HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No. 853 of 2015
JUDGMENT:
Being dissatisfied with the order and decree passed by the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Ranga Reddy District at L.B.Nagar in M.V.O.P.No.1113 of 2011 dated 01.10.2014, the appellant/Insurance Company has filed the present appeal.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. Brief facts of the petitioner's case are that on 07-10-2011 while the petitioner was traveling in Mahindra Mini bus from her native place Pashamvarigudem Village, Haliya Mandal, after celebrating Dashera festival and when the petitioner got down the bus to attend the calls of nature, in the meantime, a car bearing No. AP.29.AR.0024 came in rash and negligent manner at high speed and dashed her, as such, she suffered severe multiple injuries and was shifted to Kamineni Medical College Hospital, Narketpally, by 108 Ambulance service, where first aid was given and from there she was shifted to 2 MGP,J Macma_853_2015 Kamineni Hospital, L.B.Nagar and again she was shifted to Indus Hospital where she underwent neuro surgery on her head and operation to her right leg and right hand elbow and rods were implanted. Thus, she claimed compensation of Rs.5,00,000/- under various heads.
4. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner of accident and the nature of injuries sustained by the petitioner and the treatment taken by her.
5. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident is occurred due to rash and negligent driving of driver of Santro Car bearing No. AP 29 AR 0024?
2. Whether the petitioner is entitled for compensation, if so, at what extent and from which of the respondents?
3. To what relief?
6. In order to prove the issues, PWs.1 to 3 were examined and Exs.A1 to A12 got marked on behalf of the petitioner. On behalf of 3 MGP,J Macma_853_2015 respondent No.2, RWs.1 and 2 were examined and Exs.B1 to B3 were marked.
7. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.2,36,510/- towards compensation to the appellant-claimant against the respondent Nos.1 and 2 jointly and severally, along with proportionate costs and interest @ 6% per annum from the date of filing of the petition till realization.
8. Heard the learned Standing Counsel for the appellant-Insurance Company and the learned Counsel for the respondent No.1/claimant. Perused the material available on record.
9. The learned Standing Counsel for the appellant-Insurance Company contended that the decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case; that there was no negligence on the part of the driver of the offending vehicle; that the driver of the offending vehicle was not having valid driving license and the Tribunal has erred in fastening the liability on the appellant- Insurance Company and the amount awarded is exorbitant. Accordingly, prayed for setting aside the impugned order in the O.P. 4
MGP,J Macma_853_2015
10. The learned Counsel appearing on behalf of respondent No.1- claimant submitted that the Tribunal after considering the oral and documentary evidence available on record, has awarded reasonable compensation and the same needs no interference by this Court. Therefore, the learned counsel sought for dismissal of the appeal.
11. With regard to the manner of accident, though the learned Standing counsel for the Insurance Company pleaded that there was no negligence on the part of the driver of the offending vehicle, as there is no oral or documentary evidence was produced by the Insurance Company to prove the negligence on the part of the claimant, considering the evidence of PW-1 coupled with the documentary evidence produced by him, the Tribunal rightly held that the accident occurred due to the rash and negligence on the part of the driver of the offending vehicle.
12. With regard to the quantum of compensation is concerned, according to the petitioner, she sustained severe injuries on her head, multiple fractures on right leg, right hand, elbow and waist and injury on right eyebrow in the accident and immediately after the accident, 5 MGP,J Macma_853_2015 she was shifted to Kamineni Medical College Hospital, Narketpally and after first aid, she was shifted to Kamineni Hospital, L.B.Nagar and from there to Indus Hospital, where she underwent Neuro surgery on her head and also operation to her right leg and right hand elbow was done and rods were implanted and the doctors opined she needs further surgery. She had spent Rs.2,00,000/- towards surgery expenses.
13. According to PW-2, who is the Administrative Officer, Venus Hospital, the petitioner was admitted in their hospital on 22.12.2011 with complaint of ceviation of mouth to left and unable to close right eye completely, fever and vomiting with loose stools and discharged on 24.12.2011. According to PW-3, Medical Superintendent of Indus Hospitals, the petitioner was admitted in their hospital on 7.10.2011 with injury sustained PT Humorous and right femur multiple large abrasion, which are grievous fractures and she undergone surgery for both fractures and discharged on 27.10.2011 and after the patient developed infections she joined on 27-10-2011 to 8-10-2011 as in- patient. The treatment given from 27-10-2011 to 8-11-2011 was not covered under Arogyashree scheme. Ex.A15 medical bills were prescribed by him at their hospital. Further she has to incur 6 MGP,J Macma_853_2015 Rs.30,000/- for removal of implants. Therefore, considering the evidence of PWs.1 to 3, the tribunal rightly awarded an amount of Rs.50,000/- for two grievous injuries, Rs.9,305/- towards loss of income, Rs.50,000/- towards future medical expenses for removal of implants and Rs.1,27,205/- towards medical expenses and treatment charges. Thus in all the petitioner is awarded an amount of Rs.2,36,510/- which is just and reasonable.
14. With regard to the liability, it is contended by the appellant- Insurance Company that the driver of the offending vehicle was not having valid driving license and the police also filed charge sheet against the driver of the offending vehicle for the offence under Section 181 of the Motor Vehicles Act. As per Section 149(2) of the Motor Vehicles Act, 1988, heavy burden lies upon the insurer to prove that the driver of the vehicle had no valid driving license at the time of the accident. The evidence of RW-2 does not establish that the driver of the offending vehicle was having a valid and effective driving license as on the date of the accident or not. But it only discloses the fact that the driver has been prosecuted for not producing the driving license. In that light, the evidence of RW-2 is not of much assistance 7 MGP,J Macma_853_2015 to the insurer in order to establish the fact that the driver of the offending vehicle did not possess a valid and effective driving license at the time of the alleged accident. Though Exs.B2 and B3 copy of the notices sent to owner and driver of the offending vehicles were filed by the Insurance Company, the acknowledgement of the same were not filed. When the notice has not been effectively served upon the owner of the vehicle, then, under such circumstances, the evidence of RW-2 will not help the insurer. This evidence also does not come to the aid of the insurer to discharge its primary duty to establish that there was breach of terms of the policy. As per the principles laid down by the Apex Court in RUKMANI AND OTHERS v. NEW INDIA ASSURANCE CO. AND OTHERS1, when the insurer had failed to prove the defence raised in the statement of objections, such a plea cannot be accepted. When the police officer or the records are not summoned from the transport authority to establish the fact that the driver of the offending vehicle was not having a valid and effective driving license, then, under such circumstances, it has to be held that the insurer has failed to discharge its burden. Under these circumstances, the contention of the learned counsel for the appellant/Insurance Company cannot be sustained and it is hereby 1 (1998) 9 SCC 160 8 MGP,J Macma_853_2015 rejected. Further the Motor Vehicles Act is a beneficial piece of legislation. It has been time and again held that trappings of civil and criminal proceedings cannot be applied in a very strict manner. Therefore, in view of the above discussion, this Court is of the opinion that there are no valid grounds to interfere with the cogent findings given by the Tribunal and the appeal is liable to be dismissed.
15. In the result, the M.A.C.M.A. is dismissed. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
______________________ M.G.PRIYADARSINI,J 29.10.2022 pgp