THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.3169 of 2014
JUDGMENT:
This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 15.05.2014 made in O.P.No. 372 of 2010 on the file of the Motor Accidents Claims Tribunal (District Judge) at Nizamabad (for short, the Tribunal).
2. For the sake of convenience, the parties hereinafter referred to as arrayed before the Tribunal.
3. The brief facts of the case are that on 21.11.2009 at about 1730 hours, while the claimant, along with his friend, Sakali Gangadas, was proceeding on Splendor motorcycle towards Nizamabad side, when they reached near Borgam Village, the offending vehicle i.e., Tipper bearing No. AP 13X 3196, owned by respondent No. 1, insured with respondent No. 2, being driven by its driver in a rash and negligent manner at high speed, dashed the claimant, due to which he fell down and sustained multiple injuries all over the body. He had taken treatment at various hospitals from 01.11.2009 to 23.01.2009 by spending huge amounts. Therefore, he laid the claim for Rs.2.00 lakhs towards compensation against the respondents herein. 2
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4. Before the Tribunal, the respondent No.1 filed his counter denying the manner of accident, injuries allegedly sustained by the claimant, treatment taken and also his income. The 2nd respondent filed its counter denying the averments of the claim petition and also contended that the accident occurred only due to the gross negligence on the part of the claim petitioner. It is further contended that the driver of the offending vehicle was not having valid driving licence at the time of accident, thereby the 1st respondent has violated the terms and conditions of the policy, as such, the 2nd respondent is not liable to pay the compensation. It is also contended that the amount claimed is excessive and prayed to dismiss the claim petition.
5. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the offending vehicle and awarded total compensation of Rs.80,000/- with interest @ 7.5% per annum payable the 1st respondent only while dismissing the claim against the 2nd respondent-Insurance company as there is breach of policy conditions. Dissatisfied with the quantum of compensation and 3 MGP, J Macma_3169_2014 also exonerating the 2nd respondent from its liability, the claimant filed the present appeal, seeking enhancement of the same.
6. Heard both sides and perused the record.
7. A perusal of the impugned judgment discloses that the Tribunal has framed issue No.1 as to whether the accident had occurred due to rash and negligent driving of the offending vehicle by its driver, and after considering the evidence of P.W.1 coupled with the documentary evidence, it has categorically observed that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver and has answered the issue in favour of the claimant and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver.
8. Insofar as the quantum of compensation is concerned, the evidence of P.W.2, doctor, is to the effect that the claimant had suffered fracture to the right ulna of the forearm and he was treated in their hospital, Sai Tirumala Hospital, Nizamabad from 4 MGP, J Macma_3169_2014 21.11.2009 to 23.11.2009 apart from follow up treatment. Moreover, a perusal of Ex.A.3, injury certificate, discloses that the claimant had suffered fracture of skull, fracture of lower ulna shaft and distal radius and grievous injury on chest and fracture of left wrist and right hand. In these circumstances, although the tribunal has rightly awarded Rs.50,000/- towards injury, pain and suffering; Rs.15,000/- towards medical expenses, the amounts granted under the heads of extra nourishment at Rs.3,000/- and Rs.12,000/- towards loss of earnings are meagre and need interference of this Court. Considering the nature of injuries, period of treatment, the amount of Rs.3,000/- awarded under the head of extra nourishment is hereby enhanced to Rs.15,000/- under the heads of extra nourishment, transport expenses and attendant charges. So also, the amount of Rs.12,000/- awarded by the tribunal under the head of loss of earnings is hereby enhanced to Rs.15,000/-. Thus, in all, the claimant is entitled for the total compensation of Rs.95,000/-.
9. Coming to the aspect of liability of payment of compensation, admittedly, the crime vehicle is a heavy goods vehicle as seen from Ex.A.11. The evidence of R.W.2, employee 5 MGP, J Macma_3169_2014 of R.T.A. Office is to the effect that the driver of the offending vehicle was holding driving licence to drive only a transport vehicle and he was not holding licence to drive heavy goods vehicle such as the offending vehicle. Hence, there is clear violation of terms and conditions of Ex.B. 1 policy by the owner of the vehicle, respondent No. 1 as rightly held by the Tribunal. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.1 policy was very much in force. In case of third party risks, as per the decision in National Insurance Company Ltd. V. Swaran Singh and others1, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. 1 (2004) 3 SCC 297 6 MGP, J Macma_3169_2014 Recently, the Apex Court in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, following its earlier decision in Swaran Singh (1 supra), reiterated that "even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount." In view of the above, the Insurance Company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle i.e., respondent No. 1 herein.
10. Accordingly, the M.A.C.M.A. is partly allowed by enhancing the compensation amount awarded by the Tribunal from Rs.80,000/- to Rs.95,000/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of passing of the order till the date of realisation. However, following the doctrine 'pay and recover', the 2nd respondent-Insurance Company is directed to pay the compensation amount to the appellant- claimant, at the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the 1st respondent without initiating any separate proceedings. The amount shall 2 2018 ACJ 2163 7 MGP, J Macma_3169_2014 be deposited within one month from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 28.11.2022 tsr 8 MGP, J Macma_3169_2014 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.3169 of 2014 DATE: 28-11-2022