The Oriental Insurance Co.Ltd. vs Vallabhaneni Parvathi 3 Others.
2023 Latest Caselaw 4076 AP

       THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

            M.A.C.M.A.Nos. 1093 of 2009 and 2115 of 2015


COMMON JUDGMENT:


        Questioning the legal validity of the award of the Tribunal

dated 06.05.2002 passed by the Chairman, Motor Accident Claims

Tribunal-cum-V      Additional   District    Judge,   Vijayawada,    in

M.V.O.P.No.572 of 1998, the 4th respondent/Oriental Insurance Co.

Ltd.     filed   M.A.C.M.A.No.1093      of    2009    while   the   2nd

respondent/National Insurance Co. Ltd. filed M.A.C.M.A.No.2115 of

2015.


2.      Since both the appeals arose from out of one decree and

order passed in M.V.O.P.572 of 1998, they are heard together and

are being disposed of by this common judgment. In fact, common

order was passed by the Tribunal in M.V.O.P.Nos.572 of 1998 and

569 of 1999, but no appeal is filed against the award passed in

M.V.O.P.No.569 of 1998.
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                                                                          VGKR,J
                                                         MACMA.Nos.1093 of 2009 &
                                                                     2115 of 2015




3.     For the sake of convenience, both the parties in the appeals

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


4.     The claim petitioner filed the petition under Section 166 of the

Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V. Rules,

1989    against    the   respondents     claiming    compensation            of

Rs.1,00,000/- for the injuries sustained by her in a road accident that

took place on 15.05.1998.


5.     Facts

germane to dispose of the appeals may briefly be stated

as follows:

On 15.05.1998 the petitioner and her husband were travelling

in a lorry bearing registration No.AP 16T 3967, which was loaded

with logs, towards Suryapet and when the lorry reached Tirumalagiri

cross roads, the driver of the lorry drove the lorry in a rash and

negligent manner and dashed against a lorry bearing registration

No.AP 13T 3900, which was coming in opposite direction, as a

result, the petitioner and her husband sustained grievous injuries.

The 1st respondent is owner and the 2nd respondent is insurer of

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

lorry No.AP 13T 3900, the 3rd respondent is owner and the 4th

respondent is insurer of lorry No.AP 16T 3967, hence, all the

respondents are jointly and severally liable to pay compensation to

the petitioner.

6. Respondent Nos.1 and 3 were set ex parte. Respondent

Nos.2 and 4 filed their individual written statements by denying the

allegations made in the claim petition.

i) It is pleaded by the 4th respondent that the petitioner was

travelling in the lorry bearing No.AP 16T 3967 as an unauthorized

passenger and thereby the 3rd respondent violated the terms and

conditions of the policy, as such, the 4th respondent is not liable to

pay any compensation.

7. Based on the above pleadings, the following issues were

framed for trial by the Tribunal:

1) Whether the petitioner sustained injuries in a motor vehicle accident on 15.05.1998 due to the rash and negligent driving

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

of both the vehicles i.e., lorry AP 13T 3900 and lorry AP 16T 3967?

2) Whether the petitioner is entitled to the compensation as prayed for? If so from whom?

3) To what relief?

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

the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.14 were

marked. On behalf of respondent Nos.2 and 4, R.Ws.1 to 3 were

examined and Exs.B.1 to B.4 and Exs.X.1 and X.2 were marked.

9. At the culmination of the enquiry, based on the material on

record, the Tribunal came to the conclusion that the accident

occurred due to rash and negligent driving of the drivers of both the

lorries involved in the accident and accordingly, allowed the petition

in part and granted a total compensation of Rs.90,000/- with

proportionate costs and interest at 9% p.a. from the date of petition

till the date of payment against all the respondents. Aggrieved

against the said order, the 4th respondent/Oriental Insurance Co. Ltd.

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

filed M.A.C.M.A.No.1093 of 2009 while the 2nd respondent/National

Insurance Co. Ltd. filed M.A.C.M.A.No.2115 of 2015.

10. Heard Sri V. Raghu, learned counsel for the 4th respondent/

Oriental Insurance Co. Ltd. (appellant in M.A.C.M.A.No.1093 of

2009), Sri Paladugu Venkateswarlu, learned counsel for the 2 nd

respondent/National Insurance Co. Ltd. (appellant in

M.A.C.M.A.No.2115 of 2015), and Sri V. Padmanabha Rao, learned

counsel for the petitioner, and perused the record.

11. Now, the point for determination is:

Whether the order of the Tribunal needs any interference, if so, to what extent?

12. POINT: In order to prove the accident, the petitioner relied

on the evidence of P.Ws.1 and 2. P.W.1 is the petitioner herein and

P.W.2 is her husband and they sustained injuries in the accident in

question. As per the evidence of P.W.1, the accident occurred due

to rash and negligent driving of the driver of the lorry in which they

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

were travelling and also the driver of the lorry which was coming in

opposite direction, and there was head on collision between these

two lorries. P.W.2 deposed in his evidence that the accident

occurred because of rash and negligent driving of the driver of the

lorry in which he was travelling. He also deposed that the driver of

the opposite lorry also drove the same in a rash and negligent

manner and caused the accident. Though the respondents got

examined R.Ws.1 and 2, who are their Officials, and R.W.3, who is

the Senior Assistant in R.T.A. Office, their evidence is not helpful to

decide the manner of accident. Moreover, the respondents did not

choose to examine at least the drivers of the offending lorries as

they are the best persons to speak about the manner of accident.

The material on record reveals that some of the passengers, who

were travelling in the opposite lorry bearing No.AP 13T 3900, were

succumbed to injuries, in view of the same, it can unhesitatingly be

said that there was violent head on collision between the two

offending lorries resulting in the death of some passengers and

grievous injuries to some other passengers. On appreciation of the

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

entire material on record, the Tribunal also came to the conclusion

that due to rash and negligent driving of the drivers of both the

lorries the accident occurred. There is no legal flaw or infirmity in

the said finding given by the Tribunal.

13. Coming to the compensation, it is the case of the petitioner

that subsequent to the accident, she was inpatient for three days in

Osmania Hospital, Hyderabad, later she was admitted in the

hospital of P.W.3-doctor where she underwent an operation and she

was inpatient for more than 30 days, her hand and leg were got

operated for which she spent Rs.1,00,000/- for the said treatment,

and she is unable to walk properly without the help of a stick. The

petitioner relied on the evidence of P.W.3-doctor and Ex.A.3-wound

certificate. Ex.A.3 goes to show that the petitioner sustained three

grievous injuries which is supported by the evidence of P.W.3. On

considering the evidence of P.W.3 and Ex.A.3-wound certificate,

bunch of medical bills filed by the petitioner to a tune of Rs.54,711/-,

and the treatment taken by her as an inpatient in the hospitals for

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

more than a month, the Tribunal awarded an amount of Rs.45,000/-

for three grievous injuries @ Rs.15,000/- for each grievous injury

under the head of pain and suffering, Rs.5,000/- towards extra

nourishment, and Rs.40,000/- towards medical expenses. By giving

cogent reasons, the Tribunal came to the conclusion that the

petitioner is entitled to a total compensation of Rs.90,000/-. No

appeal or cross-objections is filed by the petitioner for enhancement

of the compensation. Therefore, there is no need to interfere with

the said finding given by the Tribunal in awarding the quantum of

compensation.

14. Learned counsel for the appellant/Oriental Insurance

Company Limited would contend that the petitioner/injured had

travelled in a goods vehicle i.e., lorry bearing registration No.AP 16T

3967 belonging to the 3rd respondent as an unauthorised passenger,

therefore, the Insurance company is not liable to pay any

compensation. The learned counsel would submit that the Tribunal

failed to apportion the extent of negligence on the drivers of the

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

offending lorries having come to the conclusion that there was

contributory negligence on the part of both the drivers.

15. As stated supra, the accident in question took place on

account of contributory negligence on the part of the drivers of both

the lorries. On considering the overall circumstances of the case, 50%

contributory negligence is fixed on the driver of the lorry of the 1st

respondent and 50% contributory negligence is fixed on the driver of

the lorry of the 3rd respondent.

16. As per Ex.A.7-copy of policy, the lorry bearing No.AP 13T

3900 of the 1st respondent was insured with the 2nd respondent

/National Insurance Company Limited, and as per Ex.A.8-copy of

policy, the lorry bearing No.AP 16T 3967 of the 3rd respondent was

insured with the 4th respondent/Oriental Insurance Company Limited

and the policies were also in force as on the date of accident. It is

not the case of the respondents that the drivers of the lorries were

not having valid and effective driving licence at the time of accident.

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

17. According to P.W.1, at the time of accident she was travelling

in the lorry bearing No.AP 16T 3967, which was owned by the 3 rd

respondent and insured with the 4th respondent, with some furniture

by paying money to its driver. As seen from the evidence of P.W.1, it

is clear that she is not the owner of the goods and she travelled in

the said lorry as an unauthorized/gratuitous passenger.

18. In similar circumstances, in Manuara Khatun Vs. Rajesh Kr.

Singh (Civil Appeal No.3047 of 2017 dated 21.02.2017 arising out

of SLP (C) No.5805/2013), the Hon'ble Apex Court held as under:

"This question also fell for consideration recently in Manager, National Insurance Co. Limited V. Saju P. Paul and Anr, (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However,

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"."

19. Since the petitioner travelled as a gratuitous passenger in the

lorry bearing No.AP 16T 3967, which was owned by the 3 rd

respondent and insured with the 4th respondent, at the time of

accident and in the light of the principle laid down by the Hon'ble

Apex Court in the aforesaid judgment, this Court is of the view that

the 4th respondent/Insurance company is liable to first pay 50% of

the awarded sum to the petitioner and then to recover the paid

awarded sum from the owner of the offending lorry/3rd respondent

by filing an execution petition and without filing any independent suit.

The 2nd respondent/National Insurance Company Limited being

insurer of the lorry bearing No.AP 13T 3900 has to indemnify its

insured/1st respondent.

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

20. Accordingly, both the appeals are disposed of. The 4th

respondent/Oriental insurance Company Limited is directed to pay

the 50% of the compensation i.e., Rs.45,000/- along with costs and

interest as ordered by the Tribunal to the petitioner in the first

instance within two months from the date of this judgment and later

recover the same from the 3rd respondent/owner of the offending

lorry bearing No.AP 16T 3967 by filing an execution petition and

without filing any independent suit. The 2nd respondent/National

Insurance Company Limited is directed to pay the remaining 50% of

compensation i.e., Rs.45,000/- with costs and interest as ordered by

the Tribunal to the petitioner within two months from the date of this

judgment. The order passed by the Tribunal is modified to the

extent indicated above. The order of the Tribunal in all other

respects shall remain intact. No order as to costs in both the

appeals.

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

Miscellaneous petitions, if any, pending in the appeals shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J 6th September, 2023 cbs

VGKR,J MACMA.Nos.1093 of 2009 & 2115 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.Nos.1093 of 2009 and 2115 of 2015

6th September, 2023 cbs