The National Insurance Co. Ltd., vs N.B. Santhamma Another
2022 Latest Caselaw 6275 AP

        HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                   M.A.C.M.A. No.310 of 2013


JUDGMENT:

1. Aggrieved by the Order dated 05.09.2012 in M.V.O.P. No.11 of

2008 passed by the Chairman, Motor Accidents Claims Tribunal-

cum-IV Additional District Judge, Tirupati (for short 'the

tribunal'), whereby the tribunal awarded compensation

Rs.4,54,000/- with subsequent interest thereon at 7.5% per

annum from the date of petition till the date of realization in

favour of the claimant, the 2nd Respondent - M/s. National

Insurance Company Limited, represented by its Divisional

Manager preferred this appeal seeking to set aside the order

passed by the tribunal.

2. For convenience sake, hereinafter the parties will be referred to

as they were arrayed in the O.P.

3. The petitioner filed M.V.O.P. under Section 166 (1) (a) of the

Motor Vehicles Act, 1988 (for short 'the Act') claiming

compensation of Rs.10,00,000/- with interest due to the injuries

sustained by her in a motor vehicle accident that occurred on

15.12.2005 at about 4.30 AM at Puthalapattu Village of

Chittoor-Tirupati main road. The case of the claimant is that on

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15.12.2005 at about 3.00 AM herself and her husband and other

relatives were proceeding to Kanipakam in the jeep bearing

No.AP 03 V 7323 of the 1st respondent, which was insured with

the 2nd Respondent, when the jeep reached Puthalapattu Village

near Kanipakam cross, at 4.30 AM, the driver of the jeep drove

the same in a rash and negligent manner and went extreme left

side of the road margin and hit back side of the stationed lorry

bearing No.ADC 4919, resulting which the petitioner sustained

crush and severe bleeding injury to her left hand and also

sustained other injuries all over the body.

4. The first respondent remained exparte.

5. The second respondent filed counter admitting the accident and

contended that the first respondent is the owner-cum-driver of

the jeep and the same was insured with the second respondent

and the same is in force by the date of accident. It is further

contended that the first respondent was driving the vehicle with

due care and caution and was proceeding towards chittoor and

when the same reached near Kanipakam cross, opposite coming

vehicles were coming without dim and dip and hence turned the

jeep towards left side of the road and in the meantime the

petitioner placed her left hand out side of the vehicle and the

lorry which was parked on the road in a careless manner

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without any indication of parking signals found by the first

respondent turned the jeep towards left side in order to avert the

major accident and left hand of the petitioner was injured and

there is a negligence on the part of the stationed lorry and also

on the part of the petitioner placing her left hand outside of the

vehicle.

6. Based on the pleadings, the tribunal formulated the following

issues for trial.

1. Whether the petitioner sustained injuries in a motor vehicle accident that took place o 15.12.2005 at about 4.30 a.m., at Puthalapattu village on Chittoor-Tirupati main road, due to rash and negligent driving of the driver of the jeep bearing Regn. No.AP 03 V 7323 belonging to the first respondent insured with the second respondent?

         2. Whether   the    petitioner  is  entitled  to
            compensation? If so, to what amount and from
            whom?

         3. To what relief?

7. On behalf of the petitioner, the petitioner herself got examined as

P.W.1 and also got examined P.Ws.2 to 7 and got marked

Exs.A.1 to A.20. On behalf of the 2nd respondent, no oral

evidence was adduced, however got marked Ex.B.1 policy copy

with consent.

8. After considering the evidence on record, the tribunal has given

finding that the accident occurred due to rash and negligent

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driving of the driver-cum-owner of the jeep bearing No.AP 03 V

7323 and awarded an amount of Rs.9,000/- for transport

expenses, Rs.60,000/- for medicines and extra nourishment and

Rs.20,000/- each for pain and suffering and as well as for loss of

amenities and discomfort to the petitioner due to the removal of

left hand below elbow and also awarded Rs.15,000/- for loss of

earnings during treatment period and also granted compensation

amount of Rs.3,30,000/- towards loss of earnings due to

permanent disability. In all, the tribunal granted compensation

amount of Rs.4,54,000/- against Respondents 1 and 2.

9. The petitioner has not preferred appeal or cross objection

aggrieved by the compensation awarded by the learned tribunal.

10. Learned counsel for the appellant/insurer contended that the

tribunal awarded exorbitant amount to the petitioner

compensation and it failed to notice that there is no negligence

on the part of the driver of the jeep, which was insured with the

appellant insurance company and the stationed lorry was parked

without any parking indications and signals and there is

contributory negligence on the part of the stationed lorry which

was parked without indicators and the jeep which is insured with

the appellant insurance company is a private vehicle and cannot

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be used for hire or reward and the tribunal failed to note that the

owner of the jeep violated the policy conditions and even as per

the statement of the petitioner there are more than 10 passengers

in the vehicle at the time of accident and the petitioner could not

get sufficient place to sit comfortably and her left hand might

have kept beyond the jeep and thereby touching the stationed

lorry and the tribunal erred in taking the monthly income of the

injured at Rs.5,000/- per month and erred in taking disability at

higher side and the tribunal erred in awarding interest @ 7.5%

per annum as against the established law.

11. Considering the rival contentions and on perusing the material

available on record, the point for determination in this appeal is

as follows:

Whether the tribunal erred in finding that the accident occurred due to rash and negligent driving of the driver-cum-owner of the jeep and the compensation amount awarded by the tribunal is just and reasonable?

POINT:

12. As seen from the counter filed by the insurer, it has not disputed

the case of the petitioner that she sustained injuries as deposed

by her in her evidence as P.W.1. To prove the injuries sustained

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by the petitioner, she has placed Ex.A.4 - wound certificate and

Ex.A.5 - permanent disability certificate and Ex.A.6 - discharge

summary issued by C.M.C. hospital, Vellore. After careful

appreciation of the oral evidence adduced on behalf of the

petitioner and the documents relied on by the petitioner, the

tribunal has come to the correct conclusion that the petitioner

sustained injuries as referred in the wound certificate and

permanent disability is caused to her due to the accident.

Though the insurer vehemently contended that there is

contributory negligence on the part of the petitioner as well as

the stationed lorry, for the reasons best known to the insurance

company, it has not let in any oral evidence in support of its

contention. To prove the manner of the accident, the petitioner

herself got examined as P.W.1. She has given her evidence

regarding the manner of the accident as pleaded in the petition.

According to her evidence, when the jeep reached Puthalapattu

village, the driver of the jeep drove the same in a rash and

negligent manner and went extreme left side of the road side

margin and hit back side of the stationed lorry bearing No.ADC

4919, resulting which she sustained injuries. Her evidence is

supported by the evidence of P.W.2 Ramakrishna Reddy who was

one of the inmates of the jeep and so he was the best person to

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speak about the manner of the accident. He was subjected to

cross examination at length and it is elicited in the evidence of

P.W.2 that he was seated in the middle of the second seat row

and P.W.1 sat beside him and the road is double road where the

accident took place. He also stated that everything was visible to

him though he was sitting in the centre of the second seat and he

had seen the stationed lorry at a distance of 10 meters. He

admitted that there were no parking lights indicating the lorry

was stationed and the jeep was going on the left side of the road

and the road margin was about 8 feet from the stationed lorry.

Though the said evidence of P.W.2 is disputed in cross-

examination, for reasons best known, the driver of the offending

vehicle i.e. jeep did not come forward to speak about the manner

of the accident. There is nothing on record to suggest as to why

the driver of the offending vehicle proceeded to extreme left side

of the road margin and hit back side of the stationed lorry.

Though the insurer has taken a plea that while the jeep was

going towards Kanipakam, some vehicles coming in opposite

direction without dim and dip lights, it has not placed any oral

evidence in support of the said contention. In the absence of any

evidence on record, this court is of the view that the said stand

taken by the respondent is remained as a plea and it is not

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proved. As already observed that Ex.A.2 charge sheet filed

against the driver of the jeep and there is a clear recital in Ex.A.1

regarding the manner of the accident.

13. No evidence is placed by the respondent to show that the contents of the charge sheet are incorrect. In K.Rajani and others V. M.Satyanarayana

Goud and others1, erstwhile High Court of Andhra Pradesh held that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

14. In Bheemla Devi V. Himachal Road Transport Corporation 2, the

Apex Court held that,

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied".

15. It is settled principles that contributory negligence must be

proved like any other fact. There is no definite standard for

proving negligence and contributory negligence and they cannot

be decided on suspicions and surmises and on opinion. Thus to

prove the contributory negligence there must be cogent evidence.

In the instant case there is no specific evidence to prove that the

accident has taken place due to negligent act of the petitioner or

2015 ACJ 797

2009 ACJ 1725 (SC)

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due to the stationed lorry. In the absence of any cogent evidence

to prove the plea of contributory negligence, the said doctrine of

common law cannot be applied in the present case. Thus it is

clear that contributory negligence must be proved like any other

fact. Except taking certain pleas in the counter filed by the

respondent - insurance company and making suggestion to

P.Ws.1 and 2 in the cross examination, no material is placed to

substantiate the said pleas taken by the insurance company.

16. In view of the same, this court is of the view that the respondent

insurance company has not placed any oral evidence in support

of the said pleas and also it is not chosen to take steps to

examine the driver of the offending vehicle and the charge sheet

relied on by the petitioners also ruled out the possibility of

occurrence due to contributory negligence of the petitioner or the

stationed lorry and the reading of the material placed before the

tribunal clearly establishes that the accident occurred due to

rash and negligent driving of the driver of the offending vehicle.

After careful appreciation of the evidence of P.Ws.1 and 2, the

tribunal accepted the case of the petitioner regarding the manner

of the accident and accepted the observations made by the

investigating officer in the charge sheet making the driver of the

offending vehicle responsible for the accident. There is no

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material placed by the appellant to show that the accident was

occurred due to careless attitude of the petitioner and due to

parking of the stationed lorry in the road margin.

17. Upon considering the material on record, this court is of the view

that the tribunal has correctly appreciated the evidence on record

and recorded the finding that the accident occurred due to the

rash and negligent driving of the offending vehicle and the said

finding holds good.

18. The other contention of the insurer is that the owner of the jeep

violated the policy conditions by hiring vehicle contrary to the

policy conditions. The burden is on the insurance company to

establish the breach of the policy conditions by the owner or

driver of the vehicle. The proposition of law is no longer res

integra that the person who alleged breach must prove the same.

The insurance company is thus required to establish the said

breach by cogent evidence. In the event the insurance company

fails to prove that there has been breach of conditions of policy

on the part of the insured, the insurance company cannot be

absolved from its liability and each case has to be decided on its

own facts and circumstances.

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19. According to the submission of the insurance company, the

owner of the jeep has violated the policy conditions by hiring the

vehicle contrary to the policy conditions. In support of the said

contention, the insurance company has relied mainly on the

evidence of P.W.1 that her husband engaged the jeep to attend

the marriage of her younger sister. Simply because the husband

of the petitioner engaged the jeep, it cannot be said that the jeep

was hired or some amount was paid for the purpose of engaging

the jeep.

20. No material is elicited from the cross-examination of P.W.2 to

establish that the offending vehicle was hired. I have carefully

gone through the cross-examination of P.W.1. A reading of

Ex.A.1-F.I.R. also shows that the said jeep was engaged by the

family members of P.W.1 to go to marriage. There is nothing in

Ex.A.1 even to remotely indicate that some amount was paid for

the purpose of engaging the jeep on hire or reward. Even the

contents of the charge sheet also do not show that the jeep was

engaged by paying some amount to the owner of the jeep.

21. Nothing was elicited in the cross-examination of P.W.1 or P.W.2

to suggest that the jeep was engaged for hire or for reward. In

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the absence of such evidence on record, this Court cannot

presume that the jeep was engaged for hire or reward.

22. The other contention is that at the time of accident there are

more than 10 passengers in the vehicle. The said contention is

also raised before the tribunal. Simply because the 10 persons

were travelling in the jeep, at any stretch of imagination, in the

absence of clear and cogent evidence, it cannot be expected to

give a finding that the accident occurred due to travelling of 10

passengers in the jeep.

23. The other contention raised is that the tribunal erred in taking

monthly income of the petitioner at Rs.5,000/- per month.

Before the Tribunal, the Petitioner has adduced evidence to

establish her earnings. According to her evidence she was

cultivating Ac.5.00 of land and doing milk business. To establish

the said fact, the petitioner got examined P.W.3 surpanch and

who deposed that the petitioner owned Ac.2.00 in Pachikapallem

Village and Ac.2.00 in Komaragunta Village and she is cultivating

the said land and realizing the income Rs.1,00,000/- through

agricultural and milk business. To establish that the petitioner

owned the said agriculture property, she relied on Ex.A.16

pattadar pass book, Ex.A.17 title deed, Ex.A.18 pattadar pass

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book, Ex.A.19 copy of Adangal and Ex.A.20 copy of adangal. The

petitioner also got examined P.W.4 who is Ex.V.A.O. of

Pachikapallam Village and P.W.6 who is V.R.O. of Komargunta

Village to show that the family of the petitioner has owned

Ac.3.00 of land at Komaragunta. The tribunal appreciated the

said evidence and gave a finding that on perusal of Ex.A.15 to

A.20 documents that the said lands stands in the name of

Govinda Reddy husband of the Petitioner. The tribunal has given

a finding, after appreciation of the evidence on record that the

petitioner used to assist and help her husband in conducting

agricultural operations and cultivating the lands. But the

petitioner is a house wife and also a member of the agricultural

family, basing on the same the tribunal fixed the income at

Rs.5,000/- per month. Basing on the evidence adduced, the

tribunal has arrived to a conclusion regarding the earnings of the

petitioner. In the absence of any material on record, this Court is

not inclined to disturb the said finding given by the tribunal.

After careful appreciation of Ex.A.5 disability certificate and the

evidence of P.W.5, the tribunal has considered 50% permanent

disability and fixed compensation amount of Rs.3,30,000/- under

the head of loss of earnings due to permanent disability.

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24. Regarding the rate of interest awarded by the tribunal, the

appellant has not placed any guidelines of Reserve Bank of India

to show that awarding interest @ 7.5% per annum is not

prevailing as on the date of accident. Thus, I do not find any

reason to interfere with the rate of interest as assessed by the

tribunal.

25. Resultantly, I am of the considered opinion that the appellant

has not made out any case to interfere with the order of the

tribunal.

26. Accordingly the appeal is dismissed and the order dated

05.09.2012 in M.V.O.P. No.11 of 2008 by the Tribunal is hereby

confirmed the insurance company is directed to deposit the

balance amount, if any, within one month before the tribunal and

on deposit the tribunal is directed to release the amount strictly

in accordance with its order. There shall be no order as to costs.

27. Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

___________________________ T.MALLIKARJUNA RAO, J Dt.07.09.2022 BV