The National Insurance Co Ltd vs Mulagada Praveen Kumar Anr
2023 Latest Caselaw 5206 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 1196 of 2012

JUDGMENT: -

1)   Aggrieved by the impugned Order and Decree, dated,

08.08.2011, passed in M.V.O.P. No. 1085 of 2009 on the

file of the Chairman, Motor Vehicles Accidents Claims

Tribunal-cum-II Additional District and Sessions Judge,

Guntur, whereby, a claim of Rs.3,54,249/- 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. Mulagada Praveen Kumar [the 'claim petitioner']

filed the petition under Section 166 of the Motor Vehicles

Act, 1988, [the 'M.V. Act'] against the respondents

claiming compensation of Rs.4,00,000/- for the injuries

sustained by him in a motor vehicle accident that occurred
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on 29.06.2009 due to rash and negligent driving of the

driver of the 1st respondent jeep bearing No. A.H.K. 1555.


4)    Facts

germane to dispose of the Appeal in brief is as

follows: -

i. On 29.06.2009 at about 6.30 P.M., while the

petitioner was riding a two-wheeler pulsar motorcycle

bearing registration No.AP31 BA 5622 along with his

sister-in-law as pillion rider and after crossing

Adarshnagar village, the driver of the jeep bearing

registration No.A.H.K. 1555 drove the vehicle in a

rash and negligent manner at high speed and lost

control over it and dashed the motorcycle of the

petitioner, resultantly the petitioner sustained severe

injuries including fracture injuries. The Bapatla

Taluk Police have registered a case in Crime No. 107

of 2009 for the offence punishable under Section 338

of the Indian Penal Code, 1860 ['I.P.C.']. The 1st

respondent is the owner of the offending vehicle jeep

and the 2nd respondent is the insurance company

and, hence, both the respondents are jointly and

severally liable to pay compensation to the petitioner.

5) The 1st respondent/owner remained ex parte. 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 petitioner and prays to dismiss the petition.

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

following issues were settled for trial by the Tribunal:

i) Whether the accident occurred due to rash and negligent driving of the owner of the jeep bearing No. AHK 1555?

ii) Whether the petitioner is entitled for compensation, and if so, to what amount and against whom?

iii) To what relief?

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

behalf of the petitioner, PW1 to PW3 were examined and

Ex.A1 to Ex.A17 and Ex.X1 and Ex.X2 were marked. On

behalf the respondent No.2, RW1 and RW2 were examined

and Ex.B1 to Ex.B4 were marked.

8) 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 jeep and,

accordingly, allowed the claim petition in part and awarded

an amount of Rs.3,54,249/- with interest at 7.5% per

annum from the date of petition till the date of realization

against both the respondents. Aggrieved against the said

order, the appellant/Insurance company preferred the

present Appeal.

9) Heard learned counsels for both the parties and

perused the record.

10) Now, the point for determination is:

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

11) POINT: The claim application is filed under Section

166 of the M.V. Act. and the petitioner is bound to

establish that the accident occurred due to rash and

negligent driving of the offending vehicle involved in the

accident.

12) On considering the evidence of PW1 and on

considering Ex.A1 - certified copy of F.I.R. and Ex.A2 -

certified copy of charge-sheet, the Tribunal rightly arrived

at a conclusion that the accident, in question, occurred

due to rash and negligent driving of the driver of the

offending jeep bearing registration No. A.H.K. 1555. The

material on record clearly reveals that the accident

occurred due to rash and negligent driving of the driver of

the offending jeep. I do not find any flaw or infirmity in the

said finding given by the Tribunal.

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

injuries, the petitioner relied on the evidence of PW2 and

PW3 the doctors who treated the petitioner. As per the

evidence of PW2, the Medical Board examined the

petitioner as PW1 and found disability of 40% and Ex.A12

is the permanent disability certificate issued by the District

Medical Board, Guntur. The evidence of PW3 - Dr. Y.V.K.

Durga Prasad Rao goes to show that, on the petitioner

sustained grievous and simple injuries, he operated the

petitioner on 30.06.2009 and issued Ex.A3 wound

certificate. On considering the evidence of PW1 to PW3 and

so also on considering Ex.A1 to Ex.A17, the Tribunal

arrived at a conclusion that the disability sustained by the

petitioner is '40%' only. The law is well settled that,

'disability of a particular limb cannot be treated as disability

of whole body'.

14) On considering the entire material on record, I am of

the considered view that the disability suffered by the

petitioner is only 35%. As rightly held by the Tribunal that

the notional income of the deceased was Rs.36,000/- per

annum and applied correct multiplier of '18', since the

petitioner is aged about 24 years and, therefore, an

amount of Rs.2,26,800/- [Rs.36,000/- x 35/100 x 18] is

awarded towards 35% disability sustained by the

petitioner. On considering Ex.A5, Ex.A8, Ex.A9 and Ex.A10

and considering the evidence of PW2, the Tribunal awarded

an amount of Rs.95,049/- towards medical expenses. In

total, the appellant/claimant is entitled to total

compensation of Rs.3,21,849/-.

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

vehicle jeep is insured with the 2nd respondent/insurance

company and the policy is in force. It was pleaded by the

learned Counsel for the appellant/insurance company that

the driver of the offending vehicle jeep is not having valid

and effective driving license by the date of accident. In

order to prove the same, the 2nd respondent/insurance

company examined RW2 - Sri. M. Nageswara Rao, who was

working as Typist in R.T.A. Office, Guntur. As per the

evidence of RW2, the driver of the offending jeep is having a

driving license to drive non-transport LMV and with that

driving license he cannot drive the passenger transport

jeep. Therefore, the material on record clearly reveals that

the driver of the offending vehicle jeep is not having valid

and effective driving license by the date of accident.

16) The principle laid down in National Insurance Co.

Ltd. 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 offending

vehicle, even when the Insurance Company could able to

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

of the offending vehicle. Therefore, in view of the principle

laid down in Swaran Singh [1st cited supra], I am of the

considered view that the 2nd respondent/insurance

2004 (2) ALD (SC) 36

company is liable to pay the entire compensation along

with interest awarded by the Tribunal, later recover the

same from the owner of the offending vehicle by filing an

execution petition.

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

Consequently, the claim amount of Rs.3,54,249/- awarded

by the Tribunal is reduced to Rs.3,21,849/-. Accordingly, the

appellant/National Insurance Company Limited is directed to

deposit the balance remaining compensation amount before the

Tribunal in the first instance within two months from the date

of this judgment and later recover the total amount of

compensation of Rs.3,21,849/- as ordered by this Court with

interest from the 1st respondent/owner of jeep by filing an

execution petition and without filing any independent suit.

The order of the Tribunal in all other respects shall remain

intact. No order as to costs.

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

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J Date: 30.10.2023 Sm..

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A. No. 1196 of 2012

.10.2023

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