Muniratnam Vs S Vijaya

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APHC010361882019

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3505] (Special Original Jurisdiction)

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THURSDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX

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PRESENT

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THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1129 and 405 of 2019

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Between:

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MUNIRATNAM, W/O. LATE INJAM ITHAM MANDADI, AGED 51 YEARS, OCC- HOUSEWIFE, R/O. D.NO.7-5, VENUGOPALPURAM VILLAGE, TIMMARAJU KANDRIGA POST, PUTTUR MANDAL, CHITTOOR DISTRICT.

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...APPELLANT

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AND

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S VIJAYA, W/O. T. NARAYANA, AGED 54 YEARS, R/O. D.NO.21, BAZAR STREET, MUTHAPUDIPET, AVADI, TAMIL NADU STATE, (REAL OWNER OF THE TATA SUMO BEARING REGISTRATION NO.TN-10-H-8532)

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M VARADHAN, S/O. MANICKKAM, AGED MAJOR, R/O. NEW NO.329, SUBRAMANIA SIVA ROAD, CHENGALPATTU, KANCHIPURAM, TAMIL NADU STATE, (REGISTERED OWNER OF THE TATA SUMO BEARING REGISTRATION NO.TN-10-H-8532)

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IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED, REP. BY ITS AUTHORISED SIGNATORY, ISSUING OFFICE AT NEW NO.28, OLD NO.195, NORTH

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TCDS,J MACMA.No.1129 of 2019 and 405 of 2019

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USMAN ROAD, T. NAGAR, CHENNAI, TAMIL NADU STATE.

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC praying that the High Court may be pleased to Memorandum of Miscellaneous Appeal before this Hon'ble Court aggrieved the Judgment and Decree dated 16.08.2018 passed in MVOP.No.49 of 2013 before the Chairman, Motor Accidents Claims Tribunal - cum - X Addl. District Judge, Tirupathi

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IA NO: 1 OF 2019

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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 condone the delay of 328 days in filing the present appeal before this Hon'ble Court aggrieved by the Judgment and Decree dated 16-08-2018 passed in MVOP.No.49 of 2013 before the Chairman, Motor Accidents Claims Tribunal - cum - X Addl. District Judge, Tirupathi, and pass

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Counsel for the Appellant:

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1.O UDAYA KUMAR

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Counsel for the Respondent(S):

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2.SRINIVASA RAO KAMARAJUGADDA

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MACMA.No.405 of 2019

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Between:

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IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS AUTHORIZED

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TCDS,J MACMA.No.1129 of 2019 and 405 of 2019

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SIGNATORY, ISSUING OFFICE AT NEW NO.28, OLD NO.195, NORTH USMAN ROAD, T. NAGAR, CHENNAI, TAMIL NADU.

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...APPELLANT

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AND

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MUNIRATNAM, W/O. LATE INJAM ITHAM AGED ABOUT 45 YEARS, HOUSEWIFE, RESIDENT OF DOOR.NO. 7-5, VENUGOPALA PURAM VILLAGE, TIMMARAJU KANDRIGA POST PUTTUR MANDAL, CHITTOOR DISTRICT, ANDHRA PRADESH.

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S VIJAYA, W/O. OF T. NARAYANA, AGED ABOUT 48 YEARS, RESIDENT OF DOOR. NO.21, BAZAAR STREET, MUTHAPUDI PET, AVADI, TAMIL NADU, (REAL OWNER OF THE TATA SUMO BEARING REGISTRATION TN-10H-8532)

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M VARADHAN, SON OF MANICKKAM, AGE NOT KNOWN TO THE PETITIONER BUT HE IS MAJOR, RESIDENT OF NEW NO.329, SUBRAMANIA SIVA ROAD, CHENGALPATTU, KANCHIPURAM, TAMIL NADU (REGISTERED OWNER OF THE TATA SUMO BEARING REGISTRATION NO.TN-10-H-8532

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased to allow the Appeal and set-aside the Orders dated 16.08.2018 in M.V.O.P.No.49 Of 2013 on file of the Hon'ble Chairman, Motor Accidents Claims Tribunals-Cum- X^th Additional District Judge, Tirupati. Hence, the Present Appeal.

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IA NO: 1 OF 2019

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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 pleased to condone the

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TCDS,J MACMA.No.1129 of 2019 and 405 of 2019

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delay of 66 days in filing the Appeal against the Judgment and Decree dated 16.08.2018 in M.V.O.P.No. 49 Of 2013 On file of the Hon'ble Chairman, Motor Accidents Claims Tribunals-Cum-X th Additional District Judge, Tirupati in the interest of justice and equity, and pass

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IA NO: 2 OF 2019

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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 grant Stay of all further proceedings, including the Execution Proceedings, if any, in Orders dated 16.08.2018 in MVOP.No.49 Of 2013 the file of The Chairman, Motor Accidents Claims Tribunal cum X Additional District Judge, pending disposal of the main Appeal and condonation delay Petition and pass

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Counsel for the Appellant:

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1.SRINIVASA RAO KAMARAJUGADDA

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Counsel for the Respondent(S):

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1.O UDAYA KUMAR

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The Court made the following:

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TCDS,J MACMA.No.1129 of 2019 and 405 of 2019

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HON’BLE SRI JUSTICE T.C.D. SEKHAR

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MACMA Nos.1129 OF 2019 & 405 of 2019

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COMMON JUDGMENT :-

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MACMA.No.1129 of 2019 and MACMA No.405 of 2019, as both these appeals arising out of order dated 16.08.2018 in M.V.O.P.No.49 of 2013 on the file of the Chairman, Motor Accidents Claims Tribunal-Cum-X Additional District Judge, Tirupathi, filed by the claimants and the Insurance company respectively, they are being disposed by this common Order.

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MACMA No.1129 of 2019 was filed by the claimant for enhancement of compensation and MACMA No.405 of 2019 was filed by the Insurance Company questioning the compensation awarded by the Tribunal. The parties are referred to as they were referred before the Tribunal. The petitioner filed claim petition under section 166(1)(c) of Motor Vehicles Act r/w rules 455 and 475 claiming compensation of Rs.5,50,000/- on account of death of the 1^st petitioner’s son, in the accident that was occurred on 05.12.2010, in which, TATA Sumo bearing Registration No.TN-10-H-8532 was involved.

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TCDS,J MACMA.No.1129 of 2019 and 405 of 2019

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It is the case of the petitioner that on 05.12.2010, the deceased was going from Gollakandriga to Venugopalapuram on Motor Cycle bearing Registration No.TN20-BC-0238 as pillion rider, the driver of the offending TATA Sumo came in opposite direction at high speed driven in rash and negligent manner without taking due care and caution and dashed the Motor Cycle. As a result of which, the deceased Injam Somaiah, the rider of the Motor Cycle V.Mahendra Reddy fell down and sustained fatal injuries along with another pillion rider. All the three persons died on the spot.A case was registered against the respondent Nos.1 & 2 and the same was later investigated into and Charge Sheet was filed in C.C.No.31 of 2011 on the file of the Additional District Munsif Magistrate, Puttur. It is further case of the petitioner that the deceased was aged about 22 years as on the date of the accident and he was a coolie earning Rs.300/- per day, the entire income of the deceased was being contributed to the family and in view of the sudden death, the petitioners lost their livelihood. Therefore, she approached the Tribunal by filing the present claim petition seeking to pay compensation on account of the death of the

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deceased, as against the respondents were responsible for the accident.

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The respondent Nos 1 & 2 remained exparte. The 3^rd respondent/appellant filed counter-affidavit stating that there

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was contributory negligence on the part of the rider of the Motor Cycle in as much as he was driving the motor cycle in a rash and negligent manner. It was further contended that the driver of offending TATA Sumo had no valid driving license as on the date of accident. Therefore, the respondent Nos 1 & 2 are liable to pay compensation and the 3^rd respondent/appellant Insurance Company is not liable to pay compensation as alleged, in view of the fact that the respondent Nos. 1 & 2 have violated the terms of the Insurance policy. It was further contended that the petitioner has not filed any documentary proof in relation to the age and occupation of the deceased. The 3^rd respondent further contends that the petition is bad for non-joinder of necessary party in as much as the insurer of the Motor Cycle was not arrayed as party as respondent. With the above pleadings, the 3^rd respondent prayed to dismiss the claim petition as against him.

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In order to prove the case of the petitioner, the petitioner got examined as PW-1 and also examined PW.2 & PW.3 and marked Exs.A1 to A4. On the other hand, the 3^rd respondent/appellant marked copy of the insurance policy as Ex.B1 and authorization letter as Ex.X1.

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Considering the oral and documentary evidence put forth before the Tribunal, by the impugned order, which awarded compensation of Rs.4,64,000/- under various conventional heads. Aggrieved by the same, the 3^rd respondent/appellant Insurance Company filed MACMA No.405 of 2019 and the petitioner/claimant filed appeal in MACMA No.1129 of 2019 for enhancement of compensation. Heard the learned counsel for the insurance company and counsel for the claimants. Perused the record.

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It is the case of the Insurance Company that the accident was occurred due to the rash and negligent driving of the rider of the Motor Cycle. In order to prove the same, the Insurance Company has not examined any witness or filed any documentary evidence in support of their contention. On the other hand, the petitioner examined one Sri.B.Ravi, who was

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the eye witness to the accident as PW2. On perusal of the evidence of PW2, he categorically deposed that the accident was occurred due to the rash and negligent driving of the offending TATA Sumo driver. It is pertinent to note that during the cross examination of PW2, the Insurance Company did not put any suggestion in relation to contributory negligence as against the rider of the Motor Cycle. Therefore, it is succinctly clear that except making a bald and vague allegation of contributory negligence against the rider of the Motor Cycle, nothing is placed on record to prove the same. Therefore, it can be held that the accident was occurred in view of the rash and negligent driving of the driver of the TATA Sumo offending vehicle.

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It was further contended by the counsel for the appellant that the claim petition was liable to be dismissed on the ground of non-joinder of necessary party in as much as the Insurer of the Motor Cycle was not arrayed as party as respondent. In this context, unless it is proved that, there is negligence on part of the rider of the Motor Cycle, the question of making the Insurance Company as party as respondent

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does not arise. In the case on hand, as already observed that the 3^rd respondent failed to prove the negligence of the rider of the motor cycle, therefore, the said contention for the Insurance Company cannot be countenance and accordingly the same is rejected.

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Coming to the quantum of compensation awarded by the Tribunal is concerned, it is strenuously contended by the counsel for the appellant that the driver of the TATA sumo offending vehicle had no valid driving license at the time of the accident. In this context, the insurance has examined RTO as RW-2. A perusal of the evidence of RW-2, it is clear that except denying that the driver of the offending vehicle had driving license, nothing is placed on record. Apart from the same, in the cross examination he has categorically admitted that the driver of the offending vehicle could have obtain driving license from any other RTA office. In such circumstances, it can be held that the Insurance Company miserably failed to prove that the driver of the offending vehicle had no valid driving license. Having considered the oral evidence adduced by the PW.1, the mother of the deceased,

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the Tribunal had fixed the income of the deceased as Rs.4,000/- per month as he was earning the same as a coolie, awarded an amount of Rs.4,64,000/- as compensation under various conventional heads. On perusal of computation of compensation, it is clear that the Tribunal had not awarded just compensation, and the same is not in consonance with the Judgment rendered by the Hon’ble Apex Court in the case of “ National Insurance Company v. Pranay Sethi and others” .

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Having considered the submissions made by the counsel for the claimant, this Court is in agreement with the arguments advanced by the counsel for the claimant. Accordingly, the compensation is computed as under:

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Sl.No	Heads	Compensation Awarded
1.	Net Annual Income	4000*12= 48,000/-
2.	Future Prospects	Rs.19,200/- (i.e., 40% of the
		income)
3.	Total Income	Rs.67,200/-
4.	Deductions towards	Rs.33,600-(50% of the

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	Personal Expenses	67,200)
5.	Total Loss of	Rs.33,600/-
	Dependency
6.	Multiplier of 13	Rs.6,04,800/- (33,600*18)
7.	Conventional heads
	Loss of Consortium	Rs.80,000/- (2*40,000/-)
8.	Loss of estate	Rs.15,000/-
9.	Funeral Expenses	Rs.15,000/-
	Total	Rs.7,14,800/-

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For the reasons, recorded Supra , the appeal filed by the Insurance Company in MACMA No.405 of 2019 is hereby dismissed and appeal filed by the claimant in MACMA No.1129 of 2019 is allowed and the compensation is enhanced from Rs.4,64,000/- to Rs.7,14,800/- together with the interest @ 9% per annum from the date of the petition till the date of realization. Further, the Insurance Company is directed to

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deposit the amount awarded by this court within a period of two

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(02) months from the date of receipt of copy of the order.

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As a sequel, interlocutory applications pending, if any

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shall stand closed.