimitedRelied on¶30
(2021) 2 SCC 166 · Who else cites this
Manusah Sreekumar vs. United India Insurance Company LimitedRelied on¶31
2022 SCC OnLine SC 1441 · Who else cites this
Anjali vs. Lokendra RathodRelied on¶32
2022 SCC OnLine SC 1683 · Who else cites this
2 provisions across 1 enactments
Reliance General Insurance Limited, Rep. by its Branch Manager, Visakhapatnam
Ponga Geetha
Ponga Pranavgnesh
Ponga Pushpak
P. Ponnu Swamy
P. Gowri Kananka Raju
Ravi Nath Tilhari
Nyapathy Vijay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
