The vs Swaran Singh And
2023 Latest Caselaw 3878 AP

     `THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 2514 of 2012

JUDGMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claimants and 1st respondent in M.V.O.P.No.168 of

2008 on the file of the Chairman, Motor Accident Claims Tribunal-

cum-I Additional District Judge, Ongole. The appellant filed the

appeal questioning the legal validity of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim application.

3. The claimants filed the petition under Section 166 (c) of the

Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award compensation of Rs.35,00,000/- for the injuries

sustained by the 1st claimant in a motor vehicle accident which took

place on 06.03.2008. As the 1st claimant is not mentally sound due

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to the injuries sustained by her in the accident, her son, who is the

2nd claimant, is representing her in this case.

4. The brief averments in the petition filed by the claimants are

as follows:

On 06.03.2008 at about 9.00 a.m. when the 1st claimant was

going to the site by walking on the left side of the road leading from

Ongole to Kothapatnam and when she reached near FCI Godown,

suddenly one Yamaha motor cycle bearing registration No.AP 27L

9441 being driven by its driver in a rash and negligent manner came

behind her and dashed against her, as a result, she fell down and

sustained severe multiple injuries. The 1st respondent is owner and

the 2nd respondent is insurer of the offending motor cycle, hence,

both the respondents are jointly and severally liable to pay

compensation.

5. The 1st respondent was set ex parte.

6. The 2nd respondent filed a counter by denying the manner of

accident, injuries sustained by the 1st claimant, expenditure incurred

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towards treatment, and loss of earnings. It is pleaded that the driver

of the motor cycle was not having valid driving licence at the time of

accident and thus, the 1st respondent contravened the provisions of

the M.V.Act, therefore, the Insurance company is not liable to pay

any compensation.

7. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the petitioner (petitioner No.1) sustained injuries on 6.3.2008 due to rash and negligent driving of the crime vehicle bearing No.AP 27L 9441 Yamaha Crucks??

2) Whether the petitioner is entitled for compensation for the injuries sustained by her, if so from whom he is entitled for recovery of the amount?

3) To what relief?

8. During the course of enquiry, on behalf of the claimants,

P.Ws.1 to 3 were examined and Exs.A.1 to A.9 and Exs.X.1 to X.3

were marked. On behalf of the 2nd respondent/Insurance company,

R.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked.

VGKR,J MACMA No.2514 of 2012

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

came to the conclusion that the accident took place because of rash

and negligent driving of the driver of the offending vehicle and

accordingly, allowed the claim petition in part and granted a sum of

Rs.10,46,000/- towards compensation to the claimants with

proportionate costs and interest at 9% p.a. from the date of petition

till the date of payment against both the respondents. Being

aggrieved by the impugned award, the 2nd respondent/Insurance

company has preferred the present appeal.

10. Heard learned counsels for both parties and perused the

record.

11. The main two grounds, on which the present appeal is

preferred by the appellant are that the Tribunal failed to exonerate

the appellant from its liability by considering Ex.A.4 and the

compensation awarded by the Tribunal is very excessive and

exorbitant.

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12. Now, the point for determination is:

Whether the order of the Tribunal needs any interference, if so,

to what extent?

13. POINT: In order to establish that the accident occurred due

to rash and negligent driving of the driver of the offending vehicle,

the claimants relied on the evidence of P.Ws.1 and 3 and Exs.A.1-

first information report and A.2-charge sheet. The evidence of

P.Ws.1 and 3 coupled with Exs.A.1 and A.2 proves that the accident

in question took place due to rash and negligent driving of the driver

of the offending vehicle. On considering the material available on

record and on appreciation of the same, the Tribunal also came to

the same conclusion. Therefore, there is no need to interfere with

the said finding given by the Tribunal.

14. Coming to the compensation, the oral and documentary

evidence reveals that the 1st claimant sustained four grievous

injuries. The Tribunal awarded an amount of Rs.60,000/- for four

grievous injuries @ Rs.15,000/- for each grievous injury. There is no

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legal flaw or infirmity in the said finding given by the Tribunal in

awarding Rs.60,000/- for four grievous injuries.

15. On considering the entire material on record, the Tribunal

awarded Rs.1,00,000/- towards loss of amenities and Rs.1,00,000/-

towards loss of expectation of life. Here, the loss of amenities and

loss of expectation of life comes under one head and loss of

expectation of life includes loss of amenities. The 1st claimant is

aged about 63 years at the time of filing of the claim petition, as per

the pleadings of the claimants. Therefore, an amount of

Rs.1,00,000/- is awarded under head of "loss of amenities and loss

of expectation of life".

16. The Tribunal awarded an amount of Rs.1,00,000/- under the

head of 'disfigurement'. On considering the nature of injuries and

also considering the age of the 1st claimant, I am of the considered

view that it is desirable to award Rs.60,000/- under the head of

'disfigurement'.

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17. The Tribunal awarded an amount of Rs.2,86,000/- towards

loss of earnings. The case of the claimants is that the 1 st claimant

was earning Rs.3,000/- p.m. by doing cooli work. As per the

evidence of P.W.2-doctor, the 1st claimant is suffering with disability

of 75%. On considering the age of the 1st claimant, I am of the

considered view that the disability sustained by the 1 st claimant is

40%, since the law is well settled that disability to a particular limb

cannot be treated as disability to whole body and accordingly, a sum

of Rs.1,00,800/- (Rs.36,000/- x disability 40% x multiplier '7') is

awarded towards loss of earnings under the head of 'permanent

disability'.

18. The Tribunal awarded an amount of Rs.1,00,000/- to the 2nd

claimant towards loss of income of the 2nd claimant. The material on

record discloses that the 1st claimant is a bed-ridden and he is

suffering with unsound mind because of the accident and the 2nd

claimant is looking after her. On considering the same, I am of the

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view that the 2nd claimant is entitled to an amount of Rs.50,000/-

under the head of 'loss of income of the 2nd claimant'.

19. On considering Ex.A.6-bunch of medical prescriptions, Ex.A.7-

bunch of medical bills, Ex.A.8-three receipts and Ex.A.9, the

Tribunal awarded an amount of Rs.1,00,000/- towards medical

expenses. There is no need to interfere with the said finding given

by the Tribunal in awarding Rs.1,00,000/- towards medical

expenses.

20. On considering the entire evidence on record, the Tribunal

came to the conclusion that the 1st claimant became vegetative

living organ, therefore, she requires treatment throughout her life

time, and awarded Rs.1,00,000/- under the head of 'future medical

expenses'. The fact remains is that the 1st claimant is bed ridden

and she is suffering with unsound mind. Therefore, she is entitled to

an amount of Rs.40,000/- under the head of 'future medical

expenses'.

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21. In total, the claimants are entitled to a compensation of

Rs.5,10,800/-.

22. The contention of the 2nd respondent/Insurance company is

that the rider of the offending vehicle was having driving licence of

light motor vehicle, but he was not having driving licence of motor

cycle with gear at the time of accident. The fact remains is that a

person, who drives a four wheeler, can easily drive a two wheeler.

But, as per the M.V.Act, a person, who rides a two wheeler, shall

necessarily possess driving licence of motor cycle with gear. It is not

in dispute that the offending vehicle of the 1st respondent was

insured with the 2nd respondent/Insurance company under Ex.B.2-

policy and the policy was also in force as on the date of the accident.

23. The principle laid down in the decision of the Hon'ble Supreme

Court in National Insurance Co. Ltd. Vs. Swaran Singh and

others1 is that even in case of absence, fake or invalid licence or

disqualification of the driver for driving, the Insurance company is

2004 (2) ALD (SC) 36

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liable to satisfy the award in favour of 3rd party at the first instance

and later recover the award amount from the owner of offending

vehicle, even when the Insurance company could able to establish

breach of terms of policy on the part of the owner of the offending

vehicle.

24. For the foregoing discussion, the 2nd respondent/Insurance

Company is liable to pay the compensation to the claimants in the

first instance and later recover the same from the 2 nd

respondent/owner of the offending vehicle, by filing an execution

petition and without filing any independent suit.

25. In the result, the appeal is partly allowed reducing the

compensation of Rs.10,46,000/- awarded by the Tribunal to

Rs.5,10,800/-. The 2nd respondent/Insurance Company is directed

to pay the compensation of Rs.5,10,800/- with costs and interest at

9% p.a. as ordered by the Tribunal from the date of petition till the

date of payment to the claimants in the first instance within two

months from the date of this judgment and later recover the same

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from the 1st respondent/owner of the offending vehicle by filing an

execution petition and without filing any independent suit. The order

passed by the Tribunal with regard to awarding of compensation

and fastening of liability is modified to the extent indicated above.

The order of the Tribunal in all other respects shall remain intact.

No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 14 August, 2023 cbs

VGKR,J MACMA No.2514 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2514 of 2012

14th August, 2023 cbs