Andhra Pradesh High Court - Amravati

Manukonda Srinivasa Reddy vs Smt. Sk.Asha on 3 May, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 2275 of 2013

JUDGEMENT:

The appellant is claim petitioner in M.V.O.P.No.463 of 2008 on

the file of the Chairman, Motor Accident Claims Tribunal-cum-IX

Addl. District Judge (Fast Track Court), Guntur and the respondents

are respondents in the said case.

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 claim petitioner filed a claim petition under Section 163-A

of the Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.1,30,000/- towards

compensation for the injuries sustained by him in a motor vehicle

accident that occurred on 04.01.2008.

4. The brief averments of the claim petition are as follows:

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On 04.01.2008 at about 6.30 p.m. the petitioner was

proceeding in an auto bearing registration No.AP 7X 9321 as a

passenger from Perecharla to Phirangipuram on Guntur-

Narasaraopet road and when the auto reached near N.S.P. canal in

between Phirangipuram-Vemulurupadu villages, the driver of the

auto drove it in a rash and negligent manner at high speed without

taking proper care and caution, as a result, the petitioner fell down

from the running auto and sustained a fracture to his left femur. The

1st respondent is owner, the 2nd respondent is present owner and

the 3rd respondent is insurer of the offending auto. Hence, all the

respondents are jointly and severally liable to pay compensation to

the petitioner.

5. Respondent Nos.1 and 2 were set ex parte.

6. The 3rd respondent/Insurance company filed a written

statement by denying the manner of accident. It is contended that

the offending auto was not insured with the Insurance company and

the driver of the auto is not having valid and effective driving licence

to drive the auto at the time of accident.

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

following issues for trial:

1. Whether the accident took place due to the rash and negligent driving of the driver of the auto bearing No.AP 7X 9321?

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

3. To what relief?

8. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.5

and Exx.X.1 to X.3 were marked. On behalf of the 3rd respondent,

R.Ws.1 and 2 were examined and Exs.B.1 to B.3 were marked.

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

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

allowed the petition in part and awarded a sum of Rs.40,000/-

towards compensation to the claim petitioner. Being aggrieved by

the impugned award, the claim petitioner filed the appeal for

enhancement of compensation.

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10. Heard learned counsels for both the parties.

11. The grounds urged by the appellants/claim petitioners are that

the Tribunal failed to fasten the liability on the 3rd

respondent/Insurance company, as there is valid and subsisting

policy as on the date of accident and also failed to appreciate the

evidence of P.W.2-doctor in proper perspective in awarding just

compensation towards medical expenses.

12. Now, the points for determination are:

1) Whether the claim petitioner is entitled enhancement of compensation as prayed for? and

2) Whether the order passed by the Tribunal needs any interference?

13. POINT Nos.1 and 2 : The case of the petitioner is that he

was proceeding in an auto bearing registration No.AP 7X 9321 as a

passenger from Perecharla to Phirangipuram on Guntur-

Narasaraopet road and when the auto reached near N.S.P. canal in

between Phirangipuram-Vemulurupadu villages, the driver of the

auto drove it in a rash and negligent manner at high speed without

VGKR,J MACMA No.2275 of 2013

taking proper care and caution, as a result, he fell down from the

running auto and sustained a fracture to his left femur. Basing on

the material on record and on considering the evidence of P.W.1

coupled with Ex.A.1-certified copy of first information report and

Ex.A.2-certified copy of charge sheet, it is evident that the driver of

the 1st respondent's auto drove it in a rash and negligent manner,

due to which, the petitioner, who is travelling in the auto as a

passenger, fell down and sustained injuries. The learned Tribunal

also gave the same finding. No appeal was filed against the said

finding by the respondents. Therefore, there is no need to interfere

with the said finding recorded by the learned Tribunal.

14. The material on record clearly goes to show that the petitioner

sustained one grievous injury. P.W.2-Doctor, who treated the

petitioner, also supported the same. Ex.A.3-certified copy of would

certificate also supported the contention of the petitioner that he

sustained one fracture injury in a road accident. The learned

Tribunal granted an amount of Rs.17,000/- for one grievous injury

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and pain and suffering. Therefore, there is no need to interfere with

the said finding given by the Tribunal.

15. In the present case, the petitioner was hospitalized and an

operation was also conducted to him. P.W.2-doctor also supported

the same. Ex.A.4-receipt for Rs.22,000/- issued by B.M.R.Hospital,

Guntur and marked through P.W.2, shows that the petitioner paid

Rs.22,000/- to the said hospital towards medical expenses. P.W.2

also corroborated the same. Ex.A.5-medical bills clearly goes to

show that the petitioner incurred an amount of Rs.1,121/- towards

medical expenses. But, the learned Tribunal failed to consider

Exs.A.4 and A.5 and awarded a sum of Rs.12,000/- towards medical

expenses, extra nourishment, attendant and other incidental

charges. Therefore, the said quantum is modified and an amount of

Rs.23,121/- is awarded towards medical expenses and an amount

of Rs.10,000/- is awarded towards extra nourishment, attendant and

other incidental charges.

16. The learned Tribunal further granted an amount of Rs.8,000/-

for sustaining 8% disability and Rs.3,000/- for future surgery which

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is just and reasonable. Therefore, there is no need to interfere with

the said quantum awarded by the Tribunal. Thus, in total, the

petitioner is entitled an amount of Rs.61,121/- towards

compensation.

17. It was held by the learned Tribunal in its order that the

offending vehicle was insured with the 3rd respondent/Insurance

company and the policy is also in force under Ex.B.1. The Tribunal

further held that "taking into consideration the evidence of R.W.2

that the offending vehicle is a transport auto, the driver of the auto is

having only L.M.V. non-transport driving licence and he is not having

any transport endorsement on the driving licence of light motor

vehicle and as such, he is not entitled to drive the auto". The

Tribunal held in its order that the 3rd respondent/Insurance company

is not liable to pay any compensation in view of violation of policy

conditions.

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18. In a decision in Mukund Dewangan Vs. Oriental Insurance

Company Limited1, the Hon'ble Supreme Court of India held thus:

"Light Motor Vehicle‟ as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not exclude from the definition of the light motor vehicle by virtue of Amended Act No.54/1994

xxxxx xxxxxx xxxxx xxxxxx xxxxx xxxxx xxxxx

The effect of the amendment made by virtue of Act.54/1994 w.e.f., 14-11-1994 while substituting classes (e) to (h) of Section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f) , heavy goods vehicle in section 10(2)(h) with expression „transport vehicle‟ as substituted in section 10(2)(e) related only to the afore said substituted classes only. It does not exclude transport vehicle, from the purview of section 10(20)(e) and section 2(41) of the Act i.e., light motor vehicle.

xxxxx xxxxxx xxxxx xxxxxx xxxxx xxxxx xxxxx

The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were

2017 SAR (Civil) 1008

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substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continuous to be the same as it was and has been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle or such class without any endorsement to that effect."

19. In view of the decision of the Hon'ble Apex Court referred

supra and in view of the above circumstances, the driver of the

offending auto is having valid driving licence to drive the offending

auto on the date of the accident. The offending auto was insured

with the 3rd respondent/Insurance company under Ex.B.1 policy and

the policy was in force by then. Therefore, the 3rd respondent is also

liable to pay compensation along with other respondents.

20. In the result, the appeal is partly allowed enhancing the

compensation from Rs.40,000/- to 61,121/- and the claim petitioner

is entitled enhanced compensation of Rs.21,121/- with interest at

7.5% p.a. from the date of petition till the date of payment by all the

VGKR,J MACMA No.2275 of 2013