Andhra Pradesh High Court - Amravati

Punuru Ramachandra Reddy vs P. Sravanananda Reddy Another on 20 September, 2023

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

             M.A.C.M.A.Nos.161 of 2012 and 2756 of 2013

COMMON JUDGMENT:

        Questioning the legal validity of the award dated 16.08.2011

passed by the Chairman, Motor Accident Claims Tribunal-cum-III

Additional District Judge, Nellore, in M.V.O.P.No.1057 of 2009,

whereby the Tribunal awarded compensation of 1,76,000/- to the

petitioner     as   against    the    claim   of   Rs.4,00,000/-,    the   2nd

respondent/Insurance company filed M.A.C.M.A.No.161 of 2012,

while    the    petitioner    filed   M.A.C.M.A.No.2756      of     2013   for

enhancement of the compensation.


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

order passed in M.V.O.P.No.1057 of 2009, they are heard together

and are being disposed of by this common judgment.


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

will be referred to as they are arrayed in the claim petition.
                                   2
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                                                     MACMA.No.161 of 2012&
                                                     MACMA No.2756 of 2013



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

Motor Vehicles Act, 1988 against the respondents claiming

compensation of Rs.4,00,000/- for the injuries sustained by him in a

road accident that took place on 09.08.2009.


5.    Facts

germane to dispose of the appeals may briefly be stated

as follows:

On 09.08.2009 at about 6.45 p.m. the petitioner, his brother,

who is 1st respondent, and his sister-in-law went to Baddpudi Village

from Kavali in a car bearing registration No.AP 26Q 0626 to attend a

marriage function of their relatives and the 1st respondent was

driving the car. After attending the marriage, they were returning to

Kavali in the said car and when the said car reached near

Rajupalem Village at about 8.30 p.m., while taking a carve, the 1st

respondent drove the car in a rash and negligent manner and

dashed against the culvert, which is situated on the right side of the

road, as a result, the car fell down into the culvert ditch and the

petitioner and his sister-in-law sustained injuries. The S.H.O.,

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

Ulavapadu P.S. registered a case in crime No.126 of 2009 against

the 1st respondent/driver of the car for the offence punishable under

Section 338 of IPC. The 1st respondent is driver-cum-owner and the

2nd respondent is insurer of the car, hence, both the respondents are

jointly and severally liable to pay compensation to the petitioner.

6. The 1st respondent was set ex parte. The 2nd

respondent/Insurance company filed a counter by denying the

manner of accident, age, avocation and income of the petitioner. It

is pleaded that the 1st respondent had not paid any premium to

cover the risk of his family members, therefore, the Insurance

company is not liable to pay any compensation to the petitioner.

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

framed for trial by the Tribunal:

1) Whether the accident occurred due to the rash and negligent act of the driver of the car bearing registration No.AP 26Z 0656 and caused injuries to the petitioner or not?

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

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

3) Whether the claimant is a 3rd party or not and the risk of the claimant is covered by the policy or not?

4) To what relief?

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

the petitioner, P.Ws.1 to 4 were examined and Exs.A.1 to A.13 were

marked. On behalf of the 2nd respondent/Insurance company,

R.W.1 was examined and Ex.B.1 was 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 driver of the

offending car and accordingly, allowed the petition in part and

granted an amount of Rs.1,76,000/- towards compensation to the

petitioner with proportionate costs and interest at 7.5% p.a. from the

date of petition till the date of payment against both the respondents.

Aggrieved thereby, the 2nd respondent/Insurance company filed

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

M.A.C.M.A.No.161 of 2012 questioning the legal validity of the order

of the Tribunal, while the petitioner filed M.A.C.M.A.No.2756 of 2013

for enhancement of the compensation.

10. Heard learned counsels for both the parties and perused the

record.

11. Now, the points for determination are:

1) Whether the claim petitioner is entitled for enhancement of the compensation as prayed for? and

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

12. POINT Nos.1 & 2: It is the case of the petitioner that on

09.08.2009 at about 6.45 p.m. he, his brother, who is 1st respondent,

and his sister-in-law went to Baddpudi Village from Kavali in a car

bearing registration No.AP 26Q 0626 to attend a marriage function

of their relatives and the 1st respondent was driving the car, after

attending the marriage, they were returning to Kavali in the said car

and when the said car reached near Rajupalem Village at about

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

8.30 p.m., while taking a carve, the 1st respondent drove the car in a

rash and negligent manner and dashed against the culvert, which is

situated on the right side of the road, as a result, the car fell down

into the culvert ditch and he and his sister-in-law sustained injuries.

13. In order to prove the rash and negligent driving of the driver of

the offending car, the petitioner relied on his self testimony as P.W.2.

He clearly deposed about the manner of accident in his chief

examination affidavit and the accident took place because of rash

and negligent driving of the driver of the car. Nothing was elicited

from his cross-examination to discredit his evidence in chief

examination affidavit by the 2nd respondent/Insurance company

except putting some contra suggestions which were also denied by

him. Moreover, the 2nd respondent did not choose to examine at

least the driver of the offending car as he is the best person to

speak about the manner of accident. The petitioner also relied on

Ex.A.1-first information report and Ex.A.3-charge sheet. Ex.A.1

goes to show that the police registered a case against the driver of

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the offending car. Ex.A.3 also goes to show that after completion of

investigation, the police laid a charge sheet against the driver of the

offending car. The evidence of P.W.2 coupled with Exs.A.1 and A.3

clearly reveals that the accident occurred on account of rash and

negligent driving of the driver of the offending car. On appreciation

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

conclusion. There is no legal flaw or infirmity in the said finding

given by the Tribunal.

14. In order to prove the injuries sustained by him, the petitioner

relied on Ex.A.9-would certificate. According to the petitioner, he

sustained three fractures in the accident and underwent three

operations on his both shoulders and knee portion, steel plates were

inserted to his both shoulders and knee portion in Vijaya Health

Center, Chennai, on account of the fractures, he cannot squat on

the floor by bending on his both legs and carry weight with his both

hands and also cannot attend his normal duties for a period of six

months, he took treatment in the hospital for 18 days, and he has

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

Acs.5.00 of wet land and earning Rs.10,000/- per month. No

documentary proof is filed to establish that the petitioner was bed-

ridden for six months and he is earning Rs.10,000/- per month by

doing cultivation.

15. The petitioner also got examined the doctor, who treated him,

as P.W.4. As per the evidence of P.W.4, the petitioner sustained

fracture of proximal humurous on both left and right side along with

fracture of the right tibia platau and fracture of right patella,

operations were conducted on the petitioner on 11.08.2009 for the

right humurous, on 12.08.2009 for the right tibia and patella and on

13.08.2009 for left humorous, and he was discharged on 26.08.2009.

Ex.A.10-bunch of medical bills supports the same. Ex.A.11 is the

final bill issued by Vijaya Health Centre, Chennai, in favour of the

petitioner. According to P.W.4-doctor, the petitioner is suffering 40%

disability due to the fractures, but the petitioner did not file any

certificate issued by P.W.4 or the District Medical Board, Nellore to

establish the same.

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

16. On appreciation of the oral and documentary evidence, the

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

charges, Rs.1,00,000/- towards medical expenses and Rs.10,000/-

towards extra nourishment. The compensation awarded under

these three heads is just and reasonable, therefore, there is no need

to interfere with the said finding given by the Tribunal in awarding

the quantum of compensation. Since the petitioner sustained three

grievous injuries and three operations were conducted on him and

steel plates were inserted to both shoulders and knee portion, it is

just and necessary to award an amount of Rs.10,000/- towards

attendant charges, Rs.15,000/- towards mental agony, Rs.15,000/-

for removal of implants, Rs.60,000/- for three grievous injuries @

Rs.20,000/- for each grievous injury, and Rs.12,000/- towards loss

of earnings for three months @ Rs.4,000/- per month. In total, the

petitioner is entitled to compensation of Rs.2,23,000/-.

17. It is not in dispute that the offending car of the 1st respondent

was insured with the 2nd respondent/Insurance company under

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Ex.B.1 policy and the policy was also in force as on the date of

accident. It is not the case of the 2nd respondent that the driver of

the offending car was not holding driving licence at the time of

accident.

18. Coming to the liability, after going through the judgments relied

on by the learned counsel for both the parties, the Tribunal in its

order held that Ex.B.1 policy is a private car package policy and it

covers the risk of the petitioner as he is not travelling for hire or

reward, therefore, the 2nd respondent is liable to pay the

compensation.

19. Learned counsel for the 2nd respondent/Insurance company

would contend that the petitioner is not the third party and his risk

was not covered by the policy and the 1st respondent did not pay

any extra premium to cover the risk of his family members as per

Ex.B.1 policy, therefore, the Insurance company is not liable to pay

any compensation to the petitioner.

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20. Learned counsel for the 2nd respondent/Insurance company

placed reliance on the decisions of the Hon'ble Supreme Court in

Gottumukkala Appala Narasimha Raju Vs. National Insurance

Company Ltd.1 and Dhanraj Vs. New India Assurance Co.Ltd.2

and also a judgment of the Division Bench of the Composite High

Court of Andhra Pradesh at Hyderabad in Jayavarapu Rajamma

Vs. Jayavarapu Laxminarayana3.

21. On the other hand, learned counsel for the petitioner would

contend that the petitioner has not travelled for hire or reward in the

offending car and Ex.B.1 policy is a comprehensive/package policy,

therefore, the policy covers the risk of the petitioner.

22. Learned counsel for the petitioner relied on a decision of the

Hon'ble Apex Court in Manuara Khatun Vs. Rajesh Kr.Singh 4

which is subsequent to the decisions relied on by the learned

AIR 2007 SC 2907

(2004) 8 SCC 553,

(2017) AAC 989

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counsel for the 2nd respondent/Insurance company referred supra.

Another reliance has been placed by the learned counsel for the

petitioner on the judgment of the Hon'ble Supreme Court in

National Insurance Company Ltd. Vs. Balakrishnan5 wherein it is

held thus:

"In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a comprehensive/package policy, the liability would be fastened on the insurer. As far as other findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed."

23. A perusal of Ex.B.1 policy categorically reveals that it is a

private car package policy, and on considering the material on

record, it is apparent that the petitioner did not travel in the offending

car for hire or reward. Admittedly, learned counsel for the 2 nd

(2012) 4 ACC 700

VGKR,J MACMA.No.161 of 2012& MACMA No.2756 of 2013

respondent/ Insurance company fairly represented before this Court

that the policy is a comprehensive policy and the owner's risk is

covered in Ex.B.1 policy. For the foregoing reasons, I am of the

view that the Tribunal rightly fastened the liability on both the

respondents, hence, there is no need to interfere with the said

finding given by the Tribunal.