Andhra Pradesh High Court - Amravati

The United India Insurance ... vs Bhadramma & Others on 15 June, 2023

 IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

                            ****
                  C.M.A.No. 1583 of 2004
Between:

The United India Insurance Company Limited,
Represented by its Divisional Manager,
Brindavanam, Nellore.            ... Appellant/Respondent No.2

            And
1.    Gandavarapu Rathnamma (died)
                                     .... Respondent/Petitioner
2.    G.Muneendra, S/o.Venkataramaiah, Hindu,
      Residing at 26-1-1397, Chandramouli Nagar,
      Vedaypalem, Nellore.
                               ... Respondent/Respondent No.1
3.    Gandavarapu Kamalamma,
      W/o.Late Ramana Reddy, Hindu, Aged about 66 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
4.    Gandavarapu Durga Prasad,
      S/o.Late Ramana Reddy, Hindu, Aged about 36 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
5.    Gandavarapu Aruna,
      W/o.Maneedra, D/o.Late Ramana Reddy,
      Hindu, Aged about 43 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
6.    Kangala Vijaya Lakshmi,
      W/o.Venkatesh, D/o.Late Ramana Reddy,
      Hindu, Aged about 39 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
7.    Gandavarapu Siva Krishna,
      S/o.Late Ramana Reddy, Hindu, aged about 33 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
                     .... Respondents/L.Rs of Respondent No.1
(Respondents 3 to 7 are brought on record as Legal
Representatives of deceased 1st respondent as per the order
dated 23.11.2021 in I.A.No.3 of 2021)
                                  2




DATE OF JUDGMENT PRONOUNCED: 15.06.2023

SUBMITTED FOR APPROVAL:

     THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1.     Whether Reporters of Local Newspapers
       may be allowed to see the judgment?       Yes/No
2.     Whether the copies of judgment may be
       marked to Law Reporters / Journals?       Yes/No

3.     Whether His Lordship wish to
       see the fair copy of the Judgment?        Yes/No



                                  DUPPALA VENKATA RAMANA, J
                               3




* THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                + M.A.C.M.A.No.1583 of 2004

% 15.06.2023
Between:

The United India Insurance Company Limited,
Represented by its Divisional Manager,
Brindavanam, Nellore.            ... Appellant/Respondent No.2

            And
1.    Gandavarapu Rathnamma (died)
                                      .... Respondent/Petitioner
2.    G.Muneendra, S/o.Venkataramaiah, Hindu,
      Residing at 26-1-1397, Chandramouli Nagar,
      Vedaypalem, Nellore.
                                ... Respondent/Respondent No.1
3.    Gandavarapu Kamalamma,
      W/o.Late Ramana Reddy, Hindu, Aged about 66 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
4.    Gandavarapu Durga Prasad,
      S/o.Late Ramana Reddy, Hindu, Aged about 36 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
5.    Gandavarapu Aruna,
      W/o.Maneedra, D/o.Late Ramana Reddy,
      Hindu, Aged about 43 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
6.    Kangala Vijaya Lakshmi,
      W/o.Venkatesh, D/o.Late Ramana Reddy,
      Hindu, Aged about 39 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
7.    Gandavarapu Siva Krishna,
      S/o.Late Ramana Reddy, Hindu, aged about 33 years,
      R/o.Inanadugu Village, Kovur Mandal,
      Nellore District.
                        .... Respondents/L.Rs of Respondent No.1
(Respondents 3 to 7 are brought on record as Legal
Representatives of deceased 1st respondent as per the order
dated 23.11.2021 in I.A.No.3 of 2021)
                                  4




! Counsel for Appellant              : Smt.S.A.V.Ratnam

^ Counsel for Respondents 3 to 7     : Smt. M.Suguna

< Gist:
> Head Note:
? Cases referred:
1.   2010 ACJ 1687
2.   2012 SCC Online Del 2442 = 2014 ACJ 1540
This Court made the following:
                                  5




 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                   C.M.A.No.1583 of 2004
JUDGMENT:

This appeal under Section 173 of the Motor Vehicles Act

(for short "the Act") has been preferred by the appellant-United

India Insurance Company Limited, challenging the Award dated

16.03.2004, in O.P.No.14 of 2001 delivered by the Motor

Accidents Claims Tribunal-cum-District Judge, Nellore (for short

"the Tribunal"), granting compensation of Rs.30,000/- along

with interest @ 9% per annum, from the date of the petition till

the date of realization, to the petitioner-injured against the 1st &

2nd respondents jointly and severally, on account of the injuries

sustained by the injured in a road traffic accident that occurred

at P.S.R. bus stand, Nellore Town.

2. For the sake of convenience, the parties are referred to as

they are arrayed before the Tribunal.

3. Following note-worthy facts emerge from the record of

appeal:

a) On 21.06.2000 at about 11.00 a.m., while the petitioner

was proceeding to a flower stall after getting down the bus at

P.S.R. bus stand, Nellore, a Car bearing No.AP 03 V 404 owned

by the 1st respondent and insured with the 2nd respondent, being

driven by its driver in a rash and negligent manner, dashed her

behind as a result, she fell on the ground and the wheels of the

Car ran over her right foot causing crush injury. The petitioner

was shifted to Government Head Quarters Hospital, Nellore and

from there to a private hospital for treatment. Due to the said

crush injury, she became partially disabled. A complaint was

lodged by the injured with the jurisdictional Police Station,

Nellore, alleging that the accident took place as a result of rash

and negligent driving of the driver of the offending vehicle

bearing No.AP 03 V 404 and the same was registered as a case

in Crime No.34 of 2000 for the offence under Section 338 IPC

and issued FIR. After completion of the investigation of the case,

a charge sheet was submitted by the Police against the accused-

driver for having committed an offence punishable under Section

338 IPC before the learned II Additional Judicial Magistrate of

First Class, Nellore. The claimant-Gandavarapu Rathnamma

filed an application claiming compensation of a sum of

Rs.50,000/-, on account of the injuries sustained by her in the

said road traffic accident, against the respondents 1 and 2.

b) The 1st respondent, who is the owner of the offending

vehicle, did not contest the matter.

c) The 2nd respondent-Insurance Company filed a counter

denying the nature of the accident, age, income and avocation of

the petitioner, coverage of the insurance policy and also medical

expenses incurred and the nature of the injuries sustained by

the petitioner and contending inter alia that the compensation

claimed by the petitioner is too high and excessive. Therefore, it

is prayed to dismiss the petition.

d) Based on the above pleadings, the Tribunal framed the

following issues:

1) Whether the alleged accident occurred due to the rash and negligent driving of the vehicle bearing registration No.AP 03 V 404 by its driver?

2) Whether the petitioner is entitled to compensation and if so, to what amount and from which of the respondents?

      3)     To what relief?

e)    During the trial, in order to establish her claim, the

injured-claimant was examined herself as P.W.1 and got marked

Exs.A.1 to A.3 i.e., Attested Xerox copies FIR, charge sheet and

Wound Certificate of the petitioner. The owner-insured

(1st respondent) of the offending vehicle neither led any evidence

nor marked any documents. No evidence was adduced on behalf

of the 2nd respondent. Ex.B.1-Insurance Policy was marked by

the consent of Respondent No.2 before the Tribunal.

f) The Tribunal, after analyzing the entire evidence of P.W.1

and Exs.A.1 to A.3, and Ex.B1, came to the conclusion that the

accident occurred due to the rash and negligent driving of the

offending vehicle (Car) bearing No.AP 03 V 404 by its driver and

passed the impugned Award granting compensation of

Rs.30,000/- with interest at 9% per annum and with

proportionate costs against the 1st and 2nd respondents jointly

and severally, from the date of petition till the date of realization.

g) On appreciation of evidence, the following compensation

was awarded by the Tribunal.

     S.No.     Heads of compensation                Amount of
                                               compensation awarded
                                                      in Rs.
      1      Pain and Suffering                              20,000/-
      2      Medical expenses, Transport                      5,000/-
             expenses, extra nourishment
             and damage to clothing etc.
      3      Loss of past earnings                             5,000/-
             Total                                            30,000/-


(h)       Aggrieved by the said award, the M/s.United India

Insurance Company Limited, preferred the present appeal.

(i) During the pendency of the appeal, claimant/injured/R.1

died and the legal representatives of the injured were brought on

record as respondents 3 to 7 in the appeal, as per the orders of

this Court dated 23.11.2021.

4. Learned standing counsel for the appellant-Insurance

Company would submit that the insurance policy which has

been issued in the name of the owner of the offending vehicle (1 st

respondent-R.C.holder) is started to commence from 5.10 p.m.,

on 22.06.2000 and being in operation till 21.06.2001. Since the

accident occurred at 11.00 a.m., on 21.06.2000, the policy had

not come into effect. Therefore, the Insurance Company is not

liable to pay compensation under the terms and conditions of

the said policy.

5. Learned counsel for the respondents 3 to 7 (L.Rs of

claimant/injured) would submit that, none were examined on

behalf of the Insurance Company about the existence of the

Insurance Policy by the time of the accident. Further, he would

submit that the insurance policy of the offending vehicle was in

force from 22.06.1999 to 21.06.2000 midnight. Therefore, an

inference can be drawn that the insurance coverage is effective

from the previous midnight. Like such an accident, which took

place on the date of premium paid, the insurer is liable to pay

the compensation. Further, argued that the amount of

compensation awarded by the learned Tribunal was absolutely

not justified which called for interference in appeal.

6. In the light of the above rival arguments, the points for

determination in this appeal are:

"1. Whether the compensation awarded by the Tribunal is just and reasonable, in the facts and circumstances of the case or requires enhancement?

2. Whether the risk of the insurer will commence from the time of acceptance of premium or whether it commences from the date of issue of the policy/cover note?"

POINT Nos.1 & 2:

7. A perusal of the impugned award would show that the

Tribunal has framed Issue No.1 as to whether the accident had

occurred due to the rash and negligent driving of the vehicle by

its driver to which the Tribunal, after considering the evidence of

P.W.1 coupled with the documentary evidence, has categorically

observed that the accident has occurred due to the rash and

negligent driving of the offending vehicle (Car) bearing No.AP 03

V 404 and answered in favour of the claimant/injured and

against the respondents. Therefore, there is no reason to

interfere with the finding of the Tribunal that the accident

occurred due to the rash and negligent driving of the driver of

the offending vehicle (Car) bearing No.AP 03 V 404.

8. Insofar as the quantum of compensation is concerned, a

perusal of the material on record would show that, as per

Ex.A.3-Attested copy of the Wound Certificate, the injured had

sustained a crush injury on her right foot and the said injury is

grievous in nature. The Doctor, who treated the injured and

issued Ex.A.3/Wound Certificate, was not examined and the

disability certificate was not filed, it can be safely concluded that

as per Ex.A.3/Wound Certificate the injured sustained grievous

injury on her right foot.

9. Coming to the aspect of liability of payment of

compensation, there was no dispute that the driver of the

offending vehicle (Car) bearing No.AP 03 V 404 was not

possessing a valid driving licence at the time of the accident.

None were examined either from the Insurance Company or from

the R.T.O to prove that by the time of the accident, the offending

vehicle was not covered by the Insurance Policy. However, the

counsel for the 2nd respondent-Insurance Company argued that

the accident occurred at 11.00 a.m., on 21.06.2000 and the

policy came into force at 5.10 p.m., on 22.06.2000, therefore,

the Insurance Company is not liable to pay the compensation as

the policy was not existing on the date of the accident. A bare

perusal, Ex.B.1-Policy was very much in force at the time of the

accident, since the insured paid the premium to the insurer to

renew the insurance policy on the date of the accident i.e., on

21.06.2000.

10. In a decision reported in National Insurance Company

Limited & Others Vs. Bhadramma & Others,1 High Court of

Karnataka at Para 14 it was held as follows:

"14. In the instant case the receipt at Ex.R.1 does not mention the time of payment of premium. It. is submitted that the office practice of the insurer is to receive the premium from 10.00 a.m. to 3.00 p.m. which almost corresponds the banking hours. The accident has occurred at 11.15 a.m. The office has commenced at 10.00 a.m. There is no material to show exactly at what point of time the premium was remitted and received. Therefore, it is not established that the premium is paid subsequent to the accident Hence, the ratio laid down in Sunitha Rati' s case would apply to the case and it is to be inferred that the policy is effective from the mid night o 13.7.1994. In view of the reasons and discussions made above, we hold that the finding of the tribunal that the insurer is liable to pay compensation is sound and proper."

11. In the light of the above said decision, in the present case,

it is clear that the insurance premium (by way of cash) was paid

by the owner of the offending vehicle (insured) prior to the

accident i.e., on 21.06.2000, which is mentioned in the relevant

column of Ex.B.1/Policy. It is rather unfortunate that the

accident occurred immediately thereafter with an hours

difference. But, once the insured paid the premium and availed

2010 ACJ 1687

insurance policy, the said insured would be under the good

impression that the policy came into effect immediately since the

payment has been accepted by the Insurance Company. There is

no evidence on record to indicate that the person collecting the

premium on behalf of the insurance company had informed the

person availing of the insurance policy that the policy would not

come into operation until a particular date nor was there any

request or instructions issued by the insurer collecting the

premium that the vehicle should not be plied until the date. In

the absence thereof, this Court is of the considered opinion that

the Insurance Company cannot evade its liability by contending

that, though the premium was received prior to the accident,

Ex.B.1/Policy prescribes a different time and date (at 5.10 p.m.,

on 22.06.2000) from which the coverage comes into operation.

This aspect is no longer res integra. The Division Bench of the

Karnataka High Court, in Bhadramma's case (supra) has held

that in terms of Section 64-VB of the Insurance Act, the risk of

the Insurance Company would commence from the date of

receipt of the premium.

12. At this juncture, it is relevant to refer to Section 64-VB of

the Insurance Act.

"No risk to be assumed unless premium is received in advance.

64VB. (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.

(2) ...........

(3) ...........

(4) ...........

(5) ..........

13. In the light of the principles laid down in the above

judgment and the provision of the Insurance Act, there is no

material on record to show exactly at what point of time the

premium was remitted by the insured and received by the

insurer. Therefore, it is not established that the premium is paid

subsequent to the accident and it is to be inferred that the policy

was in force till the midnight of 21.06.2000. The premium was

paid by the insured to renew the policy on 21.06.2000, as per

the practice in vogue to receive the premium from 10.00 a.m., to

3.00 p.m. Under such circumstances, the Insurance Company

cannot escape from its liability and therefore, the argument

advanced by the learned counsel for the Insurer has no force.

14. In so far as the injury sustained by the injured is

concerned, the Tribunal has considered the evidence on record

and came to a conclusion that the claimant/injured was aged

between 50 to 60 years. Admittedly, the claimant sustained a

crush injury on her right foot. The Tribunal awarded meager

compensation of Rs.30,000/- under the heads of pain &

suffering, medical expenses, extra-nourishment and

transportation etc. Though the claimant/injured has not

enclosed any medical bills with the claim petition, yet, it can be

fathomed that the amount awarded by the Tribunal in this

regard, cannot be said to be, in any, away excessive or unjust.

15. The present appeal is filed by the appellant/Insurance

Company challenging its liability to pay the compensation. The

injured did not prefer any appeal/cross-objections to enhance

the compensation awarded by the Tribunal. However, the

provisions of the Motor Vehicles Act are benevolent in nature

and even in the absence of filing of any cross-appeal/cross-

objections, taking into consideration, the gravity of the injuries

sustained by the injured, the appellate Court has the power to

enhance the compensation. Now it is relevant to refer to the

decision of the High Court of Delhi in National Insurance

Company Limited Vs. Komal and others2 wherein, it is crystal

clear that under Order XLI Rule 33 CPC, the Appellate Court has

the power to enhance the compensation even in the absence of

any Cross Objections. Para No.12 of the decision reads as

follows:

"12. Section 168 of the Motor Vehicles Act, 1988 empowers the Court to award such compensation as appears to be just which has been interpreted to mean just in accordance with law and it can be more than the amount claimed by the claimants. The provisions of the Motor Vehicles Act, 1988 are clearly a beneficial legislation and hence should be interpreted in a way to enable the Court to assess just compensation. The scope of Order XLI Rule 33 of the Code of Civil Procedure and the power of the High Court to enhance the award amount in accident cases in the absence of cross- objections has been discussed by the Supreme Court in Nagappa v. Gurudayal Singh, AIR 2003 SC 674 where the Apex Court has held that the Court is required to determine just compensation and there is no other limitation or restriction for awarding such compensation and in appropriate cases wherefrom the evidence brought on record if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award and would empower the Court to enhance the compensation at the appellate stage even without the injured filing an appeal or cross-objections."

16. Under the above provisions of the Motor Vehicles Act,

1988, there is no restriction that the compensation could be

2012 SCC Online Del 2442 = 2014 ACJ 1540

awarded only upto the amount claimed by the claimants. In an

appropriate case, where from the evidence brought on record, if

the Tribunal/Court considers, the claimant is entitled to get

more compensation than the claimed. Following the guidelines

in the decisions supra, this Court is of the view that the

claimant/injured is entitled to enhance the compensation at the

appellate stage even without the filing an appeal or cross-

objections.

17. In the instant case, the claimant/injured, who is a

labourer, is not supposed to be that much of meticulous to

maintain the bills for future use. Definitely, she might have

spent huge amounts to recover from the crush injury. Therefore,

this Court opined that the claimant is entitled to enhancement

of compensation under the following heads.

S.No.         Head of Compensation               Amount

1        Pain & Suffering                          Rs.30,000/-
2        Medical Expenses & Grievous               Rs.35,000/-
         Injury
3        Transport Expenses                       Rs. 5,000/-
4        Extra-Nourishment                        Rs.10,000/-
5        Damage to clothing                       Rs. 5,000/-
3        Loss of past earnings                    Rs.15,000/-
                   Total                        Rs.1,00,000/-
  (-)Compensation     awarded  by the             Rs.30,000/-
Tribunal                                         ----------------
Enhanced Compensation                             Rs.70,000/-
                                                 ----------------

18. Having regard to the facts and circumstances of the case

and in view of the law laid down by the Courts, this Court is of

the opinion that the award passed by the Tribunal warrants

interference and needs to be enhanced and thereby, enhanced

the compensation from Rs.30,000/- to Rs.1,00,000/-.

19. Viewed thus, there is no merit in the present appeal, and

the same is hereby dismissed, enhancing the compensation

awarded by the Tribunal from Rs.30,000/- to Rs.1,00,000/- with

costs and interest at 9% per annum from the date of the petition

till the date of realization against the Respondents 1 to 2 jointly

and severally.

(ii) Respondents are directed to deposit the