Andhra Pradesh High Court – Amravati
The Untied India Insurance Co Ltd vs N.Narayanamma 8 Ors on 6 March, 2025
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THE HON'BLE SRI JUSTICE A. HARI HARANADHA SARMA
M.A.C.M.A.No.614 of 2016
JUDGMENT:
The 4th respondent [the United India Insurance Co. Ltd.], in
M.V.O.P.No.178 of 2008 on the file of learned IX Additional District Judge-
cum-Chairman, Motor Accidents Claims Tribunal (FTC), Chittoor (for short
“MACT”) filed the present appeal invoking Section 173 of the Motor Vehicles
Act, 1988 (for short “the M.V. Act“), questioning the propriety and sustainability
of the decree and order dated 28.12.2011 therein passed therein by the
learned MACT.
2. Respondent Nos.1 to 6 herein were the claimants before the learned
MACT and respondent Nos.7 to 9 were respondents 1 to 3.
3. For the sake of convenience, the parties will be hereinafter referred with
reference to their status before the learned MACT i.e., is as and how they are
arrayed in the impugned order.
4. Claimant No.1 is the wife, claimant Nos.2 to 6 are the children of one
M.Venkatesu Gowdu (hereinafter referred to as “deceased”). 1 st respondent
L.Thomas, is the registered owner of tractor bearing No.AP 03 D-3079
(hereinafter referred to as “offending vehicle No.1”) and the 2 nd respondent
Roshan Zameer is its purchaser by the date of accident and also the owner-
cum-driver. 3rd respondent is the owner of the auto bearing No.CAS 3017
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(hereinafter referred to as “offending vehicle No.2”). 4 th respondent is the
insurer of the said vehicle.
Case of the claimants:
5.[i] The deceased was travelling in offending vehicle No.2 on 07.08.2003
along with some other villagers from Baireddipalle village to go to their village
Ramanapalle. When they were near Ramarachabanda place near
Ganginayanipalle Village, Baireddipalle Mandal, within the limits of
Baireddipalle Police Station, Chittoor District, both the offending vehicles
driven by respective drivers, dashed against each other in a rash and
negligent manner, whereby the auto in which the deceased was travelling,
turned into 90 degree angle to its right side, then the deceased who was
sitting on the left side, was thrown between the two wheels and sustained
head injury apart from the injuries on the ribs, legs etc., the deceased was
shifted to Dr.Balaram Nursing Home for first aid, from there to CMC Hospital,
Vellore, but on the way to hospital, he succumbed to injuries. A case in Crime
No.33 of 2003 was registered for the offences punishable under Sections
304A and 337 of the Indian Penal Code, 1860 (for short “I.P.C.”) against the
driver of the tractor (offending vehicle No.1). It is the specific case of the
claimants that the accident occurred due to the rash and negligent driving of
the drivers of both the vehicles. Hence, all the respondents are liable to pay
compensation.
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[ii] The deceased was aged about 59 years, hale and healthy,
agriculturist, earning Rs.75,000/- per annum and contributing the same to the
family. He was also doing the business of selling sheeps and cows in and
around the villages earning Rs.5,000/- per month additionally. Hence, the
claimants are entitled for a compensation of Rs.5,00,000/- being the
dependants and legal heirs.
6. Owners of both offending vehicles remained ex parte. The 4 th
respondent-Insurance Company (appellant herein) with whom the offending
vehicle No.2 was insured, alone contested the case.
7. [i] The case of the appellant (4th respondent) in brief is that the
petitioner shall prove the pleaded accident, death of the deceased due to
accident, dependency and entitlement of the claimants for compensation,
negligence of driver of offending vehicle No.2 in occurrence of the accident,
age, occupation and income of deceased, valid and effective insurance policy
for offending vehicle No.2 issued by the 4th respondent, valid and effective
driving licence for the driver of offending vehicle No.2, compliance of
conditions of police by the 3rd respondent-owner of offending vehicle No.2
etc., with clear and strict proof.
[ii] Further, it is also claimed by the 4th respondent (claimant) that the
case is registered by police against the driver of the offending vehicle No.2
and the cause for the accident is the negligence of the driver of the offending
vehicle No.1 and that there was no negligence on the part of driver of
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offending vehicle No.2. Therefore, no liability can be fastened on the 4 th
respondent (appellant) Insurance Company.
8. Reference to both vehicles involved in the accident viz., the tractor and
auto as offending vehicle No.1 and offending vehicle No.2 herein is made for
the sake of convenience and clarity as to facts and to appreciate the
contentions made by the parties.
9. On the strength of pleadings, the learned MACT settled the following
issues for trial:
1. Whether the accident was caused due to the rash and negligent
driving of the driver of the Tractor bearing No.AP 03 D 3079 or the
Auto bearing No.CAS 3017?
2. Whether the petitioners are entitled for any compensation? If so to
what amount and from whom?
10. Evidence before learned MACT:
Sl.No. Description Remarks
Oral evidence P.W.1: M.Mohan Gowdu Claimant No.2
P.W.2: J.M.Krishnaiah Chetty Eyewitness to the
accident
Documentary Ex.A1: Certified copy of the FIR.
evidence Ex.A2: Certified copy of the
Charge sheet.
Ex.A3: Certified copy of the
Accident Information Register.
Ex.A4: Certified copy of M.V.I.
Report. On behalf of
Ex.A5: Certified copy of P.M. petitioner
Report.
Ex.A6: Certified copy of rough
sketch.
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Ex.A7: Certified copy of inquest
report.
Ex.B1: Copy of the Insurance On behalf of
Policy respondents.
Findings of learned MACT:
11. Learned MACT while addressing the rival contentions and issues, as to
whether the accident occurred due to exclusive negligence on the part of the
driver of the tractor (offending vehicle No.1) or with the contribution of
negligence by the driver of the auto (offending vehicle No.2), by referring to
crime record and registration of case against the driver of the offending
vehicle No.1 viz., Roshan Zameer, respondent No.2, observed that mere
registration of case and filing of charge sheet cannot be the exclusive basis to
conclude that the accident has occurred due to exclusive negligence of the
driver of offending vehicle No.1. The standard of proof like beyond the
reasonable doubt applicable in criminal cases cannot be extended to the
cases before the learned MACT and probability is sufficient. Further observed
that, the contesting 4th respondent viz., the Insurance Company did not lead
any evidence nor did take any steps to summon the drivers of either tractor or
auto viz., offending vehicles 1 and 2 to place any convincing material to
disbelieve the contribution of negligence by the driver of the auto. Further, the
learned MACT found that as against the evidence of P.W.2, who is said to be
an eye-witness, there is no rebuttal evidence to discord his testimony. Hence,
in the light of the evidence of P.W.2, absence efforts by the Insurance
Company; occurrence of accident due to contributory negligence of drivers of
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both vehicles pleaded by the claimants is fit to be accepted. Accordingly, the
compensation payable is apportioned between the persons responsible in
respect of two vehicles by learned MACT.
12. There is no appeal by claimants questioning the apportionment and the
quantification of compensation. There is no appeal by the respondents 1 and
2, who are concerned with the offending vehicle No.1 viz., tractor. Owner of
the auto i.e. 3rd respondent remained ex parte all through. Since R1 to R3
before the learned MACT, remained ex parte therein and as no additional
burden would be thrown on them, in the event of either allowing or dismissing
the appeal, this Court finds that their presence is not necessary and the
language under Order XLI, Rule 14 of CPC as to dispensing presence of
parties in appeal, who remained ex parte before the trial Court, is applicable to
the context. Hence, it is found that there is no need of notice to them. It is
relevant to note the Order XLI, Rule 14, in sub-rule (1) of CPC (A.P. State
Amendment) proviso, namely:-
“Provided that the Appellate Court may dispense with service of notice
on respondents, who have remained absent, against whom the suit
has proceeded ex parte in the Court from whose decree the appeal is
preferred or who have been declared absent by the said Court.”
Proper appearance of parties before this Court:
13. [i] In the context of the case before this Court, specific notice to
respondents 1 to 3 is not necessary as they remained ex parte. However, in
respect of respondents 1 to 8 in this appeal, notices served. Against R9-
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S.A.Nazeer, owner of the auto, appeal was dismissed for default and it is also
observed in the case proceedings that R9 is not necessary party since the
Insurance Company is contesting the matter. It is also relevant to note that R-
9 herein remained ex parte before the learned MACT.
[ii] In this appeal, for respondents 1 to 6, although notices are
served, they did not choose to appear. Hence, this Court is constrained to
proceed ex parte after giving sufficient opportunity. Respondents 7 and 8
herein are persons concerned with the tractor and respondent No.9 herein is
the owner of the auto-offending vehicle No.2. The claim in respect of
claimants 2 to 6 viz., respondents 2 to 6 herein, was dismissed by the learned
MACT and petition was allowed in respect of claimant No.1 (R1) alone.
Therefore, there is sufficient representation of parties and proper notice to the
parties in this appeal.
Arguments in Appeal:
14. The crime was registered against the driver of the offending vehicle
No.1 and he was charge sheeted. The evidence of P.W.1 and P.W.2 is
interested one. Therefore, the same cannot be the basis. The observations
and findings as to contributory negligence by the driver of auto are not tenable
and it can be presumed that as there was no insurance for the offending
vehicle No.1, the case is twisted implicating the auto without any basis and the
learned MACT erred in believing the contributory negligence on the part of the
8driver of the auto and the apportioning the liability on the owner and Insurance
Company of the auto-offending vehicle No.2.
15. Since there is no appeal by the claimants and by the persons
concerned with offending vehicle No.1, the apportionment of liability between
offending vehicle Nos.1 and 2, need not be considered as in dispute from their
end. However, the (appellant) Insurance Company of offending vehicle No.2-
auto is disputing such apportionment. Since the claimants are not before this
Court either by appeal or cross-appeal or atleast by way of participation,
contending that the compensation awarded to them as low, the quantum
aspect also can be considered as out of dispute. The legal position that even
in the absence of appeal and cross-objections, the respondents-claimants can
seek enhancement of compensation applies only when the claimants are
before the Court and makes such claim or contest. Therefore, now the
quantum aspect also is out of dispute. Now, the only point requires
determination is, who is negligent among the drivers of offending vehicle
Nos.1 and 2.
16. Therefore, the points for determination are:
1. Whether the pleaded accident dated 07.08.2003, was occurred
owing to the negligent driving of the drivers of both offending
vehicle No.1 and offending vehicle No.2 and the apportionment
of liability at 50% each made by the learned MACT between the
drivers of both vehicles is justified and sustainable in the facts
and circumstances of the case?
2. What is the result of the appeal?
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Point No.1:
Analysis of evidence:
17. P.W.1-M.Mohan Gowdu, is the son of the deceased. He is the second
claimant. His evidence is that the 2nd respondent before the MACT is the
driver of offending vehicle No.1 (tractor) and the 3rd respondent is the driver of
offending vehicle No.2 (auto). They were proceeding in opposite direction.
Neither of them moved aside to avoid the accident. Consequently, both the
vehicles dashed against each other. During cross-examination, it is elicited
that he is not an eye-witness to the accident and as per the investigation of
the police, the driver of the tractor-offending vehicle No.1 is responsible for the
accident and that he do not know whether the case is registered against the
driver of the auto. He has denied the suggestion that there was no negligence
on the part of the driver of the auto-offending vehicle No.2.
18. P.W.2 is one J.M.Krishnaiah Chetty, his name is referred by P.W.1 as
an informant under FIR. It is relevant to note that under Ex.A1-FIR,
Krishnaiah Chetty is shown as informant. The contents of the complaint
annexed to Ex.A1 would show that P.W.2 was travelling along with the
deceased in the auto at about 2.30 in the afternoon and that the tractor-
offending vehicle No.1 came at high speed and dashed the auto-offending
vehicle No.2. But his evidence in chief examination is that both vehicles were
on the center of the road and neither of the drivers moved aside to avoid the
accident. Consequently, both the vehicles dashed against each other and he
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has specifically stated that the accident is occurred due to rash and negligent
driving of drivers of both the vehicles viz., the tractor and auto. During cross-
examination, he has denied the suggestion that the negligence of the driver of
offending vehicle No.1 viz., the tractor alone is the cause. He has also denied
the suggestion that there was no negligence on the part of the driver of auto –
offending vehicle No.2. P.W.2 is the direct eye-witness to the accident and he
has travelled in the auto along with the deceased. Except the suggestion that
he is interested in helping the claimants, no other material is placed to discard
the evidence of P.W.2.
19. Whether the case on hand would fall under even composite negligence
as both drivers are negligent as victim is third party, is a question? Where a
claim is made by one of the party to the negligence, then it would be a case of
contributory negligence. Distinction between composite and contributory
negligence is explained by the Hon’ble Supreme Court in a case of Andhra
Pradesh State Road Transport Corporation and another v. K.Hemlatha
and others1, wherein the Hon’ble Supreme Court has observed at para No.10
as under:
“10. ‘Composite negligence’ refers to the negligence on the part of two or
more persons. Where a person is injured as a result of negligence on the
part of two or more wrong doers, it is said that the person was injured on
account of the composite negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and severally liable to the injured for
payment of the entire damages and the injured person has the choice of
proceeding against all or any of them. In such a case, the injured need
not establish the extent of responsibility of each wrong-doer separately,
nor is it necessary for the court to determine the extent of liability of each
wrong-doer separately. On the other hand where a person suffers injury,1
(2008) 6 SCC 767
11partly due to the negligence on the part of another person or persons, and
partly as a result of his own negligence, then the negligence on the part of
the injured which contributed to the accident is referred to as his
contributory negligence. Where the injured is guilty of some negligence,
his claim for damages is not defeated merely by reason of the negligence
on his part but the damages recoverable by him in respect of the injuries
stands reduced in proportion to his contributory negligence.”
20. In case of composite negligence, the claimants are entitled to proceed
against one or all of them and they had their choice and each one of the
persons responsible for composite negligence, are liable to answer entire
claim. However, in the present case, the restriction of the liability and
apportionment made by the learned MACT is not in dispute from the end of
the claimants by way of any appeal or by at least participation etc.. So it can
be taken that claimants have no grievance against apportionment of
negligence and compensation. In fact, it is their case that both the drivers are
negligent.
21. The evidence placed by the claimant viz., the oral evidence of P.W.2-
eyewitness to the accident and recitals in Ex.A1-FIR that both the vehicles
coming in opposite direction, and they were negligent, would sufficiently
discharge the prima facie burden on the part of claimants and then the onus
shifts to the Insurance Company. Logically, legally and academically
speaking, the Insurance Company could have summoned its driver or at least
the owner or the Investigating Officer or any other person shown as eye-
witness in the charge sheet, to probablise its contention, that there is absence
of negligence on the part of the driver of the offending vehicle No.2/auto and
that there is complete negligence on the part of the driver of the (tractor)/
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offending vehicle No.1. No such efforts were put in. The standard of burden
of proof in MACT cases can be equivalent to that of probability. As rightly
observed by the learned MACT, the very factum of vehicles coming in
opposite direction and the time being 2.30 p.m. in the afternoon and absence
of any other evidence, contradicting the evidence of P.W.2, it can be
concluded that the contribution of negligence by both drivers is fit to be
accepted and apportioned equally between both vehicles.
22. In the light of the discussion made above and reasons stated, the point
is answered against the appellant and in favour of the claimants concluding
that the pleaded accident dated 07.08.2003 is the result of negligence of
drivers of both the offending vehicles and findings of the learned MACT in that
regard are fit to be accepted. Accordingly, confirmed and concurred. The
point is answered accordingly.
Point No.2:
23. In the result, the appeal is dismissed.
As a sequel, miscellaneous petitions, if any, pending in this appeal shall
stand closed.
____________________________
A. HARI HARANADHA SARMA, J
Date: 06 .03.2025
ARR/Pnr
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THE HON’BLE SRI JUSTICE A. HARI HARANADHA SARMA
M.A.C.M.A.No.614 of 2016
Dt. 06.03.2025
ARR/Pnrp
