The vs Branch Manager
2023 Latest Caselaw 3647 AP

 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                  M.A.C.M.A.No.376 of 2014

JUDGMENT:

The appellant is the second respondent/Insurance

Company in M.V.O.P.No.145 of 2010 on the file of the Motor

Accident Claims Tribunal-cum- Additional District Judge,

Hindupur and it filed the appeal questioning the legal validity

of the order of the Tribunal.

2. Both the parties in the appeal will be referred to as they

are arrayed in the claim application.

3. The claimant filed the claim petition under Sections

140 and 166 of the Motor Vehicles Act, 1988 read with Rule

455 of Motor Vehicles Rules, 1989 against the respondents

praying the Tribunal to award an amount of Rs.50,000/-

towards compensation for the injuries sustained by the

petitioner in a motor vehicle accident occurred on

24.01.2008.

4. The facts germane to dispose of this appeal may be

briefly stated as follows:

VGKR, J MACMA No.376 of 2014

The petitioner/ injured was worker in the offending van

bearing No.KA 06A 8431. On 24.01.2008 at about 6.00

a.m., the van bearing No.KA 06A 8431 was loaded with

boiler hens at poultry form at Bellary. The petitioner and

another boarded the offending vehicle. The driver of

offending vehicle drove the same in a rash and negligent

manner with high speed and when the vehicle reached near

Obulapuram railway gate, the left side tyre of the vehicle was

burst, due to which the driver lost control over the vehicle

and dashed against the road side iron beams, resulting

which the petitioner sustained injuries.

5. The first and second respondents filed counters

separately denying the claim of the claimant and contended

that the claimant is not entitled any compensation and the

first and second respondents are not liable to pay any

compensation to the petitioner.

6. Based on the above pleadings, the Tribunal framed the

following issues for trial:

VGKR, J MACMA No.376 of 2014

1. Whether the accident had happened on account of the rash and negligent driving of the driver of the offending 407 van bearing No.KA 06A 8431?

2. Whether the driver of the offending vehicle was not holding valid effective driving licence at the time of accident?

3. Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

4. Whether the claim of the petitioner is excessive, abnormal and unjust?

5. To what relief?

7. During the course of enquiry in the claim petition, on

behalf of the petitioner, P.Ws.1 and 2 were examined and

Exs.A.1 to A.11 were marked. On behalf of respondents

R.W.1 was examined and Exs.B.1 was marked.

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

evidence on record and on appreciation of the same, the

Tribunal came to conclusion that the accident was occurred

due to rash and negligent driving of the driver of offending

vehicle and the Tribunal allowed the petition in-part and

VGKR, J MACMA No.376 of 2014

awarded a sum of Rs.35,750/- towards compensation to the

claim petitioner. Being aggrieved by the impugned award,

the Appellant/ Insurance Company filed the appeal

questioning the legal validity of the order of the Tribunal.

9. Heard learned counsels for both the parties.

10. Now, the point for determination is:

Whether the order passed by the Tribunal needs any interference? If so, to what extent?

11. POINT :

On appreciation of evidence of PW1/injured and also

on considering Ex.A1 true copy of First Information Report

and Ex.A3 true copy of charge sheet, the Tribunal came to

conclusion that the accident in question was occurred due to

rash and negligent driving of the driver of the offending

vehicle. I do not find any legal flaw or infirmity in the said

finding given by the Tribunal.

12. Coming to the compensation, the Tribunal awarded an

amount of Rs.35,750/- to the petitioner against both the

VGKR, J MACMA No.376 of 2014

respondents and fixed the responsibility on both owner of the

offending vehicle and insurer of the offending vehicle.

13. Learned counsel for appellant would submit that the

claimant is an unauthorized passenger and that Insurance

Company is not liable to pay any compensation. The case of

the petitioner is that the offending vehicle was loaded with

boiler hens at poultry form at Bellary and the petitioner was

travelling in the offending vehicle at the time of accident, due

to rash and negligent driving of the driver of the offending

vehicle, the left tyre of the vehicle was burst, due to which,

the driver lost control over the van, resulting accident, and

the petitioner sustained grievous injury. The contention of

the petitioner is that the offending vehicle is insured with

second respondent Insurance Company and the policy is in

force. It is not in dispute by the respondents that the driver

of the offending vehicle is having valid driving licence by the

time of accident.

14. As seen from the material on record, the injured was

aged about 26 years. On appreciation of the entire evidence

VGKR, J MACMA No.376 of 2014

on record, the Tribunal arrived that monthly income of the

petitioner was Rs.2,250/- and awarded an amount of

Rs.6,750/- towards loss of earnings for a period of three

months. The petitioner sustained one grievous injury. A

person, who sustained grievous injury in a Motor Vehicles

Accident and who was admitted in the hospital has to take

bed rest at-least for a period of three to four months without

doing any work. Therefore, an amount of Rs.6,750/-

awarded by the Tribunal towards loss of earnings of the

petitioner is quite just and reasonable. The Tribunal also

awarded an amount of Rs.15,000/- towards pain and

suffering for one grievous injury sustained by the petitioner.

On considering Ex.A10 disability certificate and on

considering the evidence of PW2, the Tribunal came to

conclusion that the disability of the petitioner is 40% and an

amount of Rs.10,000/- was awarded towards loss of future

discomfort and loss of amenities. The Tribunal also awarded

an amount of Rs.4,000/- towards transport expenses,

damage to clothing and attendant charges. There is no need

to interfere with the said finding given by the Tribunal. In

VGKR, J MACMA No.376 of 2014

total, the Tribunal awarded an amount of Rs.35,750/-

towards compensation.

15. With regard to the liability, the Tribunal held in its order

that as per Ex.B1 policy, the offending vehicle is insured with

second respondent Insurance Company by the date of

accident and the petitioner was travelling as a third party in

the offending vehicle and liability is fixed on the insured and

the insurer by the Tribunal which is disputing by the appellant

Insurance Company.

16. A reliance has been placed by the learned counsel for

the appellant in the judgment of the High Court of

Chhattisgarh, Bilaspur. In the instant case the injured and

another loaded the boiler hens at poultry form at Bellary town

and proceeding in the vehicle for unloading.

Another contention taken by the Insurance Company is

that the injured is an un-authorized passenger and he is not

entitled any compensation from the Insurance Company.

The material on record reveals that the injured and another

were travelling in the offending vehicle for loading and

VGKR, J MACMA No.376 of 2014

unloading. The reliance has been placed by the learned

counsel for claimants, in a judgment, in between

V.Renganathan and another Vs. Branch Manager, United

India Insurance Company Limited and another1. In the

above decision it was held that:

5. We find no fault with the finding of the High Court that the Insurance Company could not be held liable for the payment of compensation in view of the judgment of 3- Judge Bench of this Court in the case of New India Assurance Company Limited vs. Asha Rani, 2003 ACJ 1 (SC). However, at the same time, we find that in view of the settled position, the High Court ought to have partly allowed the appeal. We may gainfully refer to the observations of this Court in similar facts at para 10 of the judgment of this Court in Shivaraj Vs. Rajendra, 2018 ACJ 2755 (SC).

6. As already observed, the facts in the present case are similar to the facts in the case of Shivaraj Vs. Rajendra (supra).

7. In the present case also, the High Court ought to have partly allowed the appeal preferred by the Insurance Company and ought to have directed it to pay the amount of compensation to the appellants and granted liberty to recover the same from the tractor owner.

8. We are, therefore, inclined to allow the appeal. We uphold the finding of the High Court that the respondent No.1-Insurance Company cannot be held liable for

2023 ACJ 623

VGKR, J MACMA No.376 of 2014

payment of compensation. At the same time, we direct the respondent No.1-Insurance Company to pay the compensation to the appellants-claimants as determined by the learned Tribunal with interest as specified in the order within three months from today with liberty to recover the said amount from the owner of the vehicle.

In the present case, the Tribunal allowed the claim

application against both the insured and insurer. The

material on record reveals that the appellant/ Insurance

Company filed the appeal and half of the amount also

deposited before the Tribunal. It was admitted by the

learned counsel for the appellant that the policy under Ex.B1

is a comprehensive policy. Since the policy is a

comprehensive policy and the offending vehicle is insured

with second respondent Insurance Company under Ex.B1

policy, the petitioner is a third party, who sustained grievous

injury in a Motor Vehicles Accident and the Tribunal fixed the

liability on both the insurer and the insured, therefore, by

applying pay and recovery principle, I am of the considered

view that the second respondent Insurance Company is

directed to deposit the remaining compensation amount with

VGKR, J MACMA No.376 of 2014

interest and costs as awarded by the Tribunal within two

months before the Tribunal, later recover the total

compensation amount with interest and costs from the first

respondent/ owner of the offending vehicle.

17. In the result, this appeal is disposed of, modifying the

order dated 31.12.2010 passed in M.V.O.P.No.145 of 2010

on the file of the Motor Accident Claims Tribunal-cum-

Additional District Judge, Hindupur. It is held that the

claimant is entitled to a total compensation of Rs.35,750/-

with interest @6% p.a., from the date of petition, till the date

of payment as ordered by Tribunal. The 2nd respondent/

Insurance Company is directed to deposit remaining

compensation amount with interest within two months from

the date of this judgment, before the Tribunal at first instance

and later recover the total compensation amount with interest

from the first respondent/ owner of the vehicle, by filing an

Execution Petition and without filing any independent suit.

On such deposit, the claimant is entitled to withdraw the

remaining compensation amount along with costs and

VGKR, J MACMA No.376 of 2014

accrued interest thereon. There shall be no order as to

costs.

As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.

_______________________________ JUSTICE V.GOPALA KRISHNA RAO Dated: 24.07.2023 sj

VGKR, J MACMA No.376 of 2014

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.376 of 2014

24.07.2023 sj