1 RRN,J
MACMA No.1005 of 2015
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.1005 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.1,00,000/- 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 rash and 2 RRN,J M.A.C.M.A.No.1005 of 2015 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 to the said accident, she lost earning capacity and also suffered the loss of income and spent more than Rs.75,000/- towards medical expenses. Hence, the claim petition.
4. Respondent No.1 set ex parte and respondent No.2 filed counter denying the allegations in the petition.
5. To prove her case, the petitioner got herself examined as PW.1 and 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 as well. Accordingly, 3 RRN,J M.A.C.M.A.No.1005 of 2015 the claim petition was dismissed by the Tribunal. Hence, the present appeal.
7. Heard learned Counsel for the petitioner and learned Counsel for the 2nd respondent/Insurance Company. There is no appearance on behalf of the 1st respondent despite notice was sent through court and was received by the 1st respondent on 06.07.2015. 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.
4 RRN,J M.A.C.M.A.No.1005 of 2015
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.
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 5 RRN,J M.A.C.M.A.No.1005 of 2015 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 fracture of the bilateral superior and inferior Pubic Rami. As such, it would be reasonable to award Rs.20,000/- for injuries including pain and suffering. The petitioner claimed that she incurred more than Rs.75,000/- towards medical expenses, however, there is no material placed to believe the same. In such a situation, it would be reasonable to award Rs.5,000/- 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.35,000/-.
13. Accordingly, the M.A.C.M.A. is allowed by setting aside the order and decree dated 08.10.2012 in M.V.O.P.No.45 of 2012 passed by the Tribunal. The petitioner is awarded Rs.35,000/- (Rupees Thirty Five Thousand Only) with interest 6 RRN,J M.A.C.M.A.No.1005 of 2015 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 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 February 2023 PNS/BDR