Andhra Pradesh High Court - Amravati
Panditi Bujji vs Aluri Narayana Rao And Another on 6 August, 2024
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No.2615 of 2007
Between:
Panditi Bujji, W/o Srinivasa Rao,
Age: 31 years, Occ: Agricultural Coolie,
R/o. Chakkavaripalem Village,
Nizampatnam Mandal, Guntur District.
...Appellant/Petitioner
and
1. Aluri Narayana Rao, S/o. Asservadam,
Age: Major, D.No.11-2, Kunchinapudi Post,
Nizampatnam Mandal, Guntur District.
2. The Oriental Insurance Co. Ltd.,
rep. by its Divisional Manager,
Divisional Office-I, D.S. Complex,
Kothapet, Guntur.
...Respondents/Respondents
Counsel for appellant : Sri B.Paramesewara Rao
Counsel for 2nd respondent : Sri N.Ramakrishna
This Court made the following:
JUDGMENT:
This appeal is preferred by the appellant/petitioner against the order
dated 08.08.2007 passed by the Chairman, Motor Vehicle Accidents Claims
Tribunal - cum - XI Additional District Judge, Guntur at Tenali, (hereinafter
referred to as "the Tribunal") in M.V.O.P.No.83 of 2006, awarding
compensation of Rs.39,400/- to the Appellant/petitioner as against her claim
of Rs.1,00,000/-.
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2. For the sake of convenience and to avoid confusion, the parties
hereinafter will be referred to as they are arrayed before the Tribunal.
3. The case of the petitioner is that on 30.09.2005 at about 10.30 p.m.,
she boarded an auto bearing No. AP 7 TT 4320 and when the auto reached
near Kuchinapudi canal in between Purlameraka - Kuchinapudi village, an
auto bearing temporary registration No.AP 07 TRAC 0132, being driven by its
driver in a rash and negligent manner without blowing horn, came and hit the
auto in which the petitioner was travelling. As a result, the petitioner sustained
multiple grievous injuries on her right leg and waist region and multiple
bleeding injuries all over her body. The matter was reported to Adavuladeevi
P.S. of Guntur District, and the same was registered as a case in Crime
No.55 of 2005 against the driver of an auto bearing temporary registration
No.AP 07 TRAC 0132. The 1st respondent is the owner, and the 2nd
respondent is the insurer of the auto No. AP 07 TRAC 0132. Therefore, both
the respondents are jointly and severally liable to pay compensation to the
petitioner.
4. The 1st respondent was set ex parte. The 2nd respondent filed a written
statement denying all the material averments made in the claim petition. It is
contended that the alleged accident must have been caused by the rash and
negligent acts of the driver of auto bearing No.AP 7TT 4320, there is no fault
on the part of the driver of the auto bearing No.AP 7TR AC 0132, and the 1st
respondent's auto was not insured with the 2nd respondent at the time of the
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accident and the driver of the said auto does not have a valid and effective
driving licence; therefore, the claim petition is liable to be dismissed.
5. Based on the above pleadings, the Tribunal framed the following
issues for trial:
1. Whether the accident occurred due to rash and negligent driving of the
driver of Bajaj Auto No. AP 07 TR AC 0132?
2. To what compensation the petitioner is entitled and from whom?
3. To what relief?
6. In order to establish her claim, the petitioner examined herself as
P.W.1 and got the Doctor and the Senior Assistant working at GGH examined
as P.Ws.2 and 3 respectively. She marked documents as Exs.A.1 to A.5 and
Exs.X1 and X2. The Assistant Manager of the 2nd respondent was examined
as R.W.1. The Administrative Officer in the Office of the Deputy Transport
Commission, Guntur, was examined as R.W.2. Exs.B1 to B5 were marked on
behalf of the respondents.
7. The Tribunal, by an order dated 08.08.2007, allowed the claim petition
by granting compensation of Rs.39,400/- with interest at 7.5% p.a. from the
date of petition till the date of deposit, while dismissing the claim petition
against the 2nd respondent-Insurance company. Questioning the same, the
petitioner/appellant filed the present appeal seeking enhancement of
compensation.
8. Learned counsel for the appellant/petitioner submitted that the
petitioner had boarded the auto on 30.09.2005, and when she reached near
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Purlameraka - Kuchinapudi village, the 1st respondent drove the auto in a
rash and negligent manner and hit the auto in which the petitioner was
travelling. As a result, the petitioner sustained multiple grievous injuries. The
petitioner was admitted to the Government Hospital, Repalle. Ex.A2 is the
wound certificate issued by the Government hospital. P.W.2 is the doctor,
who treated the petitioner, who was admitted to the hospital on 01.10.2005
and discharged on 24.10.2005. The petitioner has suffered 10% permanent
disability, and it is difficult for her to lie down in a supine position. There is a
lumbosacral strain. Because of the injury, secondary changes have
developed in sacroiliac joints, and she has difficulty walking upstairs or
bending at the waist, and she cannot attend to her regular work. The
petitioner was 30 years old at the time of the accident, and she was earning
Rs.100/- per day as an agricultural coolie. P.W.2, the doctor, has also opined
that the petitioner suffered from 10% disability. Police have filed a charge
sheet holding that the driver of the 1st respondent's auto was negligent, and
due to rash and negligent driving of the driver of the auto, the accident
occurred. Therefore, the respondents are jointly and severally liable to pay
compensation to the petitioner.
9. On the other hand, the 2nd respondent-Insurance Company, submits
that the alleged accident was caused by the rashness and negligence of the
driver of the auto bearing No. AP 7 TT 4320. The 1st respondent drove the
vehicle on the wrong side, and there was no wilful rashness or negligence on
the part of the driver of the auto bearing No. AP 7 TR AC 0132.
10. Now, the point for consideration is:
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Whether the tribunal can exonerate the insurance
company from its liability for compensating the
accident victim who suffered 10% disability due to the
accident? If so, to what extent ?
11. The first respondent is the vehicle's owner. Ex.B2 is the extract of the
D.L. of the first respondent. Ex.B3 is the temporary registration of the first
respondent's auto. Ex.B1 is the policy certificate. Ex.B5 is the extract of the
temporary registration of vehicle No.AP 07 TRAC 0132. The Tribunal, without
discussing EXs.B1 to B3 and Ex.B5, arrived at the conclusion that the 2nd
respondent-insurance company is not liable to pay compensation to the
petitioner when the policy was in subsistence from 21-10-2004 to 20-10-2005.
The Tribunal, without adjudicating this aspect, has erroneously come to the
said conclusion and exonerated the insurance company, which is against the
principle laid down in Ramchandra Singh Vs Rajaram1, wherein the issue
was, whether an insurance company would be absolved of liability on the
ground that the insured vehicle was being driven by a person who did not
have a valid driving licence at the time of the accident, held that on a mere
fact that the insured vehicle is driven by a person without a valid licence, the
insurer cannot be absolved of its liability.
12. In Joby Thomas and Anr Vs. Annamma Augustine2, it is held as
under:
"6. This matter can be viewed in another angle and it has been
viewed so by the Karnataka High Court in the decision reported in
2018 (8) SSC 799
2012 ACJ 848
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Virupaksha v. Sivakumar (2001 KHC 948). It was also a case
where there was temporary registration for the vehicle till
30.11.1991. The vehicle was registered only on 24.1.1992. The
accident took place on 12.1.1992 or in other words there was no
valid registration for the vehicle on the date of accident. Whether
the insurance company can raise the contention that it is not liable
to pay the amount because of non registration of the vehicle on
the relevant date of the accident was considered. The learned
judge referred to Section 149 of the M.V. Act which deals with
specific defences available to the insurance company under the
Act. All the clauses had been extracted and the learned judge
came to the conclusion that non registration of the vehicle is not
one of the defences enumerated under Section 149 of the Act.
Therefore the insurance company is not entitled to take defence
of non- registration of the vehicle on the date of the accident. So
viewed in both the angles viz., that as there is no breach of policy
conditions and as there is no defence available to the insurance
company on account of non registration, it has to be held that the
insurance company is not liable to be exonerated from the liability.
The finding to the contra by the tribunal is incorrect and it is liable
to be set aside and I do so.
7. In the result, the appeal is allowed and the award of the tribunal
directing respondents 1 and 2 to pay the amount to the insurance
company is set aside and it is made clear that under the terms
and conditions of the contract of insurance, the insurance
company is bound to pay the amount awarded without any right
for recovery from the owner or the driver."
13. In Oriental Insurance Co. Ltd., Vs. Chimakurthi Venkata Kanaka
Raju3, it is held thus:
2011 (3) ALD 531
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"It is for the insurance company to prove that the driver was not
holding valid driving licence and that he is disqualified from
obtaining any such licence.
Endorsement issued by RTA is not sufficient to prove that the
driver was not holding valid driving licence unless RTA officials
examined.
Insurance company cannot be exonerated from its liability on the
said ground."
14. In the written statement filed by the 2nd respondent, a stand was taken
that the 1st respondent was not responsible for the said accident, and the
insurance company has failed to establish the same through their evidence. It
is a well-settled principle of law that if the driver of the vehicle was not holding
an effective and valid driving license at the time of the accident, the insurance
company must pay compensation to the claimant as the claimant is the victim
of the happening, who must suffer the pain and mental agony throughout her
life.
15. Thus, the Tribunal miserably failed to consider the above aspect and
exonerated the 2nd respondent from paying compensation. The insurance
company is liable to pay compensation to the accident victims even if the
driving licence of the offending vehicle driver is expired and was not renewed,
as an expired licence would not make him an unskilled driver. By virtue of the
accident, the petitioner suffered 10% disability, and she has difficulty in lying
down in a supine position. Because of the injuries sustained in the accident,
she developed secondary changes in sacroiliac joints and difficulty in lying
down, and she is not able to attend to her daily duties. Hence, it is a fit case
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to enhance compensation, as the accident has hampered the petitioner's
activities and due to the said impact, the petitioner has lost her earning
capacity. The purpose of awarding compensation under the Motor Vehicles
Act is to fully and adequately restore the aggrieved to the position prior to the
accident.
16. In Mallikarjun Vs. Divisional Manager, National Insurance
Company Limited4, the Hon'ble Apex Court held as under:
"Though it is difficult to have an accurate assessment of the
compensation in the case of children suffering disability on
account of a motor vehicle accident, having regard to the relevant
factors, precedents and the approach of various High Courts, we
are of the view that the appropriate compensation on all other
heads in addition to the actual expenditure for treatment,
attendant, etc. should be, if the disability is above 10% and up to
30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to
90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For
permanent disability up to 10%, it should be Rs.1 lakh, unless
there are exceptional circumstances to take a different yardstick."
17. In the aforesaid judgment, the Apex Court has considered the case of
the children suffering from disability on account of motor vehicle accident and
concluded paying compensation basing on the percentage of disability. The
case in hand is that the claimant was 30 years old at the time of accident and
working as a coolie and because of the injury, she cannot attend the work prior
to the accident which was her only source of income. As the balance of
(2014) 14 SCC 396
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consideration is in favour of the claimant, this Court by taking the disability
factor of 10% into consideration feels it appropriate to fix compensation of
Rs.3 lakhs to the claimant keeping in view her future.
18. In R.D. Hattangadi vs. Pest Control (India) (P) Ltd.5, the Hon'ble
Apex Court held as under:
"While fixing an amount of compensation payable to a victim of
an accident, the damages have to be assessed separately as
pecuniary damages and special damages. Pecuniary damages
are those which the victim has actually incurred and which are
capable of being calculated in terms of money; whereas non-
pecuniary damages are those which are incapable of being
assessed by arithmetical calculations. In order to appreciate two
concepts pecuniary damages may include expenses incurred by
the claimant; (i) medical attendance; (ii) loss of earning of profit
up to the date of trial: (iii) other material loss. So far non-
pecuniary damages are concerned, they made include (i)
damages for mental and physical shock, pain and suffering,
already suffered or likely to be suffered in future; (ii) damages to
compensate for the loss of amenities of life which may include a
variety of matters i.e., on account of injury the claimant may not
be able to walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the normal longevity
of the person concerned is shortened; (iv) inconvenience,
hardship, discomfort, disappointment, frustration and mental
stress in life."
(1995) 1 SCC 551
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19. The appellant/petitioner is 30 years old, and she is a daily wage coolie
as on the date of the accident. The right of a road accident victim to claim
compensation is a statutory one. The petitioner is the victim of an unforeseen
situation. The victim has suffered owing to the wrongdoing of the others. An
accident ruins the entire family of the victim. A person suffering bodily injuries
requires money for his/her survival/medical treatment. Statutory
compensation paid to the victim of an accident may, thus, bring to a large
number of families the only ray of light. The Court noted that the appellant
sustained multiple grievous injuries and was hospitalized for twenty-four days
cumulatively. Further, as per the doctor, there was 10% permanent disability
despite the treatment given. Thus, it is held that, as the appellant has
sustained lumbosacral strain and it is difficult for her to lie down in a supine
position, the whole-body disability will be at 10%, and proposed to enhance
the compensation for pain and suffering due to surgeries undergone, for loss
of future amenities and income during laid up period of twelve months.
20. Therefore, the monthly income of the petitioner is taken as Rs.100/-
per day, which comes to Rs.3,000/- per month. The loss of earnings comes to
Rs.61,200/- (Rs.3,000/- x 12 x multiplier '17' as per Sarla Verma case x
disability 10%). In addition, the petitioner is entitled to Rs.3,00,000/- towards
permanent disability, Rs.2,00,000/- towards pain and suffering and
Rs.2,00,000/- towards the loss of amenities of life. The total compensation to
which the petitioner is entitled is Rs.7,61,200/-.
21. Accordingly, the appeal is allowed to enhance the compensation from
Rs.39,400/- awarded by the Tribunal to Rs.7,61,200/-. The 2nd
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respondent/Insurance company is directed to deposit the entire compensation
amount, with costs and interest as awarded by the Tribunal, before the
Tribunal within two months from the date of this judgment. On such deposit,
claimant is permitted to withdraw their respective compensation with accrued
interest by filing the proper application. The claimant shall pay the requisite
court fee for the amount awarded over and above the compensation claimed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also
stand closed.
___________________
SUMATHI JAGADAM, J
Date: 06.08.2024
BSK
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THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
Date: 06.08.2024
BSK
