APHC010005612012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3365] FRIDAY ,THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 4180/2012 Between: National Insurance Co. Ltd. Vijayawada ...APPELLANT AND Chigurupati Seshu Kumari and Others ...RESPONDENT(S) Counsel for the Appellant: 1. MANIMMA MEDIDA Counsel for the Respondent(S): 1. KANAKAMEDALA RAVINDRA KUMAR The Court made the following: 2 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR M.A.C.M.A.No.4180 of 2012 JUDGMENT: The insurance company preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 questioning the correctness of the award dated 28.04.2003 of the learned Chairman, Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge Vijayawada (hereinafter referred to as ‘the Claims Tribunal’) in M.V.O.P.No.731 of 2001. 2. Heard arguments of Smt. Medida Manimma, the learned counsel for appellant-Insurance Company and Sri Kanakamedala Ravindra Kumar, the learned counsel for respondent No.5. Despite notice being served, none entered appearance for respondent Nos.1 to 4. 3. The following facts are required to be noticed: 3 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 On 12.12.1998 at about 6:00 P.M. near petrol bunk, Mylavaram an auto rickshaw bearing registration No.AP 16 W 314 being driven by its driver rashly or negligently hit an opposite coming auto rickshaw and as a consequence Sri Chigurupati Venugopal travelling in the other auto rickshaw suffered serious multiple injuries and enroute to hospital he died. Crime No.155 of 1998 was registered by police/Ex.A.1-F.I.R. and after due investigation a charge sheet/A.4 was filed as against the driver of offending auto rickshaw bearing registration No.AP 16 W 314. The deceased was aged 30 years and was stated to be a carpenter by profession. He was survived his wife- Seshu Kumari and two minor sons, namely, Mr. Venkata Rao and Mr. Bujji. Sri A.Srinivasa Rao is stated to be the owner of the offending auto rickshaw. It is stated that National Insurance Company issued an insurance policy in favour of the owner of the offending vehicle. The wife and minor children of the deceased filed M.V.O.P.No.731 of 2001 before the learned Chairman, Motor Vehicles Accidents Claims Tribunal-cum-II Additional District 4 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 Judge, Vijayawada. In the said petition, the owner of the offending vehicle was shown as respondent No.1 and the insurer was shown as respondent No.2. Smt. Chigurupati Anasuyamma stating to be the mother of the deceased filed M.V.O.P.No.796 of 2003 before the same Tribunal. There the wife and the minor children of the deceased were shown as respondent Nos.4, 5 and 6. The insurance company was shown as respondent No.3. There was evidence of PWs.1 and 2 and RW.1 and Exs.A.1 to A.7 and Exs.B.1 to B.3. Ex.A.7 was a policy of insurance, which was equivalent to Ex.B.1- policy of insurance. After due hearing, by a judgment dated 07.12.2005, the claim made by the mother of the deceased was dismissed on the premise that even by that date the claim made by the wife and children/M.V.O.P.No.731 of 2001 was inquired into and an ward was passed. The mother was directed to get herself impleaded in M.V.O.P.No.731 of 2001 for apportionment of her share of compensation. 5 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 In the said judgment, a clear reference was made to the insurance policy and it was recorded that the policy was in force by the time of subject matter accident. The relevance of this observation would be seen in the present judgment. A certified copy of this judgment was placed on record by the mother of the deceased who was impleaded in the present appeal by order dated 22.01.2013 in C.M.P.No.2750 of 2006. Consequently, she is arrayed as respondent No.5 in this appeal. Coming back to M.V.O.P.No.731 of 2001 as mentioned earlier, the wife of the deceased and her two minor children sought compensation of Rs.2,60,000/- under Section 166 of the Motor Vehicles Act. The owner of the offending vehicle/respondent No.1 therein did not choose to appear and contest. The only contest raised by respondent No.2 therein/insurance company was that the accident was not out of rash or negligent driving of driver of auto rickshaw bearing registration No.AP 16 W 314 and the claim made by the claimants was excessive and it sought dismissal of the claim. 6 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 4. The learned Claims Tribunal settled the following issues for trial: 1) Whether the deceased Chigurupati Venugopal died in a motor accident on 12.12.98 due to rash and negligent act of the driver of auto AP 16 W 314? 2) What is the correct age and income of the deceased by the date of accident? 3) Whether the petitioners are entitled to the compensation as prayed for? If so from whom? 4) To what relief? 5. There was evidence of PW.1 and Exs.A.1 to A.4. No evidence either oral or documentary was adduced on behalf of the contesting insurance company. 6. After considering the investigative outcome of the State Police and the evidence of PW.1, the learned Claims Tribunal found that the accident and the death of Sri Chigurupati Venugopal was because of rash or negligent driving of auto rickshaw bearing registration No.AP 16 W 314. It observed that the deceased was aged 30 years and his income was not proved 7 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 by appropriate evidence and therefore, notional income was taken and was assessed at Rs.2,100/- per month and 1/3rd of it was deducted towards possible personal expenses of the deceased and thus net monthly income of Rs.1400/- was considered and the annual income was calculated at Rs.16,800/-. Multiplier ‘16’ was applied and therefore towards loss of dependency it was found to be Rs.2,68,800/-. Towards loss of consortium to the widow Rs.15,000/-, towards loss of love and affection to the minor children Rs.5,000/- and towards funeral charges Rs.2,000/- were found to be appropriate. The total compensation was calculated at Rs.2,95,800/-. However, the claimants since prayed only for Rs.2,60,000/- the learned Claims Tribunal restricted the compensation to that amount. It passed the award in the following terms: “In the result, the petition in allowed directing the respondents to pay a sum of Rs.2.60,000/- with subsequent interest at 9% p.a. from the date of petition till realisation, and with costs. Respondents are granted two months time to deposit the said sum to the credit of thin O.P. and on such deposit is being made, 1st petitioner being wife is entitled to 60% share and petitioners 2 and 3 aro entitled to 20% share each out of the compensation 8 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 amount and the first petitioner is entitled to receive her share amount as per rules and necessities. The share amounts of petitioners 2 and 3 shall be invested in any Nationalised Bank till they attain majority and the 1st petitioner is entitled to receive interest on the amounts of petitioners 2 and 3 once in every quarter. Advocate's fee is fixed at Rs.2500/-.” 7. Challenging the said award, the insurance company preferred this appeal urging the following grounds which are extracted here: “…..In the O.P. the cover Note No.137237 issued by the appellant insurance company is valid from 26.11.1998 to 25.11.01999. But actual valid period was from 26.11.1997 to 25.11.1998. Whereas the date of accident was 12.12.1998. As per actual period of Insurance, the policy expired on 25.11.1998. The respondents/petitioners fraudulently and erroneously altered the period and shown it as from 26.11.1998 to 25.11.1999 in such a way that the date of accident i.e. 12.12.1998 falls within the period. Under these circumstances since there is no valid policy existing as on the date of accident, the appellant is not liable to pay any compensation.” 8. Learned counsel for appellant submitted arguments so also the learned counsel for respondent No.5/the mother of the 9 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 deceased. Despite notice being served, none entered appearance for respondent Nos.1 to 4 which included the claimants as well as the owner of the offending vehicle. 9. The points that fall for consideration in this appeal are: 1. Whether the subject matter accident occurred during the subsistence of the insurance policy? 2. Whether respondent No.5/the mother of the deceased is entitled to any portion of the compensation? POINT No.1: 10. The fervent argument of the learned counsel for appellant- National Insurance Company is that the subject matter accident took place on 12.12.1998 and the validity of the insurance policy was from 26.11.1997 to 25.11.1998. Therefore, by the time the subject matter accident took place there was no insurance policy in force. The further submission is that the cover note bearing No.137237 was issued by the insurance company showing the 10 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 validity period from 26.11.1998 to 25.11.1999. That the claimants played fraud on the Claims Tribunal and prays this Court to set aside the award impugned. 11. Opposing this, the learned counsel for respondent No.5 submitted that in M.V.O.P.No.731 of 2001 this appellant/insurance company did not raise any such questions which are argued now in this appeal and it failed to adduce oral evidence or documentary evidence and therefore, raising such factual disputes in this appeal without there being any application for further evidence cannot be maintained. The further submission of the learned counsel for respondent No.5 is that in the earlier referred M.V.O.P.No.796 of 2003 the insurance policies were exhibited as per Ex.B.1 and Ex.A.7 and there was a clear observation of the learned Claims Tribunal that the policy was in force. It is on these submissions the learned counsel for respondent No.5 seeks dismissal of this appeal while granting a portion of the compensation to respondent No.5. 12. From the material placed before this Court it is crystal clear that the appellant/insurance company did not bring it to the notice 11 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 of the Claims Tribunal either as a contention or as evidence anything touching upon the insurance policy and the cover note. It neither adduced oral evidence nor adduced documentary evidence. All that is indicative of the fact that from its own records the insurance company thought that the insurance policy was in force by the time of the subject matter accident. In such circumstances, it could not be said that the claimants had played any fraud. Even in this appeal the insurance company did not bring it to the notice of this Court either the cover note it alleged or the insurance policy it contended about. Thus, the argument is based on facts that are not available on record. It is also undisputed that in the other M.V.O.P.No.796 of 2003 filed by the deceased mother/respondent No.5 herein there are clear observations referring to Ex.A.7 and Ex.B.1 that the insurance policy was in force. Appellant herein failed to overcome the same. It may further be stated here that even if it is considered that the insurance policy was only to cover the period from 26.11.1997 to 25.11.1998 the fact as could be seen from the grounds urged in the memorandum of grounds of appeal the purported cover note was issued for a period subsequent to 12 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 25.11.1998. In other words, the cover note No.137237 was issued covering the period from 26.11.1998 to 25.11.1999. It is well known that a cover note would be valid for a period of 60 days. The subject matter accident occurred on 12.12.1998 which was well within the above period of 60 days. It has never been the case of the appellant/insurance company that either the cover note was cancelled or that it had informed the insured about cancellation of cover note. Viewed from any angle, the grounds raised in this appeal by the insurance company are devoid of any factual merits. In such circumstances, the impugned award does not require any interference at the instance of the appellant. Hence, point No.1 is answered accordingly. POINT No.2: 13. Since it remained undisputed that the fifth respondent is the very mother of the deceased, she is also entitled to have compensation apportioned in her favour. She was not being made a respondent in M.V.O.P.No.731 of 2001. In such circumstances the impugned award requires modification. Consequently, fifth respondent – Smt. Chigurupati Anasuyamma 13 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 is entitled to receive Rs.60,000/- and to that extent the apportionment made in the impugned award in favour of Smt. Chigurupati Sesha Kumari/wife of the deceased be reduced. The Claims Tribunal is to act in the above terms. Hence, this point is answered accordingly. 14. In the result, this Appeal is disposed of in the following manner: The award dated 28.04.2003 of the learned Chairman, Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge Vijayawada in M.V.O.P.No.731 of 2001 is modified. The fifth respondent – Smt. Chigurupati Anasuyamma/mother of the deceased is entitled to receive an amount of Rs.60,000/- towards compensation and to that extent the apportionment made in the impugned award in favour of Smt. Chigurupati Sesha Kumari/wife of the deceased be reduced. The Claims Tribunal is to act in the above terms. The other portion of the impugned award remains intact. There shall be no order as to costs in this appeal. 14 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 As a sequel, miscellaneous applications pending, if any, shall stand closed. ________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 28.02.2025 Ivd 15 Dr. VRKS, J M.A.C.M.A.No.4180 of 2012 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR M.A.C.M.A.No.4180 of 2012 Date: 28.02.2025 Ivd