HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.816 of 2019
JUDGMENT:
This appeal is filed by the claimant, aggrieved of the award and decree dated 16.07.2007 made in O.P.No.1481 of 2002 on the file of the Motor Accidents Claims Tribunal-III Additional District Judge (FTC-II), Khammam, seeking enhancement of compensation and in exonerating the insurance company from the liability of payment of compensation.
2. The appellant herein is the claimant before the Tribunal. He filed the O.P. under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of RS.2,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 20.07.2002. According to the appellant, on 20.07.2002 while himself and another were proceeding on a motorcycle from Tekulapalli to Khammam, at about 10:00 p.m., when they reached near Pandithapuram Main Road, opposite to Saibaba Temple, the offending vehicle i.e., Lorry bearing No.AP 16 U 4064, owned by the respondent No. 2 and insured with respondent No.3, was stationed across the road without blinking parking lights/indicators by its driver, respondent No.1, and the claimant dashed the stationed lorry from the back side in the process to avoid a vehicle coming from opposite side. As a result, the claimant sustained several grievous injuries. 2
MGP, J Macma_816_2019 Immediately after the accident, he was shifted to Cure Emergency Hospital, Khammam, where he underwent operation for fracture injuries and he had taken treatment as inpatient for two months. Therefore, he laid the claim against respondent Nos.1 to 3 for Rs.2,00,000/- towards compensation under different heads.
3. The Tribunal, considering the claim, counter filed by respondent No.3 and on evaluation of oral and documentary evidence, allowed the O.P. in part awarding a total compensation of Rs.69,964/- but the Tribunal having assessed the compensation at Rs.69,964/-, deducted 50% therefrom towards contributory negligence on the part of the claimant. The net amount of Rs.34,982/- along with costs and interest @ 7.5% per annum was directed to be deposited by respondent Nos.1 and 2 i.e., driver and owner of the crime vehicle by exonerating the insurance company, respondent No.3, on the ground that the driving licence of the driver of the crime vehicle was expired even before the date of accident. Seeking enhancement of compensation and challenging the findings of the Tribunal in holding that there was contributory negligence on the part of the claimant at 50% and exonerating the 3 MGP, J Macma_816_2019 insurance company from its liability of payment of compensation, the claimant has filed this appeal.
4. Heard both sides and perused the record.
5. The learned Counsel for the appellant-claimant has firstly contended that though the claimant has received multiple grievous injuries, underwent operation on nasal bone, mandible, maxilla apart from major injury to eye brows, the Tribunal awarded meager amount towards pain and suffering. Further, the Tribunal erred in not awarding any amount under the head of injuries, transportation, extra nourishment and attendant charges. Secondly, it is contended that the accident took place at 10:00 p.m., and at the time of the accident the crime vehicle was stationed across the road without any indicators such as parking lights and blinkers, as seen from Exs.A.1, FIR copy and Ex.A.2, charge sheet and in these circumstances, the Tribunal ought not to have held that there was contributory negligence on the part of the claimant in causing the accident. It is lastly contended that although the licence of the driver of the crime vehicle was expired by the date of accident, the Tribunal ought to have directed the insurance company to pay the compensation at the first instance and then recover the same from the owner of the vehicle. Therefore, the 4 MGP, J Macma_816_2019 findings of the tribunal in fixing 50% contributory negligence on the part of the claimant and also exonerating the insurance company from its liability of payment of compensation are erroneous and need to be set aside.
6. On the other hand, learned Standing Counsel for respondent No.3, insurance company, has contended that considering the evidence brought on record, the Tribunal has rightly awarded the compensation and the same needs no interference. As regards the negligence, it is contended that Ex.B3, Crime Details Form, indicates a rough sketch which clearly shows that the lorry was stationed within the road margin but not on the road or across the road and therefore, considering the same, the Tribunal has rightly fixed contributory negligence on the part of the claimant at 50%. It is further contended that as the driver of the crime vehicle was not having valid and effective driving licence at the time of the accident, the Tribunal has rightly exonerated the insurance company from its liability to pay the compensation.
7. As seen from the record, the accident took place at 10:00 p.m. There is no dispute that the claimant had dashed the stationed lorry from behind which was parked on the road side. The record does not disclose that the driver of the crime vehicle 5 MGP, J Macma_816_2019 had taken any precautions such as blowing parking lights. Even the Insurance Company did not take any steps to summon the driver of the vehicle in order to establish that at the time of the accident the driver had taken all the precautions such as giving blinkers/parking lights and placing sign boards around the vehicle. However, the Tribunal basing on Ex.B3 came to the conclusion that there was contributory negligence on the part of the claimant at 50%. The record further discloses that the charge sheet, Ex.A2, was filed against the driver of the crime vehicle, respondent No.1 holding that the accident occurred due to his negligence in parking of the vehicle across the road. Merely because the claimant has dashed the crime vehicle from behind, it cannot be concluded that there was contributory negligence on the part of the claimant. Admittedly, the time of the accident was 10:00 p.m., by which time the claimant cannot be expected to observe the stationed lorry in front of him that too without blinkers/parking lights. Careless parking of the vehicle without indication or without parking lights and not taking proper care of the parked vehicle also amounts to rash and negligent use of the vehicle. Such being the case, the contributory negligence fixed by the Tribunal on the part of the claimant at 50% is on higher side and considering the circumstances of the case more particularly, Ex.B.3, the 6 MGP, J Macma_816_2019 contributory negligence on the part of the claimant is fixed at 20%.
8. So far as the quantum of compensation amount awarded by the Tribunal is concerned, as seen from Ex.A3, wound certificate, issued by Cure Emergency Hospital, Khammam, the claimant had suffered three injuries i.e., fracture of left frontal bone, fracture of right maxilla and fracture floor of left cheek and all the three injuries are grievous in nature. That apart, Ex.A4 is the discharge summary, issued by Cure Emergency Hospital, Khammam, which discloses that the claimant was admitted in the hospital on 21.07.2002 and was discharged on 28.07.2002. Considering the said evidence, the Tribunal awarded only Rs.40,000/- under the head of pain and suffering and no amount was awarded for three grievous injuries sustained by the claimant. Therefore, considering Exs.A3 and A4, this Court is inclined to award a sum of Rs.60,000/- for three grievous injuries i.e., Rs.20,000/- for each grievous injury.
9. The record further discloses that though the claimant has taken treatment as in-patient in a private hospital for a considerable period, no amount was awarded by the Tribunal under the head of extra nourishment, transportation and attendant charges. Thus, considering the nature and period of 7 MGP, J Macma_816_2019 treatment undergone by the claimant, this Court is inclined to award a sum of Rs.15,000/- towards extra nourishment, transportation and attendant charges. Considering the nature of treatment undergone by the claimant in a private hospital and Exs.A10 to A15, hospital receipts and medical bills, the Tribunal has rightly awarded Rs.13,464/- towards medical expenses. Thus, in all the claimant is entitled to Rs.1,28,464/-. Since there was contributory negligence of the claimant at 20%, the claimant is entitled to Rs.1,02,771/- towards 80% compensation.
10. As regards the aspect of liability of payment of compensation, as per the record and evidence brought on record, the driving licence of the driver of the offending vehicle stood expired even before the occurrence of accident. Thus, there is breach of terms and conditions on the part of the owner of the offending vehicle as he had entrusted the vehicle to a person, who was not holding valid driving licence by the time of accident. But the fact remains that by the time of accident, the offending vehicle was insured with the appellant 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. 8
MGP, J Macma_816_2019 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. Recently the Apex Court in Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, 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." In view of the above, the Insurance Company is under obligation to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.
1 (2004) 3 SCC 297 2 2018 ACJ 2163 9 MGP, J Macma_816_2019
11. In the result, the M.A.C.M.A. is allowed in part and the compensation amount awarded by the Tribunal is hereby enhanced from Rs.34,982/- to Rs.1,02,771/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. However, following the doctrine 'pay and recover', the Insurance Company-3rd respondent is directed to pay the aforesaid 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 2nd respondent without initiating any separate proceedings. Time to deposit the said compensation is for two months from the date of receipt of a copy of this order. On such deposit, the claimant is at liberty to withdraw the same without furnishing any security. No costs.
Pending miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 23.02.2023 tsr 10 MGP, J Macma_816_2019 HONOURABLE JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.816 of 2019 DATE: 23-02-2023