Skip to content


V. Rajeswara Rao Vs. Karna Ademma and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 252, 253 and 254 of 1975 and C.R.P. No. 1189 of 1975
Judge
Reported in[1980]50CompCas140(AP)
ActsMotor Vehicles Act, 1939 - Sections 95(2)
AppellantV. Rajeswara Rao
RespondentKarna Ademma and ors.
Appellant AdvocateA. Rangacharyulu, Adv.
Respondent AdvocateP. Sreenivasamurthy, Adv. for respondents Nos. 1 and 7, ;J.V. Suryanarayana, Adv. for respondent Nos. 2 and 6, ;P.V. Seshaiah, Adv. for respondent No. 3, ;M.B. Ramasarma, Adv. for respondents Nos. 4 a
DispositionAppeals partly allowed
Excerpt:
.....- therefore liability has to be shared equally between owner and driver of bus on one hand and owner of tractor on other - burden of proof to establish fact that there has been breach of insurance policy in order to avoid liability is upon insurance company - however having regard to peculiar facts of case burden can be said to have been discharged - insurance company is not liable in so far as liability in respect of tractor is concerned - though insurance company held liable to extent of rs. 5000 to representatives of deceased and rs. 2500 in regard to injured as far as bus is concerned - as insurance policy limits liability to rs. 2000 in each case insurance company would be entitled to recover excess from owner and driver of bus. - - 2,000 under the terms of the policy as..........was no negligence on the part of the bus driver, but the accident was due to the negligence of the tractor driver, one bonala subrahmanyam and it was, therefore, contended that bonala subrahmanyam also was a necessary and proper party. on the other hand, the contention of the owner of the tractor was that bonala subrahmanyam was not driving the tractor at that time and it was only the 3rd respondent, venkata-subbaiah, that was driving the tractor. there was no negligence on the part of the 3rd respondent and the driver and owner of the bus alone were liable to pay the compensation. the insurance company contended that the accident was due to the rash and negligent driving of the tractor driver, bonala subrahmanyam, but as he did not hold a licence, the insurance company is not liable.....
Judgment:

Alladi Kuppuswami, J.

1. On the third of October, 1970, at 11-30 a.m., there was a collision between the bus APN 3429 and tractor APN 5585 on the road between Kanigiri and Kandukuru at a place between the villages Dubagunta and Kollagunta. One Ramireddi who was travelling in the bus died as a result of the injuries sustained by him in the accident and another person byname Lakshmaiah was injured. Ramireddi's legal representatives--his widow and minor son--filed O.P. No. 66 of 1971 under Section 110A of the Motor Vehicles Act claiming compensation of Rs. 20,000. Another legal representative of the deceased, Ramireddi, the mother, was added as respondent No. 6 to the petition. Lakshmaiah, the injured, filed O.P. No. 72 of 1971 claiming compensation of Rs. 30,000. Respondents Nos. 1 to 5 in both the petitions are the same. Respondents Nos. 1 and 2 are the driver and owner of the bus whereas respondents Nos. 3 and 4 are the driver and owner of the tractor. The 5th respondent is the Madras Motor & General Insurance Company with which both the bus and the tractor were insured. Later on, the United India Fire and General Insurance Company Ltd. came in the place of the Madras Motor & General Insurance Company as the 6th respondent in O.P. No. 72 of 1971 and as the 7th respondent in O.P. No. 66/71.

2. The case of the petitioners in each of the O.Ps was that the accident was due to the rash and negligent driving of the vehicles by the respective drivers. It was contended on behalf of the owner and the driver of the bus that there was no negligence on the part of the bus driver, but the accident was due to the negligence of the tractor driver, one Bonala Subrahmanyam and it was, therefore, contended that Bonala Subrahmanyam also was a necessary and proper party. On the other hand, the contention of the owner of the tractor was that Bonala Subrahmanyam was not driving the tractor at that time and it was only the 3rd respondent, Venkata-subbaiah, that was driving the tractor. There was no negligence on the part of the 3rd respondent and the driver and owner of the bus alone were liable to pay the compensation. The insurance company contended that the accident was due to the rash and negligent driving of the tractor driver, Bonala Subrahmanyam, but as he did not hold a licence, the insurance company is not liable according to the terms of the policy and the provisions of the Motor Vehicles Act. Even assuming that the accident was due to the negligence, of the driver of the bus, the liability of the insurance company would be limited to Rs. 2,000 under the terms of the policy as well as Section 93 of the Motor Vehicles Act.

3. The Tribunal (Additional District Judge, Ongole), after considering the entire documentary and oral evidence in the case, held that neither Bonala Subrahmanyam nor the third respondent was driving the tractor at the relevant time, and it is not known as to who the driver was. The Tribunal further held that the drivers of both the vehicles were guilty of gross negligence in driving the vehicles and hence respondents Nos. 1, 2 and 4, namely, the owner and driver of the bus and the owner of the tractor, were jointly and severally liable for the compensation payable to the petitioners in each case. The Tribunal held that the petitioners and the 6th respondent in O.P. No. 66 of 1971 who were the heirs of the deceased, Ramireddi, are entitled to a compensation of Rs. 10,000 and the petitioner in O.P. No. 72 of 1971 would be entitled to a compensation of Rs. 3,000. The Tribunal accepted the contention of the insurance company that its liability was limited to Rs. 2,000 in each case. The Tribunal, therefore, directed that out of the compensation awarded in each case, the insurance company is liable to pay Rs. 2,000 and there should be a joint and several liability to pay the balance on the part of respondents Nos. 1, 2 and 4.

4. The owner of the bus has preferred C.M.A. No. 252 of 1975 against the decision in O.P. No. 66 of 1971 holding him liable for compensation of Rs. 10,000 along with respondents Nos. 2 and 4. The owner of the tractor has preferred C.M.A. No. 253 of 1975 and C.M.A. No. 254 of 1975 against the decisions in O.Ps. 72 and 66 of 1971, respectively. C.M.A. No. 366 of 1975 is filed by Lakshmaiah, the injured person, against the decision in O.P. No. 72 of 1971 awarding compensation only to the extent of Rs. 3,000. In the appeal he claims that he is entitled to the full compensation of Rs. 30,000 claimed. C.R.P. No. 1189 of 1975 is filed by the owner of the bus against the decision in O.P. No. 72 of 1971 holding him liable along with the driver to pay compensation of Rs. 1,000 to the injured person out of Rs. 3,000 awarded to him. The revision has been filed as, according to the provisions of the Motor Vehicles Act, no appeal lies if the amount awarded is less than Rs. 2,000.

5. In these appeals and the revision petition, the following questions arise for consideration :

(1) Whether Bonala Subrahmanyam or respondent No. 3 was the driver of the tractor ?

(2) Whether the accident was caused due to the negligence of the driver of the bus or the driver of the tractor or of both of them ?

(3) What is the proper amount of compensation to be awarded to the petitioners in each case ?

(4) What is the extent of the liability of the insurance company in each case ?

(5) Whether the Tribunal was right in holding that all of them are jointly and severally liable or whether it should have apportioned the liability ?

6. Point No. 1.--Who was the driver of the tractor? The case of the insurance company and the owner and the driver of the bus is that the tractor was driven by Bonala Subrahmanyam who had no licence, whereas the case of the owner of the tractor is that respondent No. 3, Venkata Subbaiah, was the driver of the tractor at the time of the accident. P.Ws. 2 and 4 are passengers of the bus. P.W. 5 is the petitioner who sustained injuries. All these witnesses are unable to say who the tractor driver was. Thus, there is no evidence on the side of the petitioners to prove whether the third respondent or Bonala Subrahmanyam drove the vehicle at the time of the collision. Bonala Subrahmanyam was prosecuted in C.C. No. 146 of 1970 on the file of the J.F.C.M., Kandukuru, for rash and negligent driving of the tractor. He was acquitted on the ground that his name was not mentioned as the driver of the bus in the F.I.R. even though the driver knew him previously. An appeal against the acquittal by the State was dismissed. R.W. 1 claimed that he was another passenger and he deposed that Bonala Subrahraanyam was the driver of the tractor. R.W. 1 was not summoned by the court. He admitted that he travels in the buses of the second respondent free of fare though he pretended that he did not know the second respondent. He stated that he had to go to Ongole on that day. There is no reason for him to travel by this bus which plied between Kanigiri and Kandukuru when there were direct buses to Ongole. The Tribunal, in our view, rightly rejected his evidence as untrustworthy. The only other evidence is that of the driver of the bus, R.W. 2. Apart from the driver being an interested witness, it has already been noted that he did not mention Bonala Subrahmanyam's name in the F.I.R. even though he stated that he knew him before. There is, therefore, no satisfactory evidence to prove that Bonala Subrahmanyam was the driver of the tractor at the time of the collision.

7. Evidence was let in on the part of the owner of the tractor that R. W. 3, who held a licence, was driving the tractor at the time of collision. R.W. 3 stated that due to the impact he was thrown out of the tractor and fell on some bushes. He fled from the scene of accident to his relatives' house at Netivaripalem where he stayed for a day or two and then came to Singaraya-konda. He did not produce any certificates for injuries sustained by him. It is in evidence that Kandukuru, where there is a hospital, was three miles from the scene of the accident whereas Netivaripalem was six miles. It is unbelievable that he walked all the six miles to the village when he could have gone to Kandukuru to attend to the injuries. A carbon copy of an application dated October 12, 1970 (Ex. B-22), addressed to the Deputy Superintendent of Police and another carbon copy of application addressed to the Circle Inspector of Police (Ex. B-25) made by the owner of the tractor informing them about the collision, are relied on. In these documents, the name of the driver is shown as Subbadu and it is argued that Subbadu is the shortened form of Venkata Subbaiah. The owner of the tractor, R.W. 5, admitted that he did not take steps to get the originals of Exs. B-22 and B-25. The Tribunal, therefore, rightly refused to act upon the carbon copies. It was admitted by R.W. 5 that a cleaner by name Venkateswarlu was also travelling in the tractor. When the identity of the driver was in dispute, the cleaner would have been the most important witness. But he was not examined. A payment register (Ex. B-24) maintained by the owner of the tractor was also relied on. The Tribunal did not attach any importance to this register as it was of the view that the register would have been brought into existence for purposes of this case. We agree with the Tribunal that there is no reliable evidence to show that the 3rd respondent was the driver of the tractor at the time of the collision. As pointed out by the Tribunal, some one other than Bonala Subrahmanyam or the third respondent would have driven the tractor at the relevant time but it cannot be said who he was.

8. Point No. 2.--Whether the accident was caused due to the negligence of the driver of the bus or the driver of the tractor or of both of them P. W. 5, a person who was sitting near the driver of the bus, said that he did not observe the collision as he was drowsy at the time of the accident. P.Ws. 2 and 4 no doubt stated that the bus was travelling on the left side of the road and the tractor was coming from the opposite direction on the wrong side. R.W. 1, whose evidence has been referred to in another connection, is another passenger who says that there was no negligence on the part of the bus driver. R.W. 2, the driver of the bus, stated that the bus was driven at a speed of 15 miles per hour. The photographs, Exs. B-11 to B-14, taken after the accident show the position of the vehicles. It is seen that both the vehicles were facing the same direction on the road. The tractor seems to have taken a round about turn so that it faced the same direction as the bus. This clearly shows that the impact of the bus must have been terrific. Exhibit B-20 is the statement of the Motor Vehicles Inspector who was examined as P.W. 13 in the criminal case. Exhibit B-5 is his report, which shows that the bus was found to be on the extreme right side of the road beyond the road margin. From the report it is clear that both the vehicles sustained heavy damage. The fact that the tractor hit the bus on its left would show that the tractor was proceeding on the right side of the road and the bus steered to its right on seeing the tractor with the result that the tractor hit the bus on its left.

9. In Koth Hing Keng v. Low Pee L.T. Co. [1967] ACJ 304, it was held that where there was a collision between the car and the lorry coming from opposite directions and both parties blamed each other, in the absence of any special circumstances, the court should generally raise a presumption that both the drivers were equally negligent. The Tribunal was, therefore, right in the circumstances above stated in holding that .this was a fit case to hold that both the drivers were equally rash and negligent in driving the vehicles.

10. Point No. 3.--What is the proper amount of compensation to be awarded to the petitioners in each case The Tribunal awarded Rs. 10,000 as compensation for the legal representatives of the deceased, Ramireddi, and Rs. 3,000 to the injured, Lakshmaiah.

11. Ramireddi was aged 45 years. In the petition it was stated that he owned Ac. 2.00 cents of land. During the evidence, his widow, P.W. 7, however, attempted to say that he owned 20 acres of dry and wet land and a house and that he used to earn Rs. 1,000 per month. The Tribunal rightly refused to act upon this evidence when in the petition while furnishing the details it was stated that the annual income of the deceased was Rs. 1,000. It is seen, as this income was derived from the land, it cannot be said that by reason of the death of Ramireddi his legal representatives will suffer loss of the entire income. Remireddi's widow stated that she had to engage another farm servant in view of her husband's death and had to pay Rs. 700 to him annually. Taking this into account and placing his life expectancy at 20 years, the Tribunal held that it would be just and proper to award a compensation of Rs. 10,000. We see no reason to differ from this conclusion of the Tribunal.

12. As far as Lakshmaiah is concerned, the evidence is that he underwent an operation, P.W. 3 is the doctor who performed the operation. The X-Ray photograph revealed fracture of 8th, 9th and 10th ribs on the left side and also fracture of the left upper arm. During the operation it was found that the spleen was injured and it was removed. The injured person (P.W. 5) deposed that due to the fracture of the left side ribs and removal of spleen he cannot lift any weight or undertake any physical labour. His lungs were also affected due to the accident and he cannot freely breathe. P.W. 3, however, stated that a man without a spleen can lead a normal life though he stated that he cannot say whether there will be any dimunition in his performance. The petitioner was originally working as a clerk writing accounts for merchants and as maistry supervising the work and thereafter was doing the business of a vegetable vendor. The Tribunal held that this type of work does not require much bodily strain and the petitioner would be able to do his work even after the accident. The Tribunal, therefore, awarded a compensation of Rs. 3,000. Another doctor, P.W. 1, who examined him after his return from hospital deposed that his impression was that there was 40 per cent. dimunition in his capacity. The case of the petitioner is that he was earning about Rs. 150 per month as vegetable vendor. His age is shown as 35 years and he has dependants, viz., mother, son and daughter. Further, it is in evidence from the account-sheet, Ex. A-5, maintained by the Mission Hospital, that he paid Rs. 506 as medical charges. There is also evidence that there was blood transfusion and he was asked to arrange for the purchase of blood himself. The petitioner claimed Rs. 2,200 for all these expenses including the expenses incurred by his mother, wife and son who attended on him during his stay at the hospital. The Tribunal held that Ex. A-7 was not duly proved as the person who wrote the accounts was not examined and the entries are not supported by vouchers. But there can be no doubt that at least another sum of Rs. 500 would have been spent during the period from October 3, 1970, to November 28, 1970, when he was in hospital. At a modest estimate the expenses including the medical charges would not be less than Rs. 1,000. We are of the view, taking all these circumstances into consideration, that the compensation fixed is too low. We consider a compensation fixed at Rs. 5,000 would be proper in the circumstances of the case.

13. Point No. 5.--Apportionment of liability. The Tribunal held that respondents Nos. 1, 2 and 4 are jointly and severally liable. Under Section 110B of the Motor Vehicles Act, the Tribunal has to make an award determining the amount of compensation which appears to be just and specify the person or persons to whom compensation shall be paid. It has also to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or by any of them, as the case may be. It is thus seen that the Tribunal has to not only determine the compensation but has to specify the amount which has to be paid by the insurer, owner or driver of the vehicle. If two or more vehicles are involved in the accident, we are of the view, on a proper reading of Section 110B, that the Tribunal has to specify the amounts payable by the driver or owner of each of the vehicles involved in the accident. In our view, it will lead to considerable hardship if the Tribunal merely declares that all of them are liable jointly and severally. In this case the finding is that both the drivers of the bus and the tractor were equally responsible for the accident due to their rash and negligent driving. We, therefore, consider that the liability has to be shared equally between the owner and the driver of the bus on the one hand and the owner of the tractor on the other. In other words, R-1 and R-2 will be jointly and severally liable for Rs. 5,000 and Rs. 2,500 to the two sets of petitioners and similarly R-4 will be liable to the extent of Rs. 5,000 and Rs. 2,500.

14. Point No. 4.--The liability of the insurance company.

15. As far as the liability in respect of the bus is concerned it was argued on behalf of the insurance company that its liability should be limited to Rs. 2,000 for each passenger which is the limit imposed by the insurance policy, Ex. B-35, and hence the total liability in respect of the two passengers, one of whom died and the other injured, would be Rs. 4,000. But Section 95(2)(b)(ii)(4) of the Motor Vehicles Act which originally provided that a policy of insurance shall cover any liability up to Rs. 2,000 in all cases other than motor car was amended with effect from March 2, 1970, raising the limit to Rs. 5,000 for each individual passenger. It is admitted by the advocates for all the parties that though the policy was taken on September 27, 1969, and that policy was in force on the relevant date as far as the liability of the insurance company to third parties is concerned it would be governed by the statutory provision contained in Section 95(2)(b)(ii)(4) and not by the policy. We have, therefore, to hold that the representatives of the deceased would be entitled to recover Rs. 5,000 from the insurance company, for which amount the owner and the driver of the bus have been held to be liable, from the insurance company. The injured would be entitled to Rs. 2,500 from the company.

16. It was argued by Sri J. V. Suryanarayana Rao, learned counsel for the insurance company, that the company would not be liable as the tractor had not been driven by a person holding a valid licence and hence there was a breach of one of the conditions of the insurance policy. In this connection reliance was placed upon Section 96(2)(b)(ii) which lays down that the insurance company can raise a defence that there has been a breach of a specified condition of the policy, being one of the conditions laid down in that sub-section. One of such conditions is a condition excluding driving by any person who is not duly licensed. It was submitted that in this case it has been held that the third respondent who was put forward by the owner of the tractor as the licensed driver who was driving the tractor at the time of the accident has been held not to have driven the tractor. As it is not the case of the owner of the tractor that any other licensed driver drove the tractor it must be taken that the person, whoever he was, who drove the tractor was not a licensed driver. On the other hand, Sri M. B. Rama Sarma, learned counsel who appeared for the fourth respondent, the owner of the tractor, contended that the burden is upon the insurance company under Section 96(2)(b) to prove that there was a breach of one of the conditions of the policy in that the tractor was driven by an unlicensed driver [Section 96(2)(b)(ii)]. He submitted that the insurance company had, put forth the case that one Bonala Subrahmanyam, an unlicensed driver, was driving the tractor but this plea was not accepted. Therefore, as the insurance company had failed to prove that the tractor was driven by an unlicensed driver they should be made liable for the amount.

17. It is true that the burden is upon the insurance company who seeks to avoid liability to prove that there has been a breach of the conditions of the policy and the tractor was driven by a person without a licence. But, in this case the owner of the tractor came forward with a specific case that the third respondent drove the tractor and he had a licence. The court below and this court did not accept that case and we have held that the third respondent did not drive the tractor at that time. In other words, the owner of the tractor who was the only person who knew who the driyer of the tractor was, suppressed the truth from the court and came forward with a false case that R-3 was the driver. An adverse inference can, therefore, be drawn against the fourth respondent and the court can well presume that if the name of the true driver of the tractor had been disclosed he would not have had a valid licence and that is why the fourth respondent came forward with the case that respondent No. 3 who had a licence drove the tractor. In view of this, even if the burden was on the insurance company it must be said to have been discharged. It was argued by Sri Rama Sarma that the insurance company had come forward with a positive case that Bonala Subrahmanyam was the driver of the tractor and it failed to prove that he was the driver, and it is not open to the insurance company to contend that any other person was the driver. We are not able to agree with this submission. The insurance company is naturally not aware of the person who actually drove the tractor. They proceeded on the basis of the criminal proceedings which were at that time taken against Bonala Subrahmanyam on the footing that he was the driver and, therefore, assumed that he was the driver of the tractor. The insurance company cannot be pinned down, in the above circumstances, to the statement in their counter that they learnt that Bonala Subrahmanyam who had no licence was the driver. We are, therefore, of the view that it must be held in the special circumstances of this case, that the driver of the tractor who is unknown was one who had no valid licence,

18. Sri Rama Sarma relied upon the decision in Jogindra Kuer v. Jagdish Singh, : AIR1964Pat548 , where it was held that if the insurance company takes the plea with regard to breach of the terms of the policy contending that the driver of the insured vehicle was not duly licensed or was disqualified for holding or obtaining a licence, the onus lies upon the company to establish its allegations. In that case the insurance company admitted that the driver was a licensed driver but submitted that it was not known whether he had a licence on the date of the accident. There was no clear denial that he had no licence on that date. The licence was last renewed on the 7th January, 1953, and it was also submitted that it was sent for renewal. It was not known what happened after the licence was sent for renewal. In those circumstances the learned judges held that the insurance company had not satisfactorily discharged the burden of proof that the driver had no valid licence on the date of the accident. When a licence was sent for renewal it would be proper to assume that it would be renewed unless there was any special circumstance to show that the renewal would be refused. The facts of this case are distinguishable from the facts in the above case. It had already been pointed out by us that as the owner of the driver who knew who the driver of the tractor was, suppressed the truth and put forward another person as the driver of the tractor, obviously because he had a licence, and that case was not believed, it is open to the court to draw an adverse inference against him. The learned counsel for the petitioner relied upon the statement in para. 429, Vol. 22, Halsbury's Laws of England [3rd Edn.], to the effect that the onus is on the insurers to prove that a condition has been broken but not on the assured to prove compliance on his part. He also relied on Bond Air Services Ltd. v. Hill [1955] 2 All ER 476, where it was laid down that as a fundamental principle of insurance law, it is for the insurers who wish to rely on a breach of condition to prove it. We have no quarrel with this proposition but as we have observed having regard to the peculiar facts of this case we have to hold that the said burden is discharged. In the result we are of the view that the insurance company is not liable in so far as the liability in respect of the tractor is concerned.

19. Though we have held that the insurance company is liable to the extent of Rs. 5,000 to the representatives of the deceased and Rs. 2,500 in regard to the injured as far as the bus is concerned, as the insurance policy limits the liability to Rs. 2,000 in each case, the insurance company would be entitled to recover the excess from the owner and driver of the bus, i.e., the insurance company will be entitled to recover Rs. 3,000 in the case of the deceased and Rs. 500 in the case of the injured from the owner and the driver of the bus in these proceedings themselves.

20. In the result, all the C. M. As. are allowed in part in the light of theabove judgment and C.R.P. No. 1189 of 1975 is dismissed.

21. Each party will bear its own costs in the appeals and the C.R.P.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //