APHC011541322012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] THURSDAY, THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 7/2025 Between: 1. UNITED INDIA INSURANCE COMPANY LIMITED, NELLORE BRANCH OFFICE-11, REP.BY ITS MANAGER ...APPELLANT AND 1. THELLAPATI RAJESWARI, W/O.LATE MADHUSUDHANA RAO, HINDU, AGED ABOUT 31 YEARS,RESIDENTS OF VENGALARAONAGAR, KAVALI, NELLORE DISTRICT. 2. THELLAPATI ROOPA CHANDANA, D/O.LATE MADHUSUDHANA RAO, HINDU, AGED ABOUT 9 YEARS,ESIDENTS OF VENGALARAONAGAR, KAVALI, NELLORE DISTRICT. 3. THELLAPATI KAVYA, D/O.LATE MADHUSUDHANA RAO, HINDU, AGED ABOUT 7 YEARS, RESIDENTS OF VENGALARAONAGAR, KAVALI, NELLORE DISTRICT. 4. THELLAPATI KANTHAMMA, W/O. THELLAPATI NARASAIAH, HINDU, AGED ABOUT 62 YEARS, RESPONDENTS 2 AND 3 BEING MINORS, REP.BY THEIR MOTHER 1ST RESPONDENT HEREIN. RESIDENTS OF VENGALARAONAGAR, KAVALI, NELLORE DISTRICT. 5. K CHENNAIAH, S/O.THIRUPAL, RESIDENT OF THEKKELLAPADU VILLAGE, DUTTALUR MANDAL, NELLORE DISTRICT. ...RESPONDENT(S): 2 Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toto set aside the Order passed in OP No. 781 of 2008 on the file of the Court of the I Additional District Judge Cum the Motor Accident Claims Tribunal at Nellore dt. 8th September, 2011 and pass IA NO: 1 OF 2012(MACMAMP 1626 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 42 days in filing the CMA against the Judgment and award in OP No. 781 of 2008 on the file of the Court of the I Additional DIstrict Judge Cum the Motor Accident Claims Tribunal, at Nellore dt. 8th September, 2011 and pass IA NO: 2 OF 2012(MACMAMP 1774 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of operation of the decree and judgment in OP.No.781 of 2008 on the file of the court of the 1st Additional District Judge-cum-the Motor Accident Claims Tribunal, at Nellore dt.08/09/2011 pending disposal of the main CMA IA NO: 1 OF 2016(MACMAMP 2853 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioner herein to serve the notices in MACMA (SR) No.12984 of 2012 against the orders in OP.No.781 of 2008 on the file of the I Additional District Judge-Cum-Motor Accidents Claims Tribunal, at Nellore, dated 8th September, 2011 by publication in the Nellore District Edition of a Telugu daily newpaper, pending disposal fo the main MACMA and pass Counsel for the Appellant: 1. NARESH BYRAPANENI Counsel for the Respondent(S): 1. 3 The Court made the following Judgment: This appeal arise against the order dated 08.09.2011, passed in M.V.O.P.No.781 of 2008, on the file of learned I Additional District Judge-cum-Motor Accidents Claims Tribunal at Nellore, instituted under Section 166 of the Motor Vehicles Act. 2. This is a case of an accident causing death. The deceased was aged 32 years and working as a Police Constable at II Town Police Station Kavali. On 23.09.1999, while he was on official duty and proceeding on a motor cycle, it came to be dashed by mini lorry bearing No.AP 11 T 8001 coming from opposite direction, driven in a rash and negligent manner. Resultantly, he sustained severe injuries to head and succumbed on the spot. His mother, wife and two minor children instituted claim of Rs.9,75,000/-(Rupees Nine Lakh and Seventy Five Thousand only) against owner and insurer of mini lorry. The owner remained ex parte and the Insurance Company filed counter-affidavit denying the allegations made in the claim petition. 3. In support of claim, wife got examined as P.W.1 and the pillion rider on motor cycle was examined as P.W.2 and marked Exhibits- A1 to A6. On behalf of respondents, Police Officer was examined as R.W.1 and Insurance Officer as R.W.2 and got marked E.x.-B1 (Insurance Policy). Based on pleadings and evidence, both oral and documentary, the Tribunal framed following issues: 4 1. Whether the pleaded accident occurred on account of the rash and negligent driving of the mini lorry bearing No.Ap 11 T 8001 by its driver and whether it resulted in the death of Thellapati Madhusudhana Rao (deceased)? 2. Whether the driver of the mini lorry bearing No.AP 11 T 8001 was possessing valid driving licence as on the material date of accident? 3. Whether the petition is bad for non-joinder of necessary parties i.e., owner of the motorcycle bearing No.AP 26 D. 3232 and its Insurance Company? 4. Whether the petitioners are entitled for compensation, if so, to what amount and from which of the respondents? 5. To what relief? 4. The first issue pertains to the aspect of negligence. On appreciation of evidence, the Tribunal came to conclusion that deceased was also attributable for negligence besides the driver of mini lorry and therefore, apportioned negligence as 25%:75% respectively. 5. Regarding second issue, the Tribunal has recorded a finding that in the absence of any cogent evidence, merely based on evidence of R.W.1 and R.W.2, it cannot infer that driver of lorry did not possess driving license. Unless either the driver of lorry or an official from R.T.O. are examined, the burden to disprove that driver did not have license will not be discharged. 6. Lastly, with regard to remaining issues, the Tribunal, has ultimately having assessed the income of deceased, determined the 5 compensation and awarded an amount of Rs. 5,01,000/- (Rupees Five Lakh and One Thousand only) along with interest at the rate of 9% per annum from the date of the petition till the date of realization. 7. Heard Sri Naresh Byrapaneni, learned counsel for the appellant. Though notice was served on respondents, none appeared. 8. Learned counsel for the appellant has raised two contentions. Firstly, he contended that the Tribunal erred in fixing the negligence as 25%:75% on deceased and driver of mini lorry, rather negligence ought to have been fixed as 50%:50%, as both of them are equally responsible for occurrence of the accident. Secondly, he contended that driver of mini lorry did not possess driving license. Despite the evidence of R.W.1 and R.W.2, the Tribunal, disbelieved the same and came to conclusion that appellant failed to discharge the burden of proof that there does not exist driving license. 9. Perused the record. 10. Insofar as the first contention is concerned, according to learned counsel for the appellant, as accident has occurred due to involvement of both motor cycle driven by deceased and mini lorry, the negligence ought to have been assessed at 50%:50%. However, the Tribunal has elaborately considered this particular aspect. The driver of mini lorry was not examined. The evidence brought in by 6 the Insurance Company was let in by R.W.1, Police Officer and R.W.2, an Insurance Officer, who admittedly were not eyewitnesses to the accident. The evidence that is available on record suggests that mini lorry came in opposite direction and hit motorcycle. The appellant insurance company did not adduce any evidence to show in which direction and on which margin of road, the motorcycle was proceeding. Equally, the Tribunal also found that there is no evidence to show that mini lorry was proceeding in wrong direction. 11. Having considered the available evidence on record i.e., F.I.R., Inquest Report and charge sheet, the Tribunal has come to conclusion that there was a collision resulting in death of motorcyclist and felt that but for involvement of both vehicles, the accident could not have occurred. Therefore, the Tribunal fixed the negligence as 25%:75%. The said finding recorded by the Tribunal is based on cogent reasoning and cannot be said to be erroneous or perverse. 12. Even if slightly different view is possible, it is not for this Court to substitute view. At any rate, except for submitting that negligence should have been determined as 50%:50%, the appellant failed in discharging its burden of proving by examining driver of lorry. Therefore, this Court does not find any infirmity with such finding. 13. Coming to the second aspect, the appellant has denied the existence of driving license. Not having driving license constitutes a 7 violation of conditions of policy. It is for the insurance company to prove such contention, and burden heavily lies on it. In order to discharge said burden, cast upon it, appellant has examined Police Officer and its own officer. Question is whether the evidence of R.W.1 and R.W.2 would be sufficient to prove and discharge such burden. 14. Admittedly, neither driver of mini lorry nor R.T.O., who issues driving license, was examined. 15. This Court in United India Insurance Company Ltd., v. Madiga Thappeta Ramakka and others1 faced with similar issue and considering the burden of proof and liability of Insurance Company, while relying on Hon’ble Apex Court Judgment, in para No.7 held that it is for the Insurance Company to take effective steps to summon driver of vehicle and also R.T.O. to speak about existence of driving license, who alone are competent to speak on the same. 16. In case Insurance Company does not take any effective steps to discharge the burden, it cannot be presumed that the driver did not have a driving license at all. Even in the present case, the Tribunal has come to definitive conclusion that insurer did not issue any notice to owner or driver of lorry to cause production of driving license or summoned R.T.O. to ascertain as to whether any license 1 1994(2) ALT 561 8 was issued. In the absence of the same, the Tribunal has rightly come to conclusion that appellant did not discharge its burden and therefore, held said issue against him. This Court does not find any infirmity in the reasoning assigned. 17. Lastly, learned counsel for the appellant has contended that the Tribunal has awarded interest at the rate of 9%, which is excessive, rather the Tribunal ought to have awarded interest only at the rate of 6%. 18. This Court finds that interest awarded is on higher side. Therefore, the same is modified to the extent of 7.5%. 19. Accordingly, the appeal is partly allowed. The appellant is directed to deposit the compensation awarded by the Tribunal, as confirmed herein, along with interest at the rate of 7.5% from the date of petition till the date of realization, within four (04) weeks from the date of receipt of a copy of this order. On such deposit being made, the respondents are entitled to withdraw the same in terms of, and in proportion to, the apportionment provided in the award. There shall be no order as to costs. As a sequel, miscellaneous pending consideration, if any, in this case shall stand closed. ______________________________________ JUSTICE CHALLA GUNARANJAN Date: 24.07.2025 KBN