Unknown vs The Hon'Ble Sri Justice ...
2023 Latest Caselaw 1285 AP

             THE HON'BLE SRI JUSTICE V.SRINIVAS

                    M.A.C.M.A.No.1326 of 2008


JUDGMENT:

This appeal is directed against the order of the Chairman,

Motor Vehicle Accident Claims Tribunal-cum-V Additional District

Judge, (FTC), Anantapur (hereinafter called as 'the Tribunal') in

O.P.No.273 of 2006 dated 20.12.2007.

2. The appellant is the insurer of the Auto bearing No.AP 02 U

9609, belonging to the 2nd respondent herein. The respondent No.1

is the claimant.

3. According to the claimant, in the petition before the

Tribunal, on 29.11.2005 at about 05.30 a.m., he boarded the auto

bearing No.AP 02 U 9609 along with goods of groundnut bags from

Basinepalli to Dharmavaram. He was seated in the extreme left

side of the auto and when the vehicle reached to Dharmavaram-

N.S. gate road, the driver of the auto drove the same in a rash and

negligent manner. As a result, the claimant fell from the auto and

sustained grievous injuries. Then he was shifted to Government

Hospital, Dharmavaram for treatment. In turn he was shifted to

Railway Hospital, Hindupur for better treatment. He filed the

petition claiming compensation of Rs.2,00,000/- against owner and

insurer of auto bearing No.AP 02 U 9609.

4. Counter was filed by the owner of the auto, denying all the

material allegations, stated that the accident occurred due to

careless act of the claimant only; that the auto was insured with

the appellant and the policy was in force as on the date of

accident; that the appellant is alone liable to pay compensation if

any to the claimant.

5. Counter was filed by the insurer of the auto, denying all the

material allegations, stated that the claimant is travelling in the

auto as unauthorized passenger, but not owner of the goods; that

as per registration certificate, the driver is alone entitled to travel

in the auto; that the driver of the auto was not having driving

license to drive the vehicle; that the insurer is not liable to pay

any compensation and as such prays to dismiss the petition.

6. The Tribunal settled the following issues for enquiry basing

on the material:

1.Whether the accident occurred on 29.11.2005 due to rash and negligent driving of the driver of the auto bearing No.AP 02 U 9609 petitioner fell down from the auto and caused injuries to him or not?

2.Whether the driver of the crime vehicle had valid driving license, fitness certificate, permit and R.C. at the time of accident or not?

3.Whether the petitioner is entitled to compensation, if so, to what amount and from which respondent? and

3.To what relief?

7. In the course of enquiry, on behalf of the claimant, PWs.1

and 2 were examined and Exs.A.1 to A.6 were marked. On behalf

of the insurer of the auto, R.Ws.1 and 2 were examined and

Exs.B.1 to B.3 and X.1 were marked.

8. On the material, the Tribunal, having come to the conclusion

that as the accident occurred due to the rash and negligent driving

of the driver of the auto, held that the claimant is entitled

compensation of Rs.76,400/- with interest at 7.5% per annum from

the date of petition till the date of realization, payable by the

owner and insurer of the said auto jointly and severally.

9. It is against the said order, the present appeal is preferred

by the insurer of the auto bearing No.AP 02 U 9609.

10. Heard Sri Kota Subbarao, learned counsel for the appellant

and Sri G.Venkatesulu, learned counsel for the respondent

No.1/claimant.

11. Sri Kota Subbarao, learned counsel for the appellant submits

that the claimant was not the owner of the goods and he was an

unauthorized passenger in the vehicle and the risk of the claimant

not covered under the policy. He further submits that the driver of

the auto was not having driving license at the time of accident.

12. Sri G.Venkatesulu, learned counsel for the claimant

submits that the Tribunal rightly awarded the compensation to the

claimant by appreciating the evidence on record and that there

are no grounds to interfere the order of the Tribunal and as such

the appellant is liable to pay compensation.

13. Now, the following points arise for determination:

1. Whether there is any flaw in awarding the compensation to the claimants against the appellant? and

2. To what relief ?

14. POINT No.1:

The facts in dispute are that on 29.11.2005 at 05.30 a.m.,

the claimant by name Beere Subbarayudu @ T.Subbarayudu

boarded the auto bearing No.AP 02 U 9609 along with goods of

groundnut bags from his village Basinepalli in order to go to

Dharmavaram and seated in the extreme left side of the auto.

When the auto reached Dharmavaram-N.S. gate road, the driver of

the auto drove the same in a rash and negligent manner. Resulting

the petitioner fell down from the auto and sustained grievous

injuries. Immediately he was shifted to Government Hospital,

Dharmavaram and on report, C.K.Palli police registered a case in

crime No.114 of 2005 against the driver of the auto under Section

337 of IPC and later filed a charge sheet under Section 338 of IPC.

15. The claimant sustained two facture injuries i.e., i).fracture

shaft of right femur and ii).fracture of tibia right leg. To prove the

same the claimant was examined himself as P.W.1.

16. The appellant/insurance company denied the allegations

stated that the crime record does not show that the claimant was

travelling as owner of the goods. He was travelling as unauthorized

passenger, but not owner of the goods. As per registration

certificate, the driver alone entitled to travel in the auto. Hence,

the insurance company is not liable to pay any compensation and it

is dissolved from the liability to pay any compensation and filed

the present appeal.

17. In order to prove the negligence on the part of the driver of

the auto, the claimant not only examined himself as P.W.1, but

also filed and got marked certified copies of F.I.R.(Ex.A.1), Charge

Sheet (Ex.A.3), Wound Certificate(Ex.A.2), Disability

Certificate(Ex.A.4) and X-Ray films(Ex.A.5).

18. The claimant reiterated the facts as P.W.1 and even he was

cross examined at length by the insurance company. But nothing is

elicited in its favour. Contrary to the same neither the appellant

nor the owner of the auto did not examine owner or driver of the

auto to disprove/rather to disbelieve the testimony of P.W.1, who

is injured in this case. P.W.1 being eye witness as well injured

clearly and consistently stated about the manner of the accident

as narrated in Ex.A.1 F.I.R. and Ex.A.3 charge sheet. Even the

findings of the investigating officer corroborated with the

testimony of P.W.1 regarding manner of the accident. Thus, the

evidence of P.W.1 coupled with Exs.A.1 and A.3 clearly established

the rash and negligent act of driver of the auto bearing No.AP 02 U

9609.

19. So far as injuries are concerned, the claimant not only

examined himself as P.W.1, but also examined the doctor as P.W.2.

P.W.1 in his evidence stated that he sustained grievous injuries and

during the course of treatment he shifted to Dharmavaram

Government Hospital and after taking first aid, he was referred to

Railway Hospital, Hindupur. Later he was again referred to superior

hospital i.e., Railway Hospital, Bangalore. Where he was got

admitted as in patient from 02.12.2005 to 09.12.2005. The doctor

got conducted operation to his right leg and screws were inserted

on the part of the left hip. During stay in the said hospital, on two

occasions, operation was done and due to the accident he was

unable to unable to attend his duties as a gangman due to

disability.

20. P.W.2 doctor by name A.Jagannath, who is Civil Surgeon

Specialist in Orthopedics stated that on 19.02.2007, he was

examined P.W.1 and issued disability certificate covered under

Ex.A.2. He assessed the disability as 35% permanent in nature,

which is due to post traumatic sequelle with fracture right sub

trochantic region in process of union of segmental, right tibia.

21. P.W.2 further stated that due to fracture to his right leg,

there was limping with gross restriction of movement right knee

joint right ankle with shortening of right lower limb 1 ½ inch.

Resulting he cannot walk long distance and he cannot do fast

walking as well as cannot be squatting and cross legging. The same

is established through Ex.A.2 wound certificate and he also filed X-

rays(Exs.A.5 and A.6), which were taken from Railway Hospital,

Perambadur.

22. In view of the above evidence, it is clear that P.W.1

sustained two fracture injuries and as per the evidence of P.W.2

there is 35% of the disability and the Tribunal after appreciating

the evidence found that though doctor stated 35% of disability, in

view of non stating of functional disability, the Tribunal considered

it as 15% and P.W.1 being worked as gangman in South Central

Railway and because of the fractures, he could not do the same. In

those circumstance, the Tribunal assessed the income @ Rs.3,000/-

per month and as he was aged about 50 years suitable multiplier is

taken as 11 and compensation is worked out a tune of

Rs.3,96,000/- and in which 15% disability is considered and loss of

earning comes to Rs.59,400/-.

23. The appellant contends that the payment of premium under

Ex.B.1 policy does attract NFPP. But as could be seen from Ex.B.1

policy, the owner of the auto paid Rs.75/- for other than

employees. Since the appellant collected NFPP premium from the

owner of the auto and no contra evidence is placed by the

appellant that claimant was not travelling as owner of the

groundnut as stated by him, except the self serving contention

that the claimant did not travel with the goods, but in fact, the

evidence of P.W.1 coupled with Exs.A.1 and A.3 clearly goes to

show that he was travelling with groundnut in the auto in order to

sell the same in market and the documents placed before the

Tribunal clearly established that the claimant neither unauthorized

person nor gratuitous passenger.

24. There is no material on record to show that the driver of the

auto did not have valid license at the time of accident. Even for

which no evidence on record to believe the same. The evidence

placed on record clearly established that the claimant was

travelling as owner of the goods in the auto in order to sell the

same at Dharmavaram to get higher price and seating capacity of

the auto is four. The charge sheet as well F.I.R. covered under

Exs.A.3 and A.1 clearly speaks that not only the claimant, but also

two more persons travelling in the auto in order to reach

Dharmavaram. Moreover, in Ex.B.1 policy clearly mentioned that

the appellant collected NFPP premium for other than employees

and the same is admitted by the appellant in his evidence as

R.W.1.

25. In view of the above circumstances, nothing is found from

the record to disbelieve the case of the claimant in order to

accept the contention of the appellant and the Tribunal

elaborately discussed how it has arrived at the compensation

amount and given valid and cogent reasons. As such there are no

grounds in interfere the well articulated award passed by the

Tribunal by way of this appeal and this Court do not found any

merits in the appeal. Thus, this point is answered against the

appellant.

26. POINT NO.2:

In view of the findings on point No.1, the appeal is liable to

be dismissed.

27. In the result, the M.A.C.M.A. is dismissed by confirming the

order of the Tribunal, in O.P.No.273 of 2006 dated 20.12.2007.

There shall be no order as to costs.

28. Interim orders granted earlier if any, stand vacated.

29. Miscellaneous petitions pending if any, stand closed.

____________ V.SRINIVAS, J Date: 06.03.2023 krs

THE HON'BLE SRI JUSTICE V.SRINIVAS

M.A.C.M.A.No.1326 of 2008

DATE: 06.03.2023

krs