Contributory negligence and apportionment of liability between insurers and drivers under the Motor Vehicles Act, 1988.

JUDGMENT :

V. GOPALA KRISHNA RAO, J.

1. The appellant is 3rd respondent/Insurance company and the respondents are claim petitioners and respondent Nos.1, 2, 4 and 5 in M.V.O.P.No. 624 of 2005 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, West Godavari at Eluru. The appellant filed the instant appeal questioning the legal validity of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition.

3. The claim petitioners filed the petition under Section 166 of the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V. Rules, 1994 claiming compensation of Rs.2,00,000/- for the death of their mother, namely, Bharothu Mangamma, in a motor vehicle accident that took place on 04.01.2005.

4. The brief averments in the petition filed by the petitioners are as follows:

On 04.01.2005 the deceased was proceeding from Vissannapet in an auto bearing registration No. AP 16TU 4733 and when the auto reached near Kudapa, Madhavaram village, a tractor-trailer bearing registration Nos. AP 16AK 6894 & AP 16AK 6895 being driven by its driver in a rash and negligent manner at high speed came in opposite direction and dashed against the auto, resulting in the instantaneous death of the deceased. The accident occurred due to rash and negligent driving of the drivers of both the tractor and the auto. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the tractor-trailer. The 4th respondent is driver-cum-owner and the 5th respondent is insurer of the auto. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.

5. Respondent Nos.1, 2 and 4 were set ex-parte.

6. Respondent Nos.3 and 5/Insurance companies filed counters separately by denying the manner of accident, age, avocation and income of the deceased.

It is pleaded by the 3rd respondent that respondent Nos.1 and 4 were not having valid driving licences at the time of accident and there was no insurance coverage to the tractor-trailer.

It is pleaded by the 5th respondent that there was a clear violation of terms and conditions of the policy as 15 passengers were travelling in the auto at the time of accident, the first information report and the charge sheet were against the 1st respondent but not against the 4th respondent, the 1st respondent was not having a valid driving licence at the time of accident, and there was no insurance coverage to the auto.

7. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:

(1) Whether the accident occurred due to rash and negligent driving of the tractor-cum-trailer bearing No. AP 16AK 6894 and AP 16AK 6895 driven by its driver-the 1st respondent?

(2) Whether the petitioners are entitled to claim any compensation? If so, to what amount and against which of the respondents?

(3) To what relief?

8. During the course of enquiry in the claim petition, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.11 were marked. On behalf of respondent Nos.3 & 5, R.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked.

9. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred only due to rash and negligent driving of the driver of the tractor-trailer and, accordingly, allowed the petition granting compensation of Rs.2,00,000/- against respondent Nos.1 to 3, while dismissing the claim petition against respondent Nos.4 & 5. Aggrieved against the said order, the appellant/3rd respondent-Insurance company preferred the present appeal.

10. Heard learned counsels for both the parties and perused the record.

11. Learned counsel for the appellant/Insurance company contended that as per the averments of the claim petition and contents of the first information report and the inquest report, the accident took place beca