THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A No.3046 of 2011
JUDGMENT:
Being not satisfied with the quantum of compensation awarded and the exoneration of the 3rd respondent/Insurance Company from the liability of paying the compensation vide order and decree dated 29.07.2009 passed in M.A.T.O.P.No.101 of 2002 by the Chairman, Motor Accident Claims Tribunal (V Additional District Judge) (Fast Tract Court), Khammam, the appellant/petitioner preferred the present appeal.
2. For convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that on 27.04.2001 at about 6.30 p.m., the petitioner was hit by a Tractor and Trailor bearing No.AP-20F-1480 & 1481. Due to this, the petitioner sustained fracture injuries. On a complaint, Police Enkur, have registered a case in Cr.No.35 of 2001 under Section 337 of I.P.C. against the driver of the crime Tractor and Trailor. Hence, he filed the claim petition claiming compensation of Rs.1,00,000/-.
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MACMA No.3046 of 2011
4. Before the Tribunal, respondent No.1/driver and 2nd respondent/owner of the crime Tractor and Trailor, filed a common counter denying the allegations made in the petition.
5. Respondent No.3/Insurance Company filed a counter denying the allegations made in the claim petition. They mainly contended that the driver of the crime Tractor and Trailor was not possessing a valid driving license and the crime vehicle was not road worthy to play at the time of the accident.
6. Respondent No.3/Insurance Company also filed an additional counter by contending that the petitioner was an unauthorised passenger travelling in the goods vehicle/tractor and trailor at the time of the accident. Accordingly, prayed to dismiss the O.P.
7. To prove his case, the petitioner examined PWs.1 to 4 and got marked Exs.A1 to A6 and Ex.C1. On behalf of respondent No.3, RWs.1 and 2 were examined and marked Ex.B1.
8. After considering the claim and the counter filed by the respondents, and on evaluation of the evidence, both oral 3 RRN,J MACMA No.3046 of 2011 and documentary, the Tribunal has answered issue No.1 in favour of the petitioner that the accident was the result of rash and negligent driving of the Tractor and Trailor bearing No.AP- 20F-1480 & 1481 and the O.P. was partly awarded compensation of Rs.40,800/- with interest @ 7.5% per annum payable by the respondents No.1 and 2 only while dismissing the claim against the 3rd respondent/Insurance Company observed as follows:
"The testimony of P.W.1, the claim petitioner and PW.4, the eyewitness to the accident and Ex.A1/FIR and Ex.A2/chargesheet also make it very cristal clear that accident was occurred when the driver of the tractor trailor drove the same in a rash and negligent manner with high speed when PW.1 was alighting from the tractor. Ex.B1/Insurance policy shows that the tractor trailor is a goods vehicle. Naturally the seating capacity of tractor is only one i.e. the driver as such no others are to be permitted to be travel on the tractor." The Tribunal relied upon in the case of National Insurance Co. Ltd. Vs. Bramarambika & others, 2006 ACJ 671 (Karnataka High Court) it was held that:
"Motor Vehicles Act, 1988, Section 147(1) and Rules of the Road Regulations, 1989, regulation 28 - Motor Insurance - Tractor - passenger risk - Liability of Insurance Company - Permitted seating capacity of tractor is only that of driver - Regulation 28 of Rules of the Road Regulations prohibit carrying of any person on the mudguard of a tractor - Whether Insurance Company is liable for the death of a person who was travelling on the mudguard of a tractor - Held: no."
In view of the above proposition of law since the evidence of PWs 1 and 2 and RWs 1 and 2 coupled 4 RRN,J MACMA No.3046 of 2011 with Exs.A1 and A2, and Ex.B1 Policy makes it quite unequivocal that the claim petitioner was unauthorized passenger on the crime tractor at the time of the accident, as such, respondent No.3/Insurance Company is not liable to pay compensation."
9. Learned counsel appearing for the petitioner had contended that the Tribunal was at fault in coming to the conclusion that the respondent No.3/Insurance Company was not liable to pay compensation as the petitioner was a gratuitous passenger. He further contended that the Tribunal did not take into consideration the medical expenses incurred by the petitioner even though the petitioner has adduced evidence to that effect and that the Tribunal did not grant any amount towards pain and suffering. He relied upon the judgment of the Hon'ble Supreme Court in Manuara Khatun & others Vs. Rajesh Kr. Singh & others 1.
10. Learned counsel for respondent No.3/Insurance Company contended that the Tribunal was justified in dismissing the claim against them as the petitioner was a gratuitous passenger on the goods vehicle i.e. tractor and no 1 Civil Appeal No.3047 of 2017 dt.21.02.2017 5 RRN,J MACMA No.3046 of 2011 interference is required by this Court. Accordingly, prayed to dismiss the appeal.
11. Heard both sides and perused the record.
12. At the outset, it has to be decided whether respondent No.3/Insurance Company is liable to pay compensation or not.
13. Upon bare reading of the impugned order, it is observed that the Tribunal found that the 3rd respondent/Insurance Company is not liable to pay compensation as the petitioner was an unauthorised passenger on the crime tractor. But, a perusal of the judgment of the Hon'ble Supreme Court in Manuara Khatun (supra) held as under:
"16) This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance 6 RRN,J MACMA No.3046 of 2011 Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
The facts in the above case are squarely applicable to the case on hand. Applying the above decisions to the present case, this Court is of the view that the 3rd respondent/Insurance Company can be directed to pay the compensation amount to the appellant/petitioner and then recover the same from the respondent No.2/owner of the vehicle.
14. Now, coming to the quantum of compensation, it is observed from the impugned order that the petitioner got examined PW.2/Dr. Seetaiah and PW.3/Dr. T. Madan Singh and filed Ex.A3 Medical Certificate, Ex.A4 medical bills numbering 19, Ex.A5 medical prescriptions four in number. Ex.A3 Medical certificate was issued by Government Area Hospital, Kothagudem, shows that petitioner sustained the following injuries:
i) Laceration 5x1x1cm on right scrotum - simple 7 RRN,J MACMA No.3046 of 2011
ii) Contusion 15x15 cm on upper part of thigh - grievous Ex.A3 contains the reference of X-ray and the X-ray report of petitioner underwent by him at Government Hospital, Khammam, is appended to Ex.A3 and the same shows that PW.1 sustained fracture superior pubic rami.
15. The Tribunal granted Rs.2,000/- to the first simple injury, and a sum of Rs.20,000/- is awarded to the fracture of the superior pubic ramus left. However, this Court grants Rs.10,000/- to the simple injury. The Tribunal rightly awarded Rs.20,000/- to the fracture injury and Rs.4,000/- towards medical bills, which needs no interference. The Tribunal did not grant any amount towards pain and suffering. However, this Court is inclined to grant the petitioner a sum of Rs.10,000/- towards pain and suffering. Petitioner claimed that he was earning Rs.100/- per day through his mason work, but except for his self-serving testimony, he has not placed any authenticate material to show that he was mason and earning Rs.100/- per day. The Insurance Company, though denied the avocation and income of the petitioner, it has not adduced any positive or rebuttal evidence to prove its contentions. In such circumstances, considering the age of the petitioner, the Tribunal has fixed Rs.80/- per day as the same was the minimum wage 8 RRN,J MACMA No.3046 of 2011 prescribed and paid by the Government to the workers under the Food for work programme. Thus, the Tribunal awarded a sum of Rs.4,800/- under the head loss of earnings for two months. However, this Court is inclined to enhance the petitioner's income from Rs.80/- to Rs.150/- per day and monthly incomes to Rs.4,500/- and the petitioner is entitled to Rs.9,000/- towards loss of earnings for two months.
16. In view of the foregoing reasons, this appeal deserves to be allowed in part.
17. Accordingly, the M.A.C.M.A. is allowed in part by enhancing the compensation amount of Rs.40,800/- to Rs.53,000/- (Rs. Fifty three thousand only) with costs and interest at 7.5% from the date of petition till the date of realisation. Respondents No.1 to 3 are directed to deposit the above said amount along with interest and costs within two months from the date of receipt of a copy of this judgment. The petitioner is permitted to withdraw the entire amount upon such deposit. The 3rd respondent/Insurance Company is directed to deposit the above said amount at the first instance and then recover the amount from the 2nd respondent/owner 9 RRN,J MACMA No.3046 of 2011 of the vehicle, in accordance with law. There shall be no order as to costs.
As a sequel of which, miscellaneous petitions, if any pending, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 06th day of October 2023 BDR