IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY NINTH DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.No.1500 of 2007 Between: M/s.New India Assurance Company Limited, rep. by its D.M. Main Road, Kakinada ..... APPELLANT AND Daggumilli Baby and others ..... RESPONDENTS JUDGMENT: This is an appeal filed by the Insurance Company challenging the award in M.V.O.P.No.465 of 2005 dated 31-01-2007 on the file of the III Additional District Judge-cum- Motor Accidents Claims Tribunal, Kakinada to the extent the award fastened liability on it. 2. By the award the Tribunal awarded Rs.3,00,000/- (Rupees three lacks only) as compensation with interest at 7.5% per annum in favour of respondents 1 to 3 herein (Claimants). 3. The claimants filed the O.P. seeking compensation of Rs.3,00,000/- on account of the death of husband of the first claimant and father of the claimants 2 an 3 namely Daggumilli Musalayya (deceased). 4. In the road accident occurred on 21-01-2005 the deceased was proceeding on the motorcycle of the fourth respondent herein (first respondent in O.P./owner of the vehicle) as pillion rider. The owner of the vehicle himself was driving the motorcycle. On account of his rash and negligent driving, the vehicle hit a coconut tree and skidded causing the death of the deceased. Contending that the deceased who was an agricultural coolie and earning Rs.100/- per day the claimants claimed Rs.3,00,000/- as compensation. 5. The owner and driver of the vehicle though appeared, failed to file counter and contest the matter. The appellant – insurance company filed I.A.No.343 of 2006 and obtained permission under Section 170 of the Motor Vehicles Act to contest the matter on merits. While denying the allegations as to the rash and negligence, income and the age of the deceased, it also denied its liability on the ground that the driver of the offending vehicle had no licence. 6. The first claimant examined herself as PW-1 and examined one Lolla Krishna as PW-2. Ex.A-1 is the attested copy of F.I.R. in Cr.No.20 of 2005 of Samalkota Police Station and Ex.A-2 is the attested copy of postmortem report dated 21-01-2005 were marked on behalf of the claimants. The appellant – insurance company examined its officer as RW-1 and filed Ex.B-1 dated 16- 07-2004 attested copy of insurance policy and Ex.B-2 attested copy of charge sheet. 7. Based on the pleadings, the Tribunal formulated the issues whether the accident occurred due to the rash and negligent driving of the offending vehicle and whether the claimants were entitled for compensation and if so, to what amount and from which respondents. 8. On the basis of the evidence adduced, Ex.B-2 charge sheet in particular and the evidence of PW-2 the Tribunal held that the accident occurred due to the rash and negligent driving of the vehicle by the owner of the vehicle himself. As regard the quantum of compensation, the earnings of the deceased was computed at Rs.2,000/- per month and after deducting 1/3rd from out of the said amount, computing the contribution at Rs.16,000/- per annum, having regard to the age of the deceased as 25 years, applied multiplier ‘17’ and awarded Rs.2,72,000/- towards the pecuniary loss. In addition Rs.15,000/- was awarded towards consortium, Rs.10,000/- towards loss of love and affection and Rs.5,000/- towards funeral expenses, in all awarded Rs.3,02,000/-. However, as the claimants restricted their claim to only Rs.3,00,000/-, the said sum was awarded with interest at 7.5% per annum. 9. On the question of liability the Tribunal held that as the appellant – insurance company did not establish that the driver of the offending vehicle did not possess licence both the appellant – insurance company and the owner of the offending vehicle are jointly and severally liable. The appellant – insurance company has filed this appeal against the said order. 10. Heard the learned counsel appearing for both the parties. 11. The learned counsel for the appellant confined the challenge only on the question that the driver of the offending vehicle had no licence and as such, the appellant – insurance company cannot be fastened with liability. He would contend that the driver of the offending vehicle was charged for the offences under Sections 304-A of the Indian Penal Code (causing death of a person due to rash and negligent driving), Section 184 of the Motor Vehicles Act (dangerous driving) and Section 181 of the Motor Vehicles Act (driving a vehicle without licence) which according to him would establish that the driver had no driving licence. 12. I have perused Ex.B-2 charge sheet on which reliance has been placed. It is true that the driver of the vehicle Balli Musalayya was shown as the accused. The Police investigated the case and examined the defacto complainant V.V.V.S. Murthy who was one of the inquest panchayatdars as LW-1, L. Krishna and T. Babji who were eye-witnesses to the incident as LWs.2 and 3, D. Bebi (first claimant) as LW-4, one P. Rajyalakshmi, N. Veerababu and K. Sathibabu relatives of the deceased who rushed to the scene of offence as LWs.5 to 7, K. Ramakrishna who is a local photographer as LW-8, S. Babji who drafted the scene of offence and observation report as LW-9, G.V.N. Rao who inspected the crime vehicle and submitted a report as LW-10 and Dr.G.V.A. Rama Rao who conducted autopsy as LW-11 and the Investigation Officer as LW-12. 13. The said charge sheet described the manner in which the accident took place and statements of the aforesaid persons. Although the accused was also charged for the offence under Section 181 of the Motor Vehicles Act for not possessing valid driving licence, there is absolutely no reference whether the Investigation Officer verified the said fact either from the office of the concerned licensing authority or from the accused. The charge sheet merely referred to the penal Section 181 of the Motor Vehicles Act without any investigation into the existence or otherwise of the driving licence. 14. Therefore, I am of the view that no reliance can be placed on Ex.B-2 to come to the conclusion that the driver of the offending vehicle had no licence. It may be mentioned that the appellant – insurance company did not adduce any other evidence either by calling upon the insurer who himself was the driver of the offending vehicle to submit the licence or by calling for the record from the concerned licensing authority. 15. RW-1 whose examination in chief was recorded after lapse of more than one year ten months and cross-examination on 18- 01-2007 after lapse of about two years from the date of accident, did not state regarding the result of the criminal case pursuant to the said charge sheet. 16. In the absence of any evidence adduced, based merely on Ex.B-2, it is not possible to hold that the driver had no driving licence as alleged by the appellant – insurance company. 17. It may be also mentioned that R-4 herein (owner-cum-driver of the offending vehicle) reportedly died during the pendency of the appeal. Although this Court by order dated 20-07-2009 granted time to the appellant – insurance company for taking steps, no steps have been taken to bring the legal representatives of the said respondent on record. The appeal also fails against R-4 for non-prosecution. 18. In the light of the aforesaid analysis and as no other point has been urged, the award which attached liability on the appellant – insurance company cannot be said to be incorrect. There are no merits in the appeal and the appeal is accordingly dismissed. There shall be no order as to costs. _________________ NOUSHAD ALI, J July 29, 2010. Pn THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.No.1500 of 2007 July 29, 2010