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IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS
TRIBUNAL
(BEFORE THE IV ADDL. DISTRICT JUDGE, ANANTHAPURAMU)
Present:- Smt P.Kamala Devi, Chairman-cum-VIII Addl. District Judge, Ananthapuramu FAC IV Addl. District Judge, Ananthapuramu
Tuesday, the 9th day of April, 2019
M.V.O.P. No.296/2016
Between :
… Petitioner Gogula Nallamma
and
1.M.Aswarth
2.The Claims Officer, Shriram General Insurance Co. Ltd., Ananthapuramu
3.M.Naresh … Respondents
This petition coming on 19.3.2019 for final hearing before me in the presence of Sri K.Vidhyapathi, Advocate for the petitioner and of
Sri T.Ramakrishna, Advocate for 2nd respondent, the respondents 1 and 3 having been called absent and set exparte, this matter having stood over till this day for consideration, this Court delivered the following:-
O R D E R
This claim petition has been filed u/s 144 and 166 of M.V.
Act 1988 and Rule 455 of A.P. Motor Vehicles Rules 1989 on behalf of legal representative of Late G.Rajeswari (hereinafter referred to as ‘deceased’) with a prayer to pass a decree in favour of petitioner and against respondents for payment of compensation of Rs.4,00,000/- together with interest from the date of accident till the date of payment and for costs of the petition.
2.THE MATERIAL AVERMENTS OF THE CLAIM PETITION IN
BRIEF ARE AS FOLLOWS:- 2
Petitioner is the grand mother of Late G.Rajeswari (hereinafter referred to as ‘deceased’). The deceased who was 19 years old was hale and healthy at the time of accident. She was doing fruits and vegetable business and earning Rs.10,000/- per month and contributing the same to her family. On 16.12.2015 at about 7.00 a.m., the deceased was travelling in the auto bearing No. AP-02-TB- 2887 from Dharmavaram to her village, when the auto reached near
Sivareddy Horse gram fields, Nagaluru village, on Dharmavaram to
Bathalapalli BT road, at the same time the driver of the crime Auto drove the auto with high speed rashly and negligently without blowing horn and at the time as one vehicle was coming in opposite direction, suddenly in order to avoid the road accident and the driver had applied sudden breaks and as a result the auto turned turtle and the deceased
Rajeswari died on the spot. Post mortem was conducted by the duty doctors of Government Hospital, Dharmavaram. The accident was occurred only due to the rash and negligent driving of the driver of the crime Auto bearing No. AP-02-TB-2887.
A case has been registered in Cr.No.142/2015 of Dharmavaram
Rural PS u/s.304-A IPC was registered against the driver of the crime
Auto. Due to the accident, the petitioner has lost her earning member.
The petitioner is depending on the income of the deceased. The accident occurred due to the rash and negligent driving of the driver of the auto in the course of his employment under the 1st respondent.
The 1st respondent is the owner of the crime vehicle and 2nd respondent is the insurer and the 3rd respondent is the driver of the auto. Hence all the respondents are jointly and severally liable to pay the compensation. Hence, the petition.
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3.2nd respondent filed counter denying most of the allegations mentioned in the petition and submitted as follows,
The person driving the vehicle has no relation in force as on the date of accident to drive the vehicle. The driver of the Auto bearing No. AP-02-TB-2887, who is respondent in the main OP had no driving license. Hence it is the violation of section 3(1) of Motor
Vehicles Act. Thus the 1st respondent who is owner is alone liable to pay compensation to the petitioners and that the 2nd respondent is not liable to pay compensation. Dharmavaram Rural Police station,
Ananthapuramu district registered a case in Cr.No.142/2015 against the driver of auto, who is the 3rd respondent on the complaint given by G.Anjaneyulu. Thereafter police people filed charge sheet against the driver for the offence u/s.304-A IPC and sections 180 and 181 of
A.P. Motor Vehicles Act, which refer punishment for driving the vehicle without driving license. The owner of auto was referred as accused no.2 in the charge sheet as he allowed the accused No.1 to drive the auto, who is not having driving license. The owner of Auto bearing No.
AP-02-TB-2887 not complied with the provisions of section 134(c) of
Motor Vehicles Act and the police concerned also failed to comply the provisions u/s.158(6) of Motor Vehicles Act. As per the criminal case records, the place of accident is Bathalapalli to Dharmavaram road and it is a double road and the deceased was travelling in the auto which is meant for carrying passengers with over load of vegetables and fruits and due to over load of fruits and vegetables in the auto and as there was no space for sitting in the auto the deceased who sat negligently and without following the traffic rules and regulations, all of a sudden fell down from the auto, due to her own negligence and sustained injuries. As such this respondent is not liable to pay compensation.
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The petitioner is not at all depending on the deceased. As such he is not liable for any compensation. The driver of Auto bearing No. AP-02-
TB-2887 is not at all liable and not at all responsible for the accident.
As such the 2nd respondent is not liable to pay compensation.
Therefore, he prays to dismiss the petition with costs.
4.Considering the above said pleadings the following issues are settled for trial.
1.Whether the deceased G.Rajeswari received injuries in motor vehicle accident occurred on 16.12.2015 at about 7.00 p.m. near Sivareddy fields, Nagaruru village, on Dharmavaram –
Bathalapalli BT road, due to the rash and negligent driving of driver of Auto bearing No. AP-02-TB- 2887 ?
2. Whether the petitioner is entitled to receive compensation, if so to what extent and from whom ? Which of the respondent?
3. To what relief?
5.During the course of trial, petitioner herself was examined as P.W.1 and she examined one other person who is said to be eye witness to the accident as PW.2 besides marking Exs.A.1 to A.5. Legal
Executive of the 2nd respondent-company is examined as R.W.1 and marked Ex.B1. 2nd respondent examined Record Assistant in DTC
Office, Ananthapuramu as R.W.2, besides marking Exs.X1 to X5.
6.Heard both sides and perused the record.
7.ISSUE No.1:-The case of petitioners in brief is as follows,
On 16.12.2015 at about 7.00 a.m., the deceased G.Rajeswari was travelling in the auto bearing No. AP-02-TB-2887 from 5
Dharmavaram to her village, when the auto reached near Sivareddy
Horse gram fields, Nagaluru village, on Dharmavaram to Bathalapalli
BT road, the driver of the crime Auto drove the auto with high speed rashly and negligently without blowing horn and at the time as one vehicle was coming in opposite direction, suddenly in order to avoid the accident, the driver had applied sudden breaks and as a result the auto turned turtle and the deceased Rajeswari died on the spot. The accident was occurred only due to the rash and negligent driving of the driver of the crime Auto bearing No. AP-02-TB-2887. A case has been registered in Cr.No.142/2015 of Dharmavaram Rural PS u/s.304-A
IPC was registered against the driver of the crime Auto.
8.The case of contesting 2nd respondent is as follows:-
As per the criminal case records, the place of accident is
Bathalapalli to Dharmavaram road and it is a double road and the deceased was travelling in the auto which is meant for carrying passengers with over load of vegetables and fruits and due to over load of fruits and vegetables in the auto and as there was no space for sitting in the auto the deceased who sat negligently and without following the traffic rules and regulations, all of a sudden fell down from the auto, due to her own negligence and sustained injuries. As such this respondent is not liable to pay compensation. The petitioner is not at all depending on the deceased. As such he is not liable for any compensation. The driver of Auto bearing No. AP-02-TB-2887 is not at all liable and not at all responsible for the accident. As such the 2nd respondent is not liable to pay compensation.
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9.In order to prove the case of petitioner, petitioner herself was examined as P.W.1 and she examined one another witness who is said to be eye witness as PW.2 and marked Exs.A1 to A5.
10.P.W.1 swore in her chief affidavit in the same lines of petition averments. P.W.2 swore in his chief affidavit that on 16.12.2015 at about 7.00 a.m., he and another were going to
Ravulacheruvu village and reached near Nagaluru village, at the same time the driver of the crime Auto bearing No. AP-02-TB-2887 drove the auto with high speed rashly and negligently and to avoid the opposite coming vehicles, he applied sudden breaks. As a result the auto turned turtle and the deceased fell down and died on the spot.
Immediately he enquired the deceased particulars and got the information about the accident through his cell phone to the deceased relatives. Later the deceased was taken to Government Hospital,
Dharmavaram for post mortem examination. The accident was occurred only due to the rash and negligent driving of driver of crime auto.
11.Coming to cross-examination of PW.1, it shows that there is no cross-examination to her by the counsel for contesting 2nd respondent challenging the manner of accident as mentioned in
Exs.A1 and A5. As seen from Exs.A1 and A5, it is mentioned that on 16.12.2016 at about 6.30 a.m., the auto left Dharmavaram in which the deceased was travelling and A1 i.e., Mudaga Naresh was coming and after Nagaluru village, while reaching near the Horse gram field at about 7 a.m., the said auto driver Naresh drove it at high speed and in a rash and negligent manner without giving horn and as one vehicle was coming in the opposite direction, in order to avert the accident, he 7 applied sudden brake and as a result, the auto turned turtle and
Rajeswari fell underneath the said auto and died on the spot. The 2nd respondent did not file any document or placed any evidence showing the manner of accident other than the manner mentioned in Exs.A1 and A5. So it can safely be concluded that the accident was occurred only due to the rash and negligent driving of driver of Auto bearing No.
AP-02-TB-2887, but not due to negligence on the part of the deceased.
Thus I hold that the deceased Rajeswari received injuries in the accident occurred on 16.12.2015 at about 7.00 a.m. near Sivareddy fields, Nagaluru village on Dharmavaram – Bathalapalli BT road, due to the rash and negligent driving of driver of Auto bearing No. AP-02-TB- 2887. Accordingly this issue is answered.
12.ISSUE No.2:-Though the 2nd respondent pleaded in his written statement that the petitioner is not at all depending on the deceased and she is not entitled for any compensation, but the same was not put to PW.1 in her cross-examination or pleaded in the chief affidavit of RW.1. So it can safely be concluded that the petitioner herein is the dependent of the deceased Rajeswari as well as legal heir of the deceased Rajeswari. So in view of the findings in issue No.1, the petitioner is entitled to compensation.
13.Coming to the persons who are liable to pay compensation, it is the specific case of the 2nd respondent that the 3rd respondent driver is not having driving license at the time of accident.
Thus it amounts to violation of conditions of policy, therefore the 2nd respondent is not liable to pay compensation.
14.In order to prove the case of the petitioner, the 2nd respondent examined RW.2. He categorically deposed that they 8 searched particulars of driver by name M.Naresh, s/o Aswartha, 22 years, resident of D.No.1-24, Nidigallu village of Tadimarri Mandal of
Ananthapuramu district and they found the driving license was issued to driver under D.L.No.AP-00220170008081 and the driving license was issued to him by their office on 27.11.2017 under Ex.X5 and that earlier to that no driving license was issued to him by their office. As per their search they did not find any driving license particulars of above said driver as on 16.12.2015. The evidence of RW.2 clinchingly establishes that the 3rd respondent driver of crime Auto was not having driving license as on the date of accident and that he is having driving license only since 27.11.2017 under Ex.X5. Moreover as per Ex.A5 the police people filed charge sheet against the 3rd respondent herein as
A1 for the offence u/ss.304-A IPC and sections 180 and 181 of A.P.
M.V.Act. The evidence of RW.2 coupled with Ex.A5 establishes that the 3rd respondent had no driving license at the time of accident to drive the crime vehicle. Thus it clearly amounts to violation of Ex.B1 policy conditions.
15.In 2013 ACJ 2129, it was observed that driver holding a valid license is the requirement of law and that the driver who was holding no license or a fake license, then it amounts to violation of terms and conditions of policy and in that circumstances no liability can be fastened on the insurance company.
16.In 2008 (3) ALT 26 (SC), it was held that the liability to pay compensation in a case where driver was not having license at all is on the part of owner. As the owner of the vehicle had statutory obligation to see that the driver of the vehicle whom he authorized holds valid license.
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17.In view of the findings in the above decision and in the light of above mentioned circumstances, I am of the view that the 2nd respondent-company is not liable to pay compensation and that R1 and R3 who are driver and owner of the crime vehicle are alone liable to pay compensation. Hence this petition against the 2nd respondent is liable to be dismissed.
18.Coming to the quantum of compensation, it is the case of the petitioner that the deceased Rajeswari was hale and healthy and aged 18 years at the time of accident, doing fruit business and earning
Rs.10,000/- per month and contributing the same to her family. But for the accident, due to premature death, the petitioner who is depending on her earning is entitled to claim compensation to a tune of
Rs.4,00,000/- against all the respondents. In order to prove the case of the petitioner, she herself was examined as P.W.1 and she swore in her chief affidavit in the same lines of petition averments. Coming to her cross-examination, she deposed that she has not filed any document to show that the deceased was earning Rs.10,000/- per month. So it makes clear that the petitioner failed to place the earnings and age of the deceased as pleaded in the petition. So I am of the view that it is just and proper to consider the earnings of the deceased as daily wages and her average monthly income would be Rs.4,000/- per month. As she is an unmarried, 50% is liable to be deducted. If we calculate her annual income, it comes to 2000 x 12 = 24,000/-.
Considering the age of the petitioner in the inquest report, which is mentioned as 19 years, the multiplier 18 to the age group of 15-20 years is applicable as per the decision in Smt. Sarla Verma and
others Vs. Delhi Transport Corporation and another (2009
Acci.C.R.670 (S.C.). On multiplication of annual loss of dependency 10 of Rs.24,000/- by multiplier 18, total loss of dependency comes to
Rs.4,32,000/-. As the petition is filed for Rs.4,00,000/-, the claim is limited to Rs.4,00,000/-. Thus I hold that the petitioner is entitled to claim compensation of Rs.4,00,000/- from the respondents 1 and 3 only together with accrued interest thereon at the rate of 7.5% per annum from the date of petition till date of deposit. Accordingly this issue is answered.
19.ISSUE No.3:- In view of finding on Issue Nos.1 and 2 as mentioned above, this petition shall be allowed with costs awarding compensation of Rs.4,00,000/- payable by respondents 1 and 3 together with accrued interest thereon at the rate of 7.5% per annum from the date of petition till the date of deposit with joint and several liability. Claim against the 2nd respondent shall be dismissed without costs. Respondents 1 and 3 shall deposit said compensation amount together with accrued interest thereon and costs of petition within 30 days from this day. On deposit of said compensation amount petitioner shall be entitled to withdraw 50% of the compensation amount and accrued interest thereon and the entire costs of petition payable to her. The remaining balance compensation amount and accrued interest thereon payable to her shall be deposited in any nationalized bank for a period of one year.
20.In the result, this petition is allowed with costs awarding compensation of Rs.4,00,000/- payable by respondents 1 and 3 together with accrued interest thereon at the rate of 7.5% per annum from the date of petition till the date of deposit with joint and several liability. Claim against the 2nd respondent is dismissed without costs.
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Respondents 1 and 3 are directed to deposit said compensation amount together with accrued interest thereon and costs of petition within 30 days from this day. On deposit of said compensation amount petitioner is entitled to withdraw 50% of the compensation amount and accrued interest thereon and the entire costs of petition payable to her. The remaining balance compensation amount and accrued interest thereon payable to her shall be deposited in any nationalized bank for a period of one year. Advocate fee is fixed at Rs.4,000/-.
Dictated to the Stenographer and transcribed by him, corrected
and pronounced by me in open Court this the 9th day of April, 2019.
CHAIRMAN,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
(VIII ADDL. DISTRICT JUDGE), ANANTHAPURAMU.
FAC IV ADDL. DIST & SESSIONS JUDGE,
ANANTHAPURAMU.
Appendix of evidence Witnesses examined for
PETITIONERS RESPONDENTS
PW.1 : Gogula Nallamma.RW.1: D.Ramanjaneyulu
PW.2 :G.Naga Sivudu @ G.Sivudu.RW.2: B.Gowri Sankar
EXHIBITS MARKED FOR PETITIONERS
Ex.A.1 : Attested Xerox copy of FIR in Cr.No.142/2015 of Dharmavaram Rural PS.
Ex.A.2 : Attested Xerox copy of inquest report of the deceased G.Rajeswari.
Ex.A.3 : Attested xeorx copy of post mortem certificate of the deceased G.Rajeswari.
Ex.A.4 : Attested xerox copy of MVI report.
Ex.A.5 : Attested xerox copy of charge sheet.
EXHIBITS MARKED FOR RESPONDENTS
Ex.B.1: Copy of Insurance policy.
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X-Series:
Ex.X1: Authorisation letter, dt.14.9.2018.
Ex.X2: Registration certificate.
Ex.X3: Permit.
Ex.X4: Fitness certificate of Auto rickshaw bearing No. AP02-TB-2887.
Ex.X5: Driving license of M.Naresh.
CHAIRMAN/IV ADJ,
MOTOR ACCIDENTS CLAIMS TRIBUNAL.