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S. Nandamma & Others v/s S. Jayanna & Others

    C.M.A.No.3429 of 2002

    Decided On, 13 August 2010

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE B.N. RAO NALLA

    For the Appellants: A. Jaya Sankara Reddy, Advocate. For the Respondents: Kota Subba Rao, Advocate.



Judgment Text

1. This appeal is filed by the claimants against the order dated 17.10.2002 in M.V.O.P. No.118 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool whereby and whereunder the claimants were awarded an amount of Rs.5,03,527/- as against the claim of Rs.10,00,000/-, with proportionate costs and interest at 9% per annum from the date of the accident till the date of realisation.

2. The facts leading to the filing of this appeal can be summarised as follows:

On 27.10.2001, the deceased along with others was travelling by jeep bearing No. AP-21-A-9018 to go to Kurnool; that when the said vehicle reached Nannur Electrical Sub-Station, the driver-cum-owner drove it at high speed in a rash and negligent manner and it turned turtle due to bursting of the rear left side tyre and he lost control over the vehicle resulting in the death of the deceased-Danam on the spot and causing grievous injuries to other passengers. Orvakal P.S. registered a case in Crime No.71/2001; that the first appellant-wife, second and third appellants-minor children of the deceased preferred claim petition for compensation of Rs.10,00,000/-.

3. During the course of trial, first appellant-wife of the deceased got herself examined as PW.1 besides examining PW.2- eye witness to the accident and got marked Exs.A.1 to A.4 and X.1, whereas RW.1 was examined and Ex.B.1-insurance policy was marked on behalf of the second respondent-insurance company. The lower Tribunal after framing relevant issues gave a finding that the accident had occurred due to rash and negligent driving on the part of the owner-cum- driver of the accident jeep. The deceased was aged 52 years, 10 months and 22 days by the date of accident. He was working as Health Assistant at Primary Health Centre of Ravanur of Koilakunta Taluk and was earning Rs.11,630/- per month. The Tribunal taking into consideration the above facts as well as the fact that had he been alive he would have retired from service on attaining age of superannuation i.e. 58 years from service, determined his monthly earnings and after deducting 1/3rd towards personal expenditure therefrom arrived at Rs.4,90,527-34 ps towards loss of future earnings and dependency. In addition to that, the lower Tribunal granted an amount of Rs.10,000/- towards loss of consortium to the first appellant and Rs.3,000/- towards funeral and incidental expenses. Thus, the lower Tribunal awarded a total compensation of Rs,.5,03,527/- with interest at 9% per annum.

4. The learned counsel for the appellants contends that the lower Tribunal erred in holding that the first respondent-owner of the jeep alone is liable to pay the compensation instead of fastening the liability jointly and severally both on the owner of the jeep and the insurance company. Further, he contends that the lower Tribunal ought to have granted some amount under the head of 'loss of estate and love and affection.'

5. The learned standing counsel for the second respondent-insurance company submits that Ex.B.1- policy did not cover the risk of fare paid passengers and that carrying passengers in the accident vehicle amounts to violation of policy conditions. Therefore, the insurance company is not liable to pay any compensation. As per the terms of Ex.B.1-policy, the liability of the insurer is limited to the extent of Rs.1,00,000/- per each passenger in case of death or injury. In case where the insurance company failed to raise specific plea in its counter that its liability is restricted to Rs.1,00,000/- in respect of each passenger, the Tribunal should consider the same and restrict the liability only to that extent in view of clause (ii) of Sub- Rule 7 of Rule 476 of A.P. Motor Vehicles Rules 1989. In case of fastening liability on the insurance company to pay the entire compensation amount, it may be permitted to recover the said compensation amount from the insured i.e. owner of the accident vehicle and to that effect he relied on decisions reported in United India Insurance Company Ltd., Adilabad District v. Gorla Shankar and others, 2003 (2) ALT 596 and National Insurance Co. Ltd., v. Challa Bharathamma and others, 2004 ACJ 2094. He further submits that the interest should be restricted to 6% per annum and to that effect he relied on decisions reported in Shyamwati Sharma & others v. Karam Singh 2010 (1) Decisions Today (SC) 330 and Sarla Verma & others v. Delhi Transport Corporation and another 2009 ACJ 1298.

6. Heard the learned counsel on either side and perused the record.

7. PW.2 is one of the passengers who was travelling in the accident vehicle at the time of the accident. He categorically stated that while they were travelling in the said vehicle, the owner-cum-driver drove the vehicle in a rash and negligent manner and when it reached near Electrical Sub- Station, Nannur, the left side of the rear tyre was burst and as a result the jeep turned turtle, consequently, the deceased died on the spot and another person was also died while undergoing treatment at Government General Hospital, Kurnool. PW.2 further stated that he also received fracture injury. A perusal of Ex.A.1-FIR and Ex.A.2-inquest report goes to show that the accident vehicle was driven in a rash and negligent manner by its driver and that the deceased died due to injuries received in the said accident. The first respondent-owner-cum-driver of the accident vehicle was set exparte. There is no evidence on record to rebut the evidence adduced on behalf of the appellants-claimants. In that view of the matter, the lower Tribunal came to the conclusion that the accident had occurred due to the rash and negligent driving of the first respondent-owner-cum-driver.

8. So far as the fastening of the liability is concerned, the lower Tribunal came to the conclusion that the first respondent- owner-cum-driver alone is liable to pay the entire compensation amount since Ex.B.1 policy does not cover the risk of passengers and that carrying passengers in the accident vehicle is violation of the terms and conditions of the policy. In the decisions reported in United India Insurance Company Ltd., Adilabad District v. Gorla Shankar and others (supra 1) and National Insurance Co. Ltd., v. Challa Bharathamma and others, (supra 2), it was held that though there is breach or violation of the policy conditions, the insurance company is liable to pay the compensation and the insurance company is entitled to recover the same from the insured. However, a perusal of the impugned order does not reveal that it followed the legal position. The lower Tribunal has fastened the entire liability on the first respondent-owner-cum-driver. In the above decisions, it is specifically mentioned that the insurer has got to comply with the award and then proceed to recover the same from the insured. Further, as per the terms of Ex.B.1-insurance policy, the liability of the insurer is limited to the extent of Rs.1,00,000/- per each passenger in case of death or injury. Though the said plea was not taken by the insurance company before the lower Tribunal, the lower Tribunal should have based its award on

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the terms of the insurance policy as stipulated in clause (ii) of Sub- Rule 7 of Rule 476 of A.P. Motor Vehicles Rules 1989. 9. In the circumstances, the second respondent-insurance company is directed to pay Rs.1,00,000/-to the appellants-claimants out of the total compensation amount. Further, the insurance company shall pay the balance amount of compensation, which is payable by the insured- first respondent-owner-cum-driver, to the claimants and recover the same from him. However, the lower Tribunal awarded interest at 9% per annum which is liable to be reduced and the same is hereby reduced to 6% per annum in view of the decision reported in Sarala Varma & others Vs. Delhi Transport Corporation & another (supra 4). 10. With this modification, the C.M.A. is disposed of.
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