Andhra Pradesh High Court - Amravati
M/S.New India Assurance Company ... vs K.Sudhakar on 12 April, 2023
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
M.A.C.M.A.No.405 of 2012
JUDGEMENT:
The appellant is the second respondent in M.V.O.P.No.68 of
2006 on the file of the Motor Accident Claims Tribunal-cum-I
Additional District Judge, Kurnool and the respondents are the
petitioner and first respondent in the said case.
2. Both the parties in the appeal will be referred to as they are
arrayed in claim application.
3. The claimant filed a Claim Petition under sections 140 and
166 of Motor Vehicles Act, 1988 against the respondents by praying
the Tribunal to award an amount of Rs.1,00,000/- towards
compensation for the injuries sustained by the petitioner in a Motor
Vehicle Accident occurred on 16.12.2005.
4. The case of the claimant is that on 16.12.2005 the petitioner
and one V.Sreeramulu and one Lokesh engaged an auto bearing
No.AP 21 X T/R 5150 in order to go to K.C.Canal. After taking bath
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in the canal, while they were returning on NH-7 road and when they
reached near Eenadu Office, the driver of the said auto drove the
same in a rash and negligent manner with high speed and lost
control over the vehicle, resulting which the auto turned turtle, as a
result of which, the petitioner sustained multiple injuries and the
petitioner claimed an amount of Rs.1,00,000/- towards
compensation for the injuries sustained by him.
5. The first respondent remained exparte. The second
respondent filed counter by denying the claim application and
contended that the claimant is not entitled any compensation and
the second respondent is not liable to pay any compensation to the
petitioner.
6. Based on the above pleadings, the Tribunal framed the
following issues:
i. Whether the accident was occurred due to rash and
negligent driving of the driver of auto bearing
No.AP 21 X T 5150?
ii. Whether the respondent No.1 violated the terms
and conditions of the Insurance Policy?
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iii. Whether the petitioner is entitled to any
compensation from the respondent and if so, to
what extent?
iv. To what relief?
7. On behalf of the petitioner, PW1 to PW4 were examined and
Ex.A1 to Ex.A6 and Ex.X1 and Ex.X2 were marked. On behalf of
2nd respondent RW1 and RW2 were examined and Ex.B1 to Ex.B3
were marked.
8. After considering the evidence on record, the Tribunal has
given a finding that the accident was occurred due to rash and
negligent driving of driver of offending vehicle and the Tribunal
granted an amount of Rs.57,500/- to the claimant towards
compensation.
9. Aggrieved by the same, the second respondent/ Insurance
company filed the present appeal.
10. Now, the point for consideration is:
Whether the Order of Tribunal needs any
interference?
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11. POINT:-
The case of the petitioner is that on 16.12.2005 the petitioner
and one Sreeramulu and one Lokesh engaged an auto bearing
No.AP 21 X T/R 5150 in order to go to K.C.Canal. After taking bath
in the canal, while they were returning on NH-7 road and when they
reached near Eenadu Office, the driver of the said auto drove the
same in a rash and negligent manner with high speed and lost
control over the vehicle, resulting which the auto turned turtle, as a
result of which, the petitioner sustained multiple injuries and he was
shifted to Government General Hospital, Kurnool. First respondent
is the owner and the second respondent is the insurer of the crime
vehicle and both the respondents are jointly liable to pay the claim.
12. In order to prove the case of the petitioner, the claim petitioner
himself examined as PW1. He is the injured and eye witness to the
accident. His evidence clearly goes to show about the rash and
negligent driving of the driver of the Crime vehicle/ auto, in which the
petitioner was travelling. The claim petitioner also got marked
Ex.A1 attested copy of First Information Report and Ex.A2 attested
copy of charge sheet. The evidence of PW1 coupled with Ex.A1
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and Ex.A2 clearly proves about the rash and negligent driving of the
driver of the auto, in which the petitioner was travelling at the time of
accident, fell down and sustained injuries. The learned Tribunal
also given the same finding. Therefore, there is no need to interfere
with the said finding given by the Tribunal.
13. In order to prove the claim of the petitioner, the petitioner got
examined three doctors as PW2 to PW4. PW2 deposed in his
evidence that the petitioner admitted in Government General
Hospital, Kurnool on 16.12.2005 with a fracture of shaft humerus of
right side and the plaster of paris slab was applied and discharged
on 19.12.2005. PW3 deposed that on 06.01.2006 the petitioner
admitted in Viswabharathi hospital for the fracture of humerus on
right side and he was referred to Dr.B.V.Subba Reddy, M.S. Ortho
for further treatment. PW4 deposed that he examined the petitioner
and issued Ex.A6 disability certificate stating that the petitioner is
suffering with permanent physical disability at 10%. In order to
prove the claim, the petitioner also relied on Ex.A3 certified copy of
wound certificate and Ex.A4 bunch of medical bills. Taking into
consideration the nature of injuries, the learned Tribunal granted an
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amount of Rs.15,000/- towards pain and suffering and an amount of
Rs.18,500/- towards medical expenses. The learned Tribunal fixed
the monthly income of the petitioner as Rs.15,000/-. As per
schedule II, as per his age, the appropriate multiplier would be '16'
and the loss of future earnings can be assessed as Rs.24,000/-
(Rs.15,000/- x 16 x 10/100 = Rs.24,000/-. Accordingly, the learned
Tribunal granted an amount of Rs.24,000/- towards loss of future
earnings. Therefore, there is no need to interfere with the said
finding given by the Tribunal and the petitioner also not preferred
any appeal against the said finding. In total, the learned Tribunal
granted an amount of Rs.57,500/- to the petitioner towards
compensation. There is no need to interfere with the said quantum
of compensation awarded by the Tribunal.
14. The main contention of the second respondent/ Insurance
Company is that the driver of offending vehicle is not having any
valid and effective driving licence as on the date of accident and the
auto was also not having fitness certificate and permit to ply on the
road. In order to prove the same, the second respondent examined
the Senior Assistant in Regional Transport Office as RW1. As per
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the evidence of RW1, the crime vehicle did not contain permit and
fitness certificate as on the date of accident and there was no
driving licence to the driver of auto. Here in the present case, the
first respondent, who is the owner of the vehicle was set exparte. It
is the bounden duty of the first respondent to approach the Court
and produce the driving licence of driver of crime vehicle, but she
failed to do so. Here the crime vehicle is insured with 2nd
respondent and the policy is also on force. Hence the petitioner is a
third party. Therefore, in view of the above reasons, the 2nd
respondent/ Insurance company is directed to pay the total claim of
Rs.57,500/- to the claimant at first instance, later recover the same
from respondent No.1 by filing Execution Petition without filing
independent suit, since first respondent is the owner of the offending
vehicle at the time of accident.
15. In the result, this appeal is disposed of, by modifying the order
dated 08.04.2008 passed in M.V.O.P.No.68 of 2006 on the file of
the Motor Accident Claims Tribunal-cum-I Additional District Judge,
Kurnool. It is held that the claimant is entitled to a total
compensation of Rs.57,500/- with interest @7.5% p.a., from the
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date of petition, till the date of payment. The 2nd respondent/
Insurance Company is directed to pay the claim amount, within one
month from the date of this judgment, to the claimant at first
instance and later recover the same from respondent No.1 by filing
an Execution Petition and without filing any independent suit. On
such deposit, the claimant is entitled to withdraw the same along
with costs and accrued interest thereon. There shall be no order as
to costs.
Miscellaneous petitions, if any, pending in this appeal shall
stand closed.
________________________________
V.GOPALA KRISHNA RAO,J
Dated: 12.04.2023.
Sj
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HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
M.A.C.M.A.No.405 of 2012
12.04.2023
sj
