IMPORTANT POINT
The main legal point established in the judgment is that the insurer's liability is limited to the sum assured for personal accident of the owner-cum-driver when the accident is caused by the negligence of the deceased.

JUDGMENT :

N. TUKARAMJI, J.

This appeal has been filed by the respondent No.2/insurer assailing the decree and order dated 22.09.2017 in M.V.O.P.No.172 of 2006 on the file of the Motor Accident Claims Tribunal-cum-XIV Additional Chief Judge, City Civil Court, Hyderabad.

2. We have heard Mr. Kota Subba Rao, learned counsel for the appellant/respondent No.2/insurer and Ms. D. Pramada, learned counsel for the respondents/petitioners.

3. Briefly stated the case of the respondents 1 to 4/claim petitioners (hereinafter ‘the petitioners’) is that on 12.08.2005 while A.Srinivas Rao/deceased as driver along with wife, son, mother and one Ravi Kumar were proceeding in a car bearing No.AP15P0666 (for short, ‘the car’) and when they reached 113/2 KM on Rajiv Rahadari one unknown motorcyclist suddenly came in opposite direction and in an attempt to avoid collision the driver/deceased turned the car as a result it hit the culvert and caused grievous injuries to all the inmates and on 26.10.2005 the driver/deceased succumbed. The wife, two sons and father of the deceased filed petition under Section 166 of the Motor Vehicles Act (for short, ‘the Act’) pleading loss of dependency for compensation of Rs.One Crore. The tribunal after due enquiry awarded Rs.27,45,600/- with interest at 6% per annum from the date of the petition till realization by holding that the owner of the car/insured and insurer/respondents 1 and 2 are jointly and severally liable to pay compensation.

4. The contest of the appellant/insurer/respondent No.2 (hereinafter ‘the insurer’) is that the tribunal failed to consider the fact that the accident occurred due to self negligence of the deceased. As such the insurer cannot be held liable to indemnify the insured to pay compensation for the self negligence of the insured. This principle has been fortified by the Hon’ble Supreme Court in Oriental Insurance Company Limited v. Meena Variyal and others – 2007(5) SCC 428. Further pleaded that in Surender Kumar Arora and another v. Dr. Manoj Bisla and others – 2012 ACJ 1305 it was held that once the victim or the dependants have opted to proceed under Section 166 of the Act or 163-A the burden of proving the negligence or otherwise would be on the claimants. That apart, the tribunal ought to have considered that, the deceased being a business person, his demise would only affect the supervisory services. Further considering the income out of fixed assets as loss of income is improbable. The amounts granted under conventional heads are beyond the directives prescribed in the dictum of National Insurance Company Ltd. vs. Pranay Sethi and others, (2017) 16 SCC 860.

5. Learned counsel for the petitioners would submit that the accident occurred while attempting to avert the accident. However as the rash and negligent driving of the car has been concluded by the materials on record, the tribunal determining the compensation taking the income into account and other aspects placed on record is perfectly justified. Therefore, there is no tenable reason for interference.

6. The pleadings of the parties are considered and the materials on record are perused.

7. The petitioners’ case is that, the accident occurred while the deceased was driving the vehicle and it has been specifically pleaded that in an attempt to avoid the accident with the motorcycle the accident occurred. Thus as per the petitioners there was no rash or negligence on the part of the deceased. Howsoever the police in the final report/Ex.A-4 concluded that the accident was due to rash and negligent driving of the driver of the car i.e. the deceased.

8. Section 166 of the Act provides for compensation on fault liability wherein the burden lies on the petitioners to prove negligence on the part of the driver who caused the injuries or the death. In the present case, the deceased as driver on his own negligence caused the accident and suffered death. Therefore, for the negligent driving of the tortfeasor himself, his dependants are cla