Andhra Pradesh High Court - Amravati
The United India Insurance Co Ltd vs B.Venkatesh on 8 September, 2022
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.2345 OF 2012
JUDGMENT:
1. This appeal is preferred by the 2nd respondent in M.V.O.P. No.1
of 2006 aggrieved by the order dated 10.03.2008 passed by the
Chairman, Motor Accidents Claims Tribunal-III Additional
District Judge, Tirupati (for short 'the tribunal') awarding
compensation of an amount of Rs.21,750/- to the petitioner.
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. No.1 of 2006 under Section
166(1)(a) of the Motor vehicles Act, 1988 (for short 'the Act')
claiming compensation of Rs.1,00,000/- against the respondents
on account of the injuries sustained by him in a motor accident
that occurred on 17.02.2005 at about 8.30 AM while he was
going in auto bearing No.AP 03 V 7817 to Tirupati, to attend
coolie work and when the said Auto reached M.R.F. show room
on Tiruchanur by-pass road, a tractor bearing No.AP 26 T 6592
and trailer bearing No.AP 03 V 1087 (hereinafter referred as the
offending vehicle) came in a rash and negligent manner dashed
the auto as a result of which himself and other inmates
sustained grievous injuries. A case in Cr.No.32/2005 came to
MACMA No.2345 of 2012
be registered against the driver of the offending vehicle under
Section 304(A), 338 and 279 IPC.
4. The first respondent has remained exparte and the 2nd
respondent filed counter contending that while the driver of the
offending vehicle was going on the left side of the road, the auto
with over load came to the road and near to the tractor and due
to the confusion, the driver of the auto dashed the tractor and
the accident occurred due to the negligence of the driver of the
auto and the driver of the offending vehicle was not negligent.
5. Basing on the pleadings, the tribunal framed the following issues
for consideration:
1. Whether the pleaded accident occurred and if
so was it due to fault of the driver of tractor
and trailer of first respondent bearing No.AP
26 T 6592 and AP 03 V 1087 or due to fault of
the driver of Auto of 3rd respondent bearing
No.AP 03 V 7817?
2. Whether the tractor and trailer in question
belongs to R.1 and stood insured with R.2 by
the date of accident and if so whether the
policy covers the risk of the petitioner?
3. Whether the Auto in question belongs to R.2
and stood insured with R.4 by the date of
accident and if so whether the policy coves the
risk of the petitioner?
4. Whether the petitioner suffered injuries in the
said accident and entitled to compensation
and if so, to what amount and from which of
the respondents?
MACMA No.2345 of 2012
5. To what relief?
6. Before the tribunal, the petitioner himself got examined as P.W.1
and got marked Exs.A.1 to A.5 and on behalf of the respondents
no evidence was adduced, however Ex.B.1 copy of policy was
marked with consent. After considering the evidence on record
the tribunal allowed the petition granting compensation an
amount of R.21,750/- with interest from the date of petition till
the date of deposit against the respondents 1 and 2 and the
claim is dismissed against the respondents 3 and 4 without
costs.
7. Heard the argument of both the learned counsel. Considering the
rival contentions and on perusing the material available on
record, the point that arise for consideration in this appeal is,
Whether the tribunal has justified in holding
that the accident occurred due to the
negligence of the driver of the offending
tractor and in holding that the respondent
insurance company failed to establish the
subsistence of policy at the time of accident?
POINT:
8. Learned counsel for the Respondent No.2-insurance company
contended that there was no negligence on the part of the
tractor-trailer bearing No.AP 26 T 6592 and the tractor and
trailer was not insured at the time of accident i.e. at 8.30 AM on
MACMA No.2345 of 2012
17.02.2005 and the policy was taken by the owner of the tractor
at 10.25 AM on 17.02.2005 that is after the accident.
9. Learned counsel appearing for the claimant supported the
findings and observations of the tribunal. After careful reading
of the material on record, this court is of the opinion that the
petitioner proved that he sustained injuries in the accident while
he was proceeding in an auto bearing No.AP 03 V 7272. In
support of the case that he sustained injuries in the accident, he
relied on Ex.A.3-wound certificate and Ex.A.5 discharge
summary issued by SVRRGG Hospital, Tirupati, where he got
treatment. The petitioner also relied on Ex.A.4 medical bills to
establish incurred expenses towards medicines.
10. As seen from the grounds of appeal and the contention raised by
the respondent No.2-insurance company, it has not disputed the
quantum of compensation awarded by the Tribunal. The 2nd
respondent - insurance company mainly contends that the
accident occurred due to the negligence of the driver of the auto,
no evidence is adduced to substantiate the same. The evidence
of P.W.1 that the accident occurred due to negligence of the
driver of the first respondent is supported and corroborated by
the contents of Ex.A.1 certified copy of F.I.R. and Ex.A.2 certified
MACMA No.2345 of 2012
copy of charge sheet as rightly pointed out by the tribunal and as
against the evidence of P.W.1 there is no contrary evidence.
11. The respondent insurance company has not chosen any witness
in support of its contention and also not taken any steps to
examine the driver of the offending vehicle to show the manner of
the accident.
12. In the absence of such evidence on record, the tribunal has come
to a correct conclusion by holding that the accident occurred on
account of the negligence of the first respondent driver and the
third respondent driver is not negligent. As rightly observed by
the trial court, it is not in dispute that the offending vehicle
belongs to the first respondent. According to the case of the
petitioner, the offending vehicle was insured with the 2nd
respondent. According to the pleas taken in the counter filed by
the 2nd respondent that it reliably came to know after thorough
investigation that the first respondent obtained policy after the
accident. Here, according to the case of the petitioner, the
accident occurred on 17.02.2005 @ 8.30 AM, whereas the stand
taken by the 2nd respondent - insurance company is that by
suppressing the accident, the 1st respondent obtained policy and
the policy comes into effect from 10.25 AM on 17.02.2005 and
therefore it is not liable to indemnify the 1st respondent.
MACMA No.2345 of 2012
13. For the reasons best known to the insurance company, it has
not placed copy of insurance policy before the Court. Such pleas
alleging the suppression of the accident and the taking of
insurance policy is not taken in the counter specifically. The 2nd
respondent- insurance company has not chosen to examine its
officials or staff who had personal acquaintance with the facts of
the case. It is supposed to take such pleas in the counter by
relying on the contents of the insurance policy. When the case of
the petitioner is that the accident occurred on 17.02.2005 at 8.30
AM there is no difficulty in placing the insurance policy before
the court by the 2nd respondent in support of its contention that
the insurance policy came to the effect from 10.25 AM on
17.02.2005. No explanation is forthcoming in support of the
pleas taken by the insurance company and it has not examined
any witness nor produced policy. The burden is on the insurance
company to prove its case.
14. In the absence of any policy or any authenticated evidence, the
stand taken by the 2nd respondent cannot be accepted. In the
said facts of the case, the tribunal has come to a correct
conclusion that the 2nd respondent failed to produce a copy of the
policy and an adverse inference is to be drawn that the policy
issued by the 2nd respondent was subsisting at the time of
MACMA No.2345 of 2012
accident and the accident is covered by the said policy. After
considering the entire material on record, as the case of the
insurance company is not supported by either oral or
documentary evidence, it is difficult to come to a conclusion that
the petitioner has obtained insurance company subsequent to
the accident by suppressing the fact relating to the accident.
15. As already observed in the preceding paragraphs, except the said
grounds, the 2nd respondent - insurance company has not taken
any other grounds with regard to the quantum of compensation
awarded by the tribunal. Resultantly, I am of the considered
opinion that the 2nd respondent - insurance company has not
made out any case so as to interfere with the judgment of the
tribunal and the appeal is liable to be dismissed.
16. In the result, the appeal is dismissed and the judgment dated
10.03.2008 in M.V.O.P. No.1 of 2006 passed by the Chairman,
Motor Accidents Claims Tribunal-cum-III Additional District
Judge, Tirupati is hereby confirmed. The insurance company is
directed to deposit the balance amount, if any, within one month
before the Tribunal from the date of receipt of a copy of this
order. On such deposit, the tribunal is directed to release the
amount strictly in accordance with its judgment. There shall be
no order as to costs.
MACMA No.2345 of 2012
17. Miscellaneous petitions, if any, pending in this appeal shall
stand closed.
____________________________
T.MALLIKARJUNA RAO, J
Dt. .09.2022
BV
MACMA No.2345 of 2012
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.2345 OF 2012
.09.2022
BV
