APHC010131322022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY,THE TWENTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 128/2022 Between: 1. UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, OPP. SURYA MAHAL, G.T.ROAD, SRIKAKULAM TOWN AND DISTRICT. NOW REPRESENTED BY ITS MANAGER, SRI P.PHANI KUMAR, DIVISIONAL OFFICE I, POST BOX. 50, R.R. APPARAO STREET, VIJAYAWADA - 520001 ...APPELLANT AND 1. DURGASI JANAKI, W/O. LATE DALAYYA, AGED ABOUT 35 YEARS, HINDU, HOUSEHOLD DUTIES RESIDING AT HOUSE NO.9-6-68, LOPANTI STREET, ICHAPURAM TOWN AND MANDAL, SRIKAKULAM DISTRICT. 2. DURGASI SATHYA, D/O.LATE DALAYYA, AGED ABOUT 16 YEARS, STUDENT RESIDING AT HOUSE NO.9-6-68, LOPANTI STREET, ICHAPURAM TOWN AND MANDAL, SRIKAKULAM DISTRICT. 3. DURGASI JAGAN, S/O. LATE DALAYYA, AGED ABOUT 11 YEARS, STUDENT RESIDING AT HOUSE NO.9-6-68, LOPANTI STREET, ICHAPURAM TOWN AND MANDAL, SRIKAKULAM DISTRICT. 4. DURGASI JAIRAM, S/O.LATE DALAYYA, AGED ABOUT 7 YEARS, STUDENT RESIDING AT HOUSE NO.9-6-68, LOPANTI STREET, ICHAPURAM TOWN AND MANDAL, SRIKAKULAM DISTRICT. (RESPONDENTS NO.2 TO 4 ABOVE, BEING MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN DURGASI JANAKI I.E. THE 1ST RESPONDENT ABOVE) 5. DURGASI JAGANNAYAKULU, S/O.VEERAYYA, AGED ABOUT 64 YEARS, RESIDING AT DOOR NO.9.5.28, BELLAPADA VULASA 2 VS,J M.A.C.M.A.No.128 of 2022 VEEDHI, ICHAPURAM TOWN AND MANDAL, SRIKAKULAM DISTRICT. 6. BHAGAWAN BAINADE, , S/O.KISAN BAINADE, AGED 35 YEARS, HINDU, RAJPUT BY CASTE, RESIDING AT BHOGAIWADI VILLAGE, LADSAWANGI POST, KARAMAD P.S., AURANGABAD DISTRICT, MAHARASHTRA STATE. (DRIVER OF LORRY BEARING NO.MH-20- EG-0245) 7. SHAIK SALIM, S/O.SHAIK JAHUR, AGE NOT KNOWN, RESIDING AT MURUMKHEDA, AURANGABAD, MAHARASHTRA STATE 431 001 (OWNER OF LORRY BEARING NO.MH-20-EG-0245) (RESPONDENTS NO.6 AND 7 ABOVE REMAINED EX-PARTE IN M.V.O.P.NO.414 OF 2018 ON THE FILE OF MACT, SRIKAKULAM AND ARE NOT NECESSARY PARTIES TO THIS APPEAL) ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying that the Hon'ble High Court may be pleased to allow this MACMA and set aside lower court order dated 22.11.2022 passed in MVOP. No. 414 of 2018 on the file of Hon'ble Motor Accidents Claims Tribunal -cum- Principal District Judge, Srikakulam and pass IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the Hon'ble Court may be pleased to stay all further proceedings including the execution of award dated 22.11.2021 passed in M.V.O.P.No.414 of 2018 by the Hon'ble Motor Accident Claims Tribunal - cum- Principal District Court, Srikakulam, pending disposal of the above appeal in the interest of justice and pass Counsel for the Appellant: 1. S PRANATHI Counsel for the Respondent(S): 1. V HEMANTH KUMAR The Court made the following: 3 VS,J M.A.C.M.A.No.128 of 2022 JUDGMENT: The appellant/insurance company filed the present appeal, challenging the order and decree dated 22.11.2021 in M.V.O.P.No.414 of 2018 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Srikakulam, wherein the Tribunal awarded compensation of Rs.12,00,000/- (Rupees Twelve lakhs only) to the claimants as per their claim, on account of the death of the deceased Durgasi Dalayya in a motor accident that occurred on 17.04.2018. 2. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 3. The case of the claimants is briefly as follows: a) Claimant No.1 is the wife and claimants Nos.2 to 4 are the minor children of the deceased Durgasi Dalayya. On 17.04.2018, at 04.00PM, while the deceased as rider and one Labhala Surayanarayana as pillion rider were proceeding on a motor cycle bearing No.AP 30-AE.9706 at Mutyalammapeta, Ichapuram, to go to Berhampur and at about 4.30PM, when they reached check post, Purushottapuram Village, Ichapuram Mandal on NH16 road, respondent No.1 drove the lorry bearing registration No.MH 20 EG 0245 in a rash and negligent manner with high speed on the same direction, rammed the motor cycle and dragged it to a distance, as a result of which the deceased sustained fatal crush injuries and died on the spot and the said Suryanarayana also sustained injuries. After the accident, respondent No.1 4 VS,J M.A.C.M.A.No.128 of 2022 left the lorry and fled away. The Station House Officer, Ichapuram Police Station registered a case in Crime No.28/2018 under Sections 304-A and 337 of I.P.C. and filed charge sheet vide C.C. No.135 of 2018 before the Judicial Magistrate of I Class, Ichapuramu. b) The claimants contended that the deceased was working as Head Mason and earning Rs.15,000/- per month and he died at the young age of 38 years, the petitioners are put to much hardship for their livelihood. The deceased was hale and healthy and he was only earning member of their entire family. On account of death of the deceased, the claimants were put to much mental agony, pain and suffering and hardship for their livelihood. 4. Before the Tribunal, respondent Nos.1 and 2/driver and owner of the crime vehicle remained ex parte. 5. Respondent No.3/insurance company filed a written statement, opposing the claim petition and contending that the accident occurred due to rash and negligent driving of the deceased who drove the motorcycle bearing No.AP 30 E 9706 and caused the accident. The petitioners have to claim compensation from the insurance company of the motorcycle of the deceased for his own negligence and the claimants intentionally did not add the said company as a party to the claim petition, who is necessary and proper party to the proceedings and this petition is not maintainable on the ground of non- joinder of necessary parties and the petitioners are not entitled to claim any compensation from respondent No.3. The compensation of Rs.12,00,000/- 5 VS,J M.A.C.M.A.No.128 of 2022 claimed by the petitioners is excessive and not in conformity with law and denies that respondent No.1 is having valid and effective driving licence as on the date of accident. Respondent No.3 also denies about the insurance coverage of the offending vehicle. Hence, it was prayed to dismiss the claim petition. 6. Basing on the pleadings, the Tribunal framed the following issues for trial: <1. Whether the deceased/Durgasi Dalayya, S/o Jagannayakuly, aged 38 years, died on account of the injuries sustained by him in the motor vehicle accident that took placed on 17.04.2018 at about 16.30 hours on NH 16 road, near Check post, Purushottampuram Village, Ichapuram Mandal, Srikakulam District? If so, whether the accident took place due to rash and negligent driving of the lorry bearing No.MH 20 E 0245 by its driver or due to negligent driving of the motor cycle bearing No.MH 20 EG 0245 by its driver or due to negligent driving of the Motor cycle bearing No. AP 30 AE 9706 by its rider, or of both? 2. What is the correct age and income of the deceased by the date of accident? 3. Whether the petitioners are entitled to claim any compensation for the death of the deceased/Durgasi Dalayya, S/o Jagannayakulu? If so to what amount and from whom? 4. To what relief?= 7. On behalf of the claimants, the 1st claimant/petitioner herself examined as PW1 and one Labala Suryanarayana and Durgasi Veeraswamy were examined as PW2 and PW3 and Exs.A1 to A5 were marked. P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked. On behalf of the respondent No.3/insurance company, R.W.1 was examined and Exs.B1to B5 were marked. 6 VS,J M.A.C.M.A.No.128 of 2022 8. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal allowed the claim petition awarding compensation of Rs.12,00,000/- payable with interest @7% per annum from the date of the petition till the date of deposit or realization with costs. Respondents No.1 to 3 were jointly and severally held liable to pay the said amount within one month from the date of the order. The 1st petitioner/wife of the deceased was held entitled to Rs.6,50,000/-. The petitioners No.2 to 4/children of the deceased were held entitled to Rs.1,50,000/- each. The 5th petitioner/father of the deceased was held entitled to Rs.1,00,000/-. On such deposit, the 1st petitioner was permitted to withdraw an amount of Rs.3,00,000/- and accrued interest thereon and the remaining amount shall be kept in FDR in any Nationalized Bank for a period of three years and thereafter she is entitled to receive the same. The amounts awarded to petitioners No.2 to 4 were directed to be kept in fixed deposits in any Nationalized Bank until they attain the age of majority. The 5th petitioner was permitted to withdraw the amount apportioned to him with accrued interest. 9. Aggrieved by the said award, the respondent No.3 preferred this appeal contending that as on the date of accident, the driver of the offending vehicle is only having a license to drive a light motor vehicle (LMV) and he is not holding a valid and effective driving license to operate Heavy Motor Vehicle and the Tribunal failed to examine Exs.B1 and B3 i.e., copies of the driving license of the 1st respondent/driver of the offending vehicle. It is further 7 VS,J M.A.C.M.A.No.128 of 2022 contended that the owner and insurer of the motor cycle of the deceased were not made as parties to the claim petition and hence, the same is hit by non- joinder of necessary parties. It was further averred that the compensation claimed is excessive and exorbitant and the rate of interest claimed is also on higher side and, therefore, prayed to allow the appeal. 10. Despite service of notice, none entered appearance for respondent Nos.6 and 7. 11. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 12. The main contention of the learned counsel for the appellant is that, as on the date of accident, the driver of the offending vehicle is only having the license to drive a Light Motor Vehicle and he has no valid and effective driving license to operate a Heavy Motor Vehicle and therefore there is a violation of the conditions of the policy and, as such, no liability can be fastened on the appellant/insurance company. To substantiate the said contention, the insurance company relied upon the evidence of RW1 and Exs.B1 and B3/copies of the driving license of the driver of the offending vehicle. As can be seen from Ex.B1, it is only a license to drive the Light Motor Vehicle. In the instant case, the offending vehicle is a lorry, which is a Heavy Motor Vehicle. Therefore, it is evident that there is a violation of the conditions of the policy, 8 VS,J M.A.C.M.A.No.128 of 2022 as the driver of the offending vehicle did not possess valid driving license to drive the lorry. 13. It is to be noted that under similar circumstances, where there is a violation of the policy conditions, the Hon9ble Apex Court in National Insurance Co. Ltd. v. Swaran Singh & Ors.,1 has held that if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the claimants and then recover the amount from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer's liability towards third-party victims does not vanish immediately. 14. In view of the above, and following the settled principles of law as held by the Hon9ble Supreme Court in the decisions referred supra, this Court is of the opinion that the compensation awarded by the Tribunal in the instant case has to be first paid by the insurance company, and thereafter the insurance company can recover the same from the owner of the offending vehicle. 15. So far as the quantum of compensation is concerned, though the petitioners contended that the deceased was earning Rs.15,000/- per month by working as Head Mason, they did not produce any documentary evidence to prove the earnings of the deceased. However, they examined PW3 proving 1 (2004) 3 SCC 297 9 VS,J M.A.C.M.A.No.128 of 2022 that the deceased was working as a Head Mason. In view of the same, considering the fact that a person working as a mason would generally earn Rs.300/- per day, the Tribunal deemed it appropriate to assess the income of the deceased at Rs.9,000/- per month and his annual income was accordingly calculated at Rs.1,08,000/- (Rs.9,000/- x 12), which in the opinion of this Court, is just and proper and requires no interference. As per the guidelines laid down by the Hon9ble Apex Court in Sarla Verma v. Delhi Transport Corporation2, where the number of dependant family members is 4 to 6, the deduction towards personal expenses should be 1/4th of the income of the deceased. In the instant case, there are five dependant family members i.e., wife, daughter, two sons and father of the deceased. Thus, the Tribunal has rightly deducted 1/4th of the income of the deceased towards his personal expenses and arrived at Rs.81,000/- per annum (Rs.1,08,000/- - Rs.27,000/-) towards his contribution to the family. By applying the relevant multiplier of 8159 applicable to the age of the deceased i.e., 38 years, as recorded in Ex.A5- Inquest Report and Ex.A3-Post Mortem Report, the Tribunal has arrived at Rs.12,15,000/- (Rs.81,000/- X 15) towards the loss of dependency, which is just and proper and in accordance with the guidelines laid down by the Hon9ble Apex Court in Sarla Verma v. Delhi Transport Corporation. Further, the Tribunal opined that the 1st petitioner is entitled for an amount of Rs.40,000/- towards loss of consortium as she is young aged about 31 years and at her young age, she lost her husband and lost her conjugal bliss and 2 2009 ACJ 1298 10 VS,J M.A.C.M.A.No.128 of 2022 Rs.15,000/- towards transport and funeral expenses and an amount of Rs.15,000/- towards loss of estate. Thus, the petitioners would be entitled to Rs.12,85,000/- towards compensation, but however, as the claim petition was filed restricting the claim to Rs.12,00,000/-, the Tribunal awarded Rs.12,00,000/- towards compensation. Thus, the compensation awarded by the Tribunal is just and proper and cannot be said to be excessive or on higher side. The order passed by the Tribunal does not suffer from any infirmity and requires no interference in this civil miscellaneous appeal. The point is answered accordingly. 16. In view of the above discussion, while confirming the quantum of compensation awarded by the Tribunal, this Court deems it appropriate to partly allow this appeal by directing respondent No.3 to first pay the compensation and then recover the amount from respondent No.2/owner of the offending vehicle. 17. With the above direction, this appeal is allowed in part. No costs. Pending miscellaneous applications, if any, shall stand closed. __________________ JUSTICE V.SUJATHA Date: 20.01.2026 KGR