The National Insurance Company ... vs Kummara Manjunath And 2 Others
2023 Latest Caselaw 5203 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 2661 of 2014

JUDGMENT: -

1)    Aggrieved by the impugned Award and Decree, dated

27.07.2011, passed in M.V.O.P. No. 52 of 2007 on the file

of the Motor Accidents Claims Tribunal-cum-VIII Additional

District Judge [F.T.C.], Chittoor, whereby, a claim of

Rs.3,36,440/- was awarded towards compensation to the

claimant by the Tribunal, this instant appeal is preferred

by the 2nd respondent/Insurance Company questioning the

legal validity of the Order of the Tribunal.


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)    Sri. Kummara Manjunath [the 'claim petitioner']

filed the petition under Section 166 of the Motor Vehicles

Act, 1988, [the 'M.V. Act'] read with Rule 455 of A.P. Motor

Vehicle Rules, 1989 [the 'Rules'] against the respondents

claiming compensation of Rs.2,50,000/- for the injuries

sustained by him in a motor vehicle accident that occurred

on 17.10.2005.
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4)    Facts

germane to dispose of the Appeal in brief is as

follows: -

i. On 17.10.2005 at about 4.00 A.M., when the

petitioner was going as cleaner of 1st respondent lorry

bearing registration No. AP03 U 7288 on Cumbum-

Guntur road near Thokapalle Village of Prakasam

District, the driver of the 1st respondent lorry drove

the lorry in a rash and negligent manner and dashed

against the A.P.S.R.T.C. bus bearing registration

No.AP10 Z 7813 coming in opposite direction, due to

that both the vehicles were damaged and the

petitioner, who is a cleaner, travelling in the offending

vehicle lorry sustained severe injuries and also

sustained fracture injuries. A case in Crime No. 42 of

2005 was registered under the relevant sections of

the Indian Penal Code, 1860 ['I.P.C.'] against the

driver of the offending vehicle lorry. The 1st

respondent offending vehicle lorry is registered with

the 2nd respondent insurance company and, hence,

all the respondents are jointly and severally liable to

pay compensation to the petitioner.

5) The 1st respondent filed written statement denying

the manner of accident and pleaded that there was no fault

on the part of the driver of the lorry and as the policy is in

force, at the time of accident, the 2nd

respondent/insurance company is liable to indemnify the

1st respondent and prays to dismiss the claim against the

1st respondent.

6) The 2nd respondent/insurance company filed written

statement denying the claim of the claimant. The 2nd

respondent pleaded that the claimant is not entitled for any

compensation since the entire negligence is on the part of

the driver of the A.P.S.R.T.C. bus and prays to dismiss the

petition against the 2nd respondent.

7) The 3rd respondent/A.P.S.R.T.C. filed written

statement while denying the claim of the claimant pleaded

that, since the petition and criminal records reveals the

accident occurred due to negligence on the part of the

driver of the offending vehicle lorry, the A.P.S.R.T.C. is not

liable to pay any compensation to the petitioner and,

among other grounds urged, prays to dismiss the claim

petition against the 3rd respondent/A.P.S.R.T.C.

8) Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

i) Whether the accident in question was caused due to the rash and negligent driving of the driver of the lorry bearing No. AP03 U 7288 or the bus bearing Nok. AP10 Z 7813?

ii) Whether the petitioner is entitled for any compensation. If so, to what quantum and from whom?

9) During the course of enquiry in the claim petition, on

behalf of the petitioner, PW1 to PW3 were examined and

Ex.A1 to Ex.A10 and Ex.X1 were marked. On behalf the

respondents, none were examined but Ex.B1 was marked.

10) At the culmination of the enquiry, based on the

material available on record, the Tribunal came to the

conclusion that the accident occurred due to rash and

negligent driving of the driver of the offending lorry and,

accordingly, allowed the claim petition in part and awarded

an amount of Rs.3,36,440/- with interest at 7.5% per

annum from the date of petition till the date of realization

against the 1st and 2nd respondent and exonerating the 3rd

respondent. Aggrieved against the said order, the

appellant/Insurance company preferred the present

Appeal.

11) Heard learned counsels for both the parties and

perused the record.

12) Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court? If so, to what extent?

13) POINT: The case of the claimant is that, the

petitioner used to work as 'cleaner' in 1st respondent's lorry

and earning Rs.3,500/- per month as salary. On

17.10.2005 at about 4.00 A.M., when the petitioner was

going as cleaner of 1st respondent lorry bearing registration

No. AP03 U 7288 on Cumbum-Guntur road near

Thokapalle Village of Prakasam District, the driver of the

1st respondent lorry drove the lorry in a rash and negligent

manner and dashed against the A.P.S.R.T.C. bus bearing

registration No.AP10 Z 7813 coming in opposite direction,

due to that both the vehicles are damaged and the

petitioner sustained severe injuries and also sustained

fracture injuries.

14) In order to prove the rash and negligent driving of the

driver of the offending vehicle lorry, the petitioner relied on

his self-testimony. Ex.A1 goes to show that a F.I.R. was

registered against the driver of the offending vehicle lorry.

Ex.A3 goes to show that a charge-sheet is laid against the

driver of the lorry by fixing the liability against the driver of

the offending vehicle lorry by the Sub-Inspector of Police.

15) The learned Standing Counsel for the Appellant

would submit that, due to 'head on collusion' in between

both the vehicles the accident took place and, therefore,

contributory negligence is also on the part of R.T.C. The

Tribunal by assailing reasons arrived at a conclusion that

the accident in question occurred due to rash and

negligent driving of the driver of the offending vehicle lorry.

In-fact, there is no positive evidence to show that there was

a contributory negligence on the part of the A.P.S.R.T.C.

bus. In order to prove the said plea, the respondents have

not adduced any evidence. No evidence is placed by the

respondents before the Tribunal to show that the accident

occurred due to 'head on collusion' between both the

vehicles. Therefore, the material on record reveals that the

accident in question occurred due to rash and negligent

driving of the driver of the offending vehicle lorry, in which

the petitioner is travelling as a cleaner of the lorry. In-fact,

the Tribunal also arrived at the same conclusion. I do not

find any illegality in the finding given by the Tribunal.

16) Coming to the compensation. In order to prove the

injuries and the quantum of compensation, the petitioner

relied on the evidence of PW2 & PW3 and Ex.A2 - wound

certificate, Ex.A4 to Ex.A10. The evidence of PW2 coupled

with Ex.A2 - wound certificate goes to show that the

petitioner sustained four grievous injuries and one simple

injury. The Tribunal rightly awarded an amount of

Rs.62,000/- towards four severe injuries and for one

simple injury. The Tribunal also awarded an amount of

Rs.1,352/- towards 'medical expenses'. I do not find any

illegality in awarding the said amount under the head of

medical expenses.

17) On considering Ex.A8 coupled with evidence of PW2

and PW3, the Tribunal arrived that the disability sustained

by the petitioner is '58%'. As seen from the material on

record, the disability certificate issued by the hospital

authorities under Ex.A8 shows that the petitioner is

suffering with disability of '58%'. The law is well settled

that, 'disability of a particular limb cannot be treated as

disability of whole body'. Therefore, on considering the

entire material on record, I am of the considered view that

the disability suffered by the petitioner is '45%' and not

'58%'. As rightly held by the Tribunal that the notional

income of the deceased was Rs.2,100/- per annum i.e.,

Rs.25,200/- per annum and applied correct multiplier of

'18', since the petitioner is aged about 20 years and,

therefore, an amount of Rs.2,04,120/- [Rs.25,200/- x

45/100 x 18] is awarded towards 45% permanent disability

sustained by the petitioner. The Tribunal rightly awarded

an amount of Rs.5,000/- towards 'extra-nourishment of

food' and Rs.3,000/- was awarded towards 'attendant

charges' and Rs.2,000/- towards 'transport charges'. In

total, the appellant/claimant is entitled to total

compensation of Rs.2,77,472/-.

18) It is not in dispute by both sides that, the offending

vehicle lorry is insured with the 2nd respondent/insurance

company and the policy is in force and there are no

violations in the policy. Therefore, the Tribunal rightly

fastened the liability on both the 1st and 2nd respondents

i.e., insurer and insured.

19) In the result, the appeal is partly allowed.

Consequently, the claim amount of Rs.3,36,440/- awarded

by the Tribunal is reduced to Rs.2,77,472/-. Accordingly,

the 1st respondent/owner of the offending vehicle lorry and

the 2nd respondent /National Insurance Company Limited

are directed to deposit the balance remaining

compensation amount before the Tribunal in the first

instance within two months from the date of this judgment

On such deposit, the claimant is entitled to withdraw the

entire compensation amount with costs and interest

therein. No order as to costs.

20) As a sequel, miscellaneous petitions, if any, pending

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J Date: .10.2023 Sm..

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A. No. 2661 of 2014

Date: .10.2023

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