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IN THE COURT OF THE JUDGE; IV ADDL.MOTOR

ACCIDENTS CLAIMS TRIBUNAL :NELLORE AT SRI POTTI
SRIRAMULU NELLORE DISTRICT

Present: SRI CH.RAMACHANDRA MURTHY,B.Com.,M.L.,

Chairman, of IV Addl. Motor Accidents Claims Tribunal,
Nellore
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MONDAY, THIS THE 1st DAY OF DECEMBER 2014

M.V.O.P.No.872 OF 2011
Between:
1. Korrapati Vijayamma
Wife of late Guravaiah Naidu,
Hindu, aged 43 years,

2. Korrapati Charan Raj,

Son of Guravaiah Naidu, Hindu,
Aged 25 years,

3. Korrapati Sujay,
Son of Guravaiah Naidu, Hindu,
Aged 24 years, residing at
Kothuru village, Pellakur Mandal,
Nellore District. … Claimants

AND

1. Pintu Panda
S/o.Suresh Chandra Panda,
Hindu, Lorry owner, residing at
Gosaninuagaon, Badasahi, Berhampur
Taluk, Ganjam District, Orissa-760003.

2.Reliance General Insurance Co. Ltd.,

Having its Branch Office at Ramamurthy Nagar,
Nellore Town and the same is represented
By its Branch Office at Ramamurthy Nagar,
Nellore Town and the same is represented
By its Divisional Manager (Policy No.110000580699
Valid upto 24-11-2011 issued by Beahampur
Branch) ... Respondents

This petition is coming before me on 12-11-2014 for final hearing

before me in the presence of Sri Venati Chandra Sekhar Reddy advocate
for the petitioner, Sri B.Balendra Singh advocate for first respondent and of
Sri E.V.Rami Reddy advocate for second respondent and upon perusing the
material papers on record and upon hearing both sides, this Court made
the following:

ORDER

1. The claimants, who are Korrapati Vijayamma is wife of deceased

Korrapati Guravaiah Naidu and Korrapati Charan Raju and Korrapati Sujay

are sons of deceased Korrapati Guravaiah Naidu filed claim application

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under Section 166 of Motor Vehicles Act, claiming compensation of

Rs.15,00,000/- with the following averments:-

(i) Korrapati Guravaiah Naidu was aged 44 years at the time of

accident and he was owning Ac 10-00 cents of land and used to personally

cultivate the same and he was also having 15 Miltch cattle and used to

supply the milk to Tirumala Milk Dairy and also to the hotels situated at

Srikalahasti Town and he also owns a Tractor and he used to drive the

same for heir and in all sources he used to earn Rs.20,000/- per month and

maintaining the family.

(ii) On 14-7-2011 the deceased went to Girijana Colony to collect

coolies for agricultural operations in his lands and after engaging them for

work and while he was returning with the Tractor to Kothur village form

Girijana colony , reached near Somapalli Sukanyamma agricultural fields at

6-00 A.M., and at that time the driver of the Lorry bearing No.OR 07 T 2685

came in high speed from Srikalasthi side towards Naidupet driven by its

driver in a rash and negligent manner and dashed the said Tractor from its

behind in high speed. Due to the said hit the said Tractor turned turtle

from its behind in high speed. Due to the said accident, the said Guravaiah

Naidu received grievous injuries and died on the spot.

(iii) A case was registered in crime No.41/2011 of Peelakur Police

Station. Hence, the respondents are jointly and severally liable to pay

compensation claimed by the claimants. Hence the petition filed by the

claimants.

2. The first respondent who is registered owner of the Lorry bearing

No.OR 07 T 2685 filed its counter by denying the averments in the claim

application and further contends that the driver of the offending Lorry

possessed valid driving licence and the vehicle was validly insured with

second respondent insurance company and that the Lorry driver was not

negligent and that compensation if any payable by the second respondent

only. Therefore, they requests to dismiss the petition.

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3. Second respondent/insurance company resisted the claim by filing

counter and further contends that the there was contributory negligence

on the part of deceased and that the deceased without possessing valid

and effective driving licence drove the Tractor and that the claim is

excessive and therefore the second respondent requests to dismiss the

claim application.

4. On the Strength of above pleadings, the following issues were

framed for trial:

1. Whether the accident that took place on 14-7-2011 at about 6-00

A.M., near Kovur village, Pellakur Mandal was due to rash and
negligent driving of the driver of the Lorry bearing No.OR 07 T
2685?

2. Whether the claimants are entitled for compensation as prayed

for, if so to what amount?

3. To what relief?

4. On behalf of the claimants, PWs-1 and PW-2 were examined and

Exs.A-1 to A-7 were marked. PW-1/Korrapati Vijayamma who is first

claimant and wife of deceased. PW-2/Korrapati Chakravarthi Naidu, who is

said to be eyewitness to the accident.

Ex.A-1 :- Attested copy of first information report in crime

No.41 of 2011 of Pellakuru P.S
Ex.A-2 :- Attested copy of inquest report of the deceased
Guravaiah
Ex.A-3 :- Attested copy of charge sheet
Ex.A-4 :- Attested copy of Postmortem report of the
deceased Guravaiah
Ex.A-5 :- Pattadar pass book issued by MRO, Pellakur
Ex.A-6 :- Pattadar pass book issued by MRO, Pellakur
Ex.A-7 :- Income certificate from 1-5-2011 to 30-7-2011
five sheets issues by Tirumala Milk Products
Private Limited, Panguru BMC

5. On behalf of second respondent, no evidence was adduced, but got

marked Ex.B-1 insurance policy bearing No.2402702334001620 valid from

25-11-2010 to 24-11-2011.

7. Heard both sides and perused relevant records.

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ISSUE No.1 :

Whether the accident that took place on 14-7-2011 at about 6-00

A.M., near Kovur village, Pellakur Mandal was due to rash and negligent
driving of the driver of the Lorry bearing No.OR 07 T 2685?

8. It is not in dispute that first respondent is the owner of the offending

Lorry bearing No.OR 07 T 2685. It is evident from Ex.B-1 insurance policy

and Ex.A-3 charge sheet. It is not in dispute that Korrapati Guravaiah Naidu

met with accident and died on 14-07-2011 near Kothur village. It is evident

from Ex.A-1 first information report and Ex.A-3 charge sheet. As per Ex.A-2

postmortem certificate and Ex.A-4 inquest report, Korrapati Guravaiah

Naidu died in the accident. As per Ex.A-3 charge sheet one Bhagavan

Bishy, son of Trinath Bishy drove the offending Lorry on the material date

of accident. PW-2 is cited as eyewitness (LW-1 in the charge sheet) as per

Ex.A-3 charge sheet.

9. Learned advocate for the claimants argued that the accident took

place due to the rash and negligent driving of the offending Lorry bearing

No.OR 07 T 2685 and that the driver of the Lorry bearing No.OR 07 T 2685

was responsible for the accident. On the other hand, the learned advocate

for the second respondent argued that the driver of the offending Lorry did

not possess valid driving licence on the material date of accident and that

deceased was negligent in driving the Tractor and that the petition is not

maintainable since the owner and insured of Tractor are not impleaded as

parties to the proceedings. First respondent, who is the owner of the

offending Lorry though contested the proceedings he is not eyewitness to

the accident. Admittedly, the second respondent is also not an eyewitness

to the accident. Insurance company, however, by taking leave under

Section 170 of Motor Vehicles Act contested the proceedings, but did not

adduce any evidence of its own regarding the manner of accident. To

speak about the accident, the second respondent did not choose to

examine any witness.

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10. On the other hand, the second claimant examined as PW-1. As per

her evidence, she is not an eyewitness to the accident. PW-2 is said to be

eyewitness to the accident. He categorically deposed that the driver of the

Lorry was negligent in causing the accident. He denied a suggestion that

the deceased was negligent while driving the Tractor. Nothing has been

elicited from his cross-examination to disprove his evidence regarding the

rash and negligent driving of the Lorry driver. On perusal of Ex.A-3 charge

sheet, PW-2 is cited as an eyewitness to the accident (LW-1 in charge

sheet). He denied a suggestion that he is deposing false.

11. As per Ex.A-3 charge sheet, it is clear that the investigation officer,

after completion of investigation filed charge sheet alleging that the driver

of the offending Lorry drove the Lorry in a rash and negligent manner and

caused the accident. From the evidence of PW-2 coupled with Exs.A-1 and

Ex.A-3, it is clear that the Korrapati Guravaiah Naidu received injuries and

died in the accident. Second respondent did not adduce any evidence

contrary to the evidence of PW-2 and contents of Ex.A-3 charge sheet. In

the absence of any evidence on behalf of second respondent, it can safely

be held that the accident occurred due to rash and negligent driving of the

offending Lorry by its driver, owned by first respondent and that Guravaiah

Naidu received injuries and died in the road accident while the Lorry was in

use.

14. Learned Advocate for the second respondent further argued that the

driver of the offending Lorry bearing No.OR 07 T 2685 did not possess

driving licence at the time of accident. Therefore, they are not liable to

pay compensation for breach of the terms of the contract. It is well settled

that the onus on the insurance company to prove that there was

willful breach of the terms of the policy as envisaged under

Section 149 (2) of the Motor Vehicles Act. The second respondent did

not choose to produce any evidence regarding the non-possession of valid

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driving licence by the driver of the offending vehicle as on the material

date of accident. They failed to discharge their burden.

15. As per Ex.B-1 insurance policy, the offending vehicle insured at the

relevant point of time, valid from 25-11-2010 to 24-11-2011. The accident

took place on 14.07.2011. Hence, I find issue in favour of the claimants

and against the respondents.

Issue No.2:-

Whether the petitioners are entitled for claim of compensation? If

so, to what amount and from which of the respondents?

15. As per Ex.A-4/Postmortem certificate and as per Ex.A-3 charge

sheet, it is clear that Guravaiah Naidu died in the accident occurred on 14-

07-2011. The petitioners did not choose to produce the record regarding

the age of deceased on the material date of accident. In the absence of

any such record produced by the petitioners, the record in Ex.A-3 charge

sheet, Ex.A-2 inquest report can be taken into consideration to know the

age of deceased on the material date of accident. As per Ex.A-2 inquest

report and as per Ex.A-3 charge sheet the age of deceased is noted as

forty four years. Therefore, his age is fixed at forty four years as on the

material date of accident. As per evidence of PWs-1 and PW-2, deceased

was an agriculturist and also doing milk business and earning Rs.20,000/-

per month from all sources. In order to prove the income of the deceased,

the petitioners got marked Exs.A-5 and Ex.A-6 pattadar pass books stands

in the name of the first petitioner, PW-1 and also Ex.A-7 is income

certificate said to be issued by Tirumula Milk Products, Panguru. It is

contended by the petitioners that as sudden death of husband of PW-1,

nobody is looking after the agricultural land covered in Exs.A-5 and Ex.A-6.

As argued by the learned advocate for the second respondent that the

petitioners did not choose to file any record evidencing the income from

agriculture. The petitioners can lease out the lands and get income. As
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the deceased died, it cannot be said that the petitioners lost their

agricultural income.

16. The petitioners did not choose to examine the concerned person who

issued Ex.A-7. As per Ex.A-7, the deceased used to get commission at

Rs.18,000/- to Rs.20,000/- per month. PW-1 denied a suggestion that they

fabricated Ex.A-7 for the purpose of this petition. Admittedly there is no

whisper in the petition that the deceased used to get commission from

Rs.18,000/- to Rs.20,000/- per month as mentioned in Ex.A-7. Taking into

consideration of evidence on record and possession of agricultural lands

covered in Exs.A-5 and Ex.A-6, it would be appropriate to fix monthly

income of deceased at Rs.10,000/- per month.

17. Learned advocate for the petitioners argued that the future

prospects and raising of the income can be taken into consideration in

awarding compensation. In support of his contentions he relied upon a

decision reported in

2012 ACJ 2131 New India Assurance

Company Limited Vs. Gopali and others

2013 ACJ 1403 Rajesh and others Vs. Rajbeer

Singh and others

2011 ACJ 737 P.S.Somanatham and others Vs.

District Insurance Officer and another.

Wherein after referring the decision referred to in Sarala Verma’s case

directed to increase the income of the deceased taking into consideration

of future prospects. In the present case, as per evidence on record, there

was no fixed monthly income received by the deceased. Therefore, the

question of applying principles laid-down in the decisions referred to above

does not arise. The above decisions are not applicable to the present set of

facts.

18. As per decision of Sarala Varma’s case 2009 ACJ 1298, the

appropriate multiplier for the age group of 41 to 45 is fourteen. The annual

income comes to Rs.1,20,000/-. As per decision of Sarala Varma’s case

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1/3 amount shall be deducted towards personal expenses of deceased if
rd

the dependants are 2 to 3. After deducting 1/3 rd amount out of annual

income, the contribution to the family comes to Rs.80,000/- (Rs.1,20,000 X

1/3). The loss of dependency comes to Rs.11,20,000/- (Rs.80,000 X

14). Rs.2,000/- towards funeral expenses, Rs.1,000/- towards

transport charges. Consortium towards first petitioner is

Rs.10,000/-. Rs.5,000/- each towards love and affection (Rs.5,000

X 3 = 15,000/-). The rest of the claim is hereby dismissed without

costs.

The compensation awarded to the petitioner is as follows:-

S.No. Nature of Amount

compensation awarded
1. Loss of Rs.11,20,000
Dependency
2. Funeral expenses Rs. 2,000
3. Transport charges 1,000
4. Love and affection 15,000
5. Consortium 10,000
Total Rs. 11,48,000
(Rupees eleven lakhs forty eight thousands only)

Accordingly, this issue is answered.

Issue No.2:-

To what relief?

17. As per the findings in Issues Nos.1 and 2, the claimants are entitled

for compensation of Rs.11,48,000/- against the respondents 1 and 2

jointly and severally.

29. In the result, this petition is allowed partly granting compensation of

Rs.11,48,000/- (Rupees eleven lakhs forty eight thousands only) to the

claimants 1 to 3 with proportionate costs and with subsequent interest @

7.5% per annum from the date of petition till the date of deposit or

realisation, against the respondents Nos. 1 and 2 jointly and severally.

Claimant No.1 is awarded 50% out of compensation amount i.e.,

Rs.5,74,000/- and claimants Nos.2 and 3 are awarded 25% each out of
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compensation amount i.e., Rs.2,87,000/-. The time for depositing the

award amount is one month. After deposit the claimants Nos.1 to 3 are

permitted to withdraw half of the amount and the remaining amount shall

be kept in fixed deposit in any nationalized bank for a period of three

years. Advocate fee is fixed at Rs.2,000/-. The rest of the claim is hereby

dismissed without costs.

Typed on my direct dictation by the steno-typist corrected and

pronounced by me in the open Court on this the 1st day of December
2014.

Chairman,
IV ADDL.MOTOR ACCIDENTS CLAIMANTS TRIBUNAL,
NELLORE

APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
CLAIMANTS: 2nd RESPONDENT:Nil
PW-1/Korrapati Vijayamma
PW-2/Korrapati Chakravarthi Naidu

EXHIBITS MARKED ON BEHALF OF

CLAIMANTS:

Ex.A-1 :- Attested copy of first information report in crime

No.41 of 2011 of Pellakuru P.S
Ex.A-2 :- Attested copy of inquest report of the deceased
Guravaiah
Ex.A-3 :- Attested copy of charge sheet
Ex.A-4 :- Attested copy of Postmortem report of the
deceased Guravaiah
Ex.A-5 :- Pattadar pass book issued by MRO, Pellakur
Ex.A-6 :- Pattadar pass book issued by MRO, Pellakur
Ex.A-7 :- Income certificate from 1-5-2011 to 30-7-2011
five sheets issues by Tirumala Milk Products
Private Limited, Panguru BMC

2nd RESPONDENT
Ex.B-1/Insurance policy bearing No.2402702334001620 valid from 25-11-
2010 to 24-11-2011.

CHAIRMAN
IV ADDL.MOTOR ACCIDENTS CLAIMANTS TRIBUNAL,
NELLORE.