THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.1839 OF 2009 Dated 12-10-2011 Between: The New India Assurance Company Limited., represented by its Deputy Manager (Legal Cell), Rastrapathi Road, Secunderabad and others. …Appellants. And: N.Nirmala and others. …Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.1839 OF 2009 JUDGMENT: This appeal is directed against the award dated 28th November, 2007 passed in O.P.No.3045 passed by the V Additional Metropolitan Sessions Judge-cum-XIX Additional Chief Judge, City Criminal Court, Hyderabad. The Second respondent in the Original Petition is the appellant herein. The respondents 1 to 3 in the appeal are the claimants 1 to 3 in the original petition and respondent No.4 herein is R.1 in the O.P. and the owner of the vehicle, respectively. Parties in the appeal will hereinafter be referred to as they are arrayed before the tribunal for the sake of convenience. The 1st claimant is the wife and 2nd claimant is the daughter and the 3rd claimant is the mother of the deceased. The claimants filed O.P.No.3045 of 2005 seeking compensation of Rs.3,50,000/- for the death of the deceased in a Motor Accident. The facts of the case in brief are as follows: On 24.9.2005 at about 16 hours, while the deceased was traavelling in an auto bearing No.A.P.22 U 9682 from Kothakota to Pebbair and when it reached outskirts of Ambadabakula village, the driver of the auto drove it in a rash and negligent manner and lost control over it, as a result of which, the auto turned turtle and the deceased sustained grievous injuries. He was immediately shifted to Area Hospital, Wanaparthy, but, in vain. He succumbed to the injuries on the same day itself while undergoing treatment. The deceased was aged 38 years and was working as Beedi worker and earning Rs.3,000/- per month and contributing his entire income to the claimants. Due to the sudden death of the deceased, the claimants have lost the income and support. Hence, the claimants filed the claim petition seeking compensation. R.1 remained exparte and R.2 filed a counter denying the material averments of the petition and further averred that the driver of the auto was not negligent in driving the auto and that he had no valid driving licence and accordingly, the Insurance coverage for the auto had been denied. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the death of the deceased on 24.9.2005 of about 16 hours is due to rash and negligent driving of auto bearing No.AP 22 U 9682, by its driver? 2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom? 3. To what relief? The 1st claimant was examined as P.W.1 and P.W.2 was examined as an eye witness to the accident and Exs.A.1 to A.5 were marked on behalf of the claimants. On behalf of the respondents, R.Ws.1 to 4 were examined and Exs.B.1 to B.3 were marked. The tribunal, on appreciation of oral and documentary evidence, came to the conclusion that the driver of the auto was rash and negligent in driving the crime vehicle and, therefore, R.1 who was the owner and R.2 who was the insurer are jointly liable for the payment of compensation, and accordingly allowed the petition in part for a sum of Rs.2,65,000/- with interest at 7% p.a., from the date of the petition till the date of deposit and with proportionate costs. Aggrieved by the same, the Insurance Company filed this appeal. Heard the learned counsel and perused the material available on record. The main contention of the learned counsel for the Insurance Company is that the driver was not having valid driving licence to drive the passengers vehicle and that he had licence to drive light motor vehicle. It is also argued that the evidence on record shows that there was mechanical defect in the vehicle and that the driver had also informed the owner about the mechanical defect but in spite of it, the owner insisted the driver to take the vehicle on road and that in the above circumstances, the accident occurred due to mechanical defects of the vehicle. It is also argued that when there is a violation of terms and conditions of the policy, the tribunal ought to have held that the Insurance Company is not liable to pay the compensation or even otherwise, the tribunal ought to have directed to Insurance Company to pay the amount to the claimants and recover the same from the owner of the vehicle. It is further contended that the amount awarded by the tribunal is excessive. On the other hand, the learned counsel for the claimants submitted that, the terms and conditions of the policy have not been filed and that the evidence of P.W.2 clearly shows that the accident occurred due to the rash and negligent driving of the driver and that the licence to drive light motor vehicle includes transport and non-transport vehicles and in the above circumstances, award of the tribunal is justified and no interference is required. The points that arise for consideration are: (1) Whether the driver of the auto had driven the auto in a rash and negligent manner. (2) Whether the driver had valid driving licence to drive the auto. It is not in dispute that R.W.2 was driving the vehicle at the time of the accident and that the accident occurred on 24.9.2005 at about 16 years in the outskirts of Ambadabakula village. P.W.2 claims to be an eye witness. According to him, when he was standing near a tea stall which was at a distance of 100 yards away from the place of accident, the auto fell down as the driver lost control over it. According to him, the auto was being driven in a rash and negligent manner. It is elicited from his evidence that P.W.1 was his sister by courtesy. It is settled law that merely because P.W.2 is related to P.W.1, his evidence need not be discarded. Therefore, the tribunal has rightly considered the evidence of P.W.2. There appears to be nothing to take different view. Of course, on behalf of the Insurance Company, the driver of auto was examined as R.W.2. It is the evidence of R.W.2 that the condition of the road was not good and that auto was also not roadworthy. According to him, he had informed the same to the owner of the auto, but the owner used to postpone the repairs. He further deposed that the owner had been insisting him to carry as many passengers as possible. R.W.3 who is the Motor Vehicle Inspector stated in his evidence that the accident occurred due to the mechanical defect in the steering system and also in the front wheel bearing. Ex.A.4 is the report of the Motor Vehicle Inspector. As observed by the lower Court, it is the duty of the owner to keep the vehicle roadworthy and attend the repairs as and when required. But, when such a vehicle which is not roadworthy and which require repairs is brought on road and the driver knowing fully well that the vehicle is not roadworthy, still drives the vehicle, it is clear that such an act of the driver amounts to driving the vehicle in a rash and negligent manner, of course, the owner of the auto is also responsible for the same. Coupled with the above circumstances, the evidence of P.W.2 also shows that the driver of the auto was driving the same in rash and negligent manner and caused the accident. In the above circumstances, I am of the view that the Tribunal is right in holding that the accident occurred due rash and negligent driving of the auto by the driver. It is not in dispute that the driver of the vehicle was having licence to drive the light mother vehicle, of course, he was not having driving licence to drive the passenger auto. As far as light motor vehicle is concerned, there is nothing to say that the light motor vehicle does not include the transport and non-transport vehicles. Therefore, it appears that the Tribunal is right in holding that the light motor vehicles include both transport and non-transport vehicles. A reading of the entire evidence gives an impression that the owner of the vehicle is also responsible in not attending the repairs of the vehicle though he was informed that the auto required repairs. In this regard, it is clear from the evidence of R.W.2, the Motor Vehicle Inspector to the effect that the auto required repairs. As far as the award of the compensation is concerned, considering the age of the deceased and the job which he was doing, I am of the considered view that the Tribunal was right in taking his income at Rs.3000/-, per month and therefore, the award of the tribunal needs no interference. In the above circumstances, I am of the view that the award of the Tribunal has to be confirmed. But, since it appears that the owner of auto is also responsible for not attending the repairs of the vehicle, I am inclined to observe as follows: The appellant Insurance Company may satisfy the decree by paying compensation awarded to the claimants, but, however, it may initiate appropriate proceedings before the motor Accidents Claims Tribunal and claim the recovery of the amount paid by it from the owner of the auto. Subject to the above observation, this appeal is dismissed. M.A.C.M.A.M.P.No.5564 of 2010 has been filed to declare the second claimant as major and to discharge 1st claimant as her next friend. The age of the Second claimant was shown as 16 years in 2005 and therefore, it is clear that she attained majority accordingly, she is declared as major and 1st claimant stands discharged as her next friend. In view of the fact that the matter has been pending since quite a long time and the 3rd claimant seems to have become a senior citizen, I consider it just and reasonable to permit the 1st and 3rd claimants to withdraw the amounts awarded to them. The amount awarded to the 2nd claimant shall be kept in fixed deposits for a period of five years. However, she may approach the lower Court seeking permission to withdraw the said amount in case of any urgent requirement and it is for the lower Court to consider the same and pass appropriate orders. ____________________ B. CHANDRA KUMAR, J. Date: 12-10-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.1839 OF 2009 Dated 12-10-2011