THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
M.A.C.M.A. NOS.2390 AND 2580 OF 2017
COMMON JUDGMENT
M.A.C.M.A.No.2390 of 2017 is filed by the insurance company
challenging its liability to pay the compensation, while
M.A.C.M.A.No.2580 of 2017 is filed by the claimant/injured seeking
enhancement of the compensation. Both the Appeals are against the
award and decree dt.09.01.2017 in M.V.O.P.No.784 of 2012 on the file
of the Motor Accidents Claims Tribunal-cum-XIII Additional Chief
Judge (Fast Track Court), City Civil Court, Hyderabad (for short, "the
Tribunal').
2. Brief facts leading to the filing of the above Appeals are that on
29.10.2011, at about 4.20 p.m., the claimant was travelling on his motor
cycle bearing No.AP 13Q 3334 from Balanagar to Prashanthnagar, KVB
Company when Tata Ace vehicle bearing No.AP 09TA 3393 came at
high speed from sub road to main road and dashed against the claimant's
motor cycle and consequently the claimant fell down and sustained
fractures of both hands, head injury, injuries to face, shoulder and blunt
MACMA Nos.2390 & 2580 of 2017
2
injuries all over the body. The claimant was shifted to a nearby hospital
and thereafter, he has recuperated and recovered from the injuries.
Police have registered an FIR in P.S. Kukatpally as Crime No.996 of
2011 under Section 337 of the IPC against the crime vehicle and its
driver. The claimant, thereafter filed the claim petition before the
Tribunal seeking compensation of Rs.6,00,000/- for the injuries caused
to him. The Tribunal has framed the following issues for trial:
(1) Whether the accident took place due to rash and negligent driving
of the driver of the Tata ACE vehicle bearing No.AP 09TA 3393
causing injuries to the petitioner?
(2) Whether the petitioner is entitled for compensation. If so, to what
extent and from whom?
3. As regards issue No.1, the Tribunal has held that the accident has
occurred due to the rash and negligent driving of Tata ACE vehicle AP
09TA 3393 and as regards issue No.2 also, it was held that the petitioner
is entitled for a compensation of Rs.2,05,000/- in all.
4. As regards the liability of the insurance company, the owner of
the vehicle had remained ex parte and the respondent insurance
company had initially filed a counter affidavit denying its liability and MACMA Nos.2390 & 2580 of 2017 3 subsequently an additional counter was filed stating that the company had never issued the insurance policy to the crime vehicle bearing No.AP 09TA 3393 as there is no office Code 630300 as mentioned in the original petition. It was submitted that the office mentioned in the insurance policy as Bowenpally is not of their insurance company and even the rubber stamp is of not their company. Therefore, they denied their liability to pay any compensation on the basis of the fake insurance policy produced by the owner of the vehicle, which was relied upon for fastening the liability on the insurance company.
5. The Tribunal, however, observed that though the insurance company has stated to have issued a police complaint, it was not stated as to whether an FIR was registered or not and what was the outcome of such a criminal complaint. It is submitted that as per Ex.B5, the policy is valid and it was in force till 06.01.2012 and the same was not cancelled. The Tribunal, therefore, did not accept the contentions of the respondent insurance company and has held that the respondents have failed to establish that it is a fake policy. Accordingly, the Tribunal has awarded compensation by holding both the respondents liable jointly and severally.
MACMA Nos.2390 & 2580 of 2017 4
6. Challenging the liability of the insurance company even though it is recorded that the policy is a fake policy, the insurance company has filed M.A.C.M.A.No.2390 of 2017 by raising various grounds of appeal. Seeking enhancement of the compensation awarded by the Tribunal, the claimant has filed M.A.C.M.A.No.2580 of 2017.
7. I shall first deal with the appeal of the insurance company.
8. Learned counsel for the insurance company, Sri A. Ramakrishna Reddy, vehemently argued and tried to demonstrate that the policy furnished by the owner of the vehicle, which is marked as Ex.B5, is a fake document. He has also drawn the attention of this Court to the police complaint given by the insurance company regarding the alleged fake document. Therefore, he submits that the insurance company is not liable to make payment of any compensation to the claimant.
9. Learned counsel for the claimant, Sri K. Hari Mohan Reddy, however, opposed the same and submitted that the insurance policy has been produced by respondent No.1 and respondent No.2, i.e., the insurance company, though has alleged that it is a fake document, has not taken the police complaint to its logical conclusion and that the MACMA Nos.2390 & 2580 of 2017 5 insurance company has not proved that it is a fake document. In view thereof, the learned counsel submitted that the claimant should be paid compensation and should be allowed to withdraw the same as he is suffering from grave financial difficulties in view of non-payment of the compensation, as the claimant had to incur huge expenditure to get himself treated and recuperated.
10. Having regard to the rival contentions and the material on record including the material placed by the insurance company before the Tribunal, this Court finds that the insurance company has filed premium register and also copy of collection register for the period from 04.01.2011 to 10.01.2011 and also the certified copy of the collection register of the day 07.01.2011 to demonstrate that the insurance company has not received any premium for the said vehicle. However, these documents need verification and this Court is not equipped with necessary paraphernalia to do such verification. The insurance company having given police complaints dt.28.08.2005 and 01.02.2016 ought to have pursued the same and brought them to their logical conclusion as to whether the document of insurance policy is a fake or genuine document. Mere filing of police complaints would not be sufficient to MACMA Nos.2390 & 2580 of 2017 6 declare the document as a fake document. The veracity of the document has to be proved beyond reasonable doubt by the investigating agency. Since the appellant insurance company has not followed up its complaints and has not discharged its duty of proving the document to be a fake document, the Tribunal has not accepted its contention and has accordingly held that both the owner of the vehicle as well as the insurance company have jointly and severally liable to pay compensation.
11. The learned counsel for the claimant has also relied upon the judgment of this Court in the case of Imran Basha Vs. United India Insurance Co. Ltd., Mahaboobnagar and another dated 05.11.20131, wherein under similar circumstances, a Division Bench of this Court has held that insurance being a social security measure to protect interest of victims of accidents, approach in this behalf must be to advance intention of legislature and if any doubt exists, it must be read in favour of the person for whose benefits the provisions are made and in the event of any defect in the policy or if liability improperly fastened upon insurance company, law permits it to pay amount and recover the same 1 2014 (1) ALD 547 (DB) MACMA Nos.2390 & 2580 of 2017 7 from the owner of the vehicle. The insurance company was therefore held liable to pay the amount covered by the order passed by the Tribunal.
12. Respectfully following the above decision of the Division Bench, which is on similar set of facts, this Court is of the opinion that the insurance company has not been able to prove that the insurance policy is a fake document and that it is not liable to pay the compensation. In view of the same, the grounds of appeal raised by the insurance company are all rejected. However, liberty is given to the insurance company to proceed against the owner of the vehicle if the policy has been declared to be a fake document.
13. As regards the claimant's appeal in M.A.C.A.M.No.2580 of 2017, the claimant is seeking enhancement of the compensation under the following heads:
(1) Monthly income of the claimant to be considered at Rs.20,000/- per month;
(2) To consider disability of the claimant at 20% and loss of earning capacity at 40%;
(3) Damage to clothing and articles at Rs.2,000/-;
MACMA Nos.2390 & 2580 of 2017 8 (4) Loss of amenities, social status, shock and mental agony at Rs.50,000/-; and (5) Granting Rs.30,000/- towards pain and suffering and Rs.1,00,000/- towards permanent disability.
14. Learned counsel for the claimant submitted that the claimant was working as a business development Executive in the 'first flight courier' company and was earning Rs.20,000/- per month and his nature of work was extensive travelling on motor cycle, picking up courier boxes and shifting them to the office, but due to the accident, he has lost his job and sustained loss of earnings.
15. Though the claimant has not stated the period of immobilisation due to the accident, this Court deems it fit and proper to consider it as three (3) months period and if the income of the claimant per month is considered at Rs.15,000/-, the loss of earnings would be around Rs.45,000/-. The Tribunal has taken it only at Rs.30,000/- and therefore, it is enhanced to Rs.45,000/-.
16. As regards the medical expenses, the claimant has been allowed the entire claim of medical expenses. The claimant would be further entitled to the compensation towards disability which is mentioned as MACMA Nos.2390 & 2580 of 2017 9 20% by the doctor who has treated him. The Tribunal has not awarded any compensation towards disability. This Court accordingly allows compensation for 20% disability and 10% towards loss of earning capacity and around Rs.20,000/- towards pain and suffering and Rs.2,000/- towards damage to clothes. The compensation is enhanced accordingly.
17. Since it has been held that the insurance company is jointly and severally liable along with the owner of the vehicle for payment of the compensation, this Court directs the insurance company to pay the entire compensation to the claimant and shall be at liberty to proceed against the owner of the vehicle for recovery of the same. The insurance company is directed to deposit the compensation within a period of 90 days from the date of receipt of a copy of this judgment. On such deposit of the compensation by the insurance company, the claimant is permitted to withdraw the same without furnishing any security.
18. In the result,--
(i) M.A.C.M.A.No.2390 of 2017 filed by the insurance company is dismissed with the directions in para 12 above.
MACMA Nos.2390 & 2580 of 2017 10 However, liberty is given to the insurance company to proceed against the owner of the vehicle to recover the compensation if the subject insurance policy is declared to be a fake document in the proceedings initiated on account of the police complaints dt.28.08.2005 and 01.02.2016.
(ii) M.A.C.M.A.No.2580 of 2017 filed by the claimant is partly allowed with the directions in para 17 above and the claimant is entitled to the following amounts:
Head Compensation awarded
(1) Annual Income Rs.1,80,000/- (15,000x12)
(2) Loss of future earnings
per annum (10% of the
annual income) on
account of disability and
loss of earning capacity Rs.18,000/-
(3) Multiplier applicable as
per age of the claimant
(Sarala Verma and others
Vs. Delhi Transport
Corporation and another2) 17
(4) Loss of future earnings
(18,000x17) Rs.3,06,000/-
(5) Loss of earnings Rs.45,000/-
2
(2009) 6 SCC 121
MACMA Nos.2390 & 2580 of 2017
11
(6) Medical expenses Rs.30,000/-
(7) Pain and suffering Rs.20,000/-
(8) Damage to clothes Rs.2,000/-
(9) Expenses for future
operation as awarded
by the Tribunal Rs.30,000/-
(10) Extra nourishment,
Travelling and
Attendant charges
as awarded by the
Tribunal Rs.25,000/-
Total compensation awarded Rs.4,58,000/- along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of payment.
(iii) There shall be no order as to costs in these appeals.
19. Pending miscellaneous petitions, if any, in these Appeals shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 21.09.2022 Svv