The Divisional Manager vs Sri Manklena Ravi And Another
2022 Latest Caselaw 7576 AP

BVLNC,J                                               MACMA 2329 of 2017
Page 1 of 16                                          Dt: 10.10.2022




               HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                         M.A.C.M.A.No.2329 OF 2017

JUDGMENT:

This appeal is preferred by the Oriental Insurance Company

challenging the award dated 09.01.2017 passed in

M.V.O.P.No.158/2014 on the file of Motor Accidents Claims Tribunal-

cum-I Addl.District Judge, Ananthapuramu, wherein the Tribunal

while partly allowing the petition, awarded compensation of

Rs.2,36,000/- with interest @ 7.5% P.A. from the date of petition, till

the date of deposit for the injuries sustained by the petitioner.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioner filed an

application U/s.140 and 166 of Motor Vehicles Act, 1988 (for brevity

"the Act") claiming compensation of Rs.5,00,000/- on account of the

injuries sustained by the petitioner, in a motor vehicle accident

occurred on 21.02.2013 at about 07.00 p.m. while the injured was

returning on his motor cycle No.AP 02J 5652, by the offending auto

bearing No.AP 04X 6620 belonging to the 1st respondent, which met BVLNC,J MACMA 2329 of 2017 Page 2 of 16 Dt: 10.10.2022

with an accident at Musalamma Katta on Ananthapuram to Tadipatri

Road.

4. The facts show that 21.02.2013 at 07.00 p.m. while the

petitioner, who was searching for a job, returning from Ananthapuram

to Julakalva on his motor cycle bearing No.AP 02J 5652 and when he

reached near Musalamma Katta on Ananthapuram to Tadipatri Road,

at that time auto bearing No.AP 04X 6620 came from opposite

direction, in a rash and negligent manner and dashed against the

motor cycle of the petitioner, as a result of which, he fell down on the

road and sustained fracture of right femur, right fibula, right end

metacarpal and hell flap avulsion etc and he was shifted to

Government General Hospital, Ananthapuram, where he was operated

for his fracture injuries by inserting steel plates and screws. An

amount of Rs.2,50,000/- was incurred by the petitioner towards

medical, travelling and other expenses. Due to the said accident, the

petitioner became permanent disabled person and lost job opportunity

and also lost better prospects of life. In this regard, a case in

Cr.No.46/2013 U/secs.337 and 338 of Indian Penal Code was

registered against the driver of the said auto.

5. Before the Tribunal, the appellant, who is the 3rd respondent in

the petition, filed counter resisting while traversing the material BVLNC,J MACMA 2329 of 2017 Page 3 of 16 Dt: 10.10.2022

averments with regard to proof of age, avocation, monthly earnings of

the petitioner, manner of accident, rash and negligence on the part of

the driver of the crime auto, nature of injuries, medical expenditure,

permanent disability and liability to pay compensation to the petitioner

and contended that the petitioner without having any valid driving

license, drove the motor cycle at high speed, without observing the

opposite vehicle movements and he himself dashed against the auto

and thus, there is contributory negligence on the part of the petitioner.

The driver of auto No.AP 04 X 6620 was not holding driving licence

which is against the policy conditions, as such, the 3 rd respondent is

not liable to pay any compensation to the petitioner. The petition is

bad for non-joinder of necessary parties i.e., insurer of motor cycle.

The 3rd respondent company issued policy to cover risk from

22.02.2013 to 21.02.2014 and as per record the said accident was

occurred on 21.02.20213. Thus, as on the date of accident, the policy

was not in force, hence, petition is liable to be dismissed. The

accident was occurred on 21.02.2013 but FIR was registered on

08.03.2013, as such, there was abnormal delay of 16 days in

registering FIR, which shows that the petitioner foisted a false against

the driver of the said auto for wrongful gain. In the additional counter,

it is further contended that the offending auto No.AP 04 X 6620 has no BVLNC,J MACMA 2329 of 2017 Page 4 of 16 Dt: 10.10.2022

valid and effective insurance coverage as on 21.02.2013 and as it is a

fresh policy, the previous policy particulars of said auto are not

furnished by the insured. The policy is covered from 22.02.2013 to

21.02.2014 mid night, though the premium amount of said auto was

paid on 21.02.2013, as such, there was no valid, subsisting and

effective insurance coverage as on the date of accident. The

respondents No.1 and 2 remained exparte before the Tribunal.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the driver of auto bearing No.AP 04 X 6620 driven the same in rash and negligent manner causing the accident?

2. Whether the petitioner has contributory negligence on his part in driving motor cycle bearing No.AP 02 J 5652 with high speed without observing vehicle movement?

3. Whether the petitioner is entitled for compensation? If so, to what extent and from which respondent?

4. To what relief?

7. To substantiate his claim, the petitioner examined P.Ws-1 to 3

and got marked Exs.A-1 to A-5 and Ex.X-1. On behalf of 3rd

respondent, R.W-1 was examined and Exs.B-1 and B-2 were marked.

 BVLNC,J                                                 MACMA 2329 of 2017
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8. The Tribunal, taking into consideration the evidence of P.Ws-1 to

3, coupled with Exs.A-1 to A-5 and Ex.X-1, held that the accident took

place due to rash and negligent driving of the driver of the auto, and

further, taking into consideration of the evidence of P.Ws-1 to 3

corroborated by Exs.A-1 to A-5 and Ex.X-1, awarded a compensation

of Rs.2,36,000/- with interest @ 7.5% P.A. from the date of petition, till

the date of deposit.

9. The plea of the Insurance Company is that the driver of the auto

is not responsible for the accident. It was pleaded that the petitioner

without having any valid driving license, drove the motor cycle at high

speed, without observing the opposite vehicle movements and he

himself dashed against the auto and thus, there is contributory

negligence on the part of the petitioner. The 3rd respondent company

issued policy to cover risk from 22.02.2013 to 21.02.2014 and as per

record the said accident was occurred on 21.02.20213. Thus, as on

the date of accident, the policy was not in force, hence, petition is

liable to be dismissed.

10. The Tribunal considered the evidence on record, and based on

the contentions of both parties, held that the accident occurred due to

the rash and negligent driving of the offending vehicle i.e., BVLNC,J MACMA 2329 of 2017 Page 6 of 16 Dt: 10.10.2022

1st respondent. I do not find any illegality or irregularity in the

findings or reasons recorded by the Tribunal on that issue.

11. The Tribunal after considering the evidence of P.Ws-1 to 3

coupled with Exs.A-1 to A-5 and Ex.X-1, awarded an amount of

Rs.56,000/- towards four grievous injuries @ Rs.14,000/- for each

grievous injury; Rs.40,000/- towards operation expenses; Rs.50,000/-

towards permanent disability; Rs.40,000/- towards pain and suffering;

Rs.30,000/- towards extra nourishment; and Rs.20,000/- towards

attendant charges; total comes to Rs.2,36,000/-.

12. The main contention of the Appellant/Insurance is that the

Tribunal failed to see that the policy came into force from the mid

night of 21.02.2013 and the accident was occurred at 07.00 p.m. on

21.02.2013 and therefore, there was no policy in force at the time of

accident and as such, the Appellant/Insurance Company is not liable

for compensation awarded by the Tribunal and the Tribunal failed to

appreciate the judgments relied on by the learned counsel for the

Insurance Company.

13. The learned counsel for the Appellant/Insurance Company

submitted that as per Ex.B-1 proposal form and Ex.B-2 insurance

policy produced by the Insurance Company and the evidence of the BVLNC,J MACMA 2329 of 2017 Page 7 of 16 Dt: 10.10.2022

Administrative Officer of the Appellant/Insurance Company, who was

examined as R.W-1before the Tribunal established that the owner of

the crime vehicle has consented to issue the policy with effect from

22.02.2013, though he submitted the proposal form and paid the

premium amount on 21.02.2013, and hence, it shall be presumed that

there was no policy on 21.02.2013, and the petitioner did not produce

any evidence that it was a renewal of the existing policy and as such,

the Insurance Company is not jointly and severally liable to pay

compensation amount to the petitioner/injured and the Tribunal was

erred in that regard and in that regard and in support of the said

contentions, the learned counsel for the Appellant/Insurance

Company relied upon the judgments of the Hon'ble High Court of

Madras in the case of Srinivasan Vs. Selvarajan1 and the judgment of

the Hon'ble Apex Court in the case of National Insurance Company

Limited Vs. Jikubha Nathuji Dabhi2.

14. The learned counsel for the claimant vehemently argued that the

Tribunal on appreciation of evidence of R.W-1 came to a conclusion

that the owner of the crime vehicle purchased the policy on

21.02.2013 and he also paid the premium amount on 21.02.2013 and

2015 ACJ 1021

1997 ACJ 351 BVLNC,J MACMA 2329 of 2017 Page 8 of 16 Dt: 10.10.2022

therefore, it shall be presumed that the policy came into force from

00-00 hours on 21.02.2013 only and further, the Tribunal on facts

found that Ex.B-1 was filled at a later date for the reasons best known

to the Insurance Company to suite their contention in the case, and

accordingly generated the policy and the Insurance Company did not

choose to examine the owner or the person, who filled Ex.B-1 proposal

form to establish that the owner has consented to issue the policy from

00-00 hours on 22.02.2013, and further, R.W-1 did not produce any

guidelines of IRDAI as deposed in his evidence to say that Ex.B-2

policy came into force from 00-00 hours on 22.02.2013, though the

premium was paid on 21.02.2013 and hence, the rulings of the

Hon'ble Madras High Court and Hon'ble Apex Court will not help the

case of the Appellant/Insurance Company.

15. The perusal of Ex.B-1 shows that it is a proposal form for the

motor insurance submitted to the Appellant/Insurance Company by

Mr.M.Sudhakara, who is the 3rd respondent in the case.

Mr.K.Ramagopal, Administrative Officer of the Appellant/Insurance

Company was examined as R.W-1. In the cross-examination, he

admitted that one Mr.M.Sudhakara is the registered owner of the

crime vehicle auto, and M.Suri is the driver of the said auto. It is an

admitted case that those persons were arrayed as respondents 1 and 2 BVLNC,J MACMA 2329 of 2017 Page 9 of 16 Dt: 10.10.2022

in the case filed by the claimant. The 3rd respondent is the

Appellant/Insurance Company. Therefore, the evidence of R.W-1

makes it clear that the 1st respondent is the driver and the 2nd

respondent is the owner of the crime vehicle. None of them were

examined by the Appellant/Insurance Company. It is pertinent to note

down that both of them did not contest the case of the claimant and

remained exparte before the Tribunal.

16. R.W-1 in the cross-examinations admitted that before issuing

the policy, they have inspected crime vehicle documents and records

relating to the accident, which were obtained through their

Investigator one M.Koteswara Rao. R.W-1 further admitted that they

have collected premium on 21.02.2013, and on the same day, they

have issued policy under Ex.B-2 and they have collected only

Rs.3,881/- at 03.30 p.m. on 21.02.2013. He conveniently denied the

suggestion of the claimant that Ex.B-2 comes into force on the same

day in view of payment of the premium by the owner of the auto.

R.W-1 deposed that as per IRDAI guidelines policy will commence from

the next day onwards, if the insured is not having previous policy. The

appellant did not produce any evidence to show that the crime vehicle

was not having a policy in existence at the time of issuing Ex.B-2

policy. Ex.B-1 does not disclose any information that the crime vehicle BVLNC,J MACMA 2329 of 2017 Page 10 of 16 Dt: 10.10.2022

was not having any existing policy or if any policy is there, its number.

R.W-1 evidence is not disclosing anything why those details are not

found in Ex.B-1 proposal form.

17. The contention of the Appellant is that the owner has consented

for issuing the policy from 00-00 hours of 22.02.2013, though he paid

the premium on 21.02.2013 and submitted the proposal form on that

day. It appears that the Appellant is harping upon the words "agree"

with an attestation in the name of M.Sudhakara to say that the owner

agreed, and accordingly subscribed signature on the proposal form. It

is pertinent to note down that the word "agree" was written at a place

on the top of the proposal form towards left hand side, where there is

no such column to write such things, and for subscribing signature of

the owner of the vehicle at that place.

18. R.W-1 in the cross-examination admitted that Ex.B-2 was issued

by their office basing on the consent given by the owner. He admitted

that he cannot say, who filled the claimant under Ex.B-1. Therefore, it

is established that R.W-1 has no personal knowledge about the

contents of Ex.B-1 proposal form. It is the duty of the

Appellant/Insurance Company either to examine the owner of the

vehicle or the person, who filled the contents of Ex.B-1 to prove Ex.B-1

document, that too whom it was disputed by the claimant. More BVLNC,J MACMA 2329 of 2017 Page 11 of 16 Dt: 10.10.2022

particularly, with regard to this consent said to have been given by the

owner of the vehicle, who having been paid the premium on

21.02.2013 as mentioned n Ex.B-2 policy.

19. The Appellant/Insurance Company did not produce any IRDAI

guidelines also even before the Tribunal in support of their contention

that the policy will came into force from the next day onwards and

there is no evidence also to show that the crime vehicle was not having

purchased policy. Therefore, in the light of said facts and

circumstances, the Tribunal held that the claimant is a third party to

the policy, and the Insurance Company collected insurance premium

on 21.02.2013 and issued Ex.B-2 policy on the same day at

03.30 p.m. and the accident was occurred at a later point in time, and

as such, the contention of the Insurance Company that there was no

insurance policy at the time of accident is not tenable. In that view of

the matter, I do not find any ground to interfere with the finding of the

Tribunal. In the said circumstances, the decisions relied on by the

Appellant/Insurance Company will not help and support their

contention, in the peculiar facts and circumstances of the case on

hand.

20. The Ex.B-2 policy mentions the date of issue of the policy as

21.02.2013 and confirmed that the premium amount was also BVLNC,J MACMA 2329 of 2017 Page 12 of 16 Dt: 10.10.2022

collected on the very same day. R.W-1 admitted that as per Ex.B-2

policy, an amount of Rs.3,881/- was collected at 03.30 p.m. on

21.02.2013. The accident was occurred at 07.00 p.m. on 21.02.2013

as per evidence of P.W-1 and the same was corroborated by Ex.A-1

attested copy of FIR, Ex.A-3 attested copy of police report (charge

sheet).

21. The driver and owner of the crime vehicle did not challenge the

case of the claimant before the Tribunal. The driver was not examined

by the Insurance Company. R.W-1 admitted that he has no personal

knowledge about the occurrence of accident. Therefore, when the

policy mentions the date of issue of time of payment of premium was

on 21.02.2013 at 03.30 p.m., the contention of the Insurance

Company that the owner agreed to issue the policy with effect from

00-00 hours on 22.02.2013 shall be proved by the Insurance

Company.

22. As discussed above, the Insurance Company did not examine

the owner regarding the alleged endorsement on Ex.B-1 proposal form

said to have been made by the owner. The Insurance Company also

did not examine the person, who was present at the time of presenting

Ex.B-1 proposal form by the owner of the crime vehicle to the

Insurance Company and processed the same for issuing Ex.B-2 policy.

 BVLNC,J                                             MACMA 2329 of 2017
Page 13 of 16                                        Dt: 10.10.2022

Hence, in the absence of evidence to prove that the owner has agreed

to issue the policy at 00-00 hours on 22.02.2013, it is not open to the

Insurance Company to contend that there is no policy at the time of

accident.

23. The Tribunal already observed that IRDAI guidelines claimed by

the Insurance Company were not filed before the Tribunal to support

their contention. The evidence of R.W-1 discloses that the vehicle was

examined by the Appellant officials before issuing the policy i.e., prior

to 03.30 p.m. on 21.02.2013. It indicates that the vehicle was not

involved in any accident prior to the taking of policy. Therefore, it

cannot be contended that the vehicle was involved in any accident

prior taking policy, and suppressing the said fact, a policy was taken

conveniently by the owner of the crime vehicle and later a report was

given to the police, as if the accident was occurred subsequent to

taking the policy and claim was made accordingly.

24. The other contentions of the Appellant is that the Tribunal erred

in awarding Rs.2,36,000/- to the injured/claimant for the injuries

sustained by him is excessive and on high side. The Tribunal

considering the evidence of the claimant, Medical Officers, who were

examined as P.W-2 and P.W-3, and Ex.A-2 wound certificate, Ex.A-4

disability certificate, Ex.A-5 certificate issued by B.K.Samudram Police BVLNC,J MACMA 2329 of 2017 Page 14 of 16 Dt: 10.10.2022

Station found that the injured suffered four grievous injuries and the

disability certificate shows that the claimant suffered permanent

disability at 50%, and all the fractures united with mild deformity of

right foot and limping present due to shortening of right lower limb

and that the claimant had difficulty for sitting and squatting and cross

legging, prolonged periods of standing, brisk walking, climbing stairs

vice versa and running and he has got decreased range of movements,

metacarpal phanlengeal joint, right hand second finger with difficulty

in lifting heavy weights with right hand.

25. The Tribunal basing on all the above facts and circumstances

and permanent disability at 50%, awarded Rs.50,000/- towards four

grievous injuries, Rs.40,000/- towards operation expenses,

Rs.50,000/- towards disability, Rs.40,000/- towards severe pain and

suffering, Rs.30,000/- towards extra nourishment, apart from

Rs.20,000/- towards attendant charges and the total compensation

amount awarded as Rs.2,36,000/- with 7.5% P.A. from the date of

petition, till the date of deposit.

26. The Tribunal while awarding the above said amount considered

the evidence of claimant, Medical Officers as well as the evidence of

R.W-1 about the accident and policy found that the accident was BVLNC,J MACMA 2329 of 2017 Page 15 of 16 Dt: 10.10.2022

occurred due to rash and negligent driving of the auto by the 1st

respondent only.

27. In the light of the discussion, I do not find any grounds to

interfere with the award passed by the Tribunal.

28. In the result, the appeal is dismissed, by confirming the award

dated 09.05.2017 passed in M.V.O.P.No.158/2014 on the file of Motor

Accidents Claims Tribunal-cum-I Additional District Judge,

Ananthapuramu. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________ B.V.L.N.CHAKRAVARTHI, J.

10.10.2022

Psk
 BVLNC,J                                      MACMA 2329 of 2017
Page 16 of 16                                 Dt: 10.10.2022




            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                    M.A.C.M.A.No.2329 OF 2017




                        10th October, 2022


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