Andhra Pradesh High Court - Amravati

Shriram General Insurance ... vs Shaik Abdul Khader Geelani Shaik ... on 8 December, 2022

Bench: T Mallikarjuna Rao

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                  M.A.C.M.A. No.2753 OF 2014


JUDGMENT:

1. Shriram General Insurance Company Limited, represented by its

Manager, Jaipur Rajasthan, the 2nd respondent in M.V. O.P. No.

243 of 2011, assailing the order dated 28.12.2012 passed by the

I Additional District Judge, Anantapur, has preferred this appeal

questioning the award passed by the Tribunal.

2. For convenience, the parties will be referred to per their rankings

in the M.V.O.P.

3. The claimant filed a claim petition under Sections 140 & 166 of

the Motor Vehicles Act, 1988 (for short 'M.V.Act), claiming

compensation of Rs.20,00,000/- for his injuries in a motor

vehicle accident that occurred on 02.01.2011.

4. The briefcase of the claimant is that on 02.01.2011 at about

3.30 p.m., the claimant, along with his wife and two children,

were travelling from Anantapur to Bangalore in a car bearing No.

K.A. 01 MD 836. While he was driving the car on the left side of

the road, a crime lorry bearing No. K.A. 03 AA 5356 (hereinafter

referred to as the "lorry") of the first respondent, driven by its

driver in a rash and negligent manner, suddenly stopped without

any indicator or signal on the road and took a right turn near

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Hampapuram Village on NH-44, due to which the car met with

an accident. As such, the claimant, his wife, and his children

sustained injuries. Immediately, the claimant was shifted to the

Government General Hospital, Anantapur. On doctors' advice, he

was shifted to Columbia Asia Hospital Pvt. Ltd., Bangalore,

where he underwent surgeries and spent an amount of

Rs.10,00,000/- for treatment.

5. The first respondent remained ex parte.

6. The second respondent filed its counter, submitting that unless

a duly licensed driver drives a lorry bearing No. K.A. 03 AA 5356;

as per the valid permit and fitness certificate, this respondent

cannot be held liable. There was no rash and negligent driving

on the part of the lorry driver. The accident was caused only by

the rash and negligent driving of the claimant, as he drove it in a

rash and negligent manner.

7. Based on the pleadings, the Tribunal framed relevant issues. To

substantiate his claim, P.Ws. 1 to 4 got examined on behalf of

the claimant and Exs. A.1 to A.7 and marked Exs. C.1 to C.3. On

behalf of the second respondent no oral evidence got adduced;

however, a copy of the policy got marked as Ex.B.1 with consent.

8. After considering the evidence on record, the Tribunal held that

the accident occurred due to the rash and negligent driving of

the lorry driver. The Tribunal also held that Ex.B.1 was in force

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at the time of the accident. The second respondent failed to show

the violated policy conditions. The Tribunal awarded

compensation of Rs. 20,00,000/- with interest at 7.5% per

annum.

9. Learned counsel for the second respondent/appellant herein

contended that the accident occurred only due to negligence of

the claimant; the Tribunal, ignoring the disability assessed by

the doctor at 40%, considered 70% of the disability.

10. Learned counsel for the claimants/ respondents herein has

supported the findings and observations of the Tribunal.

11. Heard the learned counsel appearing for both parties. Perused

the record. Now the points for consideration are,

I. Whether the accident occurred due to the rash and negligent driving of the first respondent, or it occurred due to the contributory negligence of the claimant and the first respondent?

II. Are the compensation fixed by the Tribunal just and reasonable, or it requires enhancement?

POINT No. I:

12. The claimant got examined as P.W.1. He testified about the

manner of the accident. He relied on Ex.A.1-certified copy of

F.I.R. and Ex.A.2-certified copy of the charge sheet in support of

his case. A reading of Ex.A.1 shows that it is almost similar to

petition averments that the first respondent stopped the lorry

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without indicator. The claimant also relied on Ex.A.2-certified

copy of the charge sheet. According to allegations made in the

charge sheet, the accident occurred due to the rash and negligent

driving of the first respondent.

13. The normal rule is for the claimants to prove the negligence. But

in accident cases, hardship is caused to the claimant as the true

cause of the accident is not known to them but is solely within

the knowledge of the respondent who caused it. It will then be for

the respondent to establish the accident due to some other cause

than his negligence. The insurance company did not choose to

examine the driver of the lorry, and the driver of the lorry

involved in the accident did not enter the box to explain the

manner of the accident. There is no ocular evidence led in by the

respondent.

14. Neither the claimant nor the respondents did adduce any

evidence to show that the contents of the charge sheet are

incorrect. In K.Rajani and others, V. M.Satyanarayana Goud

and others 1 , the erstwhile High Court of Andhra Pradesh

observed that:

"when the insurance company knew that the police investigation was false, they must also challenge the charge sheet in appropriate proceedings. If at all the

2015 ACJ 797

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findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

15. In Bheemla Devi V. Himachal Road Transport Corporation 2

the Hon'ble Apex Court observed as follows:

"It was necessary to bear in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

16. Nothing on record suggests that the Investigating Officer filed a

charge sheet against the lorry driver without conducting a proper

investigation; it is also difficult to hold that the Police Officer

fabricated a case. In a proceeding under the M.V. Act, where the

procedure is a summary procedure, there is no need to go by

strict rules of pleading or evidence. The document having some

probative value, the genuineness of which is not in doubt, can be

looked into by the Tribunal for getting preponderance of probable

versions. As such, it is now well settled that even F.I.R. or Police

Papers, when made part of a claim petition, can be looked into for

giving a finding in respect of the happening of the accident. The

preponderance of probabilities is the touchstone for concluding

2009 ACJ 1725 (S.C.)

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rashness and negligence, as well as the accident's mode and

manner of happening. The reading of the documents placed

before the Tribunal clearly shows that the accident occurred due

to the negligence of the first respondent/ lorry driver. When it

contends that the accident happened due to the only negligence

of the claimant, the respondents have to place necessary evidence

before the Tribunal based on which the Tribunal is expected to

give its conclusion. No material was placed by the second

respondent to show the accident occurred due to the claimant's

negligence, as contended. The reading of the documents placed

before the Tribunal clearly shows that the accident occurred due

to rash and negligent driving of the crime lorry's driver. For the

reasons best known to the 2nd respondent, it has not examined

the driver of the crime lorry, who was supposed to know the

manner of the accident. No explanation is forthcoming. Regarding

the aspect of negligence also, no evidence is produced before the

Court by the 2nd respondent. The 2nd respondent has not placed

any material before Court to show how it has got a source of

information about the accident.

17. This Court views that it must prove either negligence or

contributory negligence like any other fact; there is a no different

standard for proving negligence or contributory negligence. But

they cannot be decided on suspicion or surprise. The pleas taken

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in the counter will remain as pleas as they are not substantiated

by acceptable, relevant and legal evidence. There must be cogent

evidence to prove contributory negligence. In the instant case,

there is no specific evidence to prove that the accident occurred

due to the deceased's negligence. In the absence of cogent

evidence to prove the plea of contributory negligence, this Court

can not apply the common law doctrine in the present case.

Although there are no details of contributory negligence in the

counter, and no evidence is also put forth except alleging a stray

sentence in the counter. The manner in which the accident

happened leaves no doubt that the driver of the lorry was solely

negligent in causing a said accident. While granting relief under

the act, the courts are not to be bound by mere technicalities but

would adopt a liberal approach by giving the law a wider

construction and meaning that would favour the victims.

18. After carefully reading the entire evidence adduced by both sides,

this Court accepts the finding recorded by the Tribunal regarding

the occurrence of the accident due to the negligence of the first

respondent/lorry driver. Accordingly, the point is answered.

POINT No. II

19. The case of the claimant is that he was working as a software

engineer and earning an amount of Rs. 14,00,000/- per month.

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To establish the earnings, he relied on Ex.A.4-pay slip, which

shows Rs.76,498/- per month. Despite the said fact, to determine

disability, the Tribunal considered the monthly earnings of the

claimant at Rs.50,000/- per month and the annual earnings at

Rs.6,00,000/- (50,000 x 12). The claimant's age, which was 38 at

the time of the accident, is not disputed. Considering the same,

the Tribunal applied the multiplier of 15 for the persons aged 36

to 40, as provided in Sarla Verma Vs. Delhi Transport

Corporation3

20. To prove the nature of injuries and treatment undergone by the

claimant, he relied on Ex.A.3-certified copy of the wound

certificate; Exs.A.5 and A.6-a bunch of medical bills; and Ex.A.7-

Medical certificate in respect of an orthopedically handicapped

candidate. P.W.1 testified that he sustained multiple injuries all

over the body and relied on Ex.A.3-certified copy of the wound

certificate issued by Columbia Asia Hospital, Bangalore, which

shows that there were fractures of the left humerus, right femur,

right distal tibia with bimalleolar, 3, 4, 5, 6, ribs on the right side

with haemothorax, and dislocation of the left acetabulum. Dr B.

Shankar, who treated the claimant, was examined as P.W.2. He

testified that the claimant underwent surgeries on 05.12.2011 for

right hip procedural removal of the recon nail on the right femur,

2009 ACJ 1298

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osteotomies of the right hip D.H.S., and bone grafting. The

Tribunal observed that as per Ex.A.1, C.3 to C.5, the claimant

underwent five operations in total, and the Tribunal awarded an

amount of Rs.50,000/- for the operations. For the pain and

suffering of the five fractures, the Tribunal awarded an amount of

Rs.1,00,000/- i.e. Rs.20,000/- each. Based on the medical bills

submitted by the claimant, the Tribunal has concluded that the

claimant spent nearly Rs.10,52,424/- and same was awarded

towards medical bills. The Tribunal, after considering the

evidence of P.Ws. 2 and 3, has concluded that the claimant will

have difficulty walking as he sustained a disability. To prove the

disability, the claimant examined P.W.4- Dr A. Jagannath, who

deposed that the claimant's disability is assessed at 70% in

nature. The disability of the claimant is noted by P.W.4 as

follows:

All the fractures are united, leading to the shortening right lower limb by 4 cm with wasting and weakness of the right thigh and right leg muscles with decreased range of movements of the right hip and right ankle joints. There is a decreased range of movements of the left hip joint grossly due to the injury with secondary osteoarthritis changes limping present due to shortening and hip joint damage. Mild wasting of left arm muscles with decreased

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range of movements of left shoulder and left elbow joint. He had difficulty for a prolonged period of walking, standing, sitting in the position of cross legging and running. He cannot squat. He needs the removal of implants in future. The right lower limb disability is 40% left lower limb disability is 20%, left upper limb disability is 10%.

21. By considering the evidence on record, the Tribunal assessed the

functional disability at 70%. There is nothing on record to

suggest that because of the disability sustained in the accident,

the claimant lost his total earning capacity or could not take up

any further jobs. After considering the material on record and the

nature of the disability, this Court was inclined to consider the

disability at 10%. Thereby, the calculation of functional disability

can be arrived at Rs. 6,00,000/- x 15 x 10% = Rs.9,00,000/-. The

Tribunal arrived at a figure of Rs.63,00,000 for functional

disability apart from Rs. 10,00,000/- for medical bills and

Rs.1,00,000/- for pain and suffering, but observed that the

claimant restricted his claim to a maximum of Rs. 20,00,000/-