BVLNC,J MACMA 188 of 2016
Page 1 of 15 Dt: 27.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.188 OF 2016
JUDGMENT:
This appeal is preferred by the 2nd respondent/National Insurance Company Limited, Guntur, challenging the award dated 24.01.2014 passed in M.V.O.P.No.945/2011 on the file of Motor Accidents Claims Tribunal-cum-II Addl.District Judge, Guntur, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.8,83,764/- with interest @ 9% p.a. from the date of petition, till the date of deposit, to the claimant for the injuries sustained by the claimant in a motor vehicle accident.
2. For the sake of convenience, the parties are arrayed as parties in the lower Court.
3. As seen from the record, originally the petitioners filed an application U/s.166 r/w.455 of Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.15,00,000/- on account of the injuries sustained by the petitioner in a motor vehicle accident occurred on 20.12.2010.
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4. The facts show that the petitioner is third year B.Tech student in Amara College of Engineering, Narasaraopet. On 30.12.2010, when he was trying to get into Omni bus bearing No. AP 7Y 4578 at Taluka Bus Stop, Sattenapalli, the driver of the bus moved the same in a rash and negligent manner with high speed, as a result, the petitioner fell down from the bus steps and received grievous injuries all over the body. The injured was shifted to Government Hospital, Sattenapalli and from there to Life Hospital, Guntur, for better treatment. The injured spent Rs.6,50,000/- towards hospital and medical expenses and due to the said accident, the injured was unable to walk. The injured sustained injuries on his testicles and lost his reproduction capacity.
5. Before the Tribunal, the 1st respondent/driver filed written statement, contending that he is the owner of Omni Bus bearing No.AP 7Y 4578 and he paid IMT 44 to the Insurance Company. The 2 nd respondent/Insurance Company alone is liable to pay the amount. The driver of the bus was having a valid driving license. The driver of the bus is not responsible for the accident. The petitioner is responsible for the accident.
6. The Appellant/Insurance Company, who is the 2nd respondent in the petition, filed written statement resisting while traversing the material averments with regard to proof of age, avocation, monthly BVLNC,J MACMA 188 of 2016 Page 3 of 15 Dt: 27.10.2022 earnings of the injured, manner of accident, rash and negligence on the part of the driver of the crime bus, nature of injuries, medical expenditure and liability to pay compensation and contended that as private bus was hired to APSRTC, RTC alone is liable to pay compensation and the amount claimed is excessive.
7. The 3rd respondent/APSRTC filed counter denying the allegations made in the petition, and further contended that there is no rash or negligence on the part of driver of the bus at the time of accident. The accident was occurred due to the negligence of the petitioner himself. As per the agreement between the 1 st respondent and the 3rd respondent, the 1st respondent alone is liable to pay the compensation. The petitioner has not sustained any permanent disability and his earning capacity is not affected.
8. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
1. Whether the accident occurred due to rash and negligent driving of the vehicle i.e., Omni Bus bearing No.AP 7Y 4578?
2. Whether the petitioner is entitled to compensation, and if so to what amount and against whom?
3. To what relief?
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9. To substantiate their claim, the petitioners examined P.Ws-1 to 4 and got marked Exs.A-1 to A-12. No oral evidence was adduced on behalf of the respondents, but Exs.B-1 and B-2 documents were marked with consent.
10. The Tribunal, taking into consideration the evidence of P.Ws-1 to 4, coupled with Exs.A-1 to A-12, held that the accident took place due to rash and negligent driving of the driver of the Omni bus, and further, taking into consideration of the evidence of P.Ws-1 to 4 corroborated by Exs.A-1 to A-12, awarded a compensation of Rs.8,83,764/- with interest @ 9% p.a. from the date of petition, till the date of deposit.
11. The plea of the 2nd respondent/Insurance Company is that, s private bus was hired to APSRTC, RTC alone is liable to pay compensation, and the amount claimed is excessive.
12. The Tribunal considered the evidence on record, and based on the contentions of both parties, held that the accident occurred due to the negligence on the part of driver of the offending bus, who is 1st respondent in the claim petition.
13. The Tribunal after considering the evidence of P.Ws-1 to 4 coupled with Exs.A-1 to A-12, awarded an amount of Rs.5,68,764/-
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towards medical expenditure; Rs.15,000/- towards pain and suffering; Rs.3,00,000/- towards loss of amenities including loss of prospects and of marriage, total comes to Rs.8,83,764/-.
14. As seen from the record, the appellant/Insurance Company did not adduce any evidence before the Tribunal, in support of the pleas taken by the Insurance Company in the written statement.
15. The contention of the appellant/Insurance Company is that, the Tribunal erred in exonerating the 3rd respondent/APSRTC, and it ought to have seen that at the relevant point of time, bus in question his hired with APSRTC, and as such, the 3rd respondent/APSRTC alone is liable to pay the compensation amount, and the Tribunal erred in relying on the judgment of Hon'ble High Court of Andhra Pradesh in the case of APSRTC, rep. by its General Manager, Hyderabad, Vs. B.Kanaka Ratnabai and others and in the case of UPSRTC Vs. Kulsum and others reported in 2013 SR (Civil) 910 SC, and the Tribunal ought to have seen that the judgments will not help the case of the APSRTC in view of the latest judgment of the Hon'ble Supreme Court in the case of Puranya Kaladevi Vs. State of Assam, wherein, the Hon'ble Supreme Court held that "when the vehicle is under hire, the owner of the vehicle cannot be held liable, and in such an event, the Insurance Company cannot be also made BVLNC,J MACMA 188 of 2016 Page 6 of 15 Dt: 27.10.2022 liable U/s.147 r/w.149 of the Act, and the Tribunal erred in awarding a sum of Rs.5,68,764/- towards medical bills, and that Ex.A-6 bills are not proved by the claimant, and the Tribunal erred in awarding a sum of Rs.3,00,000/- towards loss of amenities.
16. The case of the claimant is that he is a third year B.Tech student of Amara College of Engineering, Narasaraopet. On 30.12.2010 when he was trying to board Omni Bus bearing No.AP 7Y 4578 at Taluq Bus Stop, Sattenapalli, and at that time, driver of the bus moved the bus in a rash and negligent manner, and as a result, the claimant fell down from the bus and received grievous injuries all over the body, and immediately he was shifted to the Government Hospital, Sattenapalli, and from there to Life Hospital, Kothapet, Guntur, for better treatment, and he spent Rs.6,50,000/- towards medical expenses, and he is aged about 20 years only, and due to the accident, he is unable to walk, and he has lost his happiness and bright future, and on account of the injuries sustained on his testicles, he lost his reproduction capacity, and therefore, the 1st respondent/owner of the bus, the 2nd respondent/insurer (Appellant) and the 3rd respondent/APSRTC are liable to pay the compensation.
17. The 1st respondent/owner of the bus filed counter stating that he is owner of the bus and he paid insurance premium including IMT BVLNC,J MACMA 188 of 2016 Page 7 of 15 Dt: 27.10.2022 44 to the insurer, and therefore, the insurer is liable to pay the compensation, and that the driver of the bus was having a valid driving license, and he was not responsible for the accident, and that the claimant was responsible for the accident. The appellant/Insurance Company filed written statement stating that the bus was hired with APSRTC, and therefore, Insurance Company is not liable to pay the compensation, and the 3rd respondent/APSRTC filed counter, stating that there was no rash or negligence on the part of the driver of the bus at the time of accident, and the accident was occurred due to the negligence of the claimant, and the 1st respondent alone is liable to pay the compensation as per hire agreement, and accordingly, the Insurance Company is liable to indemnify the same.
18. The Tribunal upon considering the evidence of the claimant and Ex.A-1 copy of FIR, Ex.A-2 copy of police report (charge sheet0 and Ex.A-4 copy of rough sketch, opined that the accident was occurred due to the negligence on the part of the driver of the bus, and the respondents did not adduce any contra evidence, and the driver of the bus was not examined to speak about the manner, in which the accident was occurred.
19. The claimant as P.W-1 deposed about the manner, in which the accident was occurred, and he also filed Ex.A-1 copy of FIR, Ex.A-2 BVLNC,J MACMA 188 of 2016 Page 8 of 15 Dt: 27.10.2022 copy of police report (charge sheet) and Ex.A-4 copy of rough sketch about the place of accident etc., to corroborate his oral testimony about the manner, in which the accident was occurred, showing that the accident was occurred due to the negligence on the part of the driver of the Omni Bus.
20. Admittedly, the insurer of the bus or APSRTC or the owner of the bus did not choose to examine the driver of the crime bus to contradict the evidence of P.W-1. Under the said circumstances, it can safely be held that the accident was occurred due to the negligence of the driver of Omni bus.
21. When coming to the quantum of amount awarded by the Tribunal, the contention of the 1st respondent/owner of the bus was that the vehicle was hired to 3rd respondent/APSRTC, and he was not liable to pay any amount, and the said bus was insured with the 2nd respondent/Insurance Company by paying premium for IMT 44. The APSRTC contended that as per agreement, the 1st respondent is liable to pay compensation to the claimant, and Ex.B-1 hire agreement copy between the owner of the bus and the APSRTC, and Ex.B-2 is copy of insurance policy along with IMT 44 endorsement. Both the documents were marked with consent of both parties before the Tribunal. The Tribunal relied upon the judgment of High Court of Andhra Pradesh in BVLNC,J MACMA 188 of 2016 Page 9 of 15 Dt: 27.10.2022 the case of APSRTC rep. by its General Manager, Hyderabad and others Vs B.Kanaka Ratnabai and others reported in 2013 (1) ALT 727 DB and also judgment of Hon'ble Apex Court in the case of UPSRTC Vs. Kulsum and others, reported in 2013 SAR (Civil) 910 SC, held that "if a vehicle is plying on the agreement of contract with the Road Transport Corporation, the Insurance Company would be liable to pay compensation to a third party, if there is violating U/s.149 of M.V.Act" and observed that "inspite of hiring the vehicle to any other company, the Insurance Company shall be solely and exclusively liable for payment of compensation and there is no such liability on the part of the APSRTC, and as the 1st respondent is owner of the bus, both 1st respondent and the Insurance Company are jointly and severally liable to pay compensation."
22. The facts and circumstances of the case discloses that the 1st respondent is the owner of the bus, and he insured the said bus with the appellant/Insurance Company and a premium was paid for IMT 44 as per Ex.B-2 insurance policy, and the vehicle was hired to the 3 rd respondent/APSRTC under Ex.B-1 hire agreement, and as per Ex.B-1, the owner shall be responsible for all claims that may arise due to statutory violations out of the operations like claim due to accidents payable under the M.V.Act. The Hon'ble Apex Court in the case of BVLNC,J MACMA 188 of 2016 Page 10 of 15 Dt: 27.10.2022 Uttar Pradesh State Road Transport Corporation Vs. National Insurance Company Limited and others, reported in 2021 Supreme (SC) 891, considered the question that, if an insured vehicle is plying under an agreement with the Corporation on the route as per permit granted in favour of the Corporation and in case of any accident during that period, whether the Insurance Company would be liable to pay compensation or would it be the responsibility of the Corporation or the owner? held that "High Court was not justified in fastening the liability upon the appellant-Corporation and further observed that this question has been answered in the case of UPSRTC Vs. Kulsum and others, reported in 2011 8 SCC 142".
23. The Full Bench of High Court of Andhra Pradesh in the case of PSRTC, rep. by its General Manger and others Vs. B.Kanakaratnaabai and others, reported in 2013 ACJ 1593, also considered the similar question and held that "mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of the Insurance Companies to honour passengers/third party risks covered by the insurance policies issued by them in favour of the owners, and that, on principle, it is not open to the Insurance Companies to absolve themselves of liability towards passengers/third party risks on the short ground that the insured BVLNC,J MACMA 188 of 2016 Page 11 of 15 Dt: 27.10.2022 vehicle has been given on hire without following the prescribed procedure". The decision relied upon by the learned counsel for the Appellant/Insurance Company in the case of Purnya Kala Devi Vs. State of Assam and another in Civil Appeal No.1672 of 2010 of Hon'ble Apex Court, will not help the case of the appellant, since the facts of that case are totally different, as it relates to a vehicle under requisition of the State Government. In that view of the matter, I do not find any force in the contention of the Appellant/Insurance Company.
24. It is not the case of the appellant/Insurance Company that the owner of the bus violated the terms of the insurance policy, and that the APSRTC was not having route permit to ply the vehicle in the route, where the accident was occurred. Ex.B-2 copy of insurance policy shows that the owner of the bus insured the vehicle with IMT 44 endorsement. In those circumstances, the appellant/Insurance Company cannot absolve from its liability to indemnify the owner of the offending bus.
25. The appellant/Insurance Company made an attempt to question about the quantum of compensation awarded by the Tribunal in the appeal. The appellant did not show anything that permission was granted to it U/s.170 of M.V.Act to take other pleas available to the BVLNC,J MACMA 188 of 2016 Page 12 of 15 Dt: 27.10.2022 insured in the case. The Tribunal considered the medical bills filed by the claimant under Ex.A-6 and found that the medical bills under Ex.A-6 were prescribed by the hospital, and the evidence of the doctor (P.W-2) proves the same, and therefore, the bills are found to be genuine, and the amount covered under the above bills is Rs.5,68,764/-, and accordingly, awarded the said amount towards medical expenses.
26. The Tribunal awarded a sum of Rs.3,00,000/- towards loss of amenities and prospects and of marriage to the claimant, in view of evidence of P.Ws-2 to 4 doctors, whose evidence discloses that the claimant on account of the loss of both testicles became unfertile, and therefore, he has no reproduction capacity. Admittedly, the claimant was aged only 20 years and studying B.Tech course at the time of accident. Considering the said circumstances, I do not find any reasons to interfere with the findings of the Tribunal in awarding a sum of Rs.3,00,000/- to the claimant towards loss of amenities including loss of prospects and of marriage. The Tribunal awarded a sum of Rs.15,000/- towards pain and suffering, and awarded a total sum of Rs.8,83,764/- with interest at 9% p.a. from the date of petition, till the date of deposit.
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27. The Tribunal awarded interest at 9% p.a. from the date of presentation of petition, till the date of deposit. The accident was occurred in the year 2010 and the Appellant/Insurance Company without admitting for just, fair and reasonable compensation, dragging on the matter for the last 12 years. In view of the judgment of the Hon'ble Apex Court in the case of Jakir Hussein Vs. Sabir1 which referred another judgment of the Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy2 granted interest @ 9% p.a., and therefore, it is not exorbitant and excessive. In that view of the matter, I do not find any ground to interfere with the rate of interest awarded by the Tribunal at 9% p.a. from the date of petition, till the date of deposit of compensation amount.
28. In the light of the above discussion, I do not find any grounds to interfere with the award passed by the Tribunal, and therefore, the appeal is liable to be dismissed.
29. In the result, the appeal is dismissed, by confirming the award dated 24.01.2014 passed in M.V.O.P.No.945/2011 on the file of Motor 1 (2015) 7 SCC 2154 2 (2011) 14 SC 481 BVLNC,J MACMA 188 of 2016 Page 14 of 15 Dt: 27.10.2022 Accidents Claims Tribunal-cum-II Additional District Judge, Guntur. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
27.10.2022
psk
BVLNC,J MACMA 188 of 2016
Page 15 of 15 Dt: 27.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.188 OF 2016
27th October, 2022
psk