National Insurance Co Ltd vs Medara Suresh 2 Ors
2022 Latest Caselaw 7844 AP

                                  1                 MACMA.No.504 of 2015


          HON'BLE SRI JUSTICE T MALLIKARJUNA RAO

                      MACMA.No.504 OF 2015

JUDGMENT

1. The National Insurance Co.Ltd., represented by its Divisional Manager, 2nd respondent in MVOP.No.119 of 2006 on the file of Motor Accidents Claims Tribunal - Cum - IV Additional District Judge, Guntur preferred this Motor Accidents Claim Miscellaneous Appeal questioning the order dt.08.01.2008 awarding compensation amount of Rs.92,100/- with interest at 7.5% p.a., to the claimant.

2. For comfort's sake, the parties will be referred to as arrayed in MVOP.No.119 of 2006.

3. The claim petition is filed under Sections 163-A, 166 of the MV Act, for an amount of Rs.2,00,000/- as compensation for injuries sustained by the claimant in an accident that occurred on 10.09.2005 at about 10.00 AM. The petitioner and others were coming in an auto bearing No.AP07TT2492 from Sirigiripadu of Veldurthi, and in the meantime, a jeep bearing registration No.AP05TO183 was coming from the opposite direction; both vehicles collided with the other due to rash and negligent driving of the drivers of both vehicles resulting in which the petitioner sustaining injuries.

4. Respondents 1 and 3 became set exparte. The 2 nd respondent filed a written statement by submitting that the said auto is not insured. There was no negligence on the part of the auto driver at the time of the accident. The driver of the auto is not holding a valid driving license. The case registration against the jeep driver shows he is

responsible for the accident.

5. Based on the pleadings, the Tribunal framed the relevant issues. Before the Tribunal on behalf of petitioners, the PWs.1 and 2 got examined, and Exs.A1 to A4, Exs.X1 and X2 were marked. On behalf of the 2nd respondent, examined RWs.1 and 2 , marked Exs.B1 to B3.

6. Considering the evidence on record, Tribunal held the accident occurred due to the negligent driving of the drivers of both vehicles and awarded a compensation amount of Rs.92,100/- with interest at 7.5% per annum to the petitioner.

7. Heard the arguments of learned counsel for the appellant and the respondents and perused the record.

8. The appellant contends the findings of the Tribunal the accident occurred due to rash and negligent driving of the drivers of both vehicles is incorrect. The said auto was insured by the 2nd respondent and was not involved in the accident.

9. Per contra, the learned counsel appearing for respondents supported the findings and observation of the learned Tribunal.

10. Now the point for determination is whether Tribunal is justified in holding that the accident occurred due to composite negligence of vehicle drivers referred to above.

11. After carefully reading the material on record, this court believes there is no serious dispute about the quantum of compensation awarded by the Tribunal; this court is to consider only the negligence aspect.

12. To prove the manner of the accident, the petitioner examined as PW.1. According to his evidence, while he and others were travelling in auto bearing registration No.AP07TT2492, and at that time, a jeep bearing No.AP05T0183 came in the opposite direction, and both vehicles collided with one another due to the rash and negligent driving of the drivers. The petitioner relied on Ex.A1 FIR in Cr.No. 104 of 2005 to show crime registration concerning the accident by Station House Officer Machala. Ex.A2 certified copy of charge sheet shows that it is filed against the jeep driver. To prove the case of the 2nd respondent it got examined RW.1, who deposed that there was no negligence on the part of the auto driver. RW.2, who worked as Head Constable, Macharla, during the relevant time, stated in his evidence that the accident occurred due to rash and negligent driving of the driver of the commander jeep. Nothing is elicited in the cross-examination of PW.1 to discredit her evidence. I see no reason to disbelieve their evidence.

13. The evidence of PW.1, RWs.1 and 2 show that in the accident, both vehicles collided in opposite directions. The accident happened at about 10.00 AM. The material placed on record clearly shows that both vehicles were considerably damaged in the said accident. The evidence of RW.2 shows that the accident occurred due to an auto and a jeep collision. This court believes that a person's negligence cannot be judged based on the contents of the charge sheet. The petitioner who sustained injuries stated on oath that the accident occurred due to the collision of both vehicles. The evidence of PW.1 is supported by the evidence of the head constable, who was examined on behalf of the 2nd respondent. A head-on collision between two vehicles usually occurs when drivers of both vehicles are negligent. Even if one of the drivers is a little bit more careful, there would be some possibility of averting the accident. The drivers

of both the offending vehicles were not examined; they are the best persons to speak about the manner of the accident. In the absence of their evidence, the Tribunal has given prominence to the evidence of PW.1, who sustained injuries in the accident. There is every possibility for PW.1 to witness the accident in question. As already observed, the petitioner concerning sustaining injuries is evident by Ex.A3 certified copy of wound certificate, Ex.A4 certificate issued by Ramaseetha hospital, Ex.X1 case sheet and Ex.X2 X-ray film is not disputed. There is nothing on the record to show what happened in criminal court based on the charge sheet filed by the police. But based on the allegations made by the police in the charge sheet, no finding can be given unless the same is proved by admissible evidence. It is not safe to accept the allegations made in the charge sheet as accurate when more particularly, no evidence is let in on behalf of the respondents and, on the other hand, the petitioner who sustained an injury in the accident and RW.2 who investigated the case deposed that the accident occurred due to collision of both the vehicles. If such an allegation made in the charge sheet is accepted without any corroborative evidence, it amounts to accepting the contents of the charge sheet without any evidence. Because the police charge-sheeted against the jeep driver, it cannot presume the allegations therein are true. The charge sheet allegations have to be proved by adducing oral evidence. The contents of the FIR or charge sheet cannot take as conclusive proof by ignoring the evidence of the victim and investigating officer.

14. After careful reading of the material on record, this court is of the view that the Tribunal is justified in holding that the accident was caused due to rash and negligent driving of the drivers of both vehicles. Both the drivers were not so cautious to the point where there were turnings on the road. If any of the drivers had been diligent, the accident could have been averted.

15. It is submitted on behalf of the appellant the Tribunal failed to apportion the contributory negligence between the two drivers. In the case of composite negligence, the claimant is entitled to sue any joint tortfeasors and to recover the entire liability of tortfeasors is joint and several.

16. In a decision reported in 2015 (4) ALD 98 SC, the Hon'ble Apex Court held that "in the case of composite negligence, the claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as the liability of joint tortfeasors is joint and several. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-a-vis the claimant is not permissible. He can recover at his option whole damages from any of them".

17. By reading the judgment of the Hon'ble Apex Court, this court is of the view that it is open to the court/tribunal to determine inter se extent only in case all the joint tortfeasors have been impleaded. It is only for their inter se liability the determination of inter se negligence is to be decided. It would not be appropriate for the Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors, i.e., owner of the auto.

18. For the reasons stated above, this court is of the view that though the Tribunal has fixed the compensation amount based on the material on record, it is not supposed to determine the extent of composite negligence in the absence of the auto owner. In case of composite negligence, the claimants are entitled to sue both or any of the tortfeasors. The claimants are entitled to recover the entire

compensation amount at their option from any one of the tortfeasors; this court is of the view that the direction given by the Tribunal to recover the whole amount from the respondents cannot be found fault.

19. Though the leaned counsel for the insurance company has not disputed seriously regarding the compensation amount awarded by the tribunal, however this court is inclined to consider as the appellant has taken ground regarding the quantum of compensation amount.

20. It is the evidence of PW.1 that he sustained severe injuries to his left humorous both bones of left leg below the knee joint hand above the elbow joint and fracture of ribs 2 to 5 on the left side and suffering with disability and he filed Ex.A3 wound certificate issued by Government Hospital, Macherla, it shows that the petitioner received four fracture injures. As per Ex.A4 while he was undergoing treatment he spent an amount of Rs.10,000/- in Ramsitha hospital. Nothing is elicited in the cross-examination of PW.1 regarding the injuries sustained by him. The petitioner also got examined PW.2 Dr.G.Vara Prasad, he deposed in his evidence that he issued Ex.X2 and he admitted that it was issued from the hospital. As per Ex.X2 - X ray films reflects that the fractures were united. According to PW.2 the petitioner is suffering with 20% disability will be some difficulty to carry agricultural work and some difficulty in lifting the heavy weights. As the petitioner sustained four injuries, the tribunal awarded an amount of Rs.80,000/- relying on Ex.A4. The tribunal awarded an amount of Rs.10,100/- towards medical expenses and Rs.1,000/-

towards loss of income and Rs.1,000/- towards extra nourishment and attendant charges and thereby the tribunal awarded an amount of RS.92,100/- towards total compensation amount. After careful reading of the material on record this court views that the tribunal awarded just and reasonable compensation amount.

21. The Learned Counsel for the insurance company contends that admittedly the auto was overloaded with the passengers at the time of accident and about more than six persons were travelling in the auto at the time of accident. As there is a violation of terms and conditions of policy, the 2nd respondent- insurance company is not liable to pay any compensation amount in support of said contention the 2nd respondent relied on the terms of Ex.B1 policy. It is settled that the liability of the insurer will be confined to the number of persons covered by the insurance policy and not beyond the same. The insurance policy taken out by the owner of the vehicle was in respect of three persons, travelling in the vehicle in question. It is submitted that the liability for payment of the other passengers in excess of three persons would be that of the owner of the vehicle who would be required to compensate the injured or family of the deceased. Learned counsel for insurance company submits that the insurance company would be bound to cover the higher of the award amounts relating to three persons, but not more than that and thereby the owner of the auto would be liable to pay such claims only. Learned counsel for the insurance company further submits that in the event of payment of amounts relating to more than

three claims, the insurance company may be permitted to recover the same from the owner of the auto as they would have right to recover from the owner. After perusal of Ex.B1 policy, this court is of view that there is some force in the said contention. This court views that by virtue of passing of such order, certainly the affected person will be the owner of the vehicle. In such a case the insurance company is expected to have taken steps to serve the notice on the owner of the vehicle in this appeal. Though the owner of the vehicle is shown as one of the parties to these proceedings, but the appeal is dismissed against the owner of the vehicle for non payment of batta. Though the request made by the insurance company is tenable, but such relief cannot be granted as insurance company failed to serve the notice to the owner of the vehicle in this proceedings.

22. Given the abovementioned discussion, I do not find any substance in the appeal. I do not see any reason to interfere with the impugned order in the present appeal. Accordingly, the appeal is dismissed without costs. The order dt.08.01.2008 passed by the Tribunal in MVOP.No.119 of 2006 is confirmed.

23. Miscellaneous petitions, if any are pending, shall stand closed.

__________________________________ JUSTICE T MALLIKARJUNA RAO Date : 14.10.2022 BV/KGM

HON'BLE SRI JUSTICE T MALLIKARJUNA RAO

MACMA.No.504 OF 2015

Dated 14.10.2022

BV/KGM