Partly allowed

Shaik Rahim Tunnisa v. P. Mohan Babu

Telangana HC26 Nov 2014MACMA/1248/2007

Case brief

AI extract

What is this about?

Appeals against a Motor Accidents Tribunal award. The Court held claims against the deceased's own driver and insurer were not maintainable. Liability on the other vehicle's owner was fixed at 10% and the insurer appeal was allowed.

What did the court decide?

Claim against deceased's driver (Respondent 4) and insurer (Respondent 5) dismissed; compensation of Rs.70,000 awarded against other vehicle's owner (Respondents 1-3).

Shaik Rahim Tunnisa Vs P. Mohan Babu — Motor Accident Claims | Telangana HC (2014)

¶1

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.Nos.1248 & 1477 of 2007

¶2

COMMON JUDGMENT :

¶3

M.A.C.M.A.No.1248 of 2007

¶4

The appellants-claimants filed this appeal aggrieved by the order/award dated 23.10.2006 in M.V.O.P.No.211 of 2006 on the file of Motor Accidents Claims Tribunal–cum-District Judge, West Godavari at Eluru (for short, ’Tribunal’) awarding compensation against Respondents 4 and 5 to an extent of Rs.3,40,960/- with interest at 7.5% p.a. against the claim of Rs.6,00,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

¶5

M.A.C.M.A.No.1477 of 2007

¶6

2) The appellant-Respondent No.5/insurer filed this appeal aggrieved by the order/award dated 23.10.2007 in M.V.O.P.No.211 of 2006 on the file of Motor Accidents Claims Tribunal–cum-District Judge, West Godavari at Eluru (for short, ’Tribunal’) awarding compensation against the respondents 4 and 5 to a tune of Rs.3,40,960/- with interest at 7.5% p.a. against the claim of Rs.6,00,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

¶7

3) Heard Sri K.Ramesh Babu the learned counsel for the claimants and Smt.A.Jayanthi learned standing counsel for the insurer/5^th respondent in the respective appeals. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

¶8

4 ) The contentions in the grounds of appeal as well as oral submissions by the claimants in both the appeals in nutshell are that the award and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in applying the multiplier of 12.79 ignoring the second schedule, that the tribunal erred in dismissing the petition against the respondent Nos.1 to 3 ignoring the

¶9

oral and documentary evidence, that the tribunal ought to have seen that the evidence of P.W-2 goes to show that there is negligence on the part of the 1^st respondent and went wrong in disbelieving Ex.A-7 fine receipt and prayed to allow the appeal of the claimants as prayed for against the respondent Nos.1 to 3 also and to dismiss the appeal of Respondent No.5-insurer of the vehicle of the deceased. On the other hand, the learned counsel for the insurer/5^th respondent of the claim petition in the appeal filed by the Insurer and as co-respondent to the appeal of the claimants contended that the lower Court erred in exonerating the other insurance company from its liability as the accident occurred due to collision between two vehicles, that the lower Court failed to see that the deceased was owner of the vehicle in which he was traveling and hence the owner cannot be a third party and the claimants are not entitled for compensation against the 5^th respondent, that the lower Court ought to have fixed the liability on the Respondent No.3 in the lower Court because the 1^st respondent’s negligent driving and suddenly applying the brakes without any indication, the accident occurred, that the lower Court erred in granting an amount of Rs.3,40,960/- which is also excessive and exorbitant, and prayed to allow the appeal exonerating the 5^th respondent and to dismiss the claimants’ appeal.

¶10

5) Now the points that arise for consideration in the appeal are:

¶11

1. Whether the award of the Tribunal exonerating the 3^rd Respondents 1 to 3 and fixed liability on Respondents 4 and 5 of the claim petition is unsustainable and requires interference by this Court while sitting in the two appeals and if so, with what observations?

¶12

2. To what result?

¶13

POINT No.1:

¶14

6) The facts not in dispute are that the deceased Ghanisha Vali @ Bujji is owner of the lorry bearing No.AP 20 U 4559, driver shown as the

¶15

4^th respondent in the claim petition and insurer shown as 5^th Respondent, that the 1^st respondent is the driver, 2^nd respondent is the owner and the 3^rd respondent is the insurance company of the vehicle bearing No.ADM 5044. As per the charge sheet, the lorry bearing No.ADM 5044 of the 2^nd respondent is a stationed lorry and the lorry bearing No.AP 20 U 4559 dashed the stationed lorry. It is one of the two versions from evidence on record, for the other version as per the F.I.R, was that the first lorry was when moving, the second lorry dashed. From both F.I.R and charge sheet, it shows the fault of the 4^th respondent who is no other than driver of the deceased who was also traveling by sitting in the lorry that is insured with the 5^th respondent. Whereas in the claim petition, it is developed that the 1^st respondent driver of lorry bearing No.ADM 5044 of the 2^nd respondent insured with the 3^rd respondent was proceeding, behind which the lorry driven by the 4^th respondent belongs to the deceased insured with the 5^th respondent was proceeding and while so the 1^st lorry bearing No.ADM 5044 of 2^nd respondent suddenly swerved to left side by applying brakes and the lorry of the deceased driven by the 4^th respondent came in contact, from which the deceased was died while sitting on the left side of the cabin. The Tribunal disbelieved the version, more particularly from the F.I.R and charge sheet in saying those clearly speak the 4^th respondent was at fault and there is no fault of the driver of the lorry bearing No.ADM 5044 of the 2^nd respondent driven by the 1^st respondent insured with the 3^rd respondent in exonerating the Respondent Nos.1 to 3, however by wrongly allowing the claim for Rs.3,40,960/- with 7.5% interest jointly against Respondent Nos.4 and 5, without going into the aspect of the deceased was the owner and the claimants are not third parties. That was missed consideration is the sum and substance of the contentions in the appeal filed by the 5^th respondent in seeking to allow their appeal by exoneration from liability. Whereas, the claimants contended that the

¶16

quantum of compensation is utterly low and Tribunal went wrong in exonerating the respondent Nos.1 to 3 even there is fine payment receipt by the 1^st respondent covered by Ex.A-7 that was issued by the C.I. of Police.

¶17

7) Undisputedly, the deceased is not a third party so far as claim against the own vehicle by his legal representatives, the claimants, against the 4^th respondent-driver and 5^th respondent-insurer of the vehicle bearing No.AP 20 U 4559. As such, the claim is not maintainable against them- vide the expression of the Apex Court in Dhana Raj V. National Insurance Co. Ltd .^[1] , National Insurance Co. Ltd. V. Sadananda Mukh i^[2] , Oriental Insurance Co. Ltd. V. Rajani Dev i^[3] , Oriental Insurance Co. Ltd. V. Jhuma Saha^[4] , Ningamma V. United Insurance Co. Ltd .^[5] Thus, but for if there is any personal accident coverage risk to make a claim in a civil Court or before the District Consumer Forum, M.V.O.P claim against the respondent Nos.4 and 5 is not maintainable. Thereby, M.A.C.M.A.No.1477 of 2007 is to be allowed by setting aside the award fixing the compensation against the respondent Nos.4 and 5. Needless to say if any amount paid or deposited pursuant to the award and the same was withdrawn, it is left open to recover subject to satisfaction of the claim for personal accident coverage, if any, for the owner of the lorry (the deceased).

¶18

8) Coming to correctness of exoneration of Respondent Nos.1 to 3 impugned in M.A.C.M.A.No.1248 of 2007 concerned, Ex.A-1 F.I.R based on the report by one D.Subba Rao, P.W-2 is that he is a coolie and a week back with prawn fish load, proceeded in the lorry bearing No.AP 20 U 4559 to Surat at Gujarath State and after unloaded the fish prawn from Surat with medicine load, came to Vijayawada and at Malapadu and Khilespuram village, hamlet of Ibrahimpatnam at N.H-9, the vehicle at 248 K.M milestone, there was a tipper bearing No.ADM 5044 with load proceeding in front of their lorry bearing No.AP 20 U 4559 and due to

¶19

rash and negligent driving of their driver i.e., 4^th respondent of the lorry bearing No.AP 20 U 4559, it dashed against the rear portion of the tipper and there from the lorry bearing No.AP 20 U 4559 badly damaged and in the cabin at left side, the cleaner Sk.Ghanshavali sat, he sustained severe injuries and shifted to Government Hospital, Vijayawada, where the doctors declared that he breathed the last and he sustained injury to his right foot, hence the statement. From the very report, he is an eye witness traveling in the lorry bearing No.AP 20 U 4559 as also rightly observed by the Tribunal. The charge sheet filed by the police that also placed reliance on by the claimants also show the rash and negligent driving of the 4^th respondent-driver of lorry bearing No.AP 20 U 4559 which dashed the stationed tipper bearing No.ADM 5044 while proceeding from behind. The M.V.I report Ex.A-4 clearly speaks that the front portion of the lorry bearing No.AP 20 U 4559 badly damaged particularly left side bumper damaged and left side door mudguard damaged besides steering column front went wind screen glass, radiator etc., The post mortem report of the deceased shown lacerated injury on the left side middle of thigh with fracture of femur abrasion to right thigh laceration to the testis and left side of scrotum, laceration to front of left thigh and laceration to the left tibia and fibula and multiple injuries to right leg and abrasion on left side abdomen. The post mortem report of the deceased above, external injuries also supports the same so also particularly the M.V.I report and the version introduced in the claim petition for the first of time of suddenly the front vehicle bearing No.ADM 5044 swerved to left side from which the back side coming vehicle come in contact is not true and even circumstances will not support to appreciate that version from the above. Had it been there must be some damage to the right portion of the lorry bearing No.AP 20 U 4559 as front proceeding vehicle suddenly swerved to the left the rear left portion of the front proceeding vehicle or rear right portion of the front proceeding vehicle could have been damaged and that front proceeding vehicle bearing No.ADM 5044, M.V.I. report by testing for exemption not even

¶20

filed muchless scene observation report among the documents filed to ascertain, where the damage caused to the front vehicle to correlate. Apart from it, if that is the case only left side front portion of the vehicle coming from behind that is the vehicle No.AP 20 U 4559 could have been only damaged and not the entire front portion. It clearly speaks either it dashed the stationed vehicle as mentioned in the charge sheet or as mentioned in the F.I.R by the eye witness, P.W-2 who was proceeding in the vehicle bearing No.AP 20 U 4559.

¶21

9) The front portion of the said lorry once damaged, it clearly speaks it is dashed out of rash and negligent driving of the 4^th respondent against the front proceeding vehicle on its back. Thereby, front cabin also badly damaged. The accident is no doubt at the broad day light. However, when it is stationed at the road which is the national highway and not meant to park and station but for at a place (bay-lay) meant for stationing that also contributed to the accident and the fine receipt against the stationed lorry driver can support the conclusion as rightly alternatively contended by the counsel for the claimants to say the liability of the claim petition Respondent Nos.1 to 3 is also there, which can be fixed at 10% to say the claimants are entitled to 10% of the compensation from Respondent Nos.1 to 3, which comes to Rs.70,000/for the following that from age of the deceased 40 years, multiplier 15 by the date of accident 11.07.2005, the earnings of deceased can be taken at Rs.4,000/- per month and the claimants are four in number in the claim under Section 166 of the Act and if 1/4^th deducted as per Sarla Varma v.

¶22

Delhi Transport Corporation^[6] , it comes to Rs.5,40,000 (3000x12x15), apart from that the claimants are entitled to Rs.1,00,000/- towards loss of consortium, Rs.25,000/- towards funereal expenses, Rs.10,000/- towards loss of estate, Rs.20,000/- towards the loss of care and guidance to two minor children. In total the claimants are entitled to Rs.6,95,000/- and 10% of which comes to 69,500/- rounded to Rs.70,000/-. Thereby, M.A.C.M.A. No.1248 of 2007 is liable to be allowed in part awarding

¶23

compensation of Rs.70,000/- with interest at 7.5% p.a. against respondent Nos.1 to 3 of the claim petition and dismissed against respondent Nos.4 and 5.

¶24

POINT No.2:

¶25

M.A.C.M.A.No. 1248 of 2007:

¶26

10) In the result, the appeal partly allowed awarding compensation of Rs.70,000/- with interest at 7.5% p.a. against respondent Nos.1 to 3 of the claim petition and dismissed against respondent Nos.4 and 5. There is no order as to costs.

¶27

M.A.C.M.A.No.1477 of 2007:

¶28

11) In the result, the appeal is allowed by setting aside the order dated 23.10.2006 in M.V.O.P.No.211 of 2006 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, West Godavari at Eluru and entitles the appellant claim petition-5^th respondent to take back the amount in deposit and claim back any amount withdrawn by the claimants. There is no order as to costs.

¶29

12) Miscellaneous petitions pending in both the appeals, if any, shall stand closed.

¶30

_______________________ Dr. B. SIVA SANKARA RAO, J

¶31

Date: 26-11-2014 ksh

¶32

[1] (2004)8 SCC 553 [2] 2009 ACJ 998 [3] 2008 ACJ 1441 [4] (2007)9 SCC 263 [5] 2009 ACJ 2020 [6] 2009 ACJ 1298

Shaik Rahim Tunnisa v. P. Mohan Babu

Case brief

What is this about?

What did the court decide?

Shaik Rahim Tunnisa v. P. Mohan Babu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kandregula Padmavathi Vs Golla Subrahmanya Prasad

Japa Vajramma Vs Palle Sahadev

The National Insurance Company Ltd. Vs Marapalli Komuraiah

Gokuladinne Nageswara Rao Vs B.Siva Reddy

The United India Insurance Company Limited, Vs Vemula Mannaiah

The United India Insurance Company Limited, Vs Vuppu Subba Rao