THE HON’BLE MR JUSTICE V.SURI APPA RAO MACMA NO. 29 OF 2007 DATED: 20.01.2014 Between:
United India Insurance Co.Ltd.
And K.Ratna Kumari and others .. Appellant/R2 .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO
MACMA NO. 29 OF 2007
JUDGMENT:
This appeal is directed against the Award dated 31.08.2006 passed by the V-Additional Metropolitan Sessions Judge, Mahila Court-cum-XIX Additional Chief Judge, City Criminal Court, Hyderabad (for short ‘the Tribunal’), in O.P.No.2084 of 2003, whereby the Tribunal awarded compensation of Rs.4,50,000/- and directed the insurer of the vehicle involved in the accident to pay the same with interest @ 7% per annum.
2. For the sake of convenience, the parties herein are referred to as arrayed in the Court below.
3. Aggrieved by the quantum of award passed by the Tribunal, the insurer of the offending vehicle filed this appeal.
4. The facts leading to filing of this appeal are hereunder:
Petitioners 1 and 2 are daughters and the third petitioner is the mother-in-law of the deceased. On 05.03.2003, the deceased was going in a car along with her husband and daughters and grand daughter from Hyderabad to Machilipatnam to attend a marriage function of one of their relatives and after crossing Raigudem Village at about 07.30AM, a lorry bearing No.AP16 W 9979 came in opposite direction in a rash and negligent manner and dashed against the ambassador car, as a result of which the deceased and four others sustained injuries and died on the spot. The deceased was aged 52 years as on the date of accident and worked as office clerk in APDDC and was earning Rs.9145/- per month. Considering the above factors, the claimants filed the claim petition before the Tribunal claiming compensation of Rs.4,50,000/-.
5. The first respondent/owner of the vehicle remained ex-parte. The second respondent resisted the claim of the petitioners claiming that there was no negligence on the part of the driver of the lorry and that the accident occurred due to rash and negligent driving of the driver of the ambassador car.
6. Considering the pleadings of both parties, the Tribunal framed the following issues:
1) Whether the accident caused death to the deceased that took place on 05.02.2003 due to the rash and negligent driving of lorry bearing No.AP 16W 9979 by its driver.
2) Whether the petitioners are entitled for compensation , if so what amount and from whom.
3) To what relief.
7. PWs.1 and 2 were examined on behalf of the claimant and marked Exs.A.1 to A9. On behalf of the respondent/ insurance company RW.1 was examined and marked Exs.B.1 and B.2 and Ex.X.1.
8. Considering the oral and documentary evidence on record the Tribunal answered Issue No.1 as under:
“This Court relied on the judgment of the Apex Court reported in 2006(3) SCC 242 in a case of head on collision 50% of negligence has to be attributed to each of the two vehicles. Hence, this point is answered accordingly.”
So far as the finding on Issue No.2 is concerned, the Tribunal assessed the loss of dependency at Rs.1,19,076/- per annum and applying multiplier ‘10’ assessed loss of future dependency at Rs.11,90,760/-. Adding the loss of consortium and loss of love and affection, the total compensation awarded is Rs.12,15,760/-. It is further observed that out of the said amount, half of the amount has to be deducted towards 50% contributory negligence of the driver of the ambassador car as the petitioner claimed only Rs.4,50,000/-. The award was restricted to Rs.4,50,000/-. In the next para of the judgment, the Tribunal observed as under:
“Coming to the question of who should pay the compensation in view of the discussion under Issue No.1 the driver of the lorry is found to be responsible for the accident. Hence, R1, who is the owner of the vehicle, is vicariously liable for the negligence of his driver. R2 bing the insurer as per Ex.B.1 which is the policy is liable to indemnify R1. Hence, R1 and R2 are jointly and severally held liable for the award amount.”
This finding of the Tribunal is contrary to the finding on Issue No.1 wherein the Tribunal has come to the conclusion considering the rival contentions of both parties that the accident occurred due to the contributory negligence of both the vehicles at 50% each and it ought to have directed the insurance company to pay 50% of the amount out of the award amount awarded by the Tribunal. But, contrary to finding on Issue No.1, the Tribunal directed the insurance company to deposit the said amount having found that the accident occurred due to the contributory negligence of drivers of both vehicles. Therefore, it is a fit case to remand the matter to the Tribunal for fresh disposal in accordance with law after affording reasonable opportunity to both parties by adducing any further evidence, if any. Admittedly, the owner and insurer of the ambassador car are not parties to the claim petition. The claimants are, therefore, at liberty to implead them as parties to the claim petition, as it was observed by the Tribunal that the accident took place due to the negligence of both vehicles in order to claim 50% compensation from the owner and insurer of the ambassador car who also contributed for the accident. The Tribunal is therefore, directed to dispose of the case afresh within six months from the date of receipt of this judgment.
9. In the circumstances stated above, the appeal is allowed setting aside the Award dated 31.08.2006 passed by the V- Additional Metropolitan Sessions Judge, Mahila Court-cum-XIX Additional Chief Judge, City Criminal Court, Hyderabad, in O.P.No.2084 of 2003. There shall be no order as to costs.
Date: 20.01.2014 V.SURI APPA RAO, J kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO
MACMA NO. 29 OF 2007
DATE: 20.01.2014