HONOURABLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A.Nos.2796 of 2016 and 391 of 2017
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2796 of 2016 filed by the
Insurance Company and M.A.C.M.A.No.391 of 2017 filed by the
claimant, assailing the quantum of compensation, are directed
against the very same order and decree, dated 22.06.2016 made
in M.V.O.P.No.929 of 2011 on the file of the Chairman, Motor
Accidents Claims Tribunal-cum-IV Additional District Judge,
Khammam (for short "the Tribunal").
2. For the sake of convenience, the parties hereinafter will be
referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
against the respondent claiming compensation of
Rs.25,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 29.05.2011. According to him, on the fateful day, the claimant, along with one Mr. A. Suresh, was travelling in swift car bearing No. AP 20 Q 9549. The car was owned by the claimant, insured with respondent, 2 MGP, J Macma_2796_2016 and 391_2017 being driven by its driver namely Ramasahayam Ashok Reddy. When the said Car reached near Maremma temple, the driver, in the process of averting to hit the buffaloes which came across the road, hit a tree. As a result, the claimant sustained comminuted fracture midshaft of left humerus, fracture to both bones of left leg in the distal 1/3rd, fracture both bones of right leg in the middle 1/3rd with illizarao fixator institu, comminuted posterior wall fracture of left acetabulum with posterior dislocation of left hip. Immediately, he was shifted to Dr.P.N.V.S.V.Prasad hospital, Khammam, where illizarao fixation of right leg was done and thereafter, he was admitted in Apollo hospital, Hyderabad, where he underwent surgeries and discharged on 20.06.2011. However, due to pain in left hip joint, he got admitted in Sun Shine hospital, Hyderabad on 08.08.2011, where the implants were removed and total left hip replacement and plastic surgery was done and discharged on 15.09.2011. He incurred expenditure of Rs.12,50,000/- towards medical treatment. Due to the said accident, he sustained permanent disability and lost his earning capacity. Thus, the claimant laid the claim against the respondent for Rs.25.00 lakhs.
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MGP, J Macma_2796_2016 and 391_2017
4. Before the Tribunal, the respondent-Insurance Company filed counter disputing the manner of accident, nature of injuries sustained by the claimant, age, avocation and income of the claimant and further contended that the claimant being the owner of the vehicle, the respondent-Insurance Company, under policy would indemnify risk of the claimant arising as against third parties. However, the claimant is not a third party and he did not pay any extra premium to cover his risk. Therefore, prayed to dismiss the claim petition as the claim cannot be prosecuted by the injured.
5. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.2,00,000/- towards compensation to the claimant along with costs and interest @ 9% per annum from the date of filing the petition till realization against the respondent.
6. Heard the learned Standing Counsel for the Insurance Company and learned counsel for the claimant. Perused the material available on record.
7. The learned Standing Counsel appearing on behalf of Insurance Company (appellant in MACMA No.2796 of 2016) has 4 MGP, J Macma_2796_2016 and 391_2017 specifically contended that the premium paid for own damages is towards damage to vehicle and not for the bodily injury to the owner/insured and since the owner/insured has no liability to a third party, no liability can be fastened on the Insurance company. Furthermore, the learned Standing Counsel vehemently argued that the claimant being the owner and co- traveller in the said car which was driven by another person, is not liable to claim the compensation as he does not come under third party risks and no liability can be fastened against the Insurance Company. Hence, prayed to set aside the order passed by the Tribunal.
8. The learned counsel for the claimant (appellant in MACMA No.391 of 2017) has submitted that although the claimant, by way of evidence of P.W.1 and Ex.A.3 to A.13, established the fact that he had sustained disability due to the injuries received by him in the accident, the Tribunal did not take into consideration the same and discarded the evidence produced by the claimant and awarded very meager amount under various heads.
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MGP, J Macma_2796_2016 and 391_2017
9. Admittedly, there is no dispute with regard to the manner of accident. The Tribunal after evaluating the evidence of PW.1 coupled with the documentary evidence available on record i.e. Exs.A.1, FIR & A.2, Final Report, held that the accident occurred due to rash and negligent driving of the driver of Car bearing No. AP 20 Q 9549. 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 driver of the offending Car.
10. Though the claimant seeks enhancement of compensation by way of appeal being MACMA No. 391 of 2017, the Insurance Company, by way of appeal No. 2796 of 2016 challenges the very liability to pay the compensation on the ground that the claimant cannot be treated as third party in order to claim compensation. According to Mr. A. Ramakrishna Reddy, the learned Standing Counsel for the Insurance Company, admittedly, the claimant is the owner of the car and in order to fasten the liability on the Insurance Company, the claimant is required to establish either that he is a third party or that his risk is covered under the terms and conditions of the policy. It is his contention that as the claimant himself was the owner of 6 MGP, J Macma_2796_2016 and 391_2017 the car, who was travelling in the car as an occupant, but not as driver, he cannot be treated as a third party. The vicarious liability of the Insurance Company to indemnify the liability of the owner of the vehicle is in respect of third parties and not to the owner himself and therefore, the claimant is not entitled for any compensation. Whereas, the learned counsel for the claimant, by placing reliance on catena of decisions, submitted that the claim petition is maintainable against the insurer since under Ex.B.1 policy, premium was paid towards the Personal Accident Cover Policy, to cover the bodily injuries or the death of the owner-cum-driver and even it is accepted that he was not driving the car at the time of the accident, still, having agreed under the contract of insurance, to indemnify the owner, the Insurance Company is liable to pay the compensation irrespective of the fact as to whether the owner travelled as an occupant or driven the vehicle. On the quantum of compensation, it is submitted that though the claimant has adduced sufficient evidence in order to establish that he had suffered permanent disability and incurred heavy amounts towards medicines & treatment, the Tribunal has awarded 7 MGP, J Macma_2796_2016 and 391_2017 meagre amounts and therefore, the same needs to be enhanced reasonably.
11. Dealing with the issue of liability of the Insurance Company in similar circumstances, a Division Bench of the composite of High Court of A.P. in Royal Sundaram Alliance Insurance Co. Ltd., Secunderabad v. Vemavaram Sudheer Babu & Ors.1, has categorically observed at para No. 22 as under:-
"22. ...The policy would show that it has covered the risk of the occupants of the car and that of the owner-cum-driver. By looking at the extent of coverage given by the policy, the intention of the insurer can be gathered. The terms imply that the policy was taken with an intention to give coverage to all the risks arising out of the use of the vehicle. In such circumstances, giving a narrow interpretation to the words "owner-cum- driver", to mean the owner, only while driving the car, would be against the spirit of the terms of the policy. Hence, we opine that the owner, who was travelling in the car as an occupant is also covered by the terms of the policy."
(emphasis added) 1 2019 (2) ALD 343 (DB) 8 MGP, J Macma_2796_2016 and 391_2017
12. Therefore, in the light of the above decision, the contention of the learned Standing Counsel for the Insurance Company that the claimant is not entitled even for the Personal Accident Benefit Claim as he was in the car only as an occupant but not as owner-cum-driver does not merit consideration and the same is hereby rejected.
13. As regards the quantum of compensation, considering the fact that it is a case of owner suffering injuries and as Ex.B.1 policy is package policy, the Tribunal at para No.20 held as under:-
"20. Ex.B.1 is the policy of insurance. It is a package policy and it shows that the owner has paid a premium of Rs.100/- towards personal accident benefit. The Insurance Company delimited its liability to a tune of Rs.2,00,000/- (Rs.Two lakhs only). RW.1 during his cross examination admitted the truth of this. Thus, there is Personal Accident Benefit Claim and it was agreed between the present claimant and the respondent, that the liability of the Insurance Company is to a tune of Rs.2,00,000/- (Rs.Two lakhs only) for the owner. This policy under Ex.B.1 does indicate that it covers so much of the claim for bodily injuries as well as death. In the case at hand, we have already seen that the petitioner suffered serious injuries and is permanently disabled. He is entitled to make a claim only to a tune of Rs.2,00,000/- (Rs. Two lakhs only) under Ex.B.1 and the 9 MGP, J Macma_2796_2016 and 391_2017 rest of the claim is not amenable for adjudication by this Tribunal. Therefore, the petitioner is entitled to claim compensation of Rs.2,00,000/- (Rs.Two lakhs only) and that has to be paid by the respondent...."
14. The said findings of the Tribunal are based on appreciation of the nature of policy, Ex.B.1 and as it provides for Personal Accident Benefit claim to the tune of Rs.2,00,000/-, the Tribunal has rightly held that the claimant is entitled only to make a claim only to the tune of Rs.2,00,000/- while rejecting the rest of the claim. The said finding of the Tribunal does not suffer from any infirmity warranting interference by this Court.
15. In the result, both the appeals are dismissed confirming the order of the Tribunal dated 22.06.2016 in M.V.O.P. No. 929 of 2011. No order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI 28.04.2023 tsr/gms 10 MGP, J Macma_2796_2016 and 391_2017 THE HONOURABLE SMT JUSTICE M.G. PRIYADARSINI M.A.C.M.A.Nos.2796 of 2016 and 391 of 2017 28.04.2023 tsr/gms