The Bajaj Allianz General ... vs B.Swathi Malathi And 3 Others
2022 Latest Caselaw 3042 Tel

      THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

           M.A.C.MA. No.302 of 2018 and 878 of 2018

COMMON ORDER:


         These two appeals have been filed against the same award

in MVOP 2404 of 2010. MACMA 302 of 2018 has been filed by

the   claimant/petitioner    that   a   prayer   to   enhance   the

compensation since the court below awarded only a sum of

Rs14,61,449/- against her claim of Rs.35,00,000/-. Whereas

MACMA 878 of 2018 has been filed by the Insurance Company

which is shown as respondent No.2 in the above referred OP

with a prayer to set aside the award by which compensation was

awarded to the claimant. Since both appeals are filed against

the same award with different contentions, I feel both appeals

can be disposed by a common judgment, thereby this common

order.

2. According to the material averments made in MVOP 2404

of 2010, it was the case of claimant who hereinafter will be

referred as petitioner that on 14.10.2009 while she along with

her friend proceeding on a motor bike bearing No. AP11AF 4877

from Mulugu towards Nagireddi pally and when they reached MACMA.No.302 and 878 of 2018

Voddlolu Bavi the bike got skid, as a result, the rider and the

petitioner who was a pillion rider fell down and petitioner

received injuries to various parts of the body. She was

immediately shifted to Gandhi Hospital from which she was

shifted to a private hospital, where she undergone surgery. She

was treated as in patient from 14.10.2009 to 30.10.2009 and

again she was admitted on the same day and discharged on

4.11.2009. She spent Rs.3,00,000/- towards treatment and she

claimed that the accident occurred due to rash and negligent

driving by the rider of the motorbike. A complaint was lodged

with the police resulting registration of a case under section 337

of IPC. Initially the petition was filed seeking compensation of

Rs.6,00,000/- and later she filed a petition to enhance the

compensation to Rs.35,00,000/- and sought for the award

against 4 respondents. The said petition was allowed thereby

the compensation claimed was enhanced to Rs.35,00,000/-.

3. Respondent 1, 3 and 4 did not contest the petition,

whereas, respondent No.2 i.e. Bajaj alliance General Insurance

Company, the appellant in MVOP 878 of 2018, appeared before

the court below filed a counter denying all the material

allegations.

MACMA.No.302 and 878 of 2018

4. According to the counter filed by respondent No.2 therein,

the interest of rider of the bike was covered by insurance of

motor cycle which was valid upto 5.4.2010. The rider of the

motor bike was not having valid and effective driving license, he

was not qualified to obtain such license and pleaded that the

first respondent alone was liable to pay the compensation.

The tribunal framed 3 issues as follows:

1. Whether the accident had occurred resulting in

injuries to the petitioner B.Swathi Malathi, due to the

rash and negligent driving of the motor vehicle (Bajaj

pulsar bearing registration No.AP11 AF 4877) by its

driver?

2. Whether the petitioner is entitled to any compensation

and if so, at what quantum and what is the liability of

the respondents?

3. To what relief?

5. For convenience sake I will refer the injured/claimant as

Petitioner and Insurance Company as Respondent. The

petitioner was examined as PW1 and she has marked Ex.A1 to

A18. PWs 2 to 6 were also examined on her behalf. The MACMA.No.302 and 878 of 2018

contested respondent examined 2 witnesses as RW1 and 2 and

marked Ex.B1 to B5 on their behalf.

6. The court below having considered the oral and

documentary evidence on record, came to the conclusion that

the petitioner was able to prove her claim and an order was

passed directing the respondents to pay sum of Rs.14,61,449/-

with costs and interest at 9% per annum.

7. The petitioner filed MACMA 302/2018 has claimed that

the court below committed an error in awarding Rs.14,61,449/-

against the claim of Rs.35,00,000/-. In respect of production of

sufficient evidence. The petitioner has claimed that she was

pursuing second year BHMS and earning Rs.12,000/- per

month. Even after 30% is deducted her income would have been

Rs.1,00,800/- per annum. Therefore, the court below could

have awarded more compensation. It is also the case of the

petitioner that the court awarded only a sum of Rs.60,000/-

towards physiotherapy charges. But the petitioner claimed that

she need to obtain physiotherapy throughout her life thereby,

she is entitled to atleast a sum of Rs.5,00,000/- under this

head. It is also pleaded that she is entitled to more amount i.e.

more than 25,000/- under the head of pain and suffering and MACMA.No.302 and 878 of 2018

loss of amenities. Having pleaded that the amounts awarded by

the court below need to be enhanced the petitioner/appellant

sought for enhancement of compensation to Rs.35,00,000/-.

8. Whereas in the appeal preferred by appellant/respondent

No.2 vide MACMA 878/2018 the insurance company has

claimed that the tribunal failed to appreciate that the insurance

company has no liability to pay compensation to the petitioner

because the rider of the motor bike did not possess any valid

and effective license at the time of accident. The police

concerned filed charge sheet against the rider of the bike and

added section 3 r/w 181 of M.V.Act, since he did not possess a

valid license thereby, the petitioner is not entitled to claim any

compensation from the insurance company. It is also the case of

appellant that the respondent/petitioner failed to prove the

manner of the accident. There was no independent evidence

apart from the evidence of the petitioner. Thus the tribunal

failed to appreciate Ex.B2 to B5. The appellant/respondent No.2

further claimed that since the petition is filed under section 166

of M.V.Act, the onus lies on the petitioner to prove the manner

of accident. The insurance company/respondent No.2 disputed MACMA.No.302 and 878 of 2018

the amounts awarded under various heads and sought for

setting aside the award.

9. The learned counsel for the petitioner has submitted that

the claimant was pursuing Second Year BHMS (Bachelor of

Homeo Medical Science), and the Award by the Court below i.e,

Rs. 9,00,000/- towards permanent disability was very low and

the Court did not consider the evidence of the Medical Officer

that the appellant requires continuous physiotherapy and

treatment thereby, there is need to enhance the compensation.

10. The learned counsel for the appellant relied on judgment

reported in Raj Kumar vs. Ajay Kumar & Another1 and

submitted that the appellant is entitled to enhance the

compensation.

11. The learned counsel for the respondent submits that the

Court below failed to appreciate the evidence on record in a

proper way and further submitted that the court below granted

excess compensation thereby the award shall be set aside.

2010 CJ(sc)2331 MACMA.No.302 and 878 of 2018

12. I have perused the order passed by the Court below. It

appears from the evidence of PW 5 that the petitioner herein

was permitted to write third year examinations. The court below

considered the income of petitioner as Rs.12,000/- and having

deducting 30% of the income, the court below applied multiplier

18, in view of the age of appellant and awarded a sum of

Rs.9,07,200/- towards loss of income. As per the evidence on

record it is very clear that the petitioner has admitted that her

father made a claim for medical reimbursement before his

employer for Rs.5,09,612/- out of which he was granted

Rs.2,75,363/- by the employer, therefore the court below

awarded the balance amount of Rs.2,34,249/- towards medical

expenditure. The evidence of Physiotherapist shows that

appellant needs to obtain physiotherapy in future also as such

the Court has already awarded a sum of Rs.60,000/- towards

physiotherapy charges apart from awarding the other amount

among various heads.

13. Therefore, I see no irregularities in awarding 14,61,449/-

by the Court below and the appellant is not able to substantiate

her claim that she is not entitled for some more amount.

MACMA.No.302 and 878 of 2018

14. The appeal i.e., MACMA No.878 of 2018 has been filed by

the insurance company, the learned counsel for the appellant

has submitted that the accident occurred due to the rash and

negligent driving by the rider of the bike on which the

respondent No.1/claimant was travelling, the police who filed

charge-sheet found that the rider was not having any driving

license. The insurance company has examined the Assistant

Manager of the Insurance company as RW1 and have also

examined Senior Assistant from RTA, Uppal as RW2 to prove

that the rider of the bike has no license, the owner of the motor

bike by violating the policy conditions handed over a bike to a

person without valid license, thereby, the insurance company is

not liable to pay any compensation. However as per the evidence

before the Court it is very clear that Ex.B1 is a package policy

and RW1 has admitted that he does not know whether the rider

made any claim towards damages, and he also does not know

whether he has produced all the documents including the

driving license to the company. It is elicited from RW1 that the

police filed charged sheet against the rider under Section 337

IPC and no other sections like 3 r/w section 181 of the Motor

Vehicles Act, 1988 were added. In addition to this, there is

evidence of RW2. According to arguments advanced by the MACMA.No.302 and 878 of 2018

counsel for the appellant, the evidence of RW2 proved the lack

of driving license by the rider of the Motor Bike, but as per the

evidence of the RW2, it is very clear that they could not find

whether the rider has got driving license or not, since all the

details of rider including his date-of-birth were not furnished, as

date of birth particulars of the deceased were not furnished they

could not verify the driving license.

15. It is not the evidence of the RW2 that the rider of the

motor bike has no license, but it is very specifically stated that

they could not have verified the details since the date of birth of

the driver was not furnished. Therefore it cannot be said that

the evidence of RW2 and averments of charge sheet proves lack

of license by the motor cyclist. It may be true that the insurance

company got issued a notice to the owner of the motor bike, that

itself may not prove that the driver of the bike has no valid

license, the evidence of PW1 clearly shows that accident

occurred due to rashness of the rider of the bike.

16. The learned counsel for the appellant has submitted that

huge amount of Rs.9,07,200/- was awarded as compensation

thereby, the award is liable to be set aside. However, as seen MACMA.No.302 and 878 of 2018

from the material placed before the Court below, it is very clear

that claimant suffered multiple injuries including head injury,

and she was on ventilator and started medication for the

injuries caused to brain. The evidence placed before the Court

clearly shows that due to the spacity of muscles of neck, she

was unable to keep her head in centre and cannot walk

properly, she lost her memory partially and requires attendant

to help and assist her needs, she was suffering from 40% of

disability, which is permanent in nature. As the claimant was a

BHMS student, the Court below having considered all these

aspects including the evidences of PW5, and awarded the

amount of compensation Rs.2,34,249/- towards medical

expenditure, the appellant herein, did not produce any proof

that the entire medical expenditure was reimbursed by the bank

where, the father of the claimant was working and as rightly

observed by the Court below, the petitioner who was the student

of 21 years suffered grievous injuries. The evidence placed

before the Court shows that she lost partial memory and she

was unable to walk properly, therefore the compensation

amount of Rs.2,00,000/- for loss of prospect of marriage is quite

reasonable.

MACMA.No.302 and 878 of 2018

17. Therefore, I am of the opinion that the amount awarded

by the below Court is quite reasonable and there is no necessity

to disturb the said finding and the appeal is liable to be

dismissed.

18. In view of my observations, both the appeals are liable to

be dismissed. Therefore, MACMA No.302 of 2018 and MACMA

No.878 of 2018 are dismissed. No order as to costs.

Miscellaneous applications, if any pending, shall also

stands closed.

_________________________________ JUSTICE SAMBASIVARAO NAIDU Date:24.06.2022 BV/SHA