The Untied India Insurance Co Ltd vs N.Narayanamma 8 Ors on 6 March, 2025

Date:

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.
                                         5



                      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
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driver 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
11

partly 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



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