Andhra Pradesh High Court - Amravati

The Oriental Insurance Company ... vs Muttireddi Mahesh And 2 Others on 4 October, 2024

APHC010153962006

               IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
                                                                  3459
                     FRIDAY, THE FOURTH DAY OF OCTOBER
                      TWO THOUSAND AND TWENTY FOUR


                                 PRESENT

       THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM

  MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.2452 OF 2006

Between:

The Oriental Insurance Company
Limited, Rep. by its Divisional
Manager, Dwaraka Nagar,
Visakhapatnam.                         ---          Appellant
                                      and
Muttireddi Mahesh,
S/o.Lakshmi Narayana,
Aged 22 Years, Cleaner,
R/o.Vedullavalasa Village,
Garividi Mandal, Vizianagaram
District and two others.               ---          Respondents

Counsel for the appellant : Mr. B. Parameswara Rao.


Counsel for the respondent
No.1.                           :      Ms. T. Sowmya,
                                       Rep. Mr. T. Nageswara Rao.

Counsel for the respondent
Nos.2 & 3                       :             --


The Court made the following Judgment:

Challenge in this Motor Accidents Civil Miscellaneous

Appeal is to the Order, dated 15.06.2006, in O.P. No.10 of 2005 on

the file of the Chairman, Motor Accidents Claims Tribunal-cum-I

JS,J

Additional District Judge, Vizianagaram (for short, „the Tribunal‟)

whereunder the Tribunal, dealing with the claim laid under

Section 163-A of the Motor Vehicles Act, 1988 (for short, „the MV

Act‟) for a sum of Rs.2,00,000/- as compensation with regard to

the injuries sustained by the petitioner in a motor vehicle accident

occurred on 09.12.2004, awarded a sum of Rs.65,600/- as

compensation with interest at 7.5% p.a., from the date of petition

till the date of realization against respondent Nos.1 to 3.

2. Appellant herein is no other than the Insurance Company,

which was shown as the third respondent in the aforesaid O.P.

3. The parties to this Appeal will hereinafter be referred to as

described before the Tribunal, for the sake of convenience.

4. This Appeal is preferred by the third respondent/insurer,

mainly challenging the validity of Ex.B-1 - insurance policy. As per

Ex.B-1, the insurance policy covers only the driver of the Jeep but

not the cleaner therein. Only on payment of the additional

premium to the cleaner or to any other inmate therein, the

Insurance Company can be held liable to pay the compensation.

Apart from this, the petitioner did not have a valid driving license

JS,J

to drive the Jeep; hence, the appellant/insurer is not liable to pay

any compensation.

5. The claimant's case, in brief, according to the averments set

out in the claim filed under Section 163-A of the MV Act before the

Tribunal, is that the petitioner, who is a resident of Vedullavalasa

village, sustained injuries in the motor vehicle accident that took

place on 09.12.2004 at 07:00 a.m. The petitioner was a cleaner of

the jeep bearing No.AP 31 X 4887 at the time of accident. They

started at Railway Bridge, Cheepurupalli to Rajam and when the

Jeep reached the outskirts of Cheepurupalli, it dashed against a

stationed Lorry bearing No.AP 28 U 8599. A case in Crime No.146

of 2004, dated 09.12.2004, on the file of Cheepurupalli Police

Station was registered for the offences under Sections 337, 338

and 279 IPC. As a result, the petitioner sustained injuries and,

immediately, he was shifted to the Government Hospital,

Cheepurupalli and from there to the Government Hospital,

Vizianagaram for better treatment. Hence, the respondents, being

driver, owner and insurer of the Jeep, are jointly and severally

liable to pay the compensation. Hence, the claim.

6. Respondent Nos.1 and 2, being the driver and owner of the

Jeep, remained ex parte.

JS,J

7. The third respondent, the Jeep insurer, filed a written

statement resisting the petitioner's prayer and contending that the

petitioner, a cleaner at the time of the accident, drove the Jeep

without having any driving license. The Jeep was not validly

insured with the third respondent/insurer; as such, the

compensation claimed by the petitioner was highly excessive,

unreasonable and prayed to dismiss the Petition.

8. On behalf of the petitioner, petitioner himself was examined

as PW.1 and the Doctor who treated him was examined as PW.2

and got marked Exs.A-1 to A-9. On behalf of the contesting third

respondent/insurer, RW.1 was examined and marked Exs.B-1 and

B-2.

9. The Tribunal, after hearing both sides and considering the

oral and documentary evidence on record, answered the issues in

favour of the petitioner and awarded a sum of Rs.65,600/-

towards compensation, fixing the liability against all the

respondents i.e., the driver, owner and insurer of the Jeep.

10. Aggrieved by the order of the Tribunal, the unsuccessful

third respondent/insurer filed the present Appeal.

JS,J

11. Heard the arguments of learned Standing Counsel,

appearing on behalf of the appellant/insurer, and the learned

counsel, appearing on behalf of the first respondent/claimant.

12. Now, in deciding the present Appeal, the simple question

that falls for consideration is:

Whether the Order of the Tribunal in O.P. No.10 of 2005, dated 15.06.2006, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Vizianagaram is sustainable under law and facts and whether there are any grounds to interfere with the same?

POINT:

13. As per Ex.A-2 - wound certificate, the petitioner is around

21 years old at the time of the accident. Before the accident, he

was hale and healthy and was engaged as a Cleaner in the Jeep

bearing No.AP 31 X 4887 and used to earn Rs.2,500/- p.m. and

Rs.50/- per day as batta. His right leg thigh was fractured in the

accident and he underwent surgery and a rod was inserted in his

right leg. PW.2 - the doctor, who performed the surgery, deposed

that after going through the latest x-ray of the petitioner, he found

that the petitioner has mal united fracture right femur with mild

JS,J

stiffness of right hip and knee joint with implants inside; the

injury is grievous and it is difficult for the petitioner to sit and

squat and climb the stairs, and that he cannot walk long distances

and do hard work. Ex.A-9 is the disability certificate issued by the

District Medical Board, Vizianagaram which shows that the

petitioner has suffered 20% disability, which is partial permanent

in nature.

14. Admittedly, the accident took place in the year 2004. At the

time of the accident, the petitioner was engaged as a cleaner in the

Jeep. Except for his oral testimony, he did not produce any

document to prove his income. Therefore, the Tribunal came to the

conclusion that as there was no independent evidence to prove

that the petitioner was earning Rs.2,500/- p.m. but believing his

version that he was working as a Cleaner in the Jeep, at the time

of the accident, fixed the monthly income of the petitioner as

Rs.1,500/- and took the age of the petitioner as 20 years;

accordingly awarded Rs.57,600/- (Rs.18,000/- x 16 x 20%) as

compensation under the head of loss of earnings.

15. Be that as it may, the petitioner did not produce any income

certificate. However, by virtue of the nature of the work involved

and also by taking into consideration the minimum wages

JS,J

prevailing as on the date of the accident i.e., in the year 2004, the

daily earnings of the petitioner can be fixed as Rs.100/- and his

monthly earnings would come to Rs.3,000/- p.m., Rs.36,000/-

p.a. In the decision cited by the Hon‟ble Apex Court in Sarla

Verma and others v. Delhi Transport Corporation and

another1, the appropriate multiplier applicable to the age group of

the petitioner can be fixed as „18‟. Now, the compensation payable

to the petitioner under the head of loss of earnings would come to

Rs.36,000/- x 18 x 20/100 = Rs.1,29,600/-. Accordingly, the

petitioner is entitled to the compensation of Rs.1,29,600/- under

the head of loss of earnings. The amount of compensation awarded

by the Tribunal under remaining heads needs no interference.

16. The vehicle's owner i.e., the second respondent has

appointed a driver to drive the vehicle. The vehicle's driver and a

third person were sitting in the Jeep at the time of the accident.

The driver himself allowed the cleaner to drive the Jeep, which met

with the accident and the petitioner/cleaner suffered with 20%

partial disability. The doctor who operated the petitioner has ruled

out that the petitioner cannot attend heavy duties; he cannot walk

for long distances and cannot squat. The petitioner is only 20

1(2009) 6 SCC 121

JS,J

years old at the time of accident with a lot of future ahead and

should suffer from the disability throughout his life. The petitioner

cannot be penalized for the mistake committed by the driver.

Moreover, Ex.B-1 - insurance policy is valid from 24.11.2004 to

24.11.2005. As the petitioner has stepped into the driver's shoes

without the knowledge of the vehicle's owner, as the policy was

also in force as on the date of the accident, the insurance

company cannot be exonerated from its liability. Under Section

96(2)(b) of the M.V. Act, breach of specified condition of a policy is

one of the grounds that can be pleaded in defence of an action

against the insurance company. Admittedly, respondent Nos.1 and

2, driver and owner of the Jeep, remained ex parte before the

Tribunal. Appellant herein has not taken proper steps against the

second respondent/owner of the Jeep and except pleading that the

petitioner was not having valid license to drive the Jeep, no other

plea was taken by the appellant to establish breach of a specified

condition of the Policy.

17. A Division Bench of the Madras High Court, while dealing

with similar situation in Kanniappa Nadar v. Jayapandi and

JS,J

others2, by referring to various decisions of the Hon‟ble Apex

Court, held as follows:

"24. Learned counsel for the appellant then cited the decision of a learned single judge of the Jammu and Kashmir High Court reported in Oriental Insurance Co. Ltd. v. Rajinder Kumar (1996 A.C.J. 486). In that case, the vehicle was entrusted by the owner to its driver, who was a duly licensed driver. The licensed driver by mistake, carelessness or omission or in neglect of his duties, allowed the vehicle to be driven by a person who was not a licensed driver. It was held that the insured could not be blamed for this as he, on his part, had taken all care to ensure that the vehicle was entrusted to licensed driver and if such a licensed driver committed any breach, that could not be a ground available to the insurer to avoid its liability. The appeal filed by the insurance company was dismissed."

18. The Hon‟ble Apex Court, while dealing with similar situation,

in New India Assurance Company, Shimla v. Kamla and

others3, held as follows:

"23. It is advantageous to refer to a two-Judge Bench of this Court in Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and ors. {1987 (2) SCC 654}. Though the said decision related to the corresponding provisions of the predecessor Act (Motor Vehicles Act, 1939) the observations made in the judgment are quite germane now as the corresponding provisions are materially the same as in the Act. Learned Judges pointed out that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance

2 (AIR) 1997 Madras 236 3 2001 (4) SCC 342

JS,J

is not for the purpose of promoting the business of the Insurance Company but to protect the members of the community who become sufferers on account of accidents arising from use of motor vehicles. It is pointed out in the decision that such protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependents of the victims) of the accident. This is the reason for the legislature making it prohibitory for motor vehicles being used in public places without covering third party risks by a policy of insurance.

19. The Tribunal has elaborately dealt with the issue and gave a

finding that the first respondent is the original driver and the

petitioner herein is the cleaner of the Jeep, who was driving at the

time of accident. The petitioner met with the accident while driving

the Jeep is an admitted fact, which cannot be disputed. The

Petition before the Tribunal was filed under Section 163-A of the

M.V. Act, under which provision negligence need not be proved or

established. The said provision was alleviated with the grievance of

those who suffered an accident owing to their own mistake. Hence,

in view of my foregoing discussion, the Appeal fails.

20. In the result, the Motor Accident Civil Miscellaneous Appeal

is dismissed. However, taking into consideration the facts and