CMA/2724/2004 of The Oriental Insurance Co. Ltd, Vs Pappala Lakshmi on 31 December 2014

J U D G M E N T:

This appeal is filed by the appellant/sixth respondent underSection 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’),aggrieved by the order, dated 20.10.1997, passed by the Chairman,Motor Vehicle Accident Claims Tribunal-cum- II Additional District Judge, East Godavari at Rajahmundry, inO.P.No.861 of 1993, awarding compensation of Rs.1,90,000/-

2. Respondent Nos.1 to 3/petitioners filed the above O.P underSection 166 of the Act read with Rule 455 of the Andhra PradeshMotor Vehicle Rules 1989 (for short ‘the Rules’), claimingcompensation of Rs.2,00,000/- on account of the death of PappalaGanapahti (hereinafter referred to as ‘the deceased’) in a motorvehicle accident, that occurred on 13.02.1993.

3. For the sake of convenience, the parties hereinafter will bereferred to as they are arrayed in the Original Petition.

4. The brief averments made in the petition are that on13.02.1993 at 2:00 p.m, while the deceased was travelling in theLorry bearing No.ABB.1986 along with cloth bundles from Vemagiriand Rajahmundry side towards Lalacheruvu, the driver of the Vanbearing No.AP.15T.919 drove the vehicle in rash and negligentmanner, came in the opposite direction and dashed the lorry, inwhich the deceased was travelling. Both the vehicles collided andthe deceased sustained crush injury. Immediately after theaccident, the petitioner was shifted to Government Head QuartersHospital, Rajahmundry for treatment. But, inspite of the treatment,he died in the Hospital. The deceased was aged about 25 years,doing cloth business and earning Rs.2,000/- p.m and he used to contribute the entire income to his family. Petitioners are the wife,father and unmarried sister of the deceased. As the petitioners losttheir dependency, the respondents being the drivers, owners andinsurers of the van and lorry are jointly and severally liable to paycompensation.

5. Before the Tribunal, respondent Nos.1 to 4 remained ex parte.

6. The brief averments made in the counter, filed by the fifthrespondent are as follows:

The fifth respondent put the petitioners to prove the mannerof accident, age and income of the deceased and specifically statedthat the accident occurred due to rash and negligent driving of thedriver of the Van bearing No.AP.15T.919 and there is no negligenceor contributory negligence on the part of the driver of the Lorrybearing No.ABB.1986 and the amount claimed by the petitioners ishigh and excessive and the third petitioner is not entitled to claimany compensation and put the petitioners to prove that the driver ofthe Van bearing No.AP.15T.919 was having valid driving license atthe time of accident and finally prayed the Court to dismiss thepetition.

7. The brief averments made in the counter, filed by the sixthrespondent are as follows:

The sixth respondent put the petitioners to prove the mannerof accident, age and income of the deceased and stated that thepetition filed by the petitioners is not maintainable and also put thepetitioners to prove that there was negligence or contributorynegligence on the part of the second respondent resulting in theaccident. Further, the deceased was a gratuitous passenger, whowas travelling in a goods vehicle. Thus, the owner of the vehicle violated the provisions of the Act, and therefore respondent is notliable to pay any compensation to the petitioners.

8. Basing on the pleadings, the Tribunal framed four issues andto substantiate the claim, the petitioners got examined PWs.1 & 2and got marked Exs.A1 to A3 on their behalf. On behalf of thecontesting respondents, no oral evidence was adduced, but Ex.B1got marked.

9. After considering the oral and documentary evidence, theTribunal held that the accident took place due to rash and negligentdriving of both the drivers of van and lorry and awardedcompensation of Rs.1,90,000/- along with interest at 12% p.a to thepetitioners against all the respondents.

10. Being aggrieved by the award passed by the Tribunal, thesixth respondent preferred the present appeal.

11. The learned counsel appearing for the appellant/sixthrespondent argued that the compensation awarded by the Tribunalis highly excessive and exorbitant; that the Tribunal failed to seethat the deceased is an unauthorised passenger and is not entitledfor any compensation; that the Tribunal also not clarified therespective share and responsibility of respondent No.5 in theawarded amount, and prayed the Court to allow the appeal.

12. Appeal against respondent No.1 is dismissed for default videC.O dated 16.09.2011, while Appeal against respondent Nos.2 to 7is dismissed for default vide C.O dated 31.10.2003.

13. On the other hand, the learned counsel for respondent No.5argued that the Tribunal after considering the evidence on record,held that there was contributory negligence on the part of thedrivers of the Van and Lorry and awarded compensation and that order needs no interference and prayed the Court to dismiss theappeal.

14. Having regard to the submissions made by the learnedcounsel appearing for both parties, the points which are to bedecided in this appeal are as follows:

1. Whether the appellant/respondent is entitled toset aside the order dated 20.10.1997 passed bythe Tribunal or not?set aside the order dated 20.10.1997 passed bythe Tribunal or not?

2. Whether the compensation granted by theTribunal is just and reasonable or not?Tribunal is just and reasonable or not?

15. POINTS 1 & 2: A perusal of the award passed by theTribunal shows that after considering the oral and documentaryevidence, the Tribunal held that the accident occurred due to therash and negligent driving of drivers of both the vehicles and theyare responsible for the accident and awarded compensation ofRs.1,90,000/- against all the respondents. The contention of theappellant is that the deceased was travelling as an unauthorisedpassenger in the goods vehicle and further, the Tribunal also notspecified about the share of compensation payable by the appellantin the award.

16. Admittedly, the appellant has not produced any oral evidenceto show that the deceased was an unauthorised passenger. On theother hand, the evidence on record shows that the deceased wastravelling in the lorry along with cloth bundles and he is doing clothbusiness and earning Rs.2,000/- per month. After considering theevidence of PWs.1 & 2, the Tribunal awarded compensation to thepetitioners, who are the wife, father and unmarried sister.

17. A perusal of the order and decree also shows that theTribunal nodoubt passed the award against all the respondents i.e.,respondent Nos.1 to 6 jointly and severally. All respondents are none other than the drivers, owners and insurers of the van andlorry. The compensation awarded by the Tribunal is Rs.1,90,000/-.Therefore, the driver, owner and Insurance Company of the Vanbearing No.AP.15T.919 have to share half and the driver, owner andInsurance Company of the Lorry bearing No.ABB.1986 have toshare another half of the compensation. Likewise, they have toshare the interest also equally.

18. With the above observation, the Appeal is disposed of. Noorder as to costs. Miscellaneous Petitions, if any, pending in thisappeal shall stand closed.

Date: .12.2014

sr

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ANIS, J