The New India Assurance Company Ltd. Vs Kamisetty Venkata Subbaiah

DARIVEMULA MARIYA BABU, S/O.PRASAD, AGED 36 YEARS, DRIVER OF LORRY BEARING NO.APOI.TF8181, R/O.D.NO.1/507-B, SBI ROAD, KARAMPUDI VILLAGE AND MANDAL, GUNTUR DISTRICT.

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ALLU VENGAL REDDY, S/O.NANI REDDY, AGE MAJOR, OWNER OF LORRY BEARING NO.AP07.TF8181, R/O.D.NO.5-299/1, REDDYPALERN, PEDAKONDAMAGUNDLA, KARAMPUDI MANDAL, GUNTUR DISTRICT.

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...RESPONDENT(S):

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Counsel for the Appellant:

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1.B PARAMESEWARA RAO

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Counsel for the Respondent(S):

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1.PENJURI VENUGOPAL

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The Court made the following:

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 188/2022

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J U D G M E N T:

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1. This Motor Accident Civil Miscellaneous Appeal (for short MACMA) has been preferred by the appellant – 3^rd Respondent Insurance company i.e., the New India Assurance Company Limited, Represented by its Divisional Manager, Divisional Office at Nagarajupeta, Kadapa City, YSR Kadapa District, challenging the Order and Decree dated 03.02.2022 in M.V.O.P.No.296 of 2017 passed by the Chairman, Motor Accident Claims Tribunal (for short MACT) – cum- IV Additional District Judge, Kadapa, awarding compensation of Rs.16,22,000/- as against the claim of Rs.10,00,000/-.

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For the sake of convenience and to avoid confusion, the parties hereinafter are referred to as they were arrayed before the Tribunal i.e., Appellant as Respondent No.3, Respondents No.1 and 2 as Petitioners and Respondents No.3 and 4 as Respondents No.1 and 2.

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2. The brief averments of the petition in MVOP No.296 of 2017 are that – The petitioners being parents of Kamisetty Manikanta (hereinafter referred to as the “deceased”), filed MVOP No.296 of 2017 under Section 166 of the Motor Vehicles Act, 1988 r/w Rule 455 of A.P Motor Vehicles Rules, claiming

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compensation of Rs.10,00,000/- for the death of Kamisetty Manikanta in a motor vehicle accident on 24.12.2015.

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i. The deceased Kamisetty Manikanta was aged 17 years at the time of accident and was studying 1^st year Engineering in Vagdevi Engineering College, Proddature.

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ii. On 24.12.2016 K.Manikanta went to CBIT College of Pallavolu village for writing his Semester examination and after writing the exam, he along two others going on motor cycle bearing No.AP04-Q-5988. The motor cycle was being ridden by Shaik Mohisin @ Mosinand, K.Manikanta was sitting as pillion rider along with another person. At about 5.00 p.m., when they reached near Petrol Bunk near Bojjavaripalli - KC Canal, situated on Proddaur - Mydukur main road, a lorry bearing No.AP07-TF-8181 belonging to the 2^nd respondent, driven by its driver - 1^st respondent in a rash and negligent manner, dashed the motor cycle, due to which K.Manikanta fell down and the lorry Tyre ran away over his head, due to which K.Manikanta died on-the spot and the rider and the other pillion rider of the motor cycle also sustained injuries. On coming to know about the accident, the 2^nd petitioner lodged a complaint which was registered as a case in Cr.No.233 of 2016 of Proddatur Rural police station and after investigation the police have filed the charge sheet against 1^st respondent. The lorry belonging to the 2^nd respondent was insured with 3^rd respondent.

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iii. The petitioners are the parents of the deceased, are the dependents and

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the deceased was a intelligent student and got good rank in EAMCET and the deceased was working as Computer Operator on part time in Proddatur and was earning Rs.6,000/- per month. Hence, prayed to grant compensation of Rs.10,00,000/-.

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3. 3^rd respondent filed written statement putting strict proof of the manner and mode of the accident, occupation and income of the deceased and contended that at the time of accident there was triple riding on the motor cycle and the rider of the motor cycle had no driving skills and no driving license and when the rider tried to overtake a vehicle and on seeing an incoming Cement Tanker, the rider of the motor cycle turned the vehicle, due to which, he lost control and caused the accident and that there is no negligence on the part of the 1^st respondent and the 2^nd petitioner filed a false complaint and the petitioners managed the police and implicated the 1^st respondent and 1^st respondent has no valid driving license and prayed to dismiss the Petition.

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4. Basing on the above contentions, the following issues are settled for trial by the Tribunal.

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1. Whether the deceased - K.Manikanta died due to the injuries sustained in motor vehicle accident occurred on 24.12.2016 at about 5.00 p.m., due to rash and negligent driving of driver of the lorry bearing No.AP07-TF-8181?

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1. Whether the petitioners are entitled for compensation, if so. what amount and from whom?

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1. To what relief?

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5 . During the course of enquiry, on behalf of Petitioners, 1^st petitioner got examined as P.W.1 and got marked Ex.A.1 – certified copy of F.I.R in Cr.No.233 of 2016 of Proddatur Rural Police Station, Ex.A.2 – certified copy of charge sheet, Ex.A.3 – certified copy of postmortem certificate, Ex.A.4 – certified copy of inquest report, Ex.A.5 – certified copy of Motor Vehicle Inspection Report, Ex.A.6 – Study certificate of the deceased – K.Manikanta issued by Vagdevi Engineering College, Proddatur. The rider of motor cycle at the time of accident by name – S.Mohisin @ Mosin got examined as P.W.2 and one C.Ramesh got examined as P.W.3.

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On behalf of contesting Respondent No.3, none were examined but Ex.B.1 insurance policy marked.

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6. Upon hearing both sides and perusing the oral and documentary evidence placed on record by both parties, the Tribunal awarded compensation of Rs.16,22,000/- with subsequent interest at 6% p.a from the date of filing of petition till the date of realization along with proportionate costs, subject to payment of deficit court fees within 15 days. Respondents No.1 to 3 jointly and

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severally directed to pay the compensation amount within one (01) month from the date of order.

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7. Being aggrieved by the said Order and Decree, the 3^rd Respondent preferred present appeal on the ground that – the deceased was riding the motor bike along with two others, it means, triple riding and the rider of motor cycle has no driving license and he is a minor, aged 17 years, studying 1^st year in Vagdevi Engineering College, Proddatur as per Ex.A.6 – Study Certificate of deceased, thus the tribunal ought to have fixed contributory negligence against the deceased by reducing the compensation amount awarded by the Tribunal. Therefore, prayed to allow the appeal by setting aside the Order and Decree dated 03.02.2022 passed in M.V.O.P.No.296 of 2017 by the Chairman, MACT – cum- IV Additional District Judge, Kadapa.

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8. Heard both sides and perused the material in record.

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9. Now the point for determination is – Whether the Order/award passed by the Tribunal needs any interference?

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10. POINT: The argument of the learned Counsel for appellant is that at the time of accident there was triple riding on the motor cycle, the same was admitted by P.W.2 who is rider of motor cycle. P.W.2 in his evidence deposed that on 24.12.2026 when he along with the deceased and C.B.Prakash was triple

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riding on the motor cycle and when they reached near the Petrol Bunk at Bojjavaripalli, K.C Canal, situated on Proddatur – Mydukur main road, a lorry bearing No. AP07 TF 8181 was driven in a rash and negligent manner and dashed the motor cycle, but, P.W.2 in his cross examination admitted that he had no valid license and he was aged 17 years at the time of accident and he also admitted that when he tried to over take another motor cycle and when another motor cycle was coming in opposite direction, he slowed the vehicle and turned to the left, due to which he lost control, all of them fell on the road and sustained injuries. Basing on the evidence and admission in cross examination of P.W.2, Counsel for Appellant argued that rider of motor cycle was not having valid driving license, he was minor and they were triple riding on the motor cycle, it is clear violation of Motor Vehicles Rules, hence, appellant is not liable to pay compensation, the 1^st respondent and its driver are liable to pay the compensation amount to the claimants, hence prayed to exonerate the appellant from liability.

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11. Admittedly there is violation of motor vehicles rules by the rider of mother cycle as he was not having driving license to ride the motor cycle, rider was minor at the time of accident and they were triple riding on the motor cycle. Under similar circumstances, the Hon’ble Supreme Court in “ National Insurance

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Co. Ltd. v. Swaran Singh & Ors.¹ ” has categorically held that the insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party on behalf of the assured. Therefore, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner.

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In “ National Insurance Co. Ltd. v. Swaran Singh & Ors.,” (referred above) the Hon’ble Supreme Court while dealing with the case of unauthorized passengers held as follows:

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“Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with Sub-section (1) thereof. The right to avoid liability in terms of Sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of

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1 (2004) 3 SCC 297

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the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.”

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As per the law laid down by the Hon’ble Supreme Court in the judgment (referred supra) even if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimant and then recover the amount from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer's liability towards third-party victims does not vanish immediately.

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12. With regard to quantum of compensation awarded by the Tribunal, by relying on the Judgment of “Arvind Kumar Mishra v. New India assurance Co., Ltd.” Civil Appeal No.5510 of 2025, wherein the income of a student of Engineering Final year, at Birla Institute of Technology, mesra (B.I.T) has taken as Rs.60,000/- towards his notional income per year and also relying upon another decision in “Cholamandalam M.S.G Vs. V.Venkata Shasank Reddy in MACMA No.505 of 2018” this Court held that – “Since the Motor Vehicles Act is a beneficial legislation, and the petitioner being an engineering student, who has suffered 90% disability, and also suffered sexual disability, the notional income assessed by the Tribunal at, Rs.15,000/- per month, which comes Rs.1,80,000/- per annum, is just and reasonable”. Basing on the above legal

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position, the Tribunal has taken the income of deceased N.manikanta at Rs.10,000/- per month and annual income at Rs.1,20,000/- per year. As the deceased was aged 17 years, as per “Sarala Varma and Ors. V. Delhi Transport Corporation and Ans. Reported in 2009 ACJ 1298” the appropriate multiplier “18”. After deducting ½ share towards personal expenses of the deceased as he was a bachelor, it comes to (Rs.1,20,000 – ½ (60,000) = 60,000 x 18 = 10,80,00/- and with respect to future prospects 40% is added as per Judgment in the case of “National Insurance Company Ltd Vs. Pranay Sethi and others, reported in 2017 ACJ 2700” then, it comes to (10,80,000 x 40%=4,32,000/-. Thus, total compensation of (10,08,000 + 4,32,000=) Rs.15,12,000/- is awarded towards loss of dependency.

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13. Tribunal also awarded a sum of Rs.80,000/- towards consortium to the petitioners, Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expense. In total, the Tribunal below awarded Rs.16,22,000/- to the claimants.

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14. Considering the material available on record, this Court is of the considered opinion that the amount of Rs.16,22,000/- awarded by the Tribunal to the claimants, for the death of the deceased, was on reasonable basis and is sustainable under law, which needs no interference.

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15. In view of the foregoing discussion, the appeal is partly allowed directing appellant – Insurance company to initially pay the compensation

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amount of Rs.16,22,000/- along with interest at the rate of 6% p.a, from the date of petition till realization together with costs, to the claimants, within a period of three (03) months from the date of receipt of copy of the order and then recover

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the same from the insured-owner of the offending vehicle by filing Execution proceedings before the Tribunal. No costs.

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Consequently, pending miscellaneous applications, if any, shall stand closed.

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_______________________ SMT JUSTICE V.SUJATHA

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KS Dated 03.02.2026.

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