THE HON'BLE JUSTICE SMT. T.RAJANI
MACMA. No.775 of 2008
%23.02.2017
# B.Rajnikanth
...Appellant
VERSUS
$ P.Rajaiah and another
...Respondents
< GIST:
> HEAD NOTE:
!Counsel for Appellant: Sri K.Dhanunjaya Reddy and
Sri I.Venkata Prasad
^Counsel for Respondents: Sri Ramachandra Reddy Gadi
? Cases referred
1. 2013 (2) ALT 289
2. 2016 ACJ 2694
TR, J
2 MACMA.No.775 of 2008
THE HONOURABLE JUSTICE SMT.T.RAJANI
MACMA. No.775 of 2008
JUDGMENT:
This appeal is preferred by the appellant, who is the petitioner in the lower Court, assailing the judgment of VII Additional Metropolitan Sessions Judge-cum-XXI Additional Chief Judge, Hyderabad made in O.P. No.1415 of 2016 on 16.08.2007 on the grounds that the lower Court dismissed the petition without looking at the fact that there was negligence on the part of the respondent; the lower Court did not go into the facts of the case before dismissing the petition; the lower Court failed to see Exs.A-1 and A-2, copy of FIR and charge sheet, respectively, which show that the accident occurred due to rashness and negligence of the driver of the crime vehicle.
At the hearing, the counsel for the appellant submits that the delay in giving the report is very well explained by stating in the report, that after the accident, the owner of the vehicle approached them and assured that he would pay the compensation and asked them not to file any case, hence they did not give report immediately and after the owner failed to comply with his promise, they gave report to the Police. The said explanation seems to be cogent and there cannot be any other reason for the appellant not to give a report. The following facts also would support the above opinion.
As per the FIR, the accident occurred on 07.04.2004 and Ex.X-1, case sheet of M.G.M. hospital, reveals that the appellant was admitted in the hospital on 07.04.2004 and injuries were found on the body of the appellant. Hence, the explanation given by the complainant in the report can be upheld as cogent as the fact of accident is made probable by the injuries sustained by the appellant.
TR, J 3 MACMA.No.775 of 2008 On the premise that the appellant was traveling as an unauthorized passenger in the Auto, which is a goods vehicle, the lower Court dismissed the claim of the appellant in toto, which on the face of it is erroneous. The reason for not making the award against the owner is not seen in the judgment. The owner would nevertheless be liable even if the insurer is exonerated from liability due to violations in the insurance policy. The vicarious liability of the owner will not cease due to violations in the policy. The liability of the owner is independent of the liability of the insurer. The contract between the owner and the insurer is that of indemnity, subject to the owner complying with the conditions of the policy. The violation of a condition of the policy would only deprive the owner of his entitlement for indemnity, but it shall not affect the third parties.
There is a difference of understanding between the counsels appearing for the parties, with regard to the coverage of the policy. The counsel for the appellant contends that as per the insurance policy marked as Ex.B-1, the risk of one passenger is covered. The counsel for the respondent, on the other hand, contends that no premium is paid for coverage of risk of any passenger and the contents of the policy specifying that one passenger is covered is only a regular proforma of the policies and it is only the payment of premium that decides the coverage of risk. No counter argument, to the above contention, is extended.
The evidence of R.W.1, who is the Deputy Manager-claims in the second respondent's Insurance Company, is to the effect that there is no coverage of the passenger traveling in the auto, which is supported by the terms of the policy. The contents of the report show that the appellant was traveling as an unauthorized passenger in the auto. The counsel for the appellant relied on the judgment of the Hon'ble High Court of Judicature at Hyderabad in the case of UNITED INDIAN TR, J 4 MACMA.No.775 of 2008 INSURANCE CO.LTD., REP.BY ITS BRANCH MANAGER, ADILABAD Vs. MANGILA AJMEERA AND ANOTHER1 which is rendered totally on a different set of facts. In that case the claimant was traveling as an unauthorized passenger and there was dispute between the driver of the lorry and the injured with regard to the return of excess amount paid and the driver pushed the claimant out of the lorry and drove the lorry in a rash and negligent manner as a result of which the left side front wheel of the lorry ran over his right ankle and he sustained injuries. It shows that by the time the accident occurred, the claimant was not traveling in the lorry as unauthorized passenger, he was already on the road. The tussle between the driver and the deceased is after he ceased to be a traveler in the lorry. The accident is not due to the negligent driving of the lorry while the deceased was traveling in the capacity of a gratuitous passenger but due to his being pushed down the lorry and due to being run over by the lorry due to the reckless driving of the driver.
The appellant's counsel relies on another ruling which is rendered by the High Court of Karnataka in the case of ANANTHAMMA Vs. DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD. AND ANOTHER2 wherein the facts are that while the claimant was getting down from the offending lorry, the driver of the lorry moved the vehicle negligently, due to which she fell down from the lorry and sustained injuries as the rear wheel of the lorry ran over her leg. The Tribunal has given a finding that the actionable negligence is on the part of the driver of the lorry, hence, the contention of the insurance company that claimant was traveling as an unauthorized passenger in a goods vehicle and they are not liable to compensate the claimant is not acceptable; on the other hand, they are liable to compensate the claimant. But this court is not persuaded by the above ruling. The very reason for the deceased getting down the lorry is because he travelled in the lorry.
1 2013 (2) ALT 289
2 2016 ACJ 2694
TR, J
5 MACMA.No.775 of 2008
Till he completely alights the lorry, he continues to be in the same capacity as he was during his travel in the lorry i.e. gratuitous passenger.
In this case, the victim was in the lorry when the driver exhibited his negligence, unlike in the first cited ruling wherein the victim was not in the vehicle by the time the driver showed his negligence. In my opinion, the capacity of travel of the victim at the time of the driver exhibiting negligence is the crucial factor for deciding the status of the victim. Hence, not persuaded by the rationale in the said ruling, this Court does not rely on the said judgment. Hence, no liability can be fixed on the insurer. In any case, for the reasons already stated, the owner of the vehicle would be liable for compensation.
With regard to the quantum of compensation, it can be seen that the appellant sustained one fracture injury towards which Rs.10,000/- can be awarded. The medical bills are to an extent of Rs.80,000/-. The nature of the injury, the discharge summary of Medicity hospital and the medical certificate issued by MGM hospital would suggest that the appellant might have incurred the said expenditure in all probability. The evidence of P.W.3, who is the Professor of Orthopedic in Medicity Medical College, Medchal, shows that the appellant was given treatment of regular dressing and K-wire was applied, a rush nail was inserted into fibula and a plaster was also applied to the appellant. The fracture was not united and was infected and the treatment was also given for the said infection. The evidence of P.W.3 also shows that the appellant has to undergo another complicated operation for union of fracture and that the same would cost about Rs.1,00,000/-. Hence, in view of the above evidence, Rs.1,00,000/- is awarded towards future expenses for future surgery of the appellant.
TR, J 6 MACMA.No.775 of 2008 With regard to the disability, P.W.3 does not explain the nature of the disability but he speaks that he assessed the appellant's disability at 40% and issued Ex.A-6. The appellant sustained shortening of more than two inches of left leg. 20% of disability was assessed for shortening of the leg and remaining 20% was assessed for the rest of the fracture, which is not comprehensible.
The appellant is stated to be a student at that time hence, his income cannot be assessed and there is no evidence with regard to the avocation that the appellant would be taking up after his studies. It is likely that he would be taking up a white collared job, which does not involve much manual work. However, considering the disability, Rs.30,000/- is awarded towards loss of future amenities of life, though no compensation is awarded towards loss of future income of the appellant. Hence, an amount of Rs.2,20,000/- is awarded to the appellant.
In the result, the appeal is partly allowed and the judgment of the lower Court is set aside awarding compensation of Rs.2,20,000/- to the appellant. The 1st respondent shall satisfy the said award. The judgment of the lower Court, so far as dismissing the claim of the appellant against second respondent is concerned, is confirmed.
As a sequel, miscellaneous petitions, if any, stand closed. There shall be no order as to costs.
________________________ JUSTICE SMT. T.RAJANI Date: 23.02.2017 Note: L.R. copy to be marked Yes/No.
LSK