HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A.No.245 of 2005 JUDGMENT: Aggrieved by the order and decree dated 30.9.2003 in O.P.No.494 of 1997 on the file of the Motor Accidents Claim Tribunal- cum- II Additional District Judge, Nellore, the Oriental Insurance Company filed this appeal inter alia on the following grounds: That though the Tribunal held that the accident occurred due to rash and negligent driving by the driver of the lorry bearing No.AP.04- U-2124 and not due to the negligence on the part of the driver of the mini lorry bearing No.AP.03-T-2124, erred in ordering the appellant also to pay the compensation being the insurer of the mini lorry; that the Tribunal failed to notice that the policy No.Y.R.No.33057 of 1997 mentioned by the claimants does not tally with the series of the polices issued by the appellant; that the Tribunal ought to have seen that the mini lorry was not insured with this appellant; that the Tribunal failed to notice that the deceased was a gratuitous passenger and that the Tribunal ought not to have fixed the age of the deceased as 43 years without there being any evidence on record. 2. The parties herein shall be referred to as they were arrayed in the O.P. 3. The brief facts of the case that led to filing of the present appeal are that on 28.5.1997, the deceased, who was working as Manager in Sri Venkateswara Wines, Gudur, after purchasing alcohol for the said wine shop, loaded in mini lorry bearing No.03-T-2124 at Devarapalem village to Gudur. He was travelling in the capacity of care taker of alcohol loaded in the mini lorry. When the mini lorry reached near Appayya gate on GNT Road at about 3.45 p.m.,a lorry bearing No. AP.04-U-2124 came from opposite direction driven in a rash and negligent manner by its driver at high speed on the wrong side and dashed against the mini lorry, as a result, the mini lorry was damaged and the deceased died on the spot and the other occupants sustained grievous injuries. A case in crime No.47/97 was registered under Sections 304-A IPC. The monthly salary of the deceased was Rs.5,000/- and he was also getting Rs.1,50,000/- net income per annum from agriculture at the time of the accident. 4. The first respondent was set exparte. The case of the second respondent-United India Insurance Company Limited was that the lorry bearing No.AP-04-U-2124 owned by the respondent was insured with it under Policy No.050901/31/21/38033/96; that the validity of the policy was from 29.3.1997 till 28.3.1998 and that the liability of this respondent is limited to the terms and conditions of the insurance policy. 5. The case of the third respondent was that the deceased was travelling in the mini lorry and the accident was caused due to the negligence of the lorry bearing No.AP-04-U-2124 and as such respondents 3 and 4 being the owner and insurer of the mini bus are not liable to pay compensation. At the time of the accident, the mini lorry had a valid permit, the driver holds a driving licence and insured with the fourth respondent. 6. The case of the fourth respondent-Oriental Insurance Company Limited is that the occurrence of the accident was not reported by the insured in collusion with the petitioners-claimants with a view to cause loss to this respondent; that the policy number mentioned by the petitioners in the petition does not tally with the series of the polices issued by it and the mini lorry was not insured with it and that the accident took place due to the rash and negligent driving by the driver of the lorry bearing No.AP-04-U-2124 and as such this respondent is not liable to pay any compensation. 7. Basing on the pleadings of both sides, the Tribunal framed the following issues: i.Whether the pleaded accident was occurred resulting in the death of the deceased and if so was it due to the fault of the driver of the lorry bearing registration No.AP.O4-U-2124 belonging to first respondent or due to the fault of the driver of the mini lorry bearing No.AP.03-T-2124 belonging to 3rd respondent? ii. Whether the lorry bearing No.AP.04-U-2124 was validly insured by the date of accident and if so whether the polices cover the risk of the deceased? iii.Whether the claimants are in principle entitled to compensation and if so what amount and from which of the respondents? iv. To what relief? 8. The Tribunal clubbed this O.P. along with O.P.No.480 of 1997 since both the O.Ps arose out of the same accident and as such common evidence was let in. 9. On behalf of the petitioners-claimants, PWs 1 to 7 were examined and Exs.A.1 to A.15 were marked. Ex.B.1-copy of insurance policy of lorry bearing No.AP.04-U-2124 was marked on behalf of the second respondent. 10. The Tribunal after taking into consideration the oral and documentary evidence placed on the record, partly allowed the O.P. for Rs.2,95,000/-with proportionate costs and interest at 9% per annum from the date of the petition till the date of realisation ordering respondents 1 and 2 jointly and severally to pay Rs.1,47,500/-, and respondents 3 and 4 jointly and severally to pay Rs.1,47,500/-. 11. The learned standing counsel for Oriental Insurance company- fourth respondent in his arguments reiterated the contentions which are raised in the grounds of the appeal. 12. Heard the learned standing counsel for the fourth respondent- insurance company and perused the record. 13. Exs.A.1-FIR and A.4-charge sheet coupled with the evidence of PW.7 indicate that the accident occurred due to the rash and negligent driving by the driver of the lorry bearing No.A.P.04-U-2124. However, a perusal of Ex.A.3-M.V.I. report goes to show that both the vehicles were badly damaged in the accident. The extent of the damage that was caused to both the vehicles was not due to the fault of entirely on the part of one vehicle, but it could be caused when there was head on collision between the two vehicles. Further, when the accident occurred due to collision of two vehicles, even if it is due to the rash and negligent driving of the driver of one of the vehicles, the owners of both the vehicles involved in the accident are jointly and severally liable to pay compensation. In that view of the matter, the Tribunal has fastened the liability on the owners and insurers of both the vehicles. Therefore, this court is of the view that the Tribunal has not committed any error in fastening the liability on the owner and insurer of the mini lorry also. The contention of the fourth respondent- insurance company that the policy mentioned in the claim petition does not tally with the series of polices issued by it cannot be accepted since the fourth respondent-insurance company has not seriously contested this issue by examining any witness. Further, PWs 1,2 and 7 were not cross-examined on this aspect. As far as the age of the deceased at the time of accident is concerned, the Tribunal in the absence of any conclusive proof, fixed the age of the deceased at 43 years on the basis of Ex.A.11-post mortem certificate. The contention of the fourth respondent-insurance company that the deceased was a gratuitous passenger cannot be accepted since the deceased was travelling as care taker of the alcohol loaded in the mini lorry. 14. In the circumstances, this court is of the view that the impugned order does not suffer from any infirmity warranting interference from this court and the M.A.C.M.A. is liable to be dismissed. 15. In the result, the M.A.C.M.A. is hereby dismissed. No order as to costs. ​ ​_______________ B.N.RAO NALLA,J 21-10-2010 Stp