Narni Bapanna vs Gidla Srinvias 2 Ors
2022 Latest Caselaw 9600 AP

            HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                       MACMA No.4155 of 2012

JUDGMENT:

1. Aggrieved by the Judgment dated 18.03.2008 in MVOP No.1146 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 Section 166 of the Motor Vehicles

Act,1988, for compensation of Rs.1,50,000/- for injuries sustained by

him in a motor vehicle accident.

4. The claimant's case is that on 17.04.2004, he and two others went to

Panasaladoddi to weigh and load paddy in the trailer. After completing

the loading, the petitioner and Moka Venkateswara Rao 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 so

overturned. The petitioner and Venkateswara Rao fell from the tractor;

the paddy load fell on them. The petitioner had suffered a head injury

and multiple injuries over his body. Immediately the petitioner was

shifted to Life Line Emergency Hospital, Kakinada.

MACMA_4173_2012

5. The 3rd respondent filed its 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 2 got examined

and marked Exs.A1 to A.13 and Exs.X1 and X2. On behalf of the 3 rd

respondent Ex.B1 policy got marked. The 3rd 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.16,700/- with interest @ 9% p.a. 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 appellant/petitioner contends that the

appellant sustained grievous injuries. Still, the Tribunal awarded a

meagre amount of Rs.10,000/- and the claimant, due to the grievous

injury to his left ear, has become deaf. The Tribunal should have seen

that the vehicle in question is being used for the agricultural purpose to

MACMA_4173_2012

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 is the Tribunal 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-

objections. According to the evidence of PW.1, he had sustained an

injury to his left ear and injury to the eye besides multiple injuries. To

MACMA_4173_2012

show that he relied on an Ex.A3 copy of the wound certificate issued

by Lifeline Emergency Hospital, it shows that the petitioner had

suffered bleeding from the left ear and bilateral subconjunctival

haemorrhage. Ex.A3 shows that both injuries are grievous. To prove

the nature of the injuries and treatment, the petitioner got examined

by PW.2 --Dr G.Bhanumathi, medical officer. The finding of the

Tribunal that the petitioner sustained two grievous injuries is not

disputed by the respondent/insurance company. The petitioner

contends that he became deaf due to an ear injury. PW.2 also stated

that the petitioner had a loss of earnings, but the Tribunal had not

inclined to accept the version of PW.2 on the ground that there is no

report to show conducting the hearing test, which shows the nature

and extent of the hearing loss. By observing the same, the Tribunal did

not consider disability as a factor in assessing compensation.

Considering the nature of the injuries, this Court views that the

Tribunal should have awarded compensation of Rs.20,000/- for two

grievous injuries instead of Rs.10,000/-. Based on Exs.A5 to A13

medical bills, the Tribunal rightly awarded an amount of Rs.5,200/-

towards medical expenses. The petitioner has filed a discharge

summary in Ex.A4 to show that he was admitted to Lifeline Emergency

Hospital on 18.04.2004 and discharged on 22.04.2004. The Tribunal

also observed that the petitioner must rest for about 15 days. The

evidence on record shows that the petitioner is a Jattu Coolie. In the

MACMA_4173_2012

said facts of the case, the Tribunal should have awarded an amount of

Rs.4,000/- towards loss of earnings. The Tribunal has not awarded

any amount towards attendant charges, transportation expenses and

nutrition charges. This Court views Rs.6,000/- can be awarded under

those heads. Apart from the compensation awarded by the Tribunal to

the petitioner, this Court considers that the petitioner is entitled to the

following additional under various amounts:-

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

 1.     Loss of earnings                    1,500/-          4,000/-       2,500/-

 2.     Medical expenses                    5,200/-          5,200/-         -

 3.     Pain and suffering                 10,000/-         20,000/-     10,000/-

 4.     attendant      charges,            --                6,000/-       6,000/-
        transportation
        expenses and nutrition
        charges

             Total                         16,700/-         35,200/-     18,500/-

POINT No.2 :

14. 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;

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 transporting goods or materials. He was a labourer for

loading and unloading at the time of the accident. The said finding of

the Tribunal is not disputed by the respondent herein. The 3rd

MACMA_4173_2012

respondent contends that the labourers travelling in the tractor are not

covered by the insurance; the petitioner is not entitled to compensation

from the 3rd respondent. 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.

Further, the respondent/insurance company relied on Ex.B1 policy to

establish the same. 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. Though it has produced the

policy, as seen from it does not contain the terms and conditions. At

best, it can say that it is an incomplete document. 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, it observed that the petitioner was travelling in a tractor and the

tractor involved in the 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 the person engaged

in the vehicle used as a goods carriage; the Court must necessarily

MACMA_4173_2012

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 are used to transport the paddy from the fields. Otherwise, there

is no need to have the trailer. Simply because the paddy was shifted in

the trailer for sale from the fields, it cannot be said 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 it, it is somewhat difficult to accept the Tribunal's

observation regarding the violation of the terms of the permit.

15. 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".

AIR 2018 SC 2662

MACMA_4173_2012

16. 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

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".

17. In National Insurance Company Limited Vs. Challa

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

ply a vehicle could not 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, in section 149(2), defence

is available to the insurer on that aspect. The acceptability of the stand

2018 ACJ 2430

2004 ACJ 2094 (SC)

MACMA_4173_2012

is a matter of adjudication. The question of policy being operative had

no relevance to the issue regarding the liability of the insurer. It was

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 amount from the insured. To recover the amount

paid from the owner, the insurer shall not be required to file a suit."

18. 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. This Court cannot import or read any

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

of the Act.

19. 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

MACMA_4173_2012

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

When once, the Tribunal accepted the claimant's case that 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, sustained injuries in the process of shifting paddy from

fields to another place.

20. 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, though 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 offending vehicle's owner.

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

the order dated 18.03.2008 in MVOP No.1146 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.35,200/- from Rs.16,700/- with interest

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

respondent/insurance company is directed to deposit the balance

amount before the Tribunal within two months from the date of the

order and recover the same from the offending vehicle's owner by filing

MACMA_4173_2012

Execution Petition before the Tribunal. The petitioner can withdraw the

amount by filing a proper application before the Tribunal.

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

closed.

-------------------------------------

T. MALLIKARJUNA RAO, J

Dt.14.12.2022 BV/KGM