Seesam Naga Laxmi vs Shaik Hussain Mohammed Anr
2022 Latest Caselaw 1117 Tel

               THE HON'BLE JUSTICE G. SRI DEVI

                  M.A.C.M.A. No.2678 of 2012

JUDGMENT:

This appeal is filed by the appellant-claimant aggrieved

by the order and decree, dated 13.07.2010 passed in

M.A.T.O.P.No.999 of 2004 on the file of the Motor Accidents

Claims Tribunal (II Additional District Judge) (FTC), Khammam

(for short, the Tribunal).

2. For the sake of convenience, the parties hereinafter

referred to as arrayed before the Tribunal.

3. The brief facts of the case are that on 23.03.2004 at

about 2.00 P.M., the claimant went to medical shop to purchase

some medicines and while she was returning to her house,

meanwhile one Auto bearing No.AP 20 V 5648 driven by its

driver in a rash and negligent manner at high speed and dashed

the claimant, due to which she fell down and sustained head

injury and also injuries all over the body. Basing on a

complaint, a case in Crime No.20 of 2004 has been registered

against the driver of the Auto. It is also stated that immediately

after the accident, the claimant was shifted to Government

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Hospital, Dammapeta and from there shifted to Dr. Shashi Super

Specialty Hospital, Khammam, where the claimant underwent

surgery and the parents of the claimant spent Rs.60,000/-

towards medical and other expenses. The claimant filed

aforesaid O.P. against respondent Nos.1 and 2, owner and

insurer of aforesaid Auto, respectively, claiming compensation

of Rs.1,50,000/- for the injuries sustained by her.

4. Before the Tribunal, respondent No.1 remained ex parte

and the 2nd respondent filed counter denying the averments of

the claim petition and also contended that the accident was

occurred only due to the gross negligence on the part of the

claim petitioner. It is further contended that the driver of the

auto was not having valid driving licence at the time of

accident, thereby the 1st respondent has violated the terms and

conditions of the policy, as such, the 2nd respondent is not liable

to pay the compensation. It is also contended that the amount

claimed is excessive and prayed to dismiss the claim petition.

5. Basing on the above pleadings, the following issues are

framed before the Tribunal:-

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1) Whether the accident took place due to rash and negligent driving of the driver of the accident vehicle, bearing No.AP 20 V 5684?

2) Whether the petitioner is entitled to claim any compensation? If so, to what amount and from which of the respondents?

3) To what relief?

6. During trial, the father and natural guardian of the minor

claimant was examined as P.W.1 and the doctor, who treated

the minor claimant, was examined as P.W.2 and Exs.A1 to A6

were marked. On behalf of the respondents, RWs 1 and 2 were

examined and Exs.B1 to B3 were marked.

7. After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the accident

occurred due to the rash and negligent driving of driver of the

Auto bearing No. AP 20 V 5684 and awarded total compensation

of Rs.72,840/- with interest @ 7.5% per annum payable the 1st

respondent only while dismissing the claim against the 2nd

respondent-Insurance company as there is breach of policy

conditions. Dissatisfied with the quantum of compensation and

also exonerating the 2nd respondent from its liability, the

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claimant filed the present appeal, seeking enhancement of the

same.

8. Heard both sides and perused the record.

9. A perusal of the impugned judgment would show that the

Tribunal has framed Issue No.1 as to whether the accident had

occurred due to rash and negligent driving of the vehicle by its

driver, to which the Tribunal after considering the evidence of

P.W.1 coupled with the documentary evidence, has

categorically observed that the accident has occurred due to

the rash and negligent driving of the driver of the Auto bearing

No. AP 20 V 5684 and has answered in favour of the claimants

and against the respondents. Therefore, I see no reason to

interfere with the finding of the Tribunal that the accident

occurred due to the rash and negligent driving of the driver of

Auto bearing No. AP 20 V 5684.

10. Insofar as the quantum of compensation is concerned, a

perusal of the material on record would show that as per

Ex.A.3-wound certificate the claimant had sustained injury on

the left side frontal compound depressed fracture with

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underlying hemorrhagic contusion. P.W.2-the doctor, who

treated the claimant, has stated that the claimant was admitted

in their Hospital on 23.03.2004 with history of Road Traffic

Accident and she was diagnosed by CT Scan left side frontal

region compound depressed fracture with under lying

hemorrhagic contusion. Admittedly, the claimant was admitted

in the hospital on 23.03.2004 and she was discharged on

12.04.2004. During the above period surgery was conducted by

P.W.2. P.W.2 also stated that after discharge also the claimant

came up for follow up treatment till 30.03.2009 as outpatient.

11. In so far as the injuries are concerned, though the

Tribunal has considered the evidence on record and came to the

conclusion that the claimant was aged about 8 years and she

sustained head injury, she has undergone prolonged treatment

for the head injury sustained by her, but awarded only a sum of

Rs.25,000/- towards pain and suffering, which appears to be

meager. In the facts and circumstances of the case, this Court

feels that claimant is entitled to the following amount under

various heads.

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Sl. Name of Head Awarded by Awarded by No. Tribunal this Court Rs. Ps. Rs. Ps. 1. Pain and suffering 25,000.00 50,000.00 2. Medical Bills 42,840.00 42,840.00 3. For grievous head -- 25,000.00 injury 4. Transport, 5,000.00 15,000.00 conveyance, extra nourishment and other expenses 5. For future treatment -- 10,000.00

TOTAL 72,840.00 1,42,840.00

12. Coming to the aspect of liability of payment of

compensation, admittedly, as seen from Ex.B2, the driver of the

Auto was having Driving Licence authorized to drive L.M.V. non-

transport. Admittedly, the crime vehicle is a transport vehicle

and R.W.2, who is the Senior Assistant working in R.T.O. Office,

Sathupally, deposed that as per Ex.B2, the driver of the Auto

was not entitled to drive the passenger auto, therefore, there is

a breach of terms and conditions of the Insurance Policy as

rightly held by the Tribunal. But the fact remains that by the

time of accident, the offending vehicle was insured with the 2nd

respondent and Ex.B.1 policy was very much in force. In case of

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third party risks, as per the decision in National Insurance

Company Ltd. V. Swaran Singh and others1, the insurer had to

indemnify the compensation amount payable to the third party

and the insurance company may recover the same from the

insured. In the said decision, the Apex Court considered the

doctrine of "pay and recover" examined the liability of the

insurance company in cases of breach of policy condition due to

disqualifications of the driver or invalid driving license of the

driver and held that in case of third party risks, the insurer has

to indemnify the compensation amount to the third party and

the insurance company may recover the same from the insured.

Recently, the Apex Court in the case of Shamanna v. The

Divisional Manager, the Oriental Insurance Company Limited

and Others2, following its earlier decision in Swaran Singh (1

supra), reiterated that "even if the driver does not possess any

driving license, still the insurer is liable to pay the

compensation and that he can recover the award amount from

the owner of the offending vehicle after paying the amount."

In view of the above, the Insurance Company is directed to pay

(2004) 3 SCC 297

2018 ACJ 2163

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the compensation amount at the first instance and then recover

the same from the owner of the vehicle.

13. Accordingly, the M.A.C.M.A. is partly allowed by

enhancing the compensation amount awarded by the Tribunal

from Rs.72,840.00 to Rs.1,42,840.00. The enhanced amount

shall carry interest @ 7.5% per annum from the date of passing

of the order i.e., from 13.07.2010 till the date of realisation.

However, following the doctrine 'pay and recover', the 2nd

respondent-Insurance Company is directed to pay the

compensation amount to the appellant-claimant, at the first

instance and thereafter recover the same from the owner of the

offending vehicle i.e., the 1st respondent without initiating any

separate proceedings. There shall be no order as to costs.

14. Miscellaneous petitions, if any pending in this appeal,

shall stand closed.

_________________ JUSTICE G. SRI DEVI 10.03.2022 gkv/ns