ORIENTAL INSURANCE CO LTD Vs. KOTANI VARALAKSHMI

JUDGEMENT

(1.) This appeal is directed against the judgment, dated 12.4.2004, passed in MVOP No.836 of 2001 on the file of VI Additional District Judge, Visakhapatnam, whereby and whereunder, the learned Additional District Judge allowed the claim of the respondents 1 to 3 herein in part and granted compensation of Rs.15,63,000/- with interest at the rate of 9% p.a. from the date of petition i.e. 21.6.2001 till the date of deposit.

(2.) Background facts of the case, in a nutshell, leading to filing of this appeal by the insurer are: (a) Kotani Demudu along with R. Ganesh was coming from Pinagadi Junction to his village Mogalipuram on foot. On nearing Kollivanikallulu on 16.5.2001 at about 8.45 p.m., an auto bearing No.AP31V 6562 came from behind driven in a rash and negligent manner and dashed him. As a result, K. Demudu fell on road and sustained head injury and became unconscious. He was shifted to CDR Hospital for treatment. While undergoing treatment in the said hospital, he succumbed to the injuries at 11.30 p.m. on the same day. A case in Crime No.51 of 2001 for the offence under Section 304-A IPC came to be registered against the driver of the auto. K. Demudu was working as a Line-picker in Visakhapatnam Custom Clearance Agents Association under Dock Labour Board of Visakhapatnam Port Trust. He was earning Rs.15,000/- per month towards his salary apart from other allowances. He was contributing his entire earnings to the family. Claimant No. 1 is the widow and claimants 2 and 3 are the children of K. Demudu. They filed claim petition under Section 166 of the Motor Vehicles Act, 1988, (for short, 'the Act') claiming compensation of Rs.17,00,000/- against the owner and insurer of the crime vehicle. The owner and insurer of the crime vehicle filed counters. They denied the accident and also rash and negligent driving of the driver of the auto. (b) The Tribunal framed the following issues for trial: (1) Whether the accident occurred due to the rash and negligent driving of the auto bearing No.AP 31 V 6562 driven by its driver? (2) Whether the petitioners are entitled for compensation? If so, from which of the respondents? (3) To what relief? (c) On behalf of the claimants, two witnesses were examined as PWs.1 and 2 and six documents were marked as Exs.A1 to A6. On behalf of the owner of the vehicle, he got himself examined as RW1. (d) The Tribunal, on considering the evidence brought on record and on hearing the Counsel appearing for the parties, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the auto bearing No.AP31V 6562 and that the claimants are entitled to a compensation of Rs.15,63,000/- with interest at 9% p.a. from the date of petition till the date of deposit, by judgment dated 12.4.2004. Hence, this appeal by the insurer under Section 173 of the Act.

(3.) Learned Counsel appearing for the appellant/insurer submits that in the trial Court the owner of the vehicle contested the matter and therefore, there was no occasion for the appellant/ insurer for filing the petition under Section 170 of the Act seeking permission to take all the defences available to the insured. A further submission has been made that the appellant/insurer came to know the collusion of the claimants with the insured after disposal of the claim petition, which necessitated the appellant/ insurer to approach this Court by filing the application under Section 170 of the Act seeking permission to take all the pleas available to the insured.