1 RRN,J
MACMA No.1399 of 2015
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.1399 OF 2015
JUDGMENT:
This appeal is filed under Section 173 of the Motor Vehicles Act, aggrieved by the order and decree, dated 08.10.2012, passed in M.V.O.P.No.45 of 2012 on the file of the Motor Accident Claims Tribunal-cum-IX Additional District Judge, Kamareddy (for short "the Tribunal").
2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the petitioner filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.1,50,000/- on account of injuries sustained by the petitioner. It is stated that on 19.02.2009, the petitioner along with others was travelling in the DCM van bearing No.MH-43-E-7468 from Haveli Ghanpoor Village towards Dharmaraopet Village and when the van reached near Mallannagutta on NH No.7, a lorry bearing No.AP-07-TU-9819 being driven by its driver in a 2 RRN,J M.A.C.M.A.No.1399 of 2015 rash and negligent manner and at high speed, dashed against their van from the opposite direction, as such, she and others suffered injuries as the DCM van turned turtle. Due the said accident, she lost earning capacity and also suffered a loss of income and spent about Rs.1,00,000/- towards medical expenses. Hence, the claim petition.
4. Respondent No.1 was set ex parte and the respondent No.2 filed counter denying the allegations in the petition.
5. To prove her case, the petitioner examined PW.1 and got marked Ex.A1 to A3. No oral evidence was adduced on behalf of the respondent No.2, however, got marked Ex.B1/ copy of Policy.
6. On appreciation of the evidence on record, the Tribunal found that though the petitioner filed a copy of FIR and charge sheet to show that the accident was due to the sole negligence of the lorry driver, the Tribunal found that there is negligence on the part of the driver of the DCM Van 3 RRN,J M.A.C.M.A.No.1399 of 2015 as well. Accordingly, the claim petition was dismissed by the Tribunal. Hence, the present appeal.
7. Heard both sides. Perused the record.
8. Learned counsel for the petitioner submitted that the Tribunal erred in dismissing the Original Petition on the ground that necessary parties were not joined and the 2nd respondent/Insurance Company is exempted from liability for the reason that there was negligence on the part of the petitioner also as she was travelling in the DCM Van as an unauthorized passenger. He further contended that there is no negligence on the part of the driver or owner of the DCM van, as such, he restricted his claim against the present respondents.
9. On the other hand, learned counsel for the 2nd respondent/Insurance Company submitted that the Tribunal was justified in dismissing the claim against the respondents and reiterated the stand taken before the Tribunal. Accordingly, prayed to dismiss the appeal.
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10. Having considered the rival submissions of both parties, this Court is of the view that the Tribunal erred in dismissing the claim petition against the respondents on the ground that the petitioner and 59 others were travelling in the DCM Van as unauthorized passengers and that the owner and driver of the DCM Van were not made parties to the claim. It is an established fact that the offending Lorry is insured with the 2nd respondent/Insurance Company.
11. This Court is not impressed with the views taken by the Tribunal to dismiss the claim against the respondents. As the evidence revealed that the accident occurred due to the sole negligence of the driver of the lorry, resulting in injuries sustained by the petitioner, the appeal deserves to be allowed by holding that the respondents are jointly and severally liable to compensate the petitioners.
12. This Court would now deal with the quantum of compensation to be awarded to the petitioner. The petitioner got herself examined as PW1 and got marked Exs.A1 to A3. The evidence would reveal that the petitioner sustained a 5 RRN,J M.A.C.M.A.No.1399 of 2015 fractures of the Thigh bone and a fracture of the middle upper 3rd of the right of the shaft femur. As such, it would be reasonable to award Rs.30,000/- for injuries including pain and suffering. The petitioner claimed that she incurred more than Rs.1,00,000/- towards medical expenses, however, there is no material placed to believe the same. In such a situation, it would be reasonable to award Rs.10,000/- towards medical expenses. Further, it would be just to award Rs.10,000/- towards attendant charges and extra nourishment. In all, the petitioner is entitled to Rs.50,000/-.
13. Accordingly, the M.A.C.M.A. is allowed by setting aside the order and decree dated 08.10.2012 passed in O.P.No.45 of 2012 by the Tribunal. The petitioner is awarded Rs.50,000/- (Rupees Fifty Thousand Only) with interest at 7.5% per annum from the date of filing of this appeal till the date of realization payable by the respondents jointly and severally. The respondents shall deposit the said compensation amount together with interest within a period of two months from the date of receipt of a copy of this 6 RRN,J M.A.C.M.A.No.1399 of 2015 judgment. On such deposit, the petitioner is permitted to withdraw the same. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 22nd day of February 2023 PNS/BDR