HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
MACMA No.4173 OF 2012
JUDGMENT:
1. Aggrieved by the Judgment dated 11.03.2008 in MVOP No.1147 of 2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum- II Additional District Judge, East Godavari District at Amalapuram (for short 'the Tribunal'), the claimant has preferred this appeal for not fastening the liability on the 3rd respondent/insurance company.
2. For convenience, the parties will be referred to as arrayed in the MVOP.
3. The petitioner filed a claim under Sections 163-A and 166 of the Motor Vehicles Act,1988, for compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident.
4. The claimant's case is that on 17.04.2004, the petitioner and two others went to Panasaladoddi to weigh and load paddy in the trailer. After completing the loading, the petitioner and Narma Bapanna Sai sat on the load in the trailer bearing No.AP5U428 attached to the tractor bearing No.AP5U427 (hereinafter referred to as 'offending vehicle). The 1st respondent had driven the tractor rashly and negligently and it overturned due to such driving. The petitioner and Bapanna fell, and the paddy load fell on them. The petitioner had suffered a fracture to his spinal cord. The petitioner was shifted to Government Hospital, Kothapeta.
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MACMA_4173_2012
5. The 3rd respondent filed his counter, submitting that the 1st respondent did not possess a valid driving license and he was under the influence of alcohol at the time of the accident. Respondents 1 and 2 remained exparte.
6. Based on the pleadings, the Tribunal formulated relevant issues. During the trial, on behalf of the claimant, P.Ws.1 and two got examined and marked Exs.A1 to A.23 and Exs.X1 and X2. No oral or documentary evidence was let in on behalf of the respondents. The 3 rd respondent filed a petition under Section 170 of the Motor Vehicles Act, and it was allowed permitting the 3rd respondent to take the defences available to the insured to the extent permissible.
7. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The Tribunal granted a compensation amount of Rs.55,000/- with interest @ 9% per annum against respondents 1 and 2 from the date of the petition till the date of realization; the claim against the 3rd respondent is dismissed without costs.
8. Heard learned counsel for the claimant and 3 rd respondent.
9. The learned counsel for the petitioner contends that he sustained an injury to his spinal cord and cannot do any hard work as a coolie. The disability sustained by him should be treated as 100% disability. The Tribunal should have awarded a minimum amount of Rs.60,000/- 3
MACMA_4173_2012 towards pain and suffering. The Tribunal should have seen that the vehicle in question is being used for the agricultural purpose to transport the agricultural produce, so the 3rd respondent/insurance company cannot disown its liability in payment of compensation to the claimant.
10. Per contra, the learned counsel for the 3rd respondent/insurance company supported the findings and observations of the Tribunal.
11. Now the points for determination are whether the compensation amount awarded by the Tribunal is just and reasonable and whether it requires enhancement? And whether the Tribunal is justified in not fastening the liability on the insurance company? POINT No.1 :
12. As seen from the grounds of appeal, the material on record, and the submission made on either side, there is no dispute about the occurrence of the accident in question. The insurance company has not preferred any appeal questioning the findings about the rash and negligent driving of the offending vehicle's driver. In view of the same, this Court finds that the particulars of the accident need not be mentioned in detail.
13. The petitioner examined as PW.1. The evidence of PW.1 that he sustained injuries in the accident is not disputed by the respondent/insurance company by preferring appeal or cross- 4
MACMA_4173_2012 objections. To show the injuries sustained by the petitioner, he relied on Ex.A3 - attested copy of wound certificate and Ex.A4 to 23 medical bills, Ex.X1 case sheet and Ex.X2 MRI report along with two films. The documents, i.e., Ex.A1 attested copy of FIR and Ex.A2 attested copy of charge sheet, also support the case of the petitioner that he sustained severe injuries in the accident. The petitioner examined PW.2 Dr G.Bhanumathi, medical officer, to prove the treatment by PW.1. The evidence of PW.2 shows that she examined injured and found tenderness over the lower dorsal and upper lumbar region; the X-ray showed compression of B.1 vertebra. She issued Ex.A3 wound certificate. There is only one injury, i.e., wedge compression at L.1 vertebra. According to PW.2, the petitioner had undergone surgery; and was advised to walk with support. She further stated that there is the possibility of weakness in the lower limbs, and the petitioner is required to rest for six months. Ex.X1 case sheet shows the admission date as 18.04.2004 and the discharge date as 30.04.2004. Based on the evidence PW.2, the Tribunal rightly observed that nothing is produced to show that the petitioner sustained disability. The evidence of PWs.1 and 2 shows that the petitioner took treatment for 13 days. He was advised to take rest for six months. The Tribunal awarded an amount of Rs.15,000/- towards loss of earnings. Because the petitioner was working as a Jattu coolie, this Court views that an amount of Rs.4,000/- can be fixed as monthly earnings of the 5 MACMA_4173_2012 deceased, the loss of earnings can be fixed at Rs.24,000/- the petitioner is entitled to an additional amount of Rs.9,000/- under this head.
14. The Tribunal awarded an amount of Rs.25,000/- towards medical and transportation expenses. The Tribunal observed that the petitioner filed a bunch of medical bills under Exs.A4 to A23 to show that the expenses incurred for treatment in Life Line Hospital and the said bills show an expenditure of Rs.23,325/- by the petitioner. In the facts of the case, this Court views that the Tribunal should have awarded an amount of Rs.30,000/- towards medical and transportation expenses, so the petitioner is entitled to an additional amount of Rs.5,000/-. Considering the evidence of PW.2, advised the petitioner to rest for six months, and the petitioner was advised to walk with the support of a stick. In the facts of the case, this Court views that an amount of Rs.30,000/- can be awarded towards pain and suffering, so the petitioner is entitled to an additional amount of Rs.15,000/-. After considering the nature of the injuries, this Court finds an amount of Rs.5,000/- is to be awarded towards attendant charges. The petitioner is entitled to Rs.10,000/- towards extra nourishment and Rs.10,000/- towards loss of amenities. Apart from the compensation amount awarded by the Tribunal to the petitioner, this Court views that the petitioner is entitled to the following additional under various amounts:-
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MACMA_4173_2012 S.No. Head of the claim Amount Amount Difference Awarded by Awarded Amount Tribunal
1. Loss of earnings 15,000/- 24,000/- 9,000/-
2. Medical and 25,000/- 30,000/- 5,000/-
transportation
expenses
3. Pain and suffering 15,000/- 30,000/- 5,000/-
4. Attendant charges -- 5,000/- 5,000/-
5. Extra nourishment -- 10,000/- 10,000/-
6. Loss of amenities -- 10,000/- 10,000/-
Total 55,000/- 1,09,000/- 54,000/-
POINT No.2 :
15. The Tribunal, after appreciation of the evidence on record, has given a finding that PW.1 was a labourer of the person who purchased paddy bags; it was being taken to Palivela at the time of the accident. The Tribunal also observed that the petitioner could be said to be acting as a person engaged in the transportation of goods or material, and he was working as a labourer for loading and unloading at the time of the accident. The said finding of the Tribunal is not disputed by the respondents herein. The 3rd respondent contends that the labourers travelling in the tractor are not covered by the insurance and that the petitioner is not entitled to compensation from the 3rd respondent. 7
MACMA_4173_2012 From the said suggestion, it can take that the respondent/insurance company has not disputed the insurance policy's coverage of the tractor and trailer involved in the accident. When the insurance company claims it does not cover the labourer's risk, it must produce some evidence before the Court to substantiate its contention. But it has not produced any evidence before the Tribunal. The Tribunal has referred a decision of this Court, i.e., New India Assurance Company Limited Vs. Kistamma (1999(6) ALD page 712). Wherein this Court was considering the liability under Section 95 of the Motor Vehicle Act, 1939. The petitioner, in that case, was travelling in a tractor, and the tractor was involved in an accident. It was observed that at the time of the accident, the petitioner was working as coolie under the tractor's owner, engaged in unloading bricks transported in the tractor. This Court has held that the insurance company is liable to compensate the claimants. Though the Tribunal referred the said citation, it has not applied by giving its reasons which are not sustainable. The Tribunal has also observed when the petitioner is taken as a person engaged in the vehicle used as a goods carriage, the Court must necessarily consider the purpose for which the vehicle was put to use at the time of the accident. It is not in dispute that the petitioner and another person proceeded on the paddy load on the tractor and trailer from the fields of Konda Gopalam. It is common knowledge that the tractor and trailer transport the paddy from the fields. Otherwise, there is no need 8 MACMA_4173_2012 to utilize the trailer. Simply because shifted the said paddy in the trailer for selling, it cannot say that the vehicle is used for commercial purposes. The Tribunal observed a permit violation by using the tractor for commercial purposes. Furthermore, the insurance company has not filed the permit to show the violation. In the absence of the permit, it is somewhat difficult to accept the Tribunal's observation regarding the violation of the terms of the permit.
16. In the case Amrit Paul Singh Vs. TATA AIG GENERAL Insurance CO.LTD1, the Apex Court held that the vehicle is not having a permit at all and being used for hire or reward is a case of fundamental breach, and hence, the insurer though absolved of its liability, had to pay the compensation and a recovery order was made in the said case permitting recovery from the insured. Also, when a vehicle had a permit to ply within a particular area or on a route deviated from the said area or route and was plying in another area or route. If an accident occurred, it is not a case of fundamental breach, although there is a violation of the terms of the policy".
17. In another case, in between Rani and others Vs. National Insurance Company Limited and others2, the Apex Court held that the three Judges Bench was called upon to answer with regard to the pay and recovery order passed by the Tribunal. In the said case, the Insurance 1 AIR 2018 SC 2662 2 2018 ACJ 2430 9 MACMA_4173_2012 Company disputed its liability on the ground that the truck had no permit for being plied in the State of Karnataka as its permit was restricted to the State of Maharashtra. The Tribunal allowed compensation and directed the insurance company to deposit the amount. However, the High Court exempted the insurance company from liability. Still, the Apex Court, in appeal, directed the insurance company to deposit the amount with the liberty to recover the same from the vehicle owner. Dealing with the aforesaid aspect, the apex Court again reiterated the earlier principles in Swaran Singh, modified the Judgment of the High Court and restored the Tribunal's order directing the insurance company to pay and recover".
18. In National Insurance Company Limited Vs. Challa Bharathamma3, the Apex Court held that a person without a permit to ply a vehicle cannot be placed on a better pedestal vis-à-vis one who has a permit but has violated any condition thereof. Plying on a vehicle without a permit is an infraction. Therefore, section 149(2) defence is available to the insurer. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance to the issue regarding the liability of the insurer. It further held that considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though, in law, it has no liability. In some cases, the insurer has been given the option and liberty to recover the 3 2004 ACJ 2094 (SC) 10 MACMA_4173_2012 amount from the insured. To recover the amount paid from the owner, the insurer shall not be required to file a suit."
19. It is a well-established principle of law that the insurer has to establish that the breach of policy is so fundamental that it ends the contract which has been entered into between the insurer and the insured. In other words, the violation must be of such a nature that it is the primary cause of the accident and not otherwise. With this object, the legislature has spelt out grounds on which the insurance company can avoid liability. The defence provided to the insurance company is a statutory right. We cannot import or read any other grounds than what is spelt out in sub-section (2) of section 149 of the Act.
20. After considering the entire material on record, this Court views the finding of the Tribunal that the owner of the offending vehicle had violated the terms of the permit as unsustainable. The Tribunal has not given any reasons for coming to such a conclusion though the insurance company failed to produce the permit. The Tribunal has accepted the claimant's contention that the tractor and trailer were covered by the insurance company at the relevant time of the accident. Once the Tribunal accepted the claimant's case, the injured proceeded in the tractor as a labourer for loading and unloading the paddy. There is no restriction to the offending vehicle's owner to use the tractor and trailer for transportation of paddy, and the claimant, as a labourer, 11 MACMA_4173_2012 sustained injuries in the process of shifting paddy from fields to another place.
21. In the light of the law this Court views as referred to above, the Tribunal committed an error in not fastening the liability on the insurance company. Since the evidence on record shows that the claimant and another person were sitting on the paddy load. However, it has not contributed to the accident; this Court views that a direction can be given to the insurance company to pay and recover the compensation from the owner of the offending vehicle.
22. In the result, the appeal is partly allowed without costs by modifying the order dated 11.03.2008 in MVOP No.1147 of 2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, East Godavari district, Amalapuram, by enhancing the compensation amount of Rs.1,09,000/- from Rs.55,000/- with interest at 9% per annum from the date of petition till realization; the 3 rd respondent/insurance company is directed to pay the amount at first within two months from the date of the order and recover the same from the offending vehicle's owner by filing Execution Petition before the Tribunal. The petitioner can withdraw the balanced compensation amount by filing a proper application before the Tribunal.
23. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
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T. MALLIKARJUNA RAO, J Dt. .2022 BV/KGM