Moka Venkateswara Rao vs Gidla Srinivas 2 Ors
2022 Latest Caselaw 9599 AP

             HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                        MACMA No.4173 OF 2012

JUDGMENT:

1. Aggrieved by the Judgment dated 11.03.2008 in MVOP No.1147 of

2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum-

II Additional District Judge, East Godavari District at Amalapuram

(for short 'the Tribunal'), the claimant has preferred this appeal for not

fastening the liability on the 3rd respondent/insurance company.

2. For convenience, the parties will be referred to as arrayed in the

MVOP.

3. The petitioner filed a claim under Sections 163-A and 166 of the Motor

Vehicles Act,1988, for compensation of Rs.2,00,000/- for the injuries

sustained by him in a motor vehicle accident.

4. The claimant's case is that on 17.04.2004, the petitioner and two

others went to Panasaladoddi to weigh and load paddy in the trailer.

After completing the loading, the petitioner and Narma Bapanna Sai

sat on the load in the trailer bearing No.AP5U428 attached to the

tractor bearing No.AP5U427 (hereinafter referred to as 'offending

vehicle). The 1st respondent had driven the tractor rashly and

negligently and it overturned due to such driving. The petitioner and

Bapanna fell, and the paddy load fell on them. The petitioner had

suffered a fracture to his spinal cord. The petitioner was shifted to

Government Hospital, Kothapeta.

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5. The 3rd respondent filed his counter, submitting that the 1st

respondent did not possess a valid driving license and he was under

the influence of alcohol at the time of the accident. Respondents 1 and

2 remained exparte.

6. Based on the pleadings, the Tribunal formulated relevant issues.

During the trial, on behalf of the claimant, P.Ws.1 and two got

examined and marked Exs.A1 to A.23 and Exs.X1 and X2. No oral or

documentary evidence was let in on behalf of the respondents. The 3 rd

respondent filed a petition under Section 170 of the Motor Vehicles

Act, and it was allowed permitting the 3rd respondent to take the

defences available to the insured to the extent permissible.

7. After evaluating the evidence on record, the Tribunal held that the

accident occurred due to the rash and negligent driving of the

offending vehicle's driver. The Tribunal granted a compensation

amount of Rs.55,000/- with interest @ 9% per annum against

respondents 1 and 2 from the date of the petition till the date of

realization; the claim against the 3rd respondent is dismissed without

costs.

8. Heard learned counsel for the claimant and 3 rd respondent.

9. The learned counsel for the petitioner contends that he sustained an

injury to his spinal cord and cannot do any hard work as a coolie. The

disability sustained by him should be treated as 100% disability. The

Tribunal should have awarded a minimum amount of Rs.60,000/-

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towards pain and suffering. The Tribunal should have seen that the

vehicle in question is being used for the agricultural purpose to

transport the agricultural produce, so the 3rd respondent/insurance

company cannot disown its liability in payment of compensation to the

claimant.

10. Per contra, the learned counsel for the 3rd respondent/insurance

company supported the findings and observations of the Tribunal.

11. Now the points for determination are whether the compensation

amount awarded by the Tribunal is just and reasonable and whether it

requires enhancement? And whether the Tribunal is justified in not

fastening the liability on the insurance company?

POINT No.1 :

12. As seen from the grounds of appeal, the material on record, and the

submission made on either side, there is no dispute about the

occurrence of the accident in question. The insurance company has

not preferred any appeal questioning the findings about the rash and

negligent driving of the offending vehicle's driver. In view of the same,

this Court finds that the particulars of the accident need not be

mentioned in detail.

13. The petitioner examined as PW.1. The evidence of PW.1 that he

sustained injuries in the accident is not disputed by the

respondent/insurance company by preferring appeal or cross-

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objections. To show the injuries sustained by the petitioner, he relied

on Ex.A3 - attested copy of wound certificate and Ex.A4 to 23 medical

bills, Ex.X1 case sheet and Ex.X2 MRI report along with two films. The

documents, i.e., Ex.A1 attested copy of FIR and Ex.A2 attested copy of

charge sheet, also support the case of the petitioner that he sustained

severe injuries in the accident. The petitioner examined PW.2 Dr

G.Bhanumathi, medical officer, to prove the treatment by PW.1. The

evidence of PW.2 shows that she examined injured and found

tenderness over the lower dorsal and upper lumbar region; the X-ray

showed compression of B.1 vertebra. She issued Ex.A3 wound

certificate. There is only one injury, i.e., wedge compression at L.1

vertebra. According to PW.2, the petitioner had undergone surgery;

and was advised to walk with support. She further stated that there is

the possibility of weakness in the lower limbs, and the petitioner is

required to rest for six months. Ex.X1 case sheet shows the admission

date as 18.04.2004 and the discharge date as 30.04.2004. Based on

the evidence PW.2, the Tribunal rightly observed that nothing is

produced to show that the petitioner sustained disability. The evidence

of PWs.1 and 2 shows that the petitioner took treatment for 13 days.

He was advised to take rest for six months. The Tribunal awarded an

amount of Rs.15,000/- towards loss of earnings. Because the

petitioner was working as a Jattu coolie, this Court views that an

amount of Rs.4,000/- can be fixed as monthly earnings of the

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deceased, the loss of earnings can be fixed at Rs.24,000/- the

petitioner is entitled to an additional amount of Rs.9,000/- under this

head.

14. The Tribunal awarded an amount of Rs.25,000/- towards medical and

transportation expenses. The Tribunal observed that the petitioner

filed a bunch of medical bills under Exs.A4 to A23 to show that the

expenses incurred for treatment in Life Line Hospital and the said bills

show an expenditure of Rs.23,325/- by the petitioner. In the facts of

the case, this Court views that the Tribunal should have awarded an

amount of Rs.30,000/- towards medical and transportation expenses,

so the petitioner is entitled to an additional amount of Rs.5,000/-.

Considering the evidence of PW.2, advised the petitioner to rest for six

months, and the petitioner was advised to walk with the support of a

stick. In the facts of the case, this Court views that an amount of

Rs.30,000/- can be awarded towards pain and suffering, so the

petitioner is entitled to an additional amount of Rs.15,000/-. After

considering the nature of the injuries, this Court finds an amount of

Rs.5,000/- is to be awarded towards attendant charges. The petitioner

is entitled to Rs.10,000/- towards extra nourishment and Rs.10,000/-

towards loss of amenities. Apart from the compensation amount

awarded by the Tribunal to the petitioner, this Court views that the

petitioner is entitled to the following additional under various

amounts:-

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S.No. Head of the claim Amount Amount Difference Awarded by Awarded Amount Tribunal

1. Loss of earnings 15,000/- 24,000/- 9,000/-

   2.      Medical     and                  25,000/-         30,000/-      5,000/-
           transportation
           expenses

   3.      Pain and suffering               15,000/-         30,000/-      5,000/-

   4.      Attendant charges                  --              5,000/-      5,000/-

   5.      Extra nourishment                  --             10,000/-    10,000/-

   6.       Loss of amenities                 --             10,000/-    10,000/-

               Total                        55,000/-       1,09,000/-    54,000/-

POINT No.2 :

15. The Tribunal, after appreciation of the evidence on record, has given a

finding that PW.1 was a labourer of the person who purchased paddy

bags; it was being taken to Palivela at the time of the accident. The

Tribunal also observed that the petitioner could be said to be acting as

a person engaged in the transportation of goods or material, and he

was working as a labourer for loading and unloading at the time of the

accident. The said finding of the Tribunal is not disputed by the

respondents herein. The 3rd respondent contends that the labourers

travelling in the tractor are not covered by the insurance and that the

petitioner is not entitled to compensation from the 3rd respondent.

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From the said suggestion, it can take that the respondent/insurance

company has not disputed the insurance policy's coverage of the

tractor and trailer involved in the accident. When the insurance

company claims it does not cover the labourer's risk, it must produce

some evidence before the Court to substantiate its contention. But it

has not produced any evidence before the Tribunal. The Tribunal has

referred a decision of this Court, i.e., New India Assurance Company

Limited Vs. Kistamma (1999(6) ALD page 712). Wherein this Court was

considering the liability under Section 95 of the Motor Vehicle Act,

1939. The petitioner, in that case, was travelling in a tractor, and the

tractor was involved in an accident. It was observed that at the time of

the accident, the petitioner was working as coolie under the tractor's

owner, engaged in unloading bricks transported in the tractor. This

Court has held that the insurance company is liable to compensate the

claimants. Though the Tribunal referred the said citation, it has not

applied by giving its reasons which are not sustainable. The Tribunal

has also observed when the petitioner is taken as a person engaged in

the vehicle used as a goods carriage, the Court must necessarily

consider the purpose for which the vehicle was put to use at the time

of the accident. It is not in dispute that the petitioner and another

person proceeded on the paddy load on the tractor and trailer from the

fields of Konda Gopalam. It is common knowledge that the tractor and

trailer transport the paddy from the fields. Otherwise, there is no need

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to utilize the trailer. Simply because shifted the said paddy in the

trailer for selling, it cannot say that the vehicle is used for commercial

purposes. The Tribunal observed a permit violation by using the

tractor for commercial purposes. Furthermore, the insurance company

has not filed the permit to show the violation. In the absence of the

permit, it is somewhat difficult to accept the Tribunal's observation

regarding the violation of the terms of the permit.

16. In the case Amrit Paul Singh Vs. TATA AIG GENERAL Insurance

CO.LTD1, the Apex Court held that the vehicle is not having a permit

at all and being used for hire or reward is a case of fundamental

breach, and hence, the insurer though absolved of its liability, had to

pay the compensation and a recovery order was made in the said case

permitting recovery from the insured. Also, when a vehicle had a

permit to ply within a particular area or on a route deviated from the

said area or route and was plying in another area or route. If an

accident occurred, it is not a case of fundamental breach, although

there is a violation of the terms of the policy".

17. In another case, in between Rani and others Vs. National Insurance

Company Limited and others2, the Apex Court held that the three

Judges Bench was called upon to answer with regard to the pay and

recovery order passed by the Tribunal. In the said case, the Insurance

AIR 2018 SC 2662

2018 ACJ 2430

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Company disputed its liability on the ground that the truck had no

permit for being plied in the State of Karnataka as its permit was

restricted to the State of Maharashtra. The Tribunal allowed

compensation and directed the insurance company to deposit the

amount. However, the High Court exempted the insurance company

from liability. Still, the Apex Court, in appeal, directed the insurance

company to deposit the amount with the liberty to recover the same

from the vehicle owner. Dealing with the aforesaid aspect, the apex

Court again reiterated the earlier principles in Swaran Singh, modified

the Judgment of the High Court and restored the Tribunal's order

directing the insurance company to pay and recover".

18. In National Insurance Company Limited Vs. Challa

Bharathamma3, the Apex Court held that a person without a permit to

ply a vehicle cannot be placed on a better pedestal vis-à-vis one who

has a permit but has violated any condition thereof. Plying on a vehicle

without a permit is an infraction. Therefore, section 149(2) defence is

available to the insurer. The acceptability of the stand is a matter of

adjudication. The question of policy being operative had no relevance

to the issue regarding the liability of the insurer. It further held that

considering the beneficial object of the Act, it would be proper for the

insurer to satisfy the award, though, in law, it has no liability. In some

cases, the insurer has been given the option and liberty to recover the

2004 ACJ 2094 (SC)

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amount from the insured. To recover the amount paid from the owner,

the insurer shall not be required to file a suit."

19. It is a well-established principle of law that the insurer has to

establish that the breach of policy is so fundamental that it ends the

contract which has been entered into between the insurer and the

insured. In other words, the violation must be of such a nature that it

is the primary cause of the accident and not otherwise. With this

object, the legislature has spelt out grounds on which the insurance

company can avoid liability. The defence provided to the insurance

company is a statutory right. We cannot import or read any other

grounds than what is spelt out in sub-section (2) of section 149 of the

Act.

20. After considering the entire material on record, this Court views the

finding of the Tribunal that the owner of the offending vehicle had

violated the terms of the permit as unsustainable. The Tribunal has

not given any reasons for coming to such a conclusion though the

insurance company failed to produce the permit. The Tribunal has

accepted the claimant's contention that the tractor and trailer were

covered by the insurance company at the relevant time of the accident.

Once the Tribunal accepted the claimant's case, the injured proceeded

in the tractor as a labourer for loading and unloading the paddy. There

is no restriction to the offending vehicle's owner to use the tractor and

trailer for transportation of paddy, and the claimant, as a labourer,

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sustained injuries in the process of shifting paddy from fields to

another place.

21. In the light of the law this Court views as referred to above, the

Tribunal committed an error in not fastening the liability on the

insurance company. Since the evidence on record shows that the

claimant and another person were sitting on the paddy load. However,

it has not contributed to the accident; this Court views that a direction

can be given to the insurance company to pay and recover the

compensation from the owner of the offending vehicle.

22. In the result, the appeal is partly allowed without costs by modifying

the order dated 11.03.2008 in MVOP No.1147 of 2005 passed by the

Chairman, Motor Accidents Claims Tribunal-cum-II Additional District

Judge, East Godavari district, Amalapuram, by enhancing the

compensation amount of Rs.1,09,000/- from Rs.55,000/- with interest

at 9% per annum from the date of petition till realization; the 3 rd

respondent/insurance company is directed to pay the amount at first

within two months from the date of the order and recover the same

from the offending vehicle's owner by filing Execution Petition before

the Tribunal. The petitioner can withdraw the balanced compensation

amount by filing a proper application before the Tribunal.

23. Miscellaneous petitions, if any, pending in this appeal shall stand closed.

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                                               T. MALLIKARJUNA RAO, J
Dt.          .2022
BV/KGM