HINDUSTAN IDEAL INSURANCE COMPANY LIMITED Vs. AINAPARTHI VIJAYALAKSHMI

JUDGEMENT

(1.) This Civil Miscellaneous Appeal by the appellant Insurance Company is directed against the award passed by the Motor Accidents Claims Tribunal (District Judge, West Godavari, Eluru) in Original Petition No. 110 of 1968 directing the appellant as well as the owner and the driver of the motor vehicle to pay a sum of Rs.22,000.00 to the petitioner-claimants towards compensation for the death of one Visweswara Rao.

(2.) The material facts leading to this appeal may briefly be stated. At about 2.30 P.M. on 25-8-1968 on A. Visweswara Rao accompanied by his wife Vijayalakshmi, and his brother Rajagopala Rao, was travelling in the Jatka of Somireddy from Maruteru to Penugondas. When they just came near Maruternu a lorry bearing No. A.P.K. 7269 belonging to one K. Subbarao and driven by Md. Afuzza dashed against the Jatka as a result of which the said Visweswara Rao received a serious head injury and died at about 7.30 p.m. on the same day in the Government Hospital, Tanuku. The aforesaid lorry, which was involved in the accident, was insured with the appellant which was added as a third respondent before the Tribunal. The first petitioner is the wife and the petitioners Nos. 2 to 4 are the sons and the 5th petitioner is the daughter of the deceased Visweswara Rao who was working at the time of his death as a Sub-Head in the South Central Railway on a salary of Rs. 475.80 per mensem. Admittedly, the respondents 1 to 5 herein and the applicants before the Tribunal are the only legal representatives of the deceased Visweswara Rao. They filed an application under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act) claiming compensation of Rs.50,000/- towards general damages under the head compensation for the loss of earning person, namely, Visweswara Rao, who was the head of the family. The owner and driver of the vehicle and the insurer have been made, before the Tribunal, as respondents 1 to 3 respectively. The first respondent denied his liability as, according to him, he did not know personally anything and he was at Khammam at the time of the accident. On inquiries he came to know that the accident took place on account of the negligence and inability of the Jatka drive, but not due to rash and negligent driving of his driver. The second respondent driver, admitting that he was driving the lorry at the relevant time, states that in spite of his driving the lorry slowly and blowing the horn the horse of the Jatka got dazed and turned towards left and the Jatka driver became panicky and could not control the horse and therefore the accident took place, but not on account of any rash and negligent driving of the lorry. As the accident took place due to the fault of the jatka driver no compensation need be paid. The appellant also took the stand that the road at the place of the accident was sloppy and narrow and the accident had taken place not due to the rah and negligent driving of the lorry driver but on account of the jatka driver becoming panicky and moving the jatka towards right and hence no compensation need be paid.

(3.) The claimants examined the first petitioner as P.W. 3 and the brother of the deceased, Rajagopala Rao, who was accompanying the deceased at the time of the accident as P.W. 4, the driver of the Jatka, P. Somireddi, as P.W. 6 and a passerby called Gudimetla Bulliraju as P.W. 7 in support of their plea that the accident took place on account of the rash and negligent driving of the lorry driver and not due to the jatka driver becoming panicky. P.W. 1 is the Civil Assistant Surgeon at Tanuka hospital who conducted the post-mortem on the dead body of the deceased and gave the wound certificate. Ex. A-1 and the post-mortem certificate. Ex. A-2 She also examined the Jatka driver and found him injured and gave Ex. A-3 would certificate to him. She also examined P.Ws. 3 and 4 who were also injured and issued them the wound certificates. Exs. A-4 and A-5 respectively. P.W. 2 is a photographer who has taken the photo. Ex. A-6 relating to the scene of offence. Ex. A-8 is a letter from the Senior Accounts Officer, Secunderabad, evidencing the salalry of the deceased as Rs.475.80 per month at the time of the accident and his age as forty four years. The respondents examined the lorry driver as R.W. 1 in support of their defence. The tribunal, accepting the evidence adduced on behalf of the claimants, came to the conclusion that the accident took place on account of the rash and negligent driving by R.W. 1 but not due to the negligence or mistake of the Jatka driver. Reliance also was placed on the finding of the Court of the Additional Judicial First Class Magistrate, Tanuka in its judgment in C.C. No. 3154 of 1968 dated 25-8-1968, that the driver was guilty of rash and negligent driving punishable under Section 304-A of the Indian Penal Code. The Magistrate has also sentenced the driver to one year rigorous imprisonment. The judgment in that calendar case has been exhibited as Ex. A-13 and the mediators report attested by one of the panch witnesses, P.W. 5 is marked as Ex. A-14.