HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1674 OF 2011
JUDGMENT:
The claimants 1 to 3 wife major son
and married daughter of the deceased aged about 53 years as per Ex.A.1 FIR and
A.2 PM report and the motor accident dated 07.08.2007 while he was proceeding
on his scooter since dashed due to rash and negligent driving of the Hero Honda
motor cycle bearing No.AP5 BB 6333 of 2nd respondent by 1st
respondent insured with the 3rd respondent under Ex.B.1 policy, for
the claim of Rs.12,00,000/- from the award passed bythe Tribunal on 06.01.10
for Rs.8,65,400/- with interest at 7.5%p.a. in all by fixing liability against
the driver and owner of the motor cycle by exonerating Insurer on the count of
the driver has no valid driving licence proved and produced, aggrieved by the
same preferred the appeal with contention
in the grounds of appeal that the award of the Tribunal is contrary to
law, weight of evidence and probabilities of the case, Tribunal went wrong in exonerating the Insurer instead of holding
Insurer of whom the burden lies failed to establish the factum of driver did
not possess valid driving licence as by the time of the accident hence to set
aside said finding and allow the appeal as prayed for before the Tribunal
including enhancement of compensation.
The respondent Nos. 1 and 2 rider and
owner of the motor cycle contended that
even to fix liability against the R.1 and R.2 there is no material no proof of
rash and negligent driving and if at all there is rash and negligent
driving for no proof by the Insurer of
driver has no licence should have passed joint liability by the Tribunal for
the Insurer to indemnify since policy covered the risk ,hence to set aside the
said finding of the Tribunal by fixing joint liability hence to exonerate the
totally. Whereas, it is the
contention of the 3rd
respondent-Insurer of the claim petition
that for this Court while sitting in appeal but for to reduce the
quantum of compensation for no cross-objections if at all apart from the
finding of the rash and negligent driving for nothing proved even from P.W.2 in
the cross-examination stated as if not an eye witness and no other evidence thereby sought for dismissal
of the appeal.
The claimant
in the claim petition O.P.No.1646 of 2001 under Section 166 of the Motor
Vehicle Act, 1988 (for short, ‘the Act’) filed this appeal, having been
aggrieved by the Order/Award of the learned Chairman of the Motor Accidents
Claims Tribunal–cum-III Additional Chief Judge, City Civil Court, Hyderabad (for
short, ’Tribunal’) dt.09.12.2004, dismissing the relief of compensation of
Rs.1,00,000/- as prayed for the damages caused to her car bearing No.AP 9S 5569
against the respondents 1 to 3, driver, owner
and Insurer of the Crime Lorry bearing No. AP 12 T 4855.
2. Heard Sri Balaji Medamalli, the
learned counsel for the appellant The appeal against respondents 1 and 2(driver
and owner) is dismissed for default vide court orders dated 02.01.2012. The respondent
No.3-insurer served with notice but called absent with no representation. Taken
as heard the 3rd respondent for his absence to decide on merits and
perused the material on record. The
parties hereinafter are referred to as arrayed before the Tribunal for the sake
of convenience in the appeal.
3. The contentions in the grounds of appeal as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law, weight of evidence and probabilities of the case, that the
Tribunal failed to see that since the Ex.B.1 policy issued in respect of the
crime lorry the change in the ownership of lorry does not vitiate the policy,
that Tribunal ought to have seen that as on the date of accident the policy of
crime vehicle is in force and ought not to have gone into the ownership aspect
of the lorry that the Tribunal ought to have seen that there is no need of
transfer of policy in favour of the owner of the vehicle whenever there is
change in ownership and the insurance policy will be issued in the name of the
owner as on the date of policy, that Tribunal ought to have seen that there is
no denial on the part of the respondents that the vehicle is not validly
insured, that ought to have seen that Ex.X.1 clearly shows that the car was
given on hire and as such the finding is baseless. Hence, to set aside the
award of the Tribunal.
4. Now
the points that arise for consideration in the appeal are:
1.
Whether
the award of the Tribunal to exonerate the Insurer from liability on the ground
of the driver not possessed valid driving licence is unsustainable and requires
interference by this Court while sitting in appeal so also on the finding of
the accident was the result of the rash and negligent driving of the driver of
the crime motor cycle and with what observations?
2.
To what result?
POINT-1:
5.
Ex.A.1 is the FIR in Cr.No.153 of 2007
dated 07.08.2007 of the occurrence on
that day at 4.00 P.M., and within one hour the informant set the law into motion and police registered
the crime at 5.00 P.M, for the offence under Section 304-A of I.P.C. for death
of deceased Ch.S.S.Rao,aged about 53 years and the informant was one M.V.V.Sa @
Veeres--- and the report reads that he is working in Jayalakshmi rice mill,
B---- and the deceased Ch-Rao—also working as clerk in the rice mill and on tht
day morning while deceased was proceeding on his Chatak scooter bearing
No.AP5AA 3622 on some bank work to Kakinada and while returning at about 4.00
P.M, the owner Bhaskar Na--- colony, the opposite coming vehicle dashed against
his scooter from which he fell down and
one T.Sreenisary—wo witnessed the accident immediately telephoned to him and he
came there and noticed that the deceased breathed lost from head injury hence
to take action. The informant from the above is not an eye witness but for
within no time of the occurrence on telephonic information set the law into
motion. When such is the case, non-furnishing of the crime vehicle number no
way fatal. It is not the case of the
respondent Nos. 1 to 3 driver, owner and Insurer of no charge sheet filed by
the police after investigation against the 1st respondent-rider of
the Hero Honda Motor Cycle of the 2nd respondent insured with the 3rd
respondent covered by Ex.B.1. It is not
even the case by filing any report under Section 173 of Cr.P.C. by referring as
accident was the result of no negligence of the deceased and there is nothing
to take cognizance against any living person. Thus, when these facts coupled
with the FIR and P.W.1 evidence with reference to it in saying it is the crime
vehicle of the 2nd respondent driven by the 1st
respondent-insured with the 3rd respondent that caused accident and
there is from P.W.1 cross-examination but for to say she is not an eye witness
nothing worth by suggestible material shown.
No doubt, P.W.1 is not the eye witness and FIR nowhere mentioned the
vehicle involved. P.W.2 Ch.Veera
raju---- deposed in his evidence that the deceased was working as Accountant in
Jayalakshmi rice mill, Bi--- on 07.08.2007 while he was coming from Kakinada---
toB--- on his ---- to scooter through external road---- at about 4.00 P.M.,
near Bhanagar colony--- the 1st respondent while driving hero Honda
CBZ motor cycle bearing No.AP05VV 6333 in a rash and negligent manner in high
speed opposite direction dashed the scooter of deceased violently from which
deceased fell down from the scooter and sustained head injury and succumbed at
the spot and he and other persons witnessed the accident and informed to the
family members of the deceased and also to police station. In the
cross-examination, by the Insurer he deposed that he know the deceased for the last ten years and he was running in
the year 2007 of rice mill at Bi---- and as o the date of giving evidence
cultivation and the accident was on the canal road, he denied the suggestion
that the canal road is not in good condition, he deposed that the deceased died
due to head injury and denied suggestion that there is no scope of driving
vehicles with speed there. He also denied the deceased himself fell down and
sustained injuries and died and there is no negligence of respondent No.1. It
is important from this suggestion to say the crime Hero Honda motor cycle is
involved but for suggesting the deceased for his own fell down and not from
Hero Honda Motor Cycle by rash and negligent driving by respondent No.1. When
such is the cross-examination by the Insurer and not even a final report by
police failed to say any referred report if at all sole negligence of deceased
and when the other side speaks about the charge sheet filed by the police even
not produced the same is not in dispute either by the driver-R.1 owner, R.2
driver of the Hero Honda motor cycle much less by the Insurer by fixing
negligence of the 1st respondent of the Hero Honda Motor Cycle
belongs to the 2nd respondent
undisputedly insured with the 3rd respondent in the factual matrix
of the case.
It
is further deposed by P.W.3 that the deceased by working as accountant in
theneighbouring rice mill and thereby he knows avocation and denied the
suggestion of he is in acquaintance with the family members of the deceased
speaking falsehood. He also deposed that he deposed before the Magistrate
Court. The last sentence reads ‘I did
not witness the accident’ it is from this counsel for the Insurer in the appeal
before the Court submits that what P.W.2 deposed earlier proved false from this
last sentence. In fact, the evidence is to be appreciated as a whole and not in
peace meal when it is the clear tenor of the version of the witness not only in
the chief-examination affidavit but that confirms on oath before the court but
also in the cross-examination supra, the last sentence might be a continuation
of the negative sentence of the suggestion by the Court so regarding split up
with a full stop instead of continue comma, if at all. From which the Insurer
cannot take the advantage much less to impute the evidence of P.W.2 on
credibility, more particularly, from the very suggestion of there is no rash
and negligent driving of the Hero Honda Motor Cycle rider-R.1 but for of
negligence of deceased by the very Insurer in giving the suggestion. P.W.3 another witness M.P.Reddy--- deposed on
he is also resident of ------ and he is the owner of the rice mill whether the
deceased was working and he was paying him salary ofRs.9,500/- per month in
addition batta ofRs.150/- per day to the deceased was working for the past five years in the rice
mill and he issued salary certificate and in the cross-examinatio by the
Insurer he deposed that he did not file any documents to show the deceased was
their employee at the time of accident or about payments ofbatta he deposed
that payment of batta arises when the he was sent for outdoor work and denied
the suggestion of he was not paying Rs.9,500/- per month to deceased on
administrative side there is no compensation under the WC Act for him to be
liable. He deposed that weekly twice or
thrice the deceased was being sent to bank outdoor work and he will be paid
batta and petrol allowance for the outdoor work and denied the suggestion of he
is deposing falsehood. It is peculiar to
note that there is no dispute of the said salary certificate inadvertently or
intentionally by the counsel for the Insurer before the trial Court. Though the
counsel for the Insurer in this appeal wanted to attack the said salary certificate
for want of other proof like accounts. When there is no dispute on the salary
certificate the question of further proof of evidence not arises what is the
quantity and quality even under Section 134 of the Indian Evidence Act, thereby
from this the factum of the accident was the result of rash and negligent
driving of the 1st respondent of the Hero Honda motor cycle of the 2nd
respondent covered by the Ex.B.1 policy issued by the 3rd respondent
and the deceased was working as Accountant in the rice mill drawing the gross
salary of Rs.9,500/- is proved. The
contention of the counsel for the Insurer by placing reliance upon 2012 ACJ
1305 in Suresh Kumar-- that in this
case also there is no proof of rash and negligent driving which is to be
established for a claim under Section 166 of the Act. There is no precedent on
facts is not in dispute. In those facts the very witness of the claimant
admitted that there was no rash and negligent driving on the part of the
alleged crime vehicle and the driver of the crime vehicle deposed that there
was no rash and negligent driving on the part of the alleged crime vehicle and the driver of the crime vehicle deposed
that there was no rash and negligent driving thereby it was consistently held
that the when the very evidence establishes no rash and negligent driving there
is nothing to find rash and negligent driving which is the requirement under
Section 166 of the Act.
Coming to the aspect of the exoneration of the
Insurer by the Tribunal on the ground of the driver-1st respondent
to ride the motor cycle of the 2nd respondent even covered by the
Ex.B.1 policy for want of licence has no licence. Undisputedly from the settled law the burden
is on the Insurer. It is for the claimants to establish rash and negligent driving
and the policy covers risk to fasten the Insurer with liability under Section
149 read with 168 of the Act. Undisputedly, more particularly from the P.W.1
cross-examination suggestion by the Insurere the vehicle belongs to R.2 that
was driven by the R.1 and the rider of the motor cycle is not owner-cum-driver.
Even from the evidence placed on record by respondent No.3-Insurer through
their employee- R.w.1 apart from Ex.B.1 policy referring to notice issued to the driver and owner covered by Ex.B.2 and
B.4 acknowledged by the driver and returned without service to the owner in
saying the licence particulars even sought not produced, nothing established of
the same was allowed by R.2 of R.1 with conscious knowledge intentionally to
say the breach is so fundamental to exonerate the Insurer apart from the factum
of the notice not served to the owner as it is ex.B.5 returned cover and the
Insurer not even chosen to make further
attempt to cause summons as Court
witness. Thedriver or owner and the main duty is on the owner to furnish
accidentally particulars of the driving licence particulars when sought and not
on the driver to furnish and even taken a notice to the driver is notice to the
owner to infer and from the endorsement of return of cause returning of a deemed service and fit case for pay and
recover at best and not to exonerate. So
also even from the factum of Ex.A.4 M.V.I. report referred by the Tribunal at best shows licence particulars not
furnished not mentioned as no licence and even not the case by filing charge
sheet mentioning any offence under Section 181 read with section 3 against the
driver under M.V.Act by cause proving the same through investigating officer
that was not done. Having regard to the
above, the Tribunal went wrong in exonerating the Insurer from liability in
stead of holding from the several expressions referred therein to the accident
on pay and recovery more particularly from the three judge Bench expression of
the Apex Court in NIC-Swaran Singh i.e. still pending by reference to a Larger
Bench in Parvathaneni---- and the latest expressions in Swaran Singh and Satbir
and Ayyappan.
6. Now coming to the quantum of compensation
concerned, no doubt the claimants 2 and 3 are major son and married daughter
though class-I heirs of the deceased of the legal representatives within the meaning of Section 2(11) Cr.P.C. Rule 2(g) of APMV Rules 1989 read with
Section 147 and 149 and 166 of the M.V.Act, the law is fairly that even though
not dependents when the legal representatives are the sufferers from the death
they are also entitled to compensation. However, in such a case what is the
contribution that could be gone to them to be considered including the means of
the claimants. Here, it is not the major son and married daughters alone
claimants but the wife the main claim and if that is the case from the claim
under Section 166 of the Act as laid down by the Apex Court in S.V.Vs.D.T.C.
from paras 27 to 32 where the number of dependendants two or low, the deduction
for personal expenses is half, if four or more upto 6 , 1/4th and
above 6, 1/5th and on such even half deducted from the claimants are entitled the 1st
claimant consortium of Rs.1,00,000/- and funeral expenses Rs.25,000/- it no way
requires to reduce the quantum from being arrived on the calculation as there
isnothing to educe the salary deposed in the salary certificate but for if at
all from the age of the deceased about 53 years in Ex.A.1 FIR as per the three
judge Bench expression in Rajesh Vs.RBS 2013---- that in a case of salary the
employees from the age between 50 to 60 , the 50% proportionate increase is
taken, if such increase is taken from the income described in the salary
certificate thereby there is nothing to interfere with the quantum from the
above factual matrix of the case apart from the factum of ther is no
cross-objections from the Insurer even to reduce the quantum of compensation as
laid down by the Apex Court in RP Vs.DM. Accordingly, Point No.1 is answered.
Point No.2:
7. In the result,
the appeal is partly allowed while confirming the quantum of compensation of
Rs.------ with interest at 7.5% p.a. against the respondents who are rider,
owner and Insurer of the motor cycle (Respondent Nos.1 to 3),however to the
extent of liability of the Insurer to pay and recover subject to the following
directions------- to pay to the claimant Rs.6,000/-(Rupees Six thousand
only) and for the remaining Rs.78,045/-(out of Rs.84,045/-), the claimant to
recover from the respondent Nos. 1 and 2 (driver and owner of the lorry). The
respondents are directed to pay or deposit respective sums if not deposited any
amount out it otherwise for the balance to the extent of liability supra within
one month. Failing which the claimant can execute and recover. There is no order
as to costs.
8. Consequently, miscellaneous
petitions, if any, pending in this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:14-02-2014
VVR
Note: L.R. copy to be marked: Yes/No
