*HON’BLE SRI JUSTICE B.N. RAO NALLA + C.M.A. No. 21 of 1997 %31-01-2011 # The Branch Manager, United India Insurance Co. Ltd. …. Appellant Vs. $ K. Thulasamma and five others …. Respondents !Counsel for the Appellant: Sri T. Mahender Rao, Standing Counsel for United India Insurance Co. Ltd. Counsel for the Respondents: Sri P. Veera Reddy <Gist : >Head Note: ? Cases referred: JUDGMENT: The 2nd respondent-Insurance Company in M.V.O.P.Nos. 98 and 99 of 1994 on the file of the Motor Accident Claims Tribunal-cum- First Additional District Judge, Kadapa, preferred this Civil Miscellaneous Appeal against the common order dated 07-3-1996 passed in the M.V.O.Ps. whereby an amount of Rs.25,000/- was awarded to the claimants in M.V.O.P.No. 98 of 1994 under no-fault liability and Rs.1,65,000/- was awarded to the claimants in M.V.O.P.No. 99 of 1994 against the total claim of Rs.1,75,000/-. The 1st claimant in both the M.V.O.Ps. is the wife, the 2nd and 3rd claimants are minor children, and the 4th and 5th claimants are the parents of the deceased-K. Pandu Ranga Reddy. For the sake of convenience, the parties are referred to as they are arrayed in M.V.O.P.Nos. 98 and 99 of 1994. The facts of the case in brief are that on 12.06.1993, at 05.00 P.M., while the deceased was travelling by Tractor and Trailor bearing Nos. AP27-2288 and AP27-2230 as cooli to go to Porumamilla, the driver of the Tractor drove it at high speed and in rash and negligent manner, as a result, the hook between the Tractor and Trailor got detached and the Trailor and Trailor turned turtle, and the inmates thereof including the deceased sustained injuries. The deceased sustained serious injuries and was shifted to Government Hospital, Kurnool, wherein he succumbed to injuries on 14-06-1993. Hence, the claimants filed both the claim-petitions seeking compensation as stated above. The 1st respondent-owner of the Tractor and Trailor and the 2nd respondent-Insurance Company filed their written statements in both the M.V.O.Ps. denying the petition averments, and the factum of the accident, and alleged that the deceased had fallen from a tamarind tree and sustained injuries and subsequently died. It is stated that on the date of the accident, the Tractor and Trailor of the 1st respondent was found to have been parked at V.Rangaiah’s Hotel at Racherla, which is about 60 KMs away from the place of the accident i.e., near Markapuram village on 12-06-1993 at 04:15 p.m., i.e., 45 minutes before the alleged accident. The Police, Racherla, seized the Tractor and filed a criminal case against the driver of the Tractor and he was convicted by the learned Judicial Magistrate of First Class, Giddalur in S.T.C.No.46 of 1993 of the offence punishable under Section 283 IPC for causing obstruction in the public way by parking the tractor and sentenced to pay a fine of Rs.50/-. The 2nd respondent-Insurance Company stated that a case in Cr.No. 204 of 1993 was registered by III-Town Police, Kurnool. The inquest report in this crime reveals that the deceased died of a fall from a tamarind tree. It is further stated that the 1st respondent-owner of the Tractor and Trailor failed to furnish relevant records, such as, RC Book, Fitness Certificate, Permit, Driving Licence etc. about the claim, as such, it is not liable to indemnify the 1st respondent-owner for any liability which may incur due to that accident, and the 1st respondent alone is liable to pay the compensation, if any, to the claimants. Based on the pleadings of both the parties, the Tribunal framed relevant issues as to rash and negligent driving on the part of the driver of the Tractor and Trailor Nos. AP-27-2288 and AP-27-2230 respectively and the entitlement of the claimants to claim compensation and also the liability of the respondents to pay compensation to the claimants. The 1st petitioner-wife in both the M.V.O.Ps. got herself examined as PW1 besides examining PW2 as an eye-witness to the accident and got marked Exs.A-1 to A-4 in support of their case, whereas RWs.1 and 2 were examined and Exs.B1 to B6 marked on behalf of the 2nd respondent-Insurance Company. The Tribunal, taking into consideration the evidence and other material available record, answered the 1st issue positively holding that the deceased died on account of injuries sustained in the motor vehicle accident due to rash and negligent driving on the part of its driver. Further, it also answered the 2nd issue in the positive holding that the petitioners in O.P.No. 98 of 1994 are entitled to compensation of Rs.25,000/- together with interest @ 12% p.a. for no-fault liability and the 1st and 2nd respondents are jointly and severally liable to pay the same to the 1st petitioner only with proportionate costs and interest. So far as O.P.No. 99 of 1994 is concerned, the petitioners were awarded a total compensation of Rs.1,65,000/- with proportionate costs and interest @ 12% p.a. making the 1st and 2nd respondents jointly and severally liable to pay the same. It is canvassed by the learned Standing Counsel appearing on behalf of the appellant-Insurance Company that as per the averments of the written statement, the deceased died of a fall from tamarind tree and died of injuries and a case in Cr.No.204 of 1993 was registered. Ex.B1 is the true copy of FIR and Ex.B2 is the inquest report in that crime. It is further canvassed that Ex.B3 is the certified copy of the charge sheet in S.T.C.No. 46 of 1993 on the file of the Court of the Judicial Magistrate of First Class, Giddalur, whereby fine of Rs.50/- was imposed on him on the ground that the Tractor and Trailor were parked at Racherla, obstructing the public way. Crime No.204 of 1993 was transferred from III-Town Police Station, Kurnool to Kalasapadu Police Station on the point of jurisdiction and the same was registered as Crime No. 19 of 1993 as per Ex.B4 - FIR. It is further canvassed that the driver submitted his driving licence subsequently, which was sent to R.T.A., Vijayawada for verification and after verification, the same was certified to be a fake one as per Ex.B5-endorsement of the Additional R.T.A., as such, the same amounts to violation of one of the policy conditions under Ex.B6 -Insurance Policy. He further submits that based on the registration of the F.I.R. in Crime No.204 of 1993 by III-Town Police Station, Kurnool on 14-06-1993, and the other F.I.R. in Cr.No.24 of 1993 that was registered on 24-6-1993, i.e., 12 days after the accident and ten days after the death of the deceased, the driver of the Tractor and Trailor was convicted and sentenced to pay a fine of Rs.50/- for having parked the Tractor and Trailor at a public place causing obstruction to the public. It is further canvassed that the offence under Section 283 IPC involving traffic was committed on 12- 06-1993. Therefore, it is contended that though the deceased had fallen from a tamarind tree and died of the injuries, Crime No. 24 of 1993, which was registered on 24-06-1993, was brought into existence with an intention to convert the same into one of the Motor Vehicle accident in order to claim compensation, since it is evident that the said crime was registered on 24-06-1993 i.e., 12 days after the alleged accident and ten days after the death of the deceased. The learned Standing Counsel also emphasized that Ex.B3 -inquest report in Crime No.24 of 1993, which was subsequently transferred to Kalasapadu Police Station and re-numbered as Crime No.19 of 1993 clearly reveals that the deceased died of injuries sustained by a fall from a tamarind tree. The learned counsel further submits that even if the involvement of the Tractor and Trailor in the alleged accident is to be considered for the sake of argument without admitting the same, since the endorsement made by the Additional Licencing Authority, Vijayawada on Ex.B5 proves that the driving licence of the driver is fake one, it is the 1st respondent-owner, who is liable to pay compensation and not the 2nd respondent-Insurance Company, as it amounts to violation of one of the conditions of Ex.B6-Insurance Policy. Lastly, he contended that the Tribunal, without considering these facts, has committed an error in coming to the conclusion that the accident had occurred due to fault on the part of the driver of the Tractor and Trailor and imputed joint and several liability to the 1st and 2nd respondents to pay compensation to the claimants. On the other hand, the learned counsel for the respondents- claimants submits that it is an admitted fact that the accident took place on 12.06.1993 at about 05.00 p.m., and on the same day, all the injured were shifted to the Government Hospital, Kurnool. One of the injured by name B.Rajamma preferred Ex.A3-F.I.R., dated 13.06.1993 in Cr.No.24 of 1993 of Porumamilla police station. On 24.06.1993, the police enquired from PW2, who happened to be an eye witness to the accident and registered Ex.A1-F.I.R. in Cr.No.24 of 1993. He further contends that there is no corroborating evidence to establish that the deceased died due to fall from a tamarind tree, as such, the Tribunal is justified in awarding the compensation, and the same cannot be interfered with, and the appeal is liable to be dismissed. Heard the learned Standing Counsel for the Insurance Company appearing on behalf of the appellant and the learned counsel for the respondents-claimants and perused the material placed on record. From a careful analysis of the evidence on record, it to be observed that one of the injured by name B.Rajamma preferred a police report and the same was registered under Ex.A3-F.I.R. in Cr.No.24 of 1993 of Porumamilla Police Station. PW2, who is an eye witness to the accident, also preferred a police report and the same was registered on 24.06.1993 under Ex.A1 in the same crime and of the same police station. One Obul Reddy had preferred a police report on 14.06.1993 under Ex.B1-F.I.R. in Cr.No.204 of 1993 of Kurnool III Town Police Station. The accident is alleged to have taken place on 12.06.1993 at about 5:00 p.m., and all the injured were shifted to Government Hospital, Kurnool at about 11:50 p.m. (night). The F.I.R. in Cr.No.204 of 1993 of III Town police station, Kurnool, was subsequently transferred to Kalasapadu police station on the point of jurisdiction and the same was numbered as Cr.No.19 of 1993 under Ex.B4 and later, the said crime was transferred to Porumamilla police station on the point of jurisdiction. PW2 deposed that he along with the deceased and others were engaged by the 1st respondent-owner of the Tractor as coolies to load and unload sand, manure, etc. and while they were proceeding towards Porumamilla and reached near Markapuram, the driver of the Tractor-Trailor drove it rashly and negligently, as a result, the Tractor turned turtle. They all fell down and sustained injuries and the deceased-Panduranga Reddy sustained severe injuries, and the people of Markapuram shifted all the injured to Government Hospital, Porumamilla in the same tractor and after they were given first aid, the deceased was shifted to Government Hospital, Kurnool as his condition was serious. He further deposed that the police of Porumamilla visited his village on 24.06.1993 and took a complaint from him, wherein he stated that the accident had occurred due to the fault of the driver of the Tractor-Trailor. Based on the complaint of PW2, the police, Porumamilla police station, registered a case in Cr.No.24 of 1993 under Sections 337 and 304(A) IPC, under Ex.A1. One Obul Reddy, who is resident of Lingareddipalle of Kalasapadu Mandal, Kurnool preferred police report on 13.06.1993 in Cr.No.204 of 1993 of III Town Police Station, Kurnool, according to which, the deceased Panduranga Reddy had suffered injuries by falling from tamarind tree. This case was transferred to Kalasapadu Police Station and renumbered as Cr.No.19 of 1993, however a perusal of Ex.A4 final report, which is based on Cr.No.24 of 1993 of Porumamilla police station and Cr.No.19 of 1993 of Kalasapadu Police Station reveals that on 12.06.1993, the deceased along with PW2 and others were traveling by the Tractor-cum-Trailor and due to rash and negligent driving of the driver of the Tractor, the hook between the Tractor and Trailor got detached, due to which, Tractor and Trailor turned turtle and the inmates thereof sustained injuries. However, though the 1st respondent-owner of the accident Tractor had filed written statement denying the claim petition averments, no evidence was adduced on his behalf to disprove the case of the claimants. In this context, and in the circumstances, it appears from the record that the Tribunal did not consider the written statements filed by the Insurance Company. Though RWs.1 and 2 are examined on behalf of the Insurance Company, their evidence does not throw any light as to the cause of death of the deceased-Panduranga reddy since they cannot be imparted personal knowledge as to the circumstances leading to the accident. Moreover, neither the driver nor the owner of the Tractor was examined. Even the evidence of RWs.1 and 2 does not prove the case of the appellant-Insurance Company. Further, the complainant in Cr.No.204 of 1993 who alleged that the deceased succumbed to injuries by falling from tamarind tree, was not examined to establish the cause of the death. Though the facts under Cr.No.204 of 1993 are stated to be that the deceased died of fall from tamarind tree, these facts stand disproved by Ex.A4- final report vis-a-vis Cr.No.19 of 1993 of Kalasapadu Police Station. The failure to examine the complainant-Obul Reddy in Cr.No.204 of 1993 is fatal to the case of the prosecution and the evidence of PW2 in Cr.No.24 of 1993 of Porumamilla police station, coupled with the complaint of B.Rajamma under Ex.A3 on the file of Porumamilla police station and the final report in Ex.A4 go to disprove the case of the respondents- owner of the tractor and Insurance Company respectively that the deceased-Panduranga Reddy died of fall from tamarind tree and further it establishes the case of claimants that the accident had occurred due to rash and negligent driving of the driver of the Tractor- Trailor, whereby the hook between the Tractor-Trailor got disconnected, and the Tractor turned turtle, causing injuries to its inmates. According to the learned Standing Counsel, Exs.A1 to A4 and Exs.B1 to B5 are public documents and they could be presumed to be proved. However, it is to be found in the record that the complainant - Obul Reddy in Cr.No.204 of 1993 was not examined to show that the deceased died on account of the injuries sustained to him by falling from the tamarind tree. The certified copy of F.I.R. in Cr.No.24 of 1993 issued by Porumamilla Police Station under Ex.A3, the evidence of another eye witness and injured B.Rajamma of Mittamanupalli Village of Mydukur Mandal clearly show that due to the detachment of hook between the Tractor and Trailor by rash and negligent driving of the driver of the Tractor, the trolley fell down towards the tank, resulting in the death of the deceased. Hence, the case of the claimants stands proved. Even though the legal position is vague with reference to Exs.A1 to A4 and Ex.B5, it is further contended on behalf of the Insurance Company that the fact that the Tractor was held up at a place 60 kilo meters away from the place of the accident so also the evidence of RW2-Divisional Manger, who has issued Ex.B5 was not appreciated by the Tribunal. However, in view of the fact that there being the direct evidence of PW2, who is one of the injured in the accident, and also another injured B.Rajamma, who preferred police complaint based on which Ex.A3 was registered and also having regard to the fact that neither the driver nor the owner of the accident Tractor was examined, the Tribunal cannot be found fault with in not giving much importance to the fact that the tractor was 60 kilo meters away from the place of the accident. A perusal of Ex.B5-endorsement of the Additional Licencing Authority reveals that the driving licence was verified and it was found to be not genuine and that the particulars issued are for the purpose of insurance only. Apart from the above, it is to be observed that the licencing authority, who issued Ex.B5, was not examined to prove that the licence of the driver was false. RW2 has admitted in his cross- examination that if the Tractor and Trailor are jointly insured, the policy covers the risk of six coolies. He has also admitted that if the death of the deceased is due to the involvement of the Tractor and Trailor in the accident, respondent No.2 is liable to indemnify respondent No.1. He also admitted that the Insurance Company had not filed any document to show that it had appointed any private investigator to investigate the accident. It is perhaps due to the admissions made by RW2, the Tribunal has fastened joint and several liability on the 1st and 2nd respondents. Even though the case of the appellant-Insurance Company is that they secured the driving licence of the driver of the Tractor and sent it for verification to the Additional Licencing Authority, Vijayawada, however the endorsement made by such authority on Ex.B5 is to the effect that the licence issued to the driver authorizes or permits him to drive motorcycle only. Therefore, it is to be stated that what was sent to the licencing authorities was not the motor vehicle driving licence of the driver, but his motorcycle driving licence. Therefore, it appears that the trial Court has not given much importance to Ex.B5. Further, by virtue of the oral evidence of PW2, which remained unrebutted and uncontroverted, coupled with Exs.A1, A3 and A4, the claimants are able to establish that the deceased died on account of the injuries sustained by him in the motor vehicle accident caused by the reason of detachment of the hook between the tractor and trailor belonging to the 1st respondent due to rash and negligent driving on the part of the driver of the vehicle. Therefore, the Tribunal is rightly justified in granting compensation to the claimants, and the common order under appeal does not warrant any interference from this Court. For the foregoing reasons, this appeal is dismissed as the same is devoid of any merits. No order as to costs. _________________ B.N. RAO NALLA, J Date: 31.01.2011 Note: L.R. Copy to be marked B/o bcj