APHC011385982016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3548] MONDAY,THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3320/2017 Between: 1. THE ORIENTAL INSURANCE COMPANY LIMITED,, REPRESENTED BY ITS DIVISIONAL MANAGER. POST BOX NO.19, D.NO.58-9-17, 1ST FLOOR, KAMA SASTRY STREET, SANTHAPETA, ONGOLE, PRAKASAM DISTRICT ...APPELLANT AND 1. SANNEBOYINA NANDINI, W/O.LATE SAMBASIVA RAO, AGED 25 YEARS, 2. SANNEBOYINA RAKESH, S/O.LATE SAMBASIVA RAO, AGED 4 YEARS, 3. SANNEBOYINA JAGADISH VARMA, RESPONDENTS 2 & 3 BEING MINORS, REP.BY THEIR MOTHER NATURAL GUARDIAN LST RESPONDENT HEREIN. 4. SANNEBOYINA SESHAMMA, W/O.SUBBA RAO, AGED 55 YEARS, 5. SANNEBOYINA SUBBA RAO, S/O.VENKAIAH, AGED 61 YEARS, RESPONDENTS 1 TO 5 ARE RESIDENTS OF D.NO.20-200, REDDYPALEM VILLAGE, KOTHAPATNAM MANDAL, PRAKASAM DISTRICT. 6. NAGARAJU KATURI, S/O.ANNADARAIAH, AGED 4Q YEARS, R/O.D.NO.6-78, KOTHAPATNAM VILLAGE AND MANDAL, 2 GTK,J M.A.C.M.A.No.3320 of 2017 PRAKASAM DISTRICT, OWNER-CUM-DRIVER OF AUTO NO.AP- 27TU-2070. 7. SHAIK SIRAJUDDIN, S/O.RAHAMTULLAH, AGED 45 YEARS, R/O.D.NO.2-165, KANAPARTHI VILLAGE, N.G.PADU MANDAL, PRAKASAM DISTRICT, OWNER-CUM-DRIVER OF AUTO NO.AP- 27TU-4303. 8. THE ICICI LOMBARD GENERAL INSURANCE COMPANY, REP.BY ITS BRANCH MANAGER, NEAR ADDANKI BUS STAND, BESIDE PETROL BUNK, ONGOLE TOWN, PRAKASAM DISTRICT. ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying the High Court may be pleased to set aside the order passed in M.V.O.P.No.283 of 2013 on the file of the Court of the Motor Accidents Claims Tribunal-Before the I Additional District Judge, Prakasam, at Ongole, dated 6th October, 2015 and pass IA NO: 1 OF 2016(MACMAMP 4723 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 codone the delay of 271 days in filing the MACMA against the Judgment and award in MV OP NO.283 of 2013 on the file of the court of the Motor Accident Claims Tribunal- before the I Additional District Judge, Prakasam, at Ongole dated: 6th day of October, 2015 and pass IA NO: 2 OF 2016(MACMAMP 5692 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 grant stay of operation of the decree and judgment in MVOP No.283/2013 on the file of the court of the Motor Accident Claims Tribunal before the I Additional District Judge, Prakasam, at Ongole dated 6th day of October, 2015 pending disposal of the main MACMA 3 GTK,J M.A.C.M.A.No.3320 of 2017 IA NO: 1 OF 2017(MACMAMP 3036 OF 2017 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 vacate the interim stay granted on 05.12.2016 passed in MACMAMP No.5692/2016 in MACMASR No.36643/2016 in the interest of justice Counsel for the Appellant: 1. K MADHUSUDHAN REDDY Counsel for the Respondent(S): 1. RAMACHANDRAREDDY GADI 2. VENKATESWARLU SANISETTY 3. S PRANATHI The Court made the following: 4 GTK,J M.A.C.M.A.No.3320 of 2017 JUDGMENT: Heard, the learned Counsel for the Oriental Insurance Company, Sri Pathi Siva Prasad, learned Counsel representing Sri Venkateswarlu Sanisetty, learned Counsel for the Claimants, and Ms.A.Mahathi, learned Counsel representing Smt.S.Pranathi, learned Counsel for the 8th respondent-ICICI Lombard General Insurance Company. 2. Aggrieved by the order, dated 06.10.2015, passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Ongole in M.V.O.P.No.283 of 2013, the present appeal is filed by the appellant- Oriental Insurance Company Limited. 3. Parties are arrayed as arrayed in the present appeal. 4. The contour of facts of the case is that the claimants, who are Respondent Nos.1 to 5, are the dependents of the deceased, Sambasiva Rao. The deceased met with a fatal road accident on 02.01.2013 at about 11.30 P.M., near Sai Baba Temple at Alluru Village, Kothapatnam Mandal, within the limits of Kothapatnam Police Station, Prakasam District. The accident occurred due to the rash and negligent driving of the drivers of the auto-rickshaws bearing Registration Nos.AP 27 TU 2070 and AP 27 TU 4303. 5. The factual matrix in M.V.O.P.No.283 of 2013 is that, on 03.01.2013, the deceased, Sambasiva Rao, boarded the auto-rickshaw bearing Registration No.AP 27 TU 4303 along with other passengers to travel to Kothapatnam. When the said auto reached near the Sai Baba Temple at Alluru Village at about 11:30 p.m., the driver of the auto- rickshaw bearing Registration No.AP 27 TU 2070, coming from the opposite direction, drove the vehicle in a rash and negligent manner without blowing the horn and collided with the auto in which the deceased was travelling. As a result of the impact, the deceased 5 GTK,J M.A.C.M.A.No.3320 of 2017 sustained multiple injuries and was shifted to RIMS Hospital, Ongole, where he succumbed to the injuries while undergoing treatment on 03.01.2013 at about 7:15 A.M. The Station House Officer, Kothapatnam Police Station, registered a case against the drivers of the auto-rickshaws bearing Registration Nos.AP 27 TU 2070 and AP 27 TU 4303 for the offences punishable under Sections 338 and 304-A of the Indian Penal Code and under Sections 134 (a) and (b) r/w Section 187 and Section 3 r/w Section 180 of the Motor Vehicles Act, 1988 (for brevity, ‘the Act’). Subsequently, a charge sheet was filed against the drivers of both the auto-rickshaws. 6. The sheet anchor of the claimants’ pleadings is that the deceased was earning an income of Rs.6,000/- per month and was spending the entire amount for the maintenance and benefit of his family. Due to the sudden and untimely demise of the deceased in the accident, the family lost its sole earning member and has been put to great financial hardship. As the accident occurred due to the rash and negligent driving of the drivers of both the auto-rickshaws, the claimants filed the said M.V.O.P. before the Tribunal, claiming compensation of Rs.5,00,000/-. 7. In response to the said M.V.O.P., the first respondent, who is the owner-cum-driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070, filed his Written Statement contending that he did not drive the vehicle in a rash or negligent manner and that he was not responsible for the accident. It was further pleaded that the accident occurred solely due to the rash and negligent driving of the driver of the auto-rickshaw bearing Registration No.AP 27 TU 4303 and hence, the first respondent prayed for dismissal of the petition as not maintainable. 6 GTK,J M.A.C.M.A.No.3320 of 2017 8. In oppugnation, the second respondent, Oriental Insurance Company, denying the averments made in the petition, contended that the driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070 did not drive the vehicle in a rash or negligent manner and was not responsible for the accident. It was further pleaded that the said driver was not holding a valid and effective driving licence at the time of the accident. On these grounds, the second respondent asserted that the petitioners are not entitled to any compensation and prayed for dismissal of the petition. 9. The appellant-second respondent filed I.A.No.2222 of 2014 under Section 170 of the Act, which was allowed on 19.11.2014. The third respondent, who is the owner-cum-driver of the auto-rickshaw bearing Registration No.AP 27 TU 4303, filed his Written Statement contending that he never drove the said auto-rickshaw in a rash or negligent manner and that he was not the cause of the accident. It was further pleaded that the accident occurred solely due to the rash and negligent driving of the driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070 and thereby, prayed for dismissal of the Claim Petition. 10. The fourth respondent, ICICI Lombard General Insurance Company, filed its Written Statement denying the averments made in the Claim Petition and contending that the driver of the auto-rickshaw bearing Registration No.AP 27 TU 4303 did not drive the vehicle in a rash or negligent manner. It was further contended that the head-on collision occurred solely due to the rash and negligent driving of the driver of the other auto-rickshaw. The fourth respondent also filed an application under Section 170 of the Act in I.A. No. 1242 of 2015, which was allowed on 02.07.2015. 7 GTK,J M.A.C.M.A.No.3320 of 2017 Based on the above facts, the Court below framed the following issues: 1. Whether the deceased Sanneboyina Sambasiva Rao died in a road accident which took place on 02.01.2013 at about 23.30 hours near Saibaba Temple, Alluru Village, Kothapatnam Mandal due to the rash and negligent driving of the auto bearing No.AP 27TU/2070 by its driver ? 2. Whether the deceased Sanneboyina Sambasiva Rao died in a road accident which took place on 02.01.2013 at about 23.30 hours near Saibaba Temple, Alluru Village, Kothapatnam Mandal due to the rash and negligent driving of the auto bearing No.AP 27 TU/4303 by its driver? 3. Whether the driver of the auto bearing No.AP 27TU/2070 is having valid and effective driving licence at the time of accident ? 4. Whether the driver of the auto bearing No.AP 27TU/4303 is having valid and effective driving licence at the time of accident ? 5. Whether the petitioners are entitled for compensation ? If so, what amount and against whom? 6. To what relief the petitioners are entitled? 11. On behalf of the claimants–petitioners, P.Ws. 1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of the second respondent, R.Ws.1 and 2 were examined and Exs.B1 and X1 were marked. On behalf of the third respondent, who is the owner-cum- driver of the auto-rickshaw bearing Registration No.AP 27 TU 4303, no oral or documentary evidence was adduced. On behalf of the fourth respondent, R.Ws. 3 and 4 were examined and Exs.B2 to B4 and Exs.X2 and X3 were marked. 8 GTK,J M.A.C.M.A.No.3320 of 2017 12. The Tribunal, after considering the oral and documentary evidence on record at length, answered Issue No.1 in favour of the petitioners. The reasons for arriving at the said conclusion are elucidated hereunder: “In view of the arguments submitted by the learned counsel for both parties and as seen from the evidence of P.W.2, who is an eye witness to the accident, and Ex.A1-certified copy of F.I.R. in Cr.No.1 of 2013 under Sections 337, 304-A of IPC and under Section 134 (a) & (b) r/w Section 187 of the Motor Vehicles Act of Kothapatnam Police Station and Ex.A2- Certified Copy of the charge sheet in C.C.No.374 of 2013 under Sections 338, 304-A IPC and Section 180 of the Motor Vehicles Act on the file of the II Additional Judicial Magistrate of First Class, Ongole proves that the accident occurred due to the rash and negligent driving of the driver of the auto bearing No.AP 27TU/2070. To rebut the evidence of P.W.2 and the contents of Exs.A2 and A2 on behalf of the second respondent, R.W.1 was examined, but, the evidence of R.W.1 will not in any way helpful to the contention of 2nd respondent, as R.W.1 is not an eye witness to the accident. By relying upon the evidence of P.W.2 and the contents of Exs.A1 and A2, I am of the opinion that the accident was occurred due to the rash and negligent driving of the driver of the auto bearing No.AP 27 TU/2070. In view of the above said discussion, I answered issue No.1 in favour of the petitioners and against the respondents 1 and 2”. 9 GTK,J M.A.C.M.A.No.3320 of 2017 13. The claimants adduced the evidence of P.W.2 and marked Exs.A1 and A2, who categorically deposed that the accident occurred solely due to the rash and negligent driving of the auto-rickshaw bearing Registration No.AP 27 TU 2070 and claimed compensation of Rs.5,00,000/-. The Court below also considered the arguments advanced by the second respondent, who contended that the driver of the said auto-rickshaw did not drive rashly or negligently and was not responsible for the accident. 14. The Tribunal examined the evidence of P.W.2, an eyewitness to the accident, along with the F.I.R. (Ex. X1) registered as Cr.No.1 of 2013 at Kothapatnam Police Station, and Ex.A2-Certified Copy of the Charge Sheet in C.C.No.374 of 2013. The evidence and documents clearly established that the accident occurred due to the rash and negligent driving of the driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070. The Court below, relying on the investigation conducted by the competent authority, as reflected in C.C.No.374 of 2013, concluded that the accident was caused solely due to the rash and negligent driving of the said driver and accordingly answered the issue in favour of the petitioners. 15. While considering Issue No. 2, as stated above, the Court below took note of the findings recorded in the Charge Sheet-Ex.A2, which are as follows: “While the deceased and other passengers are proceeding to Kothapatnam Village, on their way when they auto rikshaw reaches near Sai Baba Temple at Alluru Village, the driver of the auto rickshaw bearing No.AP- 27TU/2070 drove his auto rickshaw in a rash and negligent manner while coming from 10 GTK,J M.A.C.M.A.No.3320 of 2017 Kothapatnam side rammed into the auto rickshaw, in which the deceased was travelling (AP-27TU/4303) with other passengers and fled away, due to which the deceased sustained multiple injuries and died”. 16. Based on the said report, Issue No.2 was answered against the petitioners and in favour of the respondents 3 and 4. Likewise, Issue No.3 was also answered in favour of the petitioners and against the respondents 1 and 2. 17. The Tribunal, while answering the said issue, did not give due consideration to the arguments advanced by the second respondent, i.e., the Insurance Company, which sought to rely upon Exs.X1 and X2, to substantiate the claim that the driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070 did not hold a valid and effective driving licence at the time of the accident. The Court below found fault with the contentions of the second respondent and held that the evidence of R.W.2 and the contents of Exs.X1 and X2 were not sufficient to establish that the driver of the said auto-rickshaw lacked a valid driving licence, in the absence of examination of the concerned officials of the Road Transport Authority. Upon verification of the records, it is noted that the officials of the Road Transport Authority were neither examined nor did they substantiate the said claim regarding the accident. 18. While holding the aforesaid contention, the Tribunal has taken note of the judgment rendered in the case of B.Krishnaveni and others v. Md.Sikander and another, reported in 2010 (1) ALD 194 (AP), wherein this Court held as follows: 11 GTK,J M.A.C.M.A.No.3320 of 2017 “Mere fact that the driver was charge-sheeted for the offence under Section 181 of Motor Vehicles Act is not conclusive proof of the fact that the driver had no valid driving licence”. Based on the above decision of this Court, the Tribunal has answered the issue in favour of the petitioners and against the respondents 1 and 2. 19. Now, with regard to Issue No.4, as to whether the driver of the auto bearing No.AP 27TU/4303 is having valid and effective driving licence, the Tribunal answered the issue in favour of the petitioners. Since Issue No.3 was already discussed and decided holding that the accident was caused solely due to the negligence of the driver of the auto-rickshaw bearing Registration No.AP 27 TU 2070, and as the pleadings were silent regarding the driver of the other auto, the Tribunal held that a detailed discussion on this issue was not necessary at this stage. 20. Coming to the aspect of compensation, which is Issue No. 5, the Tribunal, following the decision in Sarla Verma and others v. Delhi Transport Corporation and another1, assessed the income of the deceased at Rs.4,000 per month and as there are five dependants, one-fourth of the income was deducted towards the personal and living expenses of the deceased. Accordingly, the contribution of the deceased to the family was taken at Rs.3,000 per month. The age of the deceased was taken as 30 years as per the pleadings, and the multiplier of 17 was applied, considering the facts and circumstances of the case. Considering these aspects, the Tribunal answered Issue No.5 in favour of the petitioners and awarded a total compensation of Rs.6,47,000/-. 1 2009 (3) ACC 708 (SC) 12 GTK,J M.A.C.M.A.No.3320 of 2017 21. The submissions of the appellant, i.e., the second respondent, and the learned counsel for the claimants, Sri P. Siva Prasad, appearing on behalf of the claimants and representing Sri Venkateswarlu Sanisetty, as well as Ms. Jahnavi, learned counsel representing Smt. S. Pranathi, were heard. 22. The primary contention of the learned counsel for the appellant is that, when an accident occurs involving two vehicles in a head-on collision, the Court cannot fasten liability on only one vehicle solely on the basis of the F.I.R. and the charge sheet. When this Court specifically queried the learned counsel for the appellant as to whether there was any plea or contention regarding the involvement of the other vehicle, either by the claimants or by the appellant/second respondent, the learned counsel fairly conceded that there was no pleading to that effect. 23. The said contention was, however, refuted by the learned counsel appearing for the respondents/claimants as well as the learned counsel for ICICI Lombard General Insurance Company, contending that, in the absence of any such pleading before the Court below, the appellant cannot be permitted to raise the issue for the first time in the present appeal and sought dismissal of the appeal. 24. Taking into consideration the totality of the facts and circumstances of the case, this Court agrees with the arguments advanced by the learned counsel appearing for the respondents that no new plea can be taken in appeal unless it was urged before the Court below, and is accordingly inclined to dismiss the appeal. 25. With the above observations, the appeal is dismissed. 13 GTK,J M.A.C.M.A.No.3320 of 2017 As a sequel, miscellaneous applications pending, if any, shall stand closed. ___________________________ TUHIN KUMAR GEDELA, J 16th February, 2026 Tsy