NEW INDIA ASSURANCE CO. LTD Vs. MEKA RAMANAMMA

JUDGEMENT

(1.) ON the morning of 25th June, 1976, at about 8 a.m. Syed Nawab Saheb was driving the motor cab APN 8057 carrying therein some passengers including one Meka Venkaiah and Mahimaluru Venkaiah both residents of Vovveru village. When the motor cab reached Damaramadugu junction, it went to extreme left side and dashed against an electric pole and turned turtle. Meka Venkaiah, who received injuries as a result of that accident, died in the hospital as a result of those injuries on the same day at 9 p.m. Mahimaluru Venkaiah received some fractures on his left hand and left thigh resulting in partial permanent disability despite the medical treatment given to him in the hospital for about 4 months. Concerning this incident, the widow and mother of Meka Venkaiah claimed a total compensation of Rs. 18,050/ - in O.P. No. 138 of 1977 before the District Judge, Nellore. Rs. 4,000/ - was claimed towards compensation for the loss of consortium, Rs. 14.000/ - was claimed towards loss to the estate and the balance amount of Rs. 50/ - was claimed as expenses incurred for transporting Meka Venkaiah to the hospital. Mahimaluru Venkaiah claimed a total compensation of Rs. 20,000 in O.P. No. 139 of 1977. To both those applications, the insurer was impleaded as the 2nd Respondent. The claims were opposed mainly on the grounds that the accident was not due to any rashness or negligence of the driver, that the amounts claimed were excessive and that in any event the insurer is not liable to pay more than Rs. 5,000/ - towards compensation to the claimants in each of the petitions. The District Judge, Nellore, awarded a total compensation of Rs. 12,000/ - in O.P. No. 138 of 1977 and Rs. 13,000/ - in O.P. No. 139 of 1977. Before District judge, both the parties appeared to have proceeded on a common footing that the insurer's liability in the case of a single individual is limited to a maximum of Rs. 10,000/ -. In decreeing the amounts in favour of the claimants, however, the insurer was also made jointly liable along with the owner of the motor cab who incidentally happens to be the driver of the motor cab.

(2.) THE insurer and the owner of the motor cab have preferred appeals in C.M.A. Nos. 401 of 1979 and 690 of 1979 against the compensation awarded against them in O. P. No. 138 of 1977. Likewise they preferred C.M.A. Nos. 402 and 689 of 1979 against the compensation awarded against them in O.P. No. 139 of 1977. The District Judge, Nellore, disposed of both the O.Ps. by a common order and accordingly these four C.M -As have been disposed of together.

(3.) THE eye witness account of the incident is given by Mahimaluru Venkaiah, who was admittedly one of the persons travelling in the motor cab at that time. Another Meka Venkayya Naidu (P.W. 4) also gave evidence that he was also one of the passengers travelling in the motor cab at that time. Mahimaluru Venkaiah (P.W. 1) in his evidence stated that the cab was being driven at that time with excessive speed and despite the caution given to the owner -driver of the cab, he did not reduce the speed. He was confronted with a statement made before the police, who investigated into the case wherein he is alleged to have stated that the driver of the cab was not at fault. There are certain hard, facts regarding which there cannot be any dispute. The right front wheel of the motor cab had come off the vehicle resulting in the accident. The 1st Respondent in the two claim petitions who was the driver owner of the motor cab is the most competent witness to say as to how the right front wheel had come off the vehicle. He did not examine himself. Any wheel of the vehicle would not come off by itself unless a proper explanation is given for the happening of that event. The non -examination of the driver owner of the cab is therefore a circumstance which does not rebut the presumption of negligence on his part in not keeping the vehicle in a state of good repair. The vehicle had gone to the extreme left, dashed against an electric pole and turned turtle. It was, therefore, the duty of the owner -driver to explain why the motor vehicle had to be taken to the extreme left and why it was not possible for him to bring the vehicle to a stop before it hit against the electric pole and turned turtle. It appears that while the vehicle was being driven, some buffaloes were coming in the opposite direction and the vehicle was swerved in different directions to avoid hitting the buffaloes. The coming of buffaloes along the road on the opposite direction should have alerted the driver to control the vehicle and obviously the vehicle was being driven without reducing the speed of the vehicle. The presumption of rash driving of the vehicle arises in these circumstances and such presumption has not been displaced. The conclusion of the District Judge, Nellore, that there has been rash and negligent driving is correct though his judgment does not reflect the application of the proper principles to the facts of the case.