The Oriental Insurance Company ... vs Motati Poli Reddy
2023 Latest Caselaw 3979 AP

      HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.NO.1028 of 2012

JUDGEMENT:

Aggrieved by the impugned award Order passed in

M.V.O.P.No.872 of 2005, on the file of the Motor Vehicles

Accidents Claims Tribunal-cum-District Judge, Guntur, whereby

the Tribunal awarded an amount of Rs.1,76,000/- towards

compensation to the claimant to be paid by Respondent Nos.1

and 2, this instant appeal is preferred by the 2nd respondent/ The

Oriental Insurance Company Limited.

02. For the sake of convenience, both the parties in the appeal

will be referred to as they are arrayed in the claim application.

03. The claim petitioner filed the petition under Sections 163(A)

and 166 of Motor Vehicles Act, 1988 claiming compensation of

Rs.2,50,000/- to the petitioner for the injuries sustained by him in

a tractor accident on 14.05.2005.

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

By the date of incident the injured was aged about 48 years

and he was working as Village Secretary/Executive Officer and

earning monthly salary of Rs.10,000/-. On 14.05.2005, having

VGKR.J MACMA No.1028 of 2012

completed his work at MRO Office at Komarole, he was returning

back to Giddaluru on a motor cycle driven by his friend Illuri Raja

Rao, who was also working as Village Secretary of

Pullareddyapally Village. He was the pillion rider on the said motor

cycle and Raja Rao was driving the said motor cycle on the left

side of the road in slow manner, at about 4-30 PM near

Edamakallu Village, the tractor and trailer of 1st Respondent

bearing No.AP 27L 0738 and AP 27L 0739 being driven by its

driver at a high speed in a rash and negligent manner came on to

the main road all of a sudden in the opposite direction and dashed

to the leg of the injured. Consequently, himself and rider of the

two wheeler fell on the road and sustained grievous injuries and

claimant sustained fracture of his right forearm, fracture of pelvic

bone, iliac bone and other multiple injuries.

05. The first respondent i.e., the owner of the offending vehicle

filed written statement denying the claim of the claimant. The 2 nd

respondent is the insurer filed written statement denying the

claim of the claimant and 2nd respondent pleaded that entire

negligence is on the part of the rider of the two wheeler.

VGKR.J MACMA No.1028 of 2012

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

Tribunal framed the following issues for trial:-

01. Whether the accident occurred due to rash and negligent driving of the Tractor - Trailer bearing No.AP 27 L 738 and AO 27 L 739 by the driver and if so, the petitioner sustained injuries?

02. Whether the petitioner would be entitled for compensation? If so, what would be the just amount of compensation that the petitioner would be entitled and against whom?

03. To what relief?

07. During the course of enquiry, on behalf of the claimant,

Pws.1 to 4 are examined and marked Exs.A1 to A8 and Exs.X1 to

X7 were marked. On behalf of the respondents, Rw.1 was

examined and Ex.B1 is marked.

08. At the culmination of the enquiry, on appreciation of the

entire evidence on record, the Tribunal came to the conclusion

that, the accident in question occurred due to the rash and

negligent driving of the driver of the offending vehicle tractor cum

trailer and directed both the respondents to pay the compensation

of Rs.1,76,000/- with interest @ 7% per annum to the claimant.

VGKR.J MACMA No.1028 of 2012

Aggrieved thereby, this instant appeal preferred by 2nd

respondent/The Oriental Insurance Company Limited.

09. Heard Sri V.Raghu., learned counsel for the appellant and

Sri B.Parameswara Rao learned counsel for respondents.

10. Now the point for determination is:-

"Whether the Order of the Tribunal needs any interference

by this Court, if so, what extent?

11. POINT:-

The case of the claimant is that while he was travelling as

pillion rider on two wheeler, the driver of the 1 st respondent's

tractor drove the tractor in a rash and negligent manner and

dashed to the injured, due to that he sustained severe bleeding

injuries and he also sustained fracture injuries. In order to prove

the rash and negligent driving of driver of the offending vehicle,

the injured relied on the evidence of Pws.1 to 4. From out of

which, Pw.1 is the injured his evidence clearly go to show that the

accident in question occurred due to the rash and negligent

driving of the driver of the offending vehicle tractor cum trailer.

Ex.A1 certified copy of the First Information Report, Ex.A3

certified copy of the private complaint supported the case of the

VGKR.J MACMA No.1028 of 2012

claimant. The material on record reveals that the accident in

question occurred due to the rash and negligent driving of the

driver of the tractor cum trailer. The material on record reveals

that, the tractor and trailer is involved in the accident and the

driver of the tractor drove the same in a speed manner and in a

rash and negligent manner and dashed to the two wheeler on

which the deceased was proceeding as a pillion rider. On

appreciation of the entire evidence on record, the Tribunal came

to the conclusion that the petitioner claimed that he sustained

injuries in the accident caused by the 1st respondent's tractor

driver. I do not find any legal flaw or infirmity in the said finding

given by the Tribunal. Therefore, there is no need to interfere

with the above finding given by the Tribunal.

12. Coming to the compensation awarded by the Tribunal, the

material on record reveals that the claimant sustained two

fracture injures. The same is supported by the evidence of Doctor

who treated the petitioner. As per the evidence of Pw.2, the

claimant sustained two grievous injuries. The material on record

reveals that, the petitioner/claimant sustained disability of 10%.

The Tribunal awarded an amount of Rs.75,000/- under the head

VGKR.J MACMA No.1028 of 2012

of permanent disability. As seen from the material on record, the

petitioner sustained only two grievous injuries and the disability

sustained by the petitioner is also less in nature ie., at about 10%

only. Therefore, I find, it is desirable to award an amount of

Rs.30,000/- under the head of permanent disability to the

claimant instead of Rs.75,000/- awarded by the Tribunal, since

the injured sustained two grievous injuries on considering the

Ex.A5 medical prescriptions, Ex.A6 bunch of medical bills, Ex.A7

Discharge record. On considering the evidence of Pws.2 to 4, the

Tribunal awarded an amount of Rs.25,000/- towards pain and

suffering and loss of amenities and Rs.37,834/- towards medical

expenses and an amount of Rs. 23,000/- awarded under the head

of loss of salary income during hospitalization period and the

Tribunal awarded an amount of Rs.15,000/- towards

transportation, attendant charges and extra nourishment of food.

I do not find any illegality in awarding quantum of compensation

under the above four heads. Therefore, in total the claimant is

entitled an amount of Rs.1,30,834/- towards total compensation.

13. The case of the appellant is that the driver of the offending

vehicle tractor and trailer is not having any valid and effective

driving license to drive the tractor cum trailer. As seen from the

VGKR.J MACMA No.1028 of 2012

material on record, the xerox copy of driving license is filed and

marked as Ex.X2 which shows that the driver of the offending

vehicle is having driving license of two wheeler only and not

possessed driving license of tractor and trailer. It is not in dispute

that the offending vehicle tractor and trailer was insured with the

appellant/Insurance company and the policy was in force. Since

the driver of the offending vehicle tractor and trailer is not having

valid and effective driving license, instead of applying pay and

recovery principle, the Tribunal directly fastened the liability on

the appellant/Insurance company.

14. The principle laid down in the decision of the Hon'ble

Supreme Court in National Insurance Co., Ltd vs., Swaran

Singh and Others 1 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 3 rd

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 policy on the

part of the owner of the offending vehicle.

2004 (2) ALD (SC) 36

VGKR.J MACMA No.1028 of 2012

15. Therefore, for the fore going discussion, the appellant / the

Oriental Insurance Company is directed to deposit the quantum of

compensation of Rs.1,30,834/- which was modified by this Court,

before the Tribunal with interest @ 7% per annum from the date

of petition till the date of realization. With these above

observation, the appeal is partly allowed.

16. In the result, the appeal is partly allowed. The appellant /

The Oriental Insurance Company Ltd., is directed to deposit the

compensation of Rs.1,30,834/- with interest @ 7% per annum

from the date of petition till the date of realization within two

months from the date of Judgment. On such deposit the appellant

is entitled to recover the same from the owner of the offending

vehicle / Respondent No.1 in the claim application by filing an

execution petition and without filing any independent suit. On

such deposit the claimant is permitted to withdraw the amount

with interest thereon.

___________________________ JUSTICE V.GOPALA KRISHNA RAO

Date:01.09.2023.

KLNS

VGKR.J MACMA No.1028 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.1028 of 2012

Dt.01.09.2023

KLNS