The New India Assurance Co.Ltd Vs Damarusingu Ramana

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VS,J MACMA_105 of 2022

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Date of reserved for orders : Date of pronouncement : 09.07.2026 Date of uploading :

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APHC010109622022

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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THURSDAY, THE 9^th DAY OF JULY 2026

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 105/2022

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Between:

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THE NEW INDIA ASSURANCE CO.LTD, REP. BY ITS DIVISIONAL MANAGER, COLLEGE ROAD., SRIKAKULAM, SRIKAKULAM DISTRICT.

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...APPELLANT

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AND

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DAMARUSINGU RAMANA, S/O (LATE) APPALA RAMUDU, HINDU, AGED ABOUT 31 YEARS, DOOR NO. 1-9, REVADA VILLAGE, RANASTHALAM MANDAL, SRIKAKULAM DISTRICT.

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DAMARUSINGU SANYASI, S/O (LATE) APPALA RAMUDU, HINDU, AGED ABOUT 29 YEARS, REVADA VILLAGE, RANASTHALAM MANDAL, SRIKAKULAM DISTRICT.

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DAMARUSINGU APPA RAO, S/O (LATE) APPALA RAMUDU, HINDU, AGED ABOUT 28 YEARS, REVADA VILLAGE, RANASTHALAM MANDAL, SRIKAKULAM DISTRICT.

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DUMMINDHI LAKSHMI, W/O DUMMINDHI RAMU, AGED ABOUT 31 YEARS, HOUSE HOLD DUTIES, R/O DOOR NO. 2-5, MAIN STREET,

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PERUMALI VILLAGE, VIZIANAGARAM DISTRICT.

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KAROTU MOHANA RANGA BABU, S/O (LATE) PENTA RAO, AGED ABOUT 44 YEARS, HINDU, DOOR NO. 34-92, DRIVER OF APSRTC HIRE BUS BEARING NO. AP 35/U-8456, R/O BONUMAHANTHI STREET, SALURU,VIZIANAGARAM DISTRICT.

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GATTAMANENI SWARAJYA LAXMI, W/O RAMACHANDRUDU, AGED ABOUT 60 YEARS, HINDU, OWNER OF BUS BEARING NO. AP 35/U8456, R/O DOOR NO. 8-16-1, BALAJI NAGAR, VIZIANAGARAM TOWN AND DISTRICT.

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APSRTC, REP. BY ITS MANAGING DIRECTOR, MUSHEERABAD, RTC CROSS ROADS, ANDHRA PRADESH, HYDERABAD.

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC before the High CourtMemorandum of Civil Miscellaneous Appeal being aggrieved by the decree and order dated 19.11.2021 passed in M.V.O.P. No. 267/2016 on the file of the Court of the Motor Accidents Claims Tribunal - cum - Principal District Judge, Srikakulam, Srikakulam District.

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IA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings including execution of the decree dated 19-112021 passed in M.V.O.P.No.267 of 2016 on the file of the Court of the Motor Accident Claims Tribunal -cum-Principal District Judge., Srikakulam, pending disposal of MACMA before this Hon'ble court and pass

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Counsel for the Appellant:

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1.C PRAKASH REDDY

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Counsel for the Respondent(S):

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1.K SRINIVASA PRASAD SC For APSRTC

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The Court made the following:

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JUDGMENT:-

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This appeal is filed by the appellants/respondent No.4/insurance company, aggrieved by the award dated 19.11.2021 passed by the Chairman, Motor Accidents Claims Tribunal – cum – Principal District Judge, Srikakulam in M.V.O.P.No.267 of 2016, whereby, the Tribunal awarded compensation of Rs.6,00,000/- to the respondent Nos.1 to 4/claim petitioners

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For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal.

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The petitioners are children of one Damarusingu Suramma (hereinafter referred to as „deceased‟). The 1^st respondent is the driver, 2^nd respondent is the owner and the 4^th respondent is the insurer of the bus bearing No.AP-35-U-8456 which is hired by the 3^rd respondent – APSRTC. On 19.11.2015, the deceased, along with one Tolapi Ramanamma went to a relative‟s house at Vempatam village, Pusapatirega mandal; in order to go to Gollapeta, at about 03.30 p.m., they boarded the bus bearing No.AP-35-U-8546 being driven by the 1^st respondent; while the deceased was alighting the bus at Gollapeta, the 1^st respondent, without observing the said act, accelerated the bus in a rash and negligent manner due to which, the deceased was thrown out, sustained severe head injury and died on the spot. The incident was reported to the Station House Officer, Pusapatirega police station and a case was registered in crime No.186/2015 under Section 304A of the Indian Penal Code and a charge sheet was filed by the Police against the 1^st respondent on the file of the Court of the Judicial Magistrate of 1^st

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Class, Vizianagaram vide C.C.No.218/2016. The claim of the petitioners is that the deceased was a dhobi and was earning Rs.10,000/- per month. Claiming compensation of Rs.6,00,000/-, for the accidental death of the deceased, the petitioners filed a claim petition before the Tribunal.

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Though the 1^st respondent remained exparte, the said petition was contested by all the other respondents by filing their individual counter affidavits. The 2^nd respondent, who is the owner of the subject bus denied all the material allegations besides contending that the 1^st respondent is holding a valid driving license as on the date of accident and that the subject bus is insured with the 4^th respondent vide policy No.62120131150100005852 which is valid till 18.11.2016. The 3^rd respondent has also filed its written statement on similar lines; in addition, it was contended that the 3^rd respondent entered into an agreement with the 2^nd respondent and that the corporation pays amount to the 2^nd respondent on kilometer basis for hiring the bus. The 2^nd respondent will be responsible for all claims that arise due to the statutory violations and as such, the 3^rd respondent is not liable to pay any compensation to the petitioners.

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The 4^th respondent has filed its written statement denying the allegations of the claim petition besides contending that the 1^st respondent had no valid driving license as on the date of accident and that as on the date of accident, the insurance policy is not in force. The insurance policy for the subject bus was covered from 12:00:01 A.M., of 19.11.2014 to 11:59:59 P.M., of 18.11.2015. The policy referred by the parties is a fresh policy which is valid from 12:00:01 A.M., of 20.11.2015 to 11:59:59 P.M, of 19.11.2016. When the accident has occurred on

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19.11.2015 at about 03.30 p.m., the subject bus is not covered under any kind of insurance policy. Hence, requested to dismiss the claim petition.

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

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1) Whether the deceased/.Damarasingu Suramma, W/o Appala Ramudu died on account of the injuries sustained by her in the motor vehicle accident that took place on 19.11.2015 at 15.30 hours on NH 16 road, Gollapeta, Pusuapatirega mandal, Vizianagaram district? If so, whether the accident took place due to the rash and negligent driving of the APS RTC hire bus bearing No.35/U8456 by its driver?

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2) Whether the petitioners are entitled to claim any compensation for the death of the deceased/Damarasingu Suramma, W/o Appala Ramudu? If so, to what amount and from whom?

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3) To what relief?

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During the course of hearing, the 1^st petitioner himself got examined as P.W.1 and got marked Exs.A1 to A5. The person who accompanied the deceased on the date of accident by name Tholapu Ramanamma was examined as P.W.2. The 4^th respondent got examined its administrative officer and branch manager as R.Ws.2 and 3; it got marked Exs.R1 to R4. On behalf of respondent No.3, its Junior Assistant was examined as R.W.3 and got marked Exs.R5 and R6.

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The Tribunal, after considering all the facts and material available before it, awarded Rs.6,00,000/- to the petitioners by making respondent Nos.1 to 4 jointly and severally liable to pay and further directing the 4^th respondent alone to deposit the compensation amount before the Tribunal. Aggrieved by the said award, the 4^th respondent filed the present appeal on the sole ground that the insurance policy pertaining to the subject bus belonging to the 2^nd respondent, hired by the 3^rd

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respondent, is not in force at the time of accident on the fateful day; in such a case, it has no liability to pay compensation to the petitioners.

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Heard Sri. C. Prakash Reddy, learned counsel for the appellant and Sri. K. Srinivasa Prasad, learned Standing Counsel for APSRTC.

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When the matter came up for admission on 23.03.2022, this Court passed the following interim order in I.A.No.1 of 2022:

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“For the reasons stated in the affidavit filed in support of this application and taking into consideration of the submissions made by the learned counsel for the petitioner/appellant, there shall be stay of all further proceedings pursuant to the Order and Decree, dated. 19-11-2021 passed in M.V.O.P.No.267 of 2016 by the Motor Accidents Claims Tribunal-cum-Principal District Judge, Srikakulam, subject to the petitioner/appellant depositing 50% of the awarded amount with proportionate costs and interest within eight(8) weeks from today. In default of deposit, this order stands cancelled automatically without further reference to this Court.”

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Perused the entire material available on record. In order to prove that the accident occurred due to the rash and negligent driving of the 1^st respondent, the 1^st petitioner examined himself as P.W.1 and narrated the manner of the accident, however, the fact remains that he is not an eye-witness to the occurrence of the accident. The said Tholapu Ramanamma, who travelled along with the deceased in the subject bus was examined as P.W.2. In her evidence, P.W.2 deposed that on the morning of 19.11.2015 she along with the deceased, in order to go to Gollapeta village boarded an RTC bus bearing No. AP 35/U 8456; that while the deceased was alighting the bus, the 1^st respondent, without observing that the deceased alighted properly, suddenly moved the bus in a rash and negligent manner due to which, the deceased fell on the road, sustained grievous head injuries and died on the spot. Though the

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respondents cross examined P.W.2, they could not elicit anything adverse. Furthermore, a perusal of Ex.A1 – certified copy of FIR in crime No.186/2015, dated 19.11.2015 of Pusapatirega police station, Vizianagaram and Ex.A2 – charge sheet filed by the Police before the jurisdictional Court, it can be observed that the 1^st respondent is found at fault for causing the death of the deceased. Thus, it is evident from the evidence of P.W.2 coupled with Exs.A1 and A2 that the accident occurred due to the negligence of the 1^st respondent and hence, the Tribunal has rightly answered issue No.1 in favour of the claim petitioners.

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Now, while dealing with the quantum of compensation, the Tribunal considered the age of the deceased as „48‟ by relying on postmortem certification (Ex.A3). The Tribunal, considering the occupation of the deceased i.e., dhobi, considered her daily income as Rs.200/- which becomes Rs.6,000/- per month and Rs.72,000/- per annum. As the petitioners are dependents on the deceased, the Tribunal deducted 1/4^th of the annual income towards her personal expenses and the amount thus computed would become Rs.54,000/- [Rs.72,000/- - (Rs.72,000/- X ¼)]. As per Sarla Verma and Ors. Vs. Delhi Transport Corporation and another¹ , after applying the relevant multiplier „13‟ for the age group 45-50, the compensation under the head of loss of dependency would become Rs.7,02,000/- (Rs.54,000/- X 13). Though the Tribunal observed that the petitioners are entitled for Rs.20,000/- towards funeral expenses, Rs.30,000/- towards loss of estate of the deceased, it limited the compensation to Rs.6,00,000/- as claimed by the petitioners. In total, the Tribunal has quantified the amount of compensation payable to the petitioners as Rs.6,00,000/-, which needs no interference as the

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1AIR 2009 SCC3104

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same is on sound footing, considering the fact that there is no material to prove the income of the deceased.

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13. Now, the point that arises for consideration is:

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“Whether the insurance policy taken by the 2^nd respondent is in existence as on the date of accident?”

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In order to substantiate its case, the 4^th respondent got examined R.Ws.2 and 3. R.W.2 – Branch Manager of the 4^th respondent company, in his evidence deposed that the crime vehicle bearing No.AP35-U-8456 was not insured with the 4^th respondent at the time of accident i.e., at 03.30 p.m., on 19.11.2015 and that no insurance policy is subsisting at the time of accident. The first insurance policy bearing No.62120131140100004112 (marked as Ex.R1) for the vehicle bearing No.AP-35-U8456 is in subsistence from 12:00:01 a.m., of 19.11.2014 to 11:59:59 p.m., of 18.11.2015. The next policy bearing No.62120131150100005852 (marked as Ex.R2) is in subsistence from 12:00:01 a.m., of 20.11.2015 to 11:59:59 p.m., of 19.11.2016. As such, R.W.2 requested the Tribunal to dismiss the claim petition against them.

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Admittedly, a perusal of Ex.R1, which is the policy issued to the 2^nd respondent pertaining to the subject bus, it can be seen that it is in subsistence from 12:00:01 a.m., of 19.11.2014 to 11:59:59 p.m., of 18.11.2015 and the subsequent policy, marked as Ex.R2, issued by the 4^th respondent with respect to the subject bus is in subsistence from 12:00:01 a.m., of 20.11.2015 to 11:59:59 p.m., of 19.11.2016. A keen perusal of Ex.R2 would disclose that it was issued on 19.11.2015 at 16:53:44 hours. Admittedly, the accident is said to have occurred on 19.11.2015 at 03.30 p.m., thus, it can be inferred that the insurance

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coverage of the subject bus owned by 2^nd respondent, hired by the 3^rd respondent is not in subsistence at the relevant point of time i.e., at 03.30 p.m., and it can also be inferred that the insurance policy was renewed after coming to know about the accident. In general, it is the responsibility of the owner of a vehicle to ensure timely renewal of its insurance policy. As the insurance policy of the subject bus itself was not in force at the time of accident and as there is a gap of more than an hour between the time of accident and renewal of the insurance policy, the question of fixing liability on the 4^th respondent/insurance company does not arise. As such, the 4^th respondent is exonerated from paying compensation to the petitioners.

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Now, the question that arises for consideration is:

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“As to who is liable to pay compensation to the claim petitioners?”

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The subject bus is hired by the 3^rd respondent and it employed the 1^st respondent as driver of the said bus. There exists a master and servant relationship between the 3^rd respondent and the 1^st respondent. The prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant has to do but also the manner in which he shall do his work. In the case on hand, when the 1st respondent is found to be negligent in performing his duties, the principle of vicarious liability squarely applies and makes the 3^rd respondent responsible for the acts committed by the 1^st respondent during the course of his employment.

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Admittedly, the subject bus bearing No.AP-35-U-8456 is owned by the 2^nd respondent and is hired by the 3^rd respondent

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corporation from 03.01.2014 to 02.01.2016 in pursuance of an agreement dated 24.02.2014, which is marked as Ex.R6. The condition No.5(iv) of the terms and conditions of the agreement, reads as under:

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“iv) The Owner shall be responsible for all claims that my arise due to statutory violations out of the operations, like claim due to accidents payable under the provisions of M.V. Act 1988/Rules and APSRTC shall under no circumstances be made liable or responsible to pay compensation that may be awarded by Motor Accidents claims Tribunal or Tribunals in respect of accidents. In the event of payment of compensation by APSRTC to the injured persons/dependents of the deceased persons or to the Owners of the property damaged, by any award of the Motor Vehicle accidents Tribunal/order of the court in cases involving accidents to hire buses, the APSRTC shall have right to recover the said compensation from the Hire bus owner. The Hire bus owner hereby agrees that he shall not dispute the said recovery.”

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The above referred condition of the agreement would disclose that the Owner – 2^nd respondent shall be solely responsible for all claims arising from any statutory violations connected with the operation of the hired bus bearing No.AP-35-U-8456, including, but not limited to, claims arising out of accidents that are payable under the provisions of the Motor Vehicles Act, 1988, and the rules made thereunder. Under no circumstances, the 3^rd respondent shall be held liable or responsible for the payment of any compensation awarded by the Motor Accident Claims Tribunal or any other competent court or tribunal in respect of such accidents. The condition further specifies that if the 3^rd respondent is required to pay any compensation to injured persons, the legal heirs or dependents of deceased persons, or the owners of damaged property pursuant to an award of the Motor Accident Claims Tribunal or an order of any competent court in relation to an accident involving the subject bus, the 3^rd respondent shall have the absolute right to recover the entire

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amount of such compensation, together with any related costs, from the 2^nd respondent. Admittedly, the 2^nd respondent has agreed for such condition.

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In such a case, when there is fault on the part of the 2nd respondent in not renewing the insurance policy before it is about to expire and when the 2nd respondent has agreed to condition No.5(iv) of the terms and conditions of the agreement dated 24.02.2014 entered with the 3rd respondent, the Tribunal ought to have directed the 3rd respondent – APSRTC to deposit the compensation amount and then to recover the same from the 2^nd respondent, as per the terms and conditions of its agreement dated 24.02.2014.

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In view of the foregoing discussion, this appeal is allowed and the appellant/4^th respondent/insurance company is exonerated from paying compensation to respondent Nos.1 to 4/claim petitioners. Further, the 7^th respondent/3^rd respondent/APSRTC is made entirely liable to pay the compensation of Rs.6,00,000/- awarded by the Tribunal in the award dated 19.11.2021 passed in M.V.O.P.No.267 of 2016 to respondent Nos.1 to 4/claim petitioners. However, though the appellant/respondent No.4/insurance company has deposited 50% of the awarded amount pursuant to the interim order passed by this Court in I.A.No.1 of 2022, dated 23.03.2022, till date, the claim petitioners have not filed any application seeking withdrawal of the amount deposited. As such, the appellant/4^th respondent/insurance company is at liberty to withdraw the amount deposited by it before the Tribunal. As the 7^th respondent/3^rd respondent/APSRTC is liable to pay the entire compensation to respondent Nos.1 to 4/claim petitioners, the said process shall be

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completed within a period of three (3) months from the date of receipt of a copy of this order.

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