The United India Insurance ... vs Tandra Lakshmi 2 Ors
2022 Latest Caselaw 7288 AP

           HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                       MACMA.No.185 OF 2012

JUDGMENT :

1. Aggrieved by the order dated 03.11.2006 in MVOP.No.363 of 2002 passed by the Chairman, Motor Accidents Claims Tribunal - Cum - I Additional District Judge, Srikakulam (for short Tribunal), the 3rdrespondent United Indian Insurance Company Limited, represented by its Divisional Manager preferred this appeal.

2. For the sake of convenience hereinafter parties will be referred as they were arrayed in MVOP.No.363 of 2002.

3. On factual side, thaton 01.07.2001 while the petitioner was participating along with her relatives in Ratha Yatra at Illisipuram, near Kotha road the 1st respondent drove the offending car at high speed, without blowing horn, came at high speed, dashed her, then the petitioner sustained multiple and grievous injuries and also head injury, due to which she lost her consciousness.

4. The 2nd respondent filed counter admitting the accident, but contending that accident occurred due to negligence of the petitioner and claimed that the vehicle was having valid insurance coverage and the driver was having valid driving license.

5. The 3rd respondent filed counter by contending that the claim of the petitioner is highly excessive and seeks to dismiss the petition.

6. Based on the pleadings the necessary issues were formulated by the tribunal for consideration. Before the Tribunal on behalf of claimant PWs.1 and 2 were examined and Exs.A1 to A4 were marked and

MACMA.No.185 OF 2012

Exs.X1 and X2 were marked, on behalf of respondent RW.1 was examined and Exs.B1 and B2 were marked.

7. The tribunal on appreciation of both oral and documentary evidence on record has awarded the total compensation amount of Rs.1,54,000/- to the petitioner with interest at 7.5% per annum under different heads.

8. Heard the arguments of learned counsel appearing for appellant and the counsel for respondent. Perused the record.

9. Learned counsel appearing for the appellant argued that the tribunal erred in giving finding that the driver of the car is negligent by relying on the police documents and no eye witnesses are examined before the tribunal and the tribunal erred in holding that driver of the car was holding valid driving license. Learned counsel appearing for respondent supported the observations and findings of the learned Tribunal.

10. Now the point for consideration is whether the accident occurred due to rash and negligent driving of the driver of offending vehicle and the driver was having valid driving license and the quantum of compensation amount as awarded by the tribunal is just and reasonable.

POINT :

11. To prove the manner of accident the petitioner is examined as PW.1, who is injured in this case. Her evidence shows that the car which was coming from Narasannapeta in the evening dashed against her. To prove the injuries sustained by the petitioner she relied on Ex.A2

MACMA.No.185 OF 2012

wound certificate. The contents of Ex.A1 report given by brother of PW.1 support the case of petitioner regarding the manner of accident. The petitioner also relied on Ex.A4 certified copy of charge sheet. Nothing is elicited in the cross-examination to discredit her evidence regarding the manner of accident.

12. The driver of the car is the best person to speak about the manner of accident. The respondent insurance company has also not taken steps to prove the manner of accident by summoning the driver of car and to establish that he did not drive the vehicle rashly and negligently at the time of accident.

13. A reading of Ex.A1 coupled with Ex.A4 certified copy of charge sheet goes to show that the driver of the offending vehicle drove it in a rash and negligent manner and caused the accident.

No evidence is placed by the respondent to show that the contents of the charge sheet are incorrect. In a decision between K.Rajani and others V. M.SatyanarayanaGoud and others1, the High Court is pleased to observe 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".

In the case of Bheemla Devi V. Himachal Road Transport Corporation2, the Apex Court observed as follows:

"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

2015 ACJ 797

2009 ACJ 1725 (SC)

MACMA.No.185 OF 2012

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".

There is nothing on record to suggest that that the Investigating Officer filed charge sheet against the driver of offending vehicle without conducting proper investigation bus also it is difficult to hold that the Police Officer fabricated a case.

14. In a proceeding under the M.V.Act, where procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. Document having some probative value, the genuineness of which is not in doubt can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of claim petition can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touch stone for arriving at a conclusion regarding rashness and negligent as well as mode and manner of happening of the accident.

15. The reading of the documents placed before Tribunal clearly shows that the accident occurred due to rash and negligent driving of driver of offending vehicle and when it contends that the accident occurred in a different manner, it is to place necessary evidence before the Tribunal basing on which the Tribunal is expected to give its own conclusion. The Tribunal has accepted the case of the claimants regarding manner of accident and also accepted the observations made by the Investigating Officer in the charge sheet making the driver of auto responsible for the accident. As already observed the contents of the charge sheet also support the case of claimant regarding the manner of the accident.

MACMA.No.185 OF 2012

16. Upon careful reading of the material on record this court is of view that the Tribunal has correctly appreciated the evidence on record and finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle holds good.

Regarding the quantum of compensation :

17. According to the petitioner she was a coolie and earning Rs.1,500/- to Rs.2,500/- per month. The learned tribunal has taken the average income of female coolies during 2001 into consideration, and assessed the earning of petitioner at Rs.40/- per day. The petitioner relied on Ex.A2 wound certificate and Ex.X1 case sheet to prove the injuries sustained by the petitioner. PW.2 - Dr.M.Chinna Babu, who treated PW.1 supported the case of PW.1 by deposing that she was not conscious on 01.07.2001 at 06.10PM when he examined her. The tribunal observed that while recording the evidence of PW.1 also it noticed that petitioner was unable to speak properly and the petitioner almost became wreck. Ex.X1 shows that at the time of discharge, the petitioner is partially recovered and her general condition is amnesia plus paralysis plus higher intelectual functions are not recovered to normal conditions. PW.2 also deposed that there residual effects of neurological symptoms and she is disabled to do her normal duties and she has to maintain the prescribed medicines throughout her life and he opined that even petitioner takes treatment relating to neurology she may not be completely cured. By considering the said evidence on record the tribunal observed that the petitioner will not be in a position to earn any amount and she has to depend upon someone else and assessment is made with reference to 100% disability which is equivalent to death case. Basing on the Ex.A2 wound certificate and Ex.X1 case sheet the tribunal considered the age of petitioner is 45 years and it applied 13 multiplier and assessed an amount of

MACMA.No.185 OF 2012

Rs.1,24,000/- toward disability and basing on the evidence of PW.2 an amount of Rs.20,000/- is awarded for future medical expenses and Rs.20,000/- awarded towards medical expenses and Rs.10,000/- awarded towards pain and suffering and accordingly the compensation amount is awarded.

18. After careful reading of medical record placed before tribunal and the evidence of PW.2 who treated the petitioner, this court is of view that the tribunal has awarded reasonable compensation amount under different heads. At any stretch of imagination it cannot be held that the compensation amount awarded by the tribunal is on higher side.

Regarding the policy violations :

19. RW.1 Development Officer of the respondent insurance company deposed that the offending vehicle is a tourist taxi and having valid insurance coverage as per Ex.B1. It is the evidence of RW.1 that as per Ex.B2 license particulars the driver of offending vehicle possessed vehicle is Light Motor Vehicle Non transport vehicle. The said evidence of RW.1 is not disputed. By giving its reasons the tribunal observed that insurance company is liable to pay the compensation amount and it can be recovered from the 2nd respondent after proving that 2nd respondent acted in gross violation in permitting 1st respondent who was not possessing valid driving license and it also relied on a decision reported in National Insurance Company Vs. Kusumarai and others3. It is submitted on behalf of insurance company that the tribunal ought to have given a finding in the decree that the appellant is entitled to recover the amount from the owner of the vehicle. As seen from the judgment of the tribunal it has specifically observed a para No.24 at page No.9

2006 (4) SCC page 250

MACMA.No.185 OF 2012

that respondent No.3/insurance company is liable to pay the amount and it can recover the amount from the 2nd respondent, after having proved that 2nd respondent acted in gross violation in permitting 1 st respondent who was not possessing valid license to drive taxi. This court is of view that when once the opportunity is given to 2nd respondent to establish its case and when it comes to the conclusion that Ex.B2 shows that 1st respondent possessed light motor vhiele non transport only, this court is of view that such an observation cannot be given by the tribunal. Even otherwise in a decision reported in, identical question came to be considered by the Hon'ble Supreme Court in the case of Santalal Appellant Vs. Rajesh and others4. The Hon'ble Supreme Court observed and held as follows

"this Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the trol- ley carrying goods and also whether separate endorsement is re- quired authorizing him to drive such a transport vehicle?

We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.

Accordingly, in view of the answer given to reference by the three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be allowed and are hereby allowed. The right given to the in- surer to recover amount from owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer.

20. By following the aforesaid decision of the Hon'ble Apex Court and the evidence on record it cannot be said that the learned Tribunal has committed any error in holding that the appellant insurance company is liable to pay compensation amount. The Tribunal order

2017 AIR (civil 734)

MACMA.No.185 OF 2012

is in consonance with the principles laid down in the paragraphs extracted above and the same need not be interfered. In view of the same this court finds difficulty to accept the contentions raised re- garding the breach of the conditions of the policy.

21. In view of the aforementioned discussion I do not find any substance in the appeal and I do not find any reason to interfere in the impugned order in the present appeal. Accordingly the appeal being devoid of merits is hereby dismissed without costs and the order passed by the Tribunal is hereby confirmed.

22. Miscellaneous petitions if any pending shall stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO Date : 22.09.2022 BV/KGM

MACMA.No.185 OF 2012

HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

MACMA.No.185 OF 2012

Dated 22.09.2022

BV/KGM