HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.2345 OF 2012
JUDGMENT:
1. This appeal is preferred by the 2nd respondent in M.V.O.P. No.1 of 2006 aggrieved by the order dated 10.03.2008 passed by the Chairman, Motor Accidents Claims Tribunal-III Additional District Judge, Tirupati (for short 'the tribunal') awarding compensation of an amount of Rs.21,750/- to the petitioner.
2. For convenience sake, hereinafter the parties will be referred to as they were arrayed in the O.P.
3. The petitioner filed M.V.O.P. No.1 of 2006 under Section 166(1)(a) of the Motor vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs.1,00,000/- against the respondents on account of the injuries sustained by him in a motor accident that occurred on 17.02.2005 at about 8.30 AM while he was going in auto bearing No.AP 03 V 7817 to Tirupati, to attend coolie work and when the said Auto reached M.R.F. show room on Tiruchanur by-pass road, a tractor bearing No.AP 26 T 6592 and trailer bearing No.AP 03 V 1087 (hereinafter referred as the offending vehicle) came in a rash and negligent manner dashed the auto as a result of which himself and other inmates sustained grievous injuries. A case in Cr.No.32/2005 came to Page 2 of 9 MACMA No.2345 of 2012 be registered against the driver of the offending vehicle under Section 304(A), 338 and 279 IPC.
4. The first respondent has remained exparte and the 2nd respondent filed counter contending that while the driver of the offending vehicle was going on the left side of the road, the auto with over load came to the road and near to the tractor and due to the confusion, the driver of the auto dashed the tractor and the accident occurred due to the negligence of the driver of the auto and the driver of the offending vehicle was not negligent.
5. Basing on the pleadings, the tribunal framed the following issues for consideration:
1. Whether the pleaded accident occurred and if so was it due to fault of the driver of tractor and trailer of first respondent bearing No.AP 26 T 6592 and AP 03 V 1087 or due to fault of the driver of Auto of 3rd respondent bearing No.AP 03 V 7817?
2. Whether the tractor and trailer in question belongs to R.1 and stood insured with R.2 by the date of accident and if so whether the policy covers the risk of the petitioner?
3. Whether the Auto in question belongs to R.2 and stood insured with R.4 by the date of accident and if so whether the policy coves the risk of the petitioner?
4. Whether the petitioner suffered injuries in the said accident and entitled to compensation and if so, to what amount and from which of the respondents?Page 3 of 9
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5. To what relief?
6. Before the tribunal, the petitioner himself got examined as P.W.1 and got marked Exs.A.1 to A.5 and on behalf of the respondents no evidence was adduced, however Ex.B.1 copy of policy was marked with consent. After considering the evidence on record the tribunal allowed the petition granting compensation an amount of R.21,750/- with interest from the date of petition till the date of deposit against the respondents 1 and 2 and the claim is dismissed against the respondents 3 and 4 without costs.
7. Heard the argument of both the learned counsel. Considering the rival contentions and on perusing the material available on record, the point that arise for consideration in this appeal is, Whether the tribunal has justified in holding that the accident occurred due to the negligence of the driver of the offending tractor and in holding that the respondent insurance company failed to establish the subsistence of policy at the time of accident? POINT:
8. Learned counsel for the Respondent No.2-insurance company contended that there was no negligence on the part of the tractor-trailer bearing No.AP 26 T 6592 and the tractor and trailer was not insured at the time of accident i.e. at 8.30 AM on Page 4 of 9 MACMA No.2345 of 2012 17.02.2005 and the policy was taken by the owner of the tractor at 10.25 AM on 17.02.2005 that is after the accident.
9. Learned counsel appearing for the claimant supported the findings and observations of the tribunal. After careful reading of the material on record, this court is of the opinion that the petitioner proved that he sustained injuries in the accident while he was proceeding in an auto bearing No.AP 03 V 7272. In support of the case that he sustained injuries in the accident, he relied on Ex.A.3-wound certificate and Ex.A.5 discharge summary issued by SVRRGG Hospital, Tirupati, where he got treatment. The petitioner also relied on Ex.A.4 medical bills to establish incurred expenses towards medicines.
10. As seen from the grounds of appeal and the contention raised by the respondent No.2-insurance company, it has not disputed the quantum of compensation awarded by the Tribunal. The 2nd respondent - insurance company mainly contends that the accident occurred due to the negligence of the driver of the auto, no evidence is adduced to substantiate the same. The evidence of P.W.1 that the accident occurred due to negligence of the driver of the first respondent is supported and corroborated by the contents of Ex.A.1 certified copy of F.I.R. and Ex.A.2 certified Page 5 of 9 MACMA No.2345 of 2012 copy of charge sheet as rightly pointed out by the tribunal and as against the evidence of P.W.1 there is no contrary evidence.
11. The respondent insurance company has not chosen any witness in support of its contention and also not taken any steps to examine the driver of the offending vehicle to show the manner of the accident.
12. In the absence of such evidence on record, the tribunal has come to a correct conclusion by holding that the accident occurred on account of the negligence of the first respondent driver and the third respondent driver is not negligent. As rightly observed by the trial court, it is not in dispute that the offending vehicle belongs to the first respondent. According to the case of the petitioner, the offending vehicle was insured with the 2nd respondent. According to the pleas taken in the counter filed by the 2nd respondent that it reliably came to know after thorough investigation that the first respondent obtained policy after the accident. Here, according to the case of the petitioner, the accident occurred on 17.02.2005 @ 8.30 AM, whereas the stand taken by the 2nd respondent - insurance company is that by suppressing the accident, the 1st respondent obtained policy and the policy comes into effect from 10.25 AM on 17.02.2005 and therefore it is not liable to indemnify the 1st respondent. Page 6 of 9
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13. For the reasons best known to the insurance company, it has not placed copy of insurance policy before the Court. Such pleas alleging the suppression of the accident and the taking of insurance policy is not taken in the counter specifically. The 2nd respondent- insurance company has not chosen to examine its officials or staff who had personal acquaintance with the facts of the case. It is supposed to take such pleas in the counter by relying on the contents of the insurance policy. When the case of the petitioner is that the accident occurred on 17.02.2005 at 8.30 AM there is no difficulty in placing the insurance policy before the court by the 2nd respondent in support of its contention that the insurance policy came to the effect from 10.25 AM on 17.02.2005. No explanation is forthcoming in support of the pleas taken by the insurance company and it has not examined any witness nor produced policy. The burden is on the insurance company to prove its case.
14. In the absence of any policy or any authenticated evidence, the stand taken by the 2nd respondent cannot be accepted. In the said facts of the case, the tribunal has come to a correct conclusion that the 2nd respondent failed to produce a copy of the policy and an adverse inference is to be drawn that the policy issued by the 2nd respondent was subsisting at the time of Page 7 of 9 MACMA No.2345 of 2012 accident and the accident is covered by the said policy. After considering the entire material on record, as the case of the insurance company is not supported by either oral or documentary evidence, it is difficult to come to a conclusion that the petitioner has obtained insurance company subsequent to the accident by suppressing the fact relating to the accident.
15. As already observed in the preceding paragraphs, except the said grounds, the 2nd respondent - insurance company has not taken any other grounds with regard to the quantum of compensation awarded by the tribunal. Resultantly, I am of the considered opinion that the 2nd respondent - insurance company has not made out any case so as to interfere with the judgment of the tribunal and the appeal is liable to be dismissed.
16. In the result, the appeal is dismissed and the judgment dated 10.03.2008 in M.V.O.P. No.1 of 2006 passed by the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati is hereby confirmed. The insurance company is directed to deposit the balance amount, if any, within one month before the Tribunal from the date of receipt of a copy of this order. On such deposit, the tribunal is directed to release the amount strictly in accordance with its judgment. There shall be no order as to costs.
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17. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
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T.MALLIKARJUNA RAO, J
Dt. .09.2022
BV
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MACMA No.2345 of 2012
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.2345 OF 2012
.09.2022
BV