The New India Assurance Co Ltd vs Kammara Veerasekharachari
2023 Latest Caselaw 4630 AP

 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

             M.A.C.M.A.No.2556 of 2013

JUDGMENT:

Aggrieved by the impugned Award dated

10.04.2013, passed in M.V.O.P.No.135 of 2012 on the

file of the VI Additional District Judge, (Fast Track

Court), Gooty, whereby an amount of Rs.4,00,000/- was

awarded to the appellant/claimant towards

compensation for the injuries sustained by him in a

motor vehicle accident, this instant appeal is preferred

by the 2nd respondent/The New India Assurance

Company Limited, questioning the legal validity of the

Award passed by the Tribunal.

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

the appeal will be referred to as they are arrayed in

claim application.

3. The aforesaid M.V.O.P.No.135 of 2012 was

preferred by the injured under Sections 140 and 166 of

the Motor Vehicles Act, 1988 (for short "the Act"), 2 VGKR, J M.A.C.M.A.No.2556 of 2013

praying to award compensation of Rs.4,50,000/- with

interest and costs for the injuries sustained by him in a

road accident that occurred on 22.01.2012.

4. Facts germane to dispose of the appeal may be

briefly stated as follows:-

On 22.01.2012, at about 09.30 p.m., while the

claimant/injured was proceeding on his friend‟s

motorcycle as a pillion rider from Dharmavaram to go to

Pamidi, when they reached near TV Tower on

Kadiri-Ananthapur road, at that time, the offending

lorry bearing R.C.No.AP-03-TA-1269 came from opposite

direction in a rash and negligent manner and dashed

against their motorcycle. As a result, they fell down

from the motorcycle and sustained grievous injuries.

The claimant was shifted to Amrutha Hospital, Kurnool,

where he was subjected to surgery with fixation of

implants to his right leg and he spent more than

Rs.1,20,000/-. A case in crime No.65 of 2004 was

registered against the driver of the offending

vehicle/lorry by the Station House Officer, Ananthapur 3 VGKR, J M.A.C.M.A.No.2556 of 2013

Traffic Police Station and subsequent to the completion

of the investigation, laid charge sheet against the driver.

5. The respondent No.1 remained ex parte.

6. The 2nd respondent/insurer filed counter denying

the claim of the claimants.

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

the Tribunal framed the following issues for trial:-

1. Whether the accident occurred on 22.01.2012 due to rash and negligent driving of lorry bearing No.AP-03-TA-1269 by its driver and caused the injuries to the petitioner?

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

3. To what relief?

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

claimant, PWs.1 to 3 are examined and marked as

Ex.A-1 to Ex-6. On behalf of the respondent Nos.1 and

2, P.W.2 is examined and marked as Ex.B.1 to B.4.

4 VGKR, J M.A.C.M.A.No.2556 of 2013

9. At the culmination of the enquiry, on appreciation

of the entire evidence on record, the Tribunal awarded

an amount of Rs.4,00,000/- towards total compensation

and fastened the liability against the insured and

insurer i.e., R.1 and R.2. Aggrieved the same, the 2nd

respondent/The New India Assurance Company Limited

filed this instant appeal questioning the liability fixed on

the appellant.

10. Heard Smt. A. Jayanthi, learned Standing Counsel

for the appellant and Sri. Anjani Priya, on behalf of

M. Karribasavaih, learned counsel for the respondents.

11. Now the point for determination is:

1. Whether the order of the Tribunal needs any interference? If so, to what extent?

POINT:

12. On appreciation of the entire evidence on record,

on considering the oral and documentary evidence of

the Ex.A.1 attested copy of FIR, Ex.A.3 attested certified

copy of charge sheet. The Tribunal rightly came to a 5 VGKR, J M.A.C.M.A.No.2556 of 2013

conclusion, the accident in question occurred due to

rash and negligent driving of the driver of the offending

vehicle/lorry.

13. Learned Standing Counsel for the Insurance

Company, fairly represented before this Court that they

are questioning the liability fixed on the insurer only,

they are not questioning the rash and negligent driving

on the part of the driver of the offending vehicle/lorry.

Therefore, I do not find any legal flaw or infirmity in the

said finding given by the Tribunal. The material on

record clearly reveals that the accident in question

occurred due to rash and negligent driving of the driver

of the offending vehicle/lorry, in which the claimant

sustained severe injuries.

14. Coming to the compensation, the material on

record reveals that the petitioner sustained grievous

injuries and he is also suffering with disability. As per

the case of the petitioner, the petitioner was aged about

40 years. Even though, the claimant claims that he

used to earn an amount of Rs.6,000/- per month. The 6 VGKR, J M.A.C.M.A.No.2556 of 2013

Tribunal by assailing reasons, arrived to a conclusion

that the monthly income of the claimant is Rs.3,000/-

per month (Rs.3,000/- x 12 = Rs.36,000/-) i.e.,

Rs.36,000/- per annum. The Tribunal applied

multiplier of „16‟ instead of „15‟. Therefore, the said

multiplier of „16‟ has to be modified as „15‟. The

Tribunal arrived to a conclusion that on considering the

evidence of P.Ws.2 and 3 Doctors who treated the

petitioner that the petitioner sustained disability of

40%. I do not find any illegality in the said finding given

by the Tribunal, except the multiplier applied by the

Tribunal. Therefore, Rs.36,000/- x 40% = Rs.14,400/-

x 15 = Rs.2,16,000/- is awarded towards compensation

under the head of permanent disability, instead of

Rs.2,30,000/- awarded by the Tribunal.

15. As per Ex.A.2 certified copy of wound certificate,

the claimant sustained fracture of right femur middle

and multiple injuries and the said injuries are grievous

in nature. The Tribunal rightly awarded an amount of

Rs.30,000/- under the head of pain and suffering and 7 VGKR, J M.A.C.M.A.No.2556 of 2013

mental agony. On considering the evidence of entire

material on record, the Tribunal awarded an amount of

Rs.50,000/- under the various heads i.e., extra

nourishment, attendant charges and transportation

charges. On considering the evidence of Ex.A.5 bunch

of medical bills issued by Amrutha Hospital, the

Tribunal awarded an amount of Rs.90,000/- under the

head of medical expenses and future expenses. In total,

the claimant is entitled total compensation of

Rs.3,86,000/-.

16. Learned Counsel for the appellant, fairly

represented before this Court that the offending

vehicle/lorry is insured with the appellant/Insurance

Company and the policy is in force by the date of

accident. Learned Counsel for the appellant, fairly

represented before this Court that even though, they

adduced the evidence before the Tribunal that the driver

of the offending lorry is not having valid and effective

driving license, the Tribunal directely fastened the

liability on the insurer. The material on record clearly 8 VGKR, J M.A.C.M.A.No.2556 of 2013

reveals that the driver of the offending vehicle/lorry

possessed only transport lite motor vehicle driving

license, here the offending vehicle/lorry is heavy goods

vehicle/lorry. As per the evidence of R.W.2, employee in

R.T.A Office, it is a fact that the driver of the offending

vehicle/lorry is not having valid and effective driving

license to drive the HGV vehicle. The principle laid

down in the decision of Apex Court in National

Insurance Company Limited Vs. Swaran Singh and

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

license or disqualification of the driver for driving, the

Insurance Company is liable to satisfy the award in

favour of 3rd party at the first instance and later recover

the award amount from the owner of the offending

vehicle, even when the Insurance Company could able

to establish breach of terms of policy on the part of the

owner of the vehicle.

17. Therefore, with these above observations the

appeal is partly allowed. The claim amount of

2004 (2) ALD 36 (SC) 9 VGKR, J M.A.C.M.A.No.2556 of 2013

Rs.4,00,000/- awarded by the Tribunal is reduced to

Rs.3,86,000/-, the appellant/Insurance Company is

directed to deposit the remaining balance compensation

amount with interest at the rate of 7.5% per annum

within two (02) months before the Tribunal and later

recover the total compensation amount of Rs.3,86,000/-

with interest from the owner of the offending vehicle/1st

respondent, by filing an execution petition, without

filing any independent suit. The order of the Tribunal in

all other respects shall remain intact.

As a sequel, miscellaneous petitions, if any,

pending shall stand closed.

____________________________________ JUSTICE V.GOPALA KRISHNA RAO

03.10.2023 CVD