The Oriental Insurance Company ... vs Gorle Manga And Another
2023 Latest Caselaw 4228 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                        M.A.C.M.A.No. 2025 of 2015

JUDGMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioner and 1st respondent in

M.V.O.P.No.764 of 2001 on the file of the Motor Accident Claims

Tribunal-cum-IX Additional District Judge (Fast Track Court),

Visakhapatnam. The appellant filed the appeal 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 petition.

3. 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.2,00,000/- for the injuries sustained by her in a motor vehicle

accident that took place on 28.04.1998.

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4. The brief averments in the petition filed by the petitioner are as

follows:

On 28.04.1998 at 4.00 p.m. when the petitioner was

proceeding on the left side road margin, a lorry bearing registration

No.AHJ 3279 being driven by its driver in a rash and negligent

manner at high speed came from back side and dashed the

petitioner, as a result, the petitioner fell on ground and the lorry ran

over her both legs. The 1st respondent is owner and the 2nd

respondent is insurer of the offending lorry, hence, both the

respondents are jointly and severally liable to pay compensation to

the petitioner.

5. The 1st respondent was set ex parte. The 2nd respondent/

Insurance company filed a counter by denying the manner of the

accident. It is pleaded that the driver of the offending lorry was not

holding valid and effective driving licence at the time of accident.

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

following issues were settled for trial by the Tribunal:

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1) Whether the pleaded accident was occurred resulting in injuries to the claimant and if so was it due to the rash and negligent driving of the lorry bearing No.AHJ 3279 by its driver?

2) Whether the petitioner is entitled for compensation, if so, to what amount and from which of the respondents?

3) To what relief?

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

the petitioner, P.W.1 was examined and Exs.A.1 to A.10 were

marked. On behalf of the 2nd respondent/Insurance company, no

oral or documentary evidence was adduced.

8. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

came to the conclusion that the accident occurred because of rash

and negligent driving of the driver of the offending lorry and

accordingly, allowed the petition in part and granted an amount of

Rs.70,000/- towards compensation to the petitioner with costs and

interest against both the respondents and directed the 2nd

respondent/Insurance company to pay the compensation in the first

VGKR,J MACMA No.2025 of 2015

instance and later recover the same from the 1st respondent/owner

by filing an execution petition. Being aggrieved by the impugned

award, the 2nd respondent/Insurance company preferred the instant

appeal.

9. Heard learned counsel for the appellant/Insurance company

and perused the record.

10. Now, the point for determination is:

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

11. POINT: It is the case of the petitioner that on 28.04.1998 at

4.00 p.m. when she was proceeding on the left side road margin, a

lorry bearing registration No.AHJ 3279 being driven by its driver in a

rash and negligent manner at high speed came from backside and

dashed her, as a result, she fell on ground and the lorry ran over her

both legs. In order to prove the rash and negligent driving of the

driver of the offending lorry, the petitioner got examined herself as

P.W.1. P.W.1 reiterated the contents of the claim petition in her

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chief examination affidavit. Nothing was elicited from her cross-

examination by the 2nd respondent/Insurance company to discredit

her oral testimony and the contra suggestions put to her were also

denied by her. Further, to disprove the manner of accident as

deposed by P.W.1, there was no evidence from the side of the

respondents. The petitioner also relied on Ex.A.1-certified copy of

first information report, Ex.A.4-certified copy of charge sheet, and

Ex.A.5-certified copy of statement of the petitioner recorded by the

police. The evidence of P.W.1 coupled with Exs.A.1, A.4 clearly

goes to show that the accident took place due to rash and negligent

driving of the driver of the offending lorry. On appreciation of the

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

conclusion. Therefore, there is no need to interfere with the said

finding given by the Tribunal.

12. Coming to the compensation, as per Ex.A.2-wound certificate,

the petitioner sustained two fractures and one simple injury. On

considering the entire material on record, the Tribunal awarded an

amount of Rs.1,000/- towards transport charges and Rs.2,000/-

VGKR,J MACMA No.2025 of 2015

towards extra nourishment of food. The compensation awarded

under these two heads, in my opinion, is just and reasonable,

therefore, there is no need to interfere with the quantum of

compensation awarded under these two heads.

13. The Tribunal also awarded an amount of Rs.67,000/- towards

pain and suffering, permanent disability and loss of earning power.

As seen from the material on record, the petitioner sustained two

grievous injuries and she had taken treatment as an inpatient nearly

for about one month. In addition to the fractures, the petitioner

sustained one injury on her head. According to the petitioner, she is

unable to walk conveniently. In fact, the petitioner did not sustain

any disability and no disability certificate was filed by her before the

Tribunal for the reasons best known to her. Therefore, an amount of

Rs.20,000/- is awarded towards pain and suffering.

14. In total, an amount of Rs.23,000/- is awarded towards

compensation to the petitioner.

VGKR,J MACMA No.2025 of 2015

15. By giving cogent reasons, the Tribunal came to the conclusion

that the driver of the offending lorry was having LMV driving licence

non-transport, as the offending lorry is a heavy goods vehicle, the

driving licence of the driver is not sufficient to drive the offending

vehicle, and ordered the Insurer to pay the compensation in the first

instance to the petitioner and later recover the same from the owner

of the offending lorry by filing an execution petition.

16. Learned counsel for the appellant/Insurance company would

submit that the offending vehicle was not insured with the

appellant/Insurance company and the policy was not in force as on

the date of accident.

17. As seen from the material on record, a copy of insurance

policy was not filed by the petitioner. Moreover, the

appellant/Insurance company did not adduce any evidence to

disprove the case of the petitioner. In Ex.A.3-certified copy of M.V.I.

report, the particulars of the policy and the date of expiry of the

policy were mentioned. Ex.A.3 goes to reveal that the date of expiry

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of the policy is 17.11.1998. The date of accident is 28.04.1998. To

disprove Ex.A.3, no evidence was adduced by the

appellant/Insurance company. Therefore, I do not find any legal

flaw or infirmity in the said finding given by the Tribunal.

18. In the result, the appeal is partly allowed. The order of the

Tribunal is modified by reducing the compensation of Rs.70,000/-

awarded by the Tribunal to Rs.23,000/-. The order of the Tribunal in

all other respects shall remain intact. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 13 September, 2023 cbs

VGKR,J MACMA No.2025 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2025 of 2015

13th September, 2023 cbs