National Insurance Co Ltd vs Medara Mankalamma 2 Ors
2022 Latest Caselaw 7846 AP

                                     1               MACMA.No.497 of 2015


           HON'BLE SRI JUSTICE T MALLIKARJUNA RAO

                       MACMA.No.497 OF 2015

JUDGMENT :

1. The National Insurance Co.Ltd., represented by its Divisional Manager, 2nd respondent in MVOP.No.118 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.47,200/- 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.118 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.47,200/- 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 1st petitioner herself

examined as PW.1. According to her evidence, while she and others travelling in an auto bearing registration No.AP07TT2492 and at that time, a jeep bearing registration No.AP05T0183 came in the opposite direction and both vehicles collided with one another due to rash and negligent driving of the drivers. The petitioner relied on Ex.A1 FIR in Cr.No.104 of 2005 to show the registration of crime concerning the accident by Station House Officer, Macharla. The petitioner got examined by PW.2, who is the doctor, to show that she sustained injuries in the accident. He issued Ex.A3 wound certificate and Ex.A4 certificate issued by Ramsahita hospital are relied on to show that the petitioner suffered injuries in the accident. The respondents did not dispute the said case of the petitioner. To prove the case of the 2nd respondent, it got examined RW.1. He deposed that there was no negligence on the part of the auto driver. RW.2, worked as Head Constable, Macharla during the appropriate time of the accident. He stated that the accident occurred due to rash and negligent driving of the commander jeep driver. Nothing is elicited in the cross-examination of PW.1 to discredit her evidence. I see no reason to disbelieve her 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 and Ex.A4 documents. 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 can not 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 a ground regarding the quantum of compensation amount.

20. It is the evidence of PW.1 that in the accident her both legs had fracture below knee joint and initially she went to Government Hospital, Macharla for treatment. After taking first aid she was brought to Government General Hospital, Guntur for better treatment and she was treated in the said hospital. PW.2 Dr.G.Vara Prasad treated her, her fracture was not united and she was admitted in Ramaseetha Hospital and she under underwent major operation and steel rod was inserted into her leg below the right joint. The said evidence of PW.1 is not seriously disputed and to prove the said contention PW.2 Dr.G.Vara Prasad, Orthopedic Surgeon was examined and he deposed that he did operation on 02.10.2005 and the right side fracture is mal-united with angulation of 10 degrees and there is shortening of one inch and the percentage of disability suffered is 15 percent and he issued Ex.A4 certificate. According to the evidence of PW.2 Ex.A3 wound certificate shows the petitioner sustained two fractures, two

grievous injuries and they are in grievous in nature and considering the same the tribunal awarded Rs.40,000/- towards two grievous injuries. By relying on Ex.A4 the tribunal awarded Rs.5,200/- for medical expenses, and Rs.1,000/- awarded towards loss of income and Rs.1,000/- awarded for extra nourishment, attendant charges and thereby Rs.47,200/- awarded towards compensation. After 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 this 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.118 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.497 OF 2015

Dated 14.10.2022

BV/KGM