HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.773 of 2018
JUDGMENT :
This appeal is filed by the Reliance General Insurance Company Limited aggrieved of the order and decree dated 29.08.2017 in O.P.No.16 of 2013 on the file of the Chairman, Motor Accident Claims Tribunal-cum-VIII Additional District Judge, Nizamabad.
2. According to the petitioner, on 19-08-2010 at about 4.30 p.m. she was travelling in the auto bearing No. AP 25 V 3539 from Balkonda towards Armoor and when the auto reached the limits of Chittapur village on National Highway No.7 four way road, at a distance of 5 kilometers towards South from Balkonda police station, the driver of the auto drove it in rash and negligent manner at high speed and lost control over the auto, due to which, the auto turned turtle, as a result of which, she has sustained grievous injuries and fractures all over the body. Immediately after the accident she was shifted in 108 Ambulance to Government Headquarters Hospital, Nizamabad, where she was treated and from there she was shifted to Sri Srinivasa Neuro Care Hospital, Nizamabad and took treatment as inpatient for about two months and underwent major operations to 2 MGP, J MACMA.No.773 of 2018 right hand and steel rod was inserted. After discharge from the hospital, she took treatment in the hospital of Dr.Manjunath and Shashidhar Reddy, Ortho Dentist and took treatment post fixation status involving left maxilla. She incurred more than Rs.2 lakhs towards her treatment, medicines and extra nourishment. According to the petitioner, she was aged 50 years, earning Rs.15,000/- per month from agriculture and vegetable business. Due to the injuries sustained by her, she became permanently disabled, unable to eat hard food, suffering breathlessness and lost her earning capacity. Thus she is claiming compensation of Rs.3 lakhs against the respondent Nos.1 and 2, who are owner and insurer of the auto jointly and severally.
3. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner of accident, nature of injuries sustained by the petitioner and treatment taken by her. It is further contended that as per the First Information Report and charge sheet, auto bearing No. AP 25 V 3539 was not involved in the accident and it was falsely implicated and that the said auto was not insured with their company and therefore, prays to dismiss the petition.
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4. The Tribunal on considering the oral and documentary evidence available on record, partly allowed the O.P., awarding a total compensation of Rs.2,75,000/- along with costs and interest @ 6% per annum from the date of petition till the date of payment or realization against the respondent Nos.1 and 2 jointly and severally. Aggrieved thereby, the appellant-Insurance Company has filed this appeal.
5. Heard the learned Standing Counsel for the appellant-Insurance Company and the learned counsel for the claimant-respondent No.1 herein. Perused the material available on record.
6. The learned Standing Counsel for the appellant-Insurance Company contended that as per the First Information Report, the petitioner was proceeding in the auto bearing No. AP 25 U 3539 and the petitioner wrongly filed the claim against the owner and insurer of the auto bearing No. AP 25 V 3539 and that the driver of the auto was not having valid driving license at the time of accident and charge sheeted for the offence punishable under Section 338 IPC and Section 181 of Motor Vehicles Act and that the tribunal erroneously granted higher compensation against their Company. Accordingly, prayed to set aside the impugned order in the O.P.
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7. The learned counsel for the respondent No.1/claimant contended that the learned Tribunal has awarded just and reasonable compensation and the same needs no interference by this Court.
8. With regard to the manner of accident, though the learned Standing Counsel for the appellant-Insurance Company contended that as per the First Information Report, the petitioner was proceeding in the auto bearing No. AP 25 U 3539 at the time of accident, but the petitioner wrongly filed the claim petition against the owner and insurer of the auto bearing No. AP 25 V 3539, PW.1 categorically stated that on 19.08.2010 at about 4-30 p.m., while she was traveling in the auto bearing No. AP 25 V 3539 from Balkonda towards Armoor, when it reached the limits of Chittapur village on National Highway No.7 four way road, at a distance of 5 kilometers, towards south from Balkonda police station, the driver of the said auto drove the vehicle in a rash and negligent manner, lost control over the auto, due to which it was turned turtle, as a result of which, she has sustained grievous injuries. Immediately she was shifted in 108 Ambulance to the Government Headquarters Hospital, Nizamabad. PWs.2 and 3 are the Doctors who treated the petitioner for the injuries 5 MGP, J MACMA.No.773 of 2018 sustained by her in the said accident. PW-4 is the son of the petitioner who gave complaint to the police. He deposed that the number of the vehicle is 'AP 25 V 3539' and denied that the number appearing in his complaint is 'AP 25 U 3539'. He further added that he writes 'V' in that fashion. He also deposed that he saw the crime vehicle when he went to the police station. In his cross-examination he stated that he do not know that the number is wrongly mentioned in the complaint and so, he has not approached the police authorities to change the case.
9. On the other hand, on behalf of respondent No.2-Insurance Company, RWs.1 to 3 were examined. RW-1 who is the Legal Retainer of respondent No.2 has reiterated their counter averments. RW-2 who is the Junior Assistant of Regional Transport Authority, Nizamabad. RW-3 is the then Assistant Sub-Inspector of Police, Balgonda police station deposed that as per Ex.A1, the crime vehicle was auto bearing No. AP 25 U 3539 and that after investigation charge sheet was filed on the same crime vehicle. In the cross- examination RW-3 deposed that CD file does not contain any photos of crime vehicle bearing No. AP 25 U 3539. Generally the 6 MGP, J MACMA.No.773 of 2018 Investigation officer used to obtain receipt when vehicle was released as it was seized. According to CD file, no receipt was found for the release of crime vehicle. Further Ex.B4 Copy of Registration Certificate of auto bearing No. AP 25 V 3539 clearly shows that the owner of the said vehicle is 'Pedda Balaiah Sangam' who is the respondent No.1 in the present case. Therefore, after evaluating the evidence of PWs.1 and 4 and RWs.1 to 3 coupled with documentary evidence, the tribunal rightly held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle i.e., auto bearing No. AP 25 V 3539. Hence, there are no grounds to interfere with the findings of the tribunal on this aspect.
10. Coming to the quantum of compensation, the petitioner has sustained fracture of nasal bone, left maxillary, loss of teeth and other teeth loosened, zygomatic and temporal soft tissue swelling, fracture of scapula of left side, fracture of 2nd to 5th ribs, fracture condyle of mandible on L/3, fracture 1/3 of right radius, left wrist and other grievous injuries all over the body. She took treatment in Government Headquarters Hospital, Nizamabad, Sri Srinivasa Neuro Care Hospital, Nizamabad and in the hospital of Dr.Manjunath and 7 MGP, J MACMA.No.773 of 2018 Shashidhar Reddy, Ortho Dentist and underwent treatment and she spent more than Rs.2 lakhs for her treatment and medicines. PW-2 the Doctor who treated the petitioner deposed that the petitioner went to his hospital on 19.8.2010 and treated till 26.8.2010 as inpatient and he found that the petitioner has sustained 1) Inter hemisphere bleed in the head, 2) multiple facial bone injuries, 3) fracture of left mandible, 4) fracture in left scapula of the neck, 5) fracture of right wrist and 6) fracture of left side ribs (2nd to 5th). PW-3 also the Doctor who treated the petitioner deposed that the petitioner was admitted into their hospital on 27.8.2010 and took treatment till 2.9.2010 and the petitioner was treated for swelling of the right forearm, which is grievous in nature. Therefore, the tribunal considering the evidence of PWs.1 to 3 coupled with the documentary evidence available on record, nature of injuries sustained by the petitioner and the treatment taken by her, awarded an amount of Rs.1,20,000/- for the injuries sustained by her, Rs.50,000/- for head injury, Rs.50,000/- towards pain and suffering, Rs.30,000/- towards loss of earnings for a period of six months at Rs.5,000/- per month, and Rs.25,000/- towards transportation and extra nourishment. Thus in all the tribunal awarded Rs.2,75,000/- under various heads, which is just and reasonable. 8
MGP, J MACMA.No.773 of 2018 Thus, there are no valid grounds to interfere with the findings of the Tribunal on this aspect.
11. 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. RW-2 who is the Junior Assistant of Regional Transport Authority, Nizamabad has categorically deposed that Sangem Erranna (driver of the crime vehicle/accused) is not issued any driving license. Though RW-2 deposed that owner of auto bearing No. AOP 25 V 3539 is Susheela Batula w/o B.Gangaram, Ex.B4 Copy of Registration Certificate of auto bearing No. AP 25 V 3539 clearly shows that the owner of the said vehicle is 'Pedda Balaiah Sangam' who is the respondent No.1 in the present case.
12. It is, no-doubt, true that by the time of accident, the offending vehicle was insured with the appellant and Ex.B.1 policy was very much in force by the said date. There is also no dispute that in the case of third party risks, as per the decision in National Insurance 9 MGP, J MACMA.No.773 of 2018 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" and 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. Recently, the Apex Court in case of Shamanna (supra), following its earlier decision in Swaran Singh (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. Therefore, respondent No.2 is directed to first satisfy the award by paying the compensation and then recover the same from the owner of the crime vehicle.
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13. In the result, the appeal is partly allowed by setting aside the order and decree passed by the tribunal to the extent of fastening liability to pay the compensation as jointly and severally on the appellant as well as owner of the offending vehicle. However, considering the principle "pay and recover", the appellant-Reliance General Insurance Company Limited is hereby directed to first satisfy the award by paying the compensation to the petitioner and then recover the same from the owner of the crime vehicle without filing any separate suit. Except the said modification as to the liability, the rest of the impugned award is not disturbed.
Pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI 28.04.2023.
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