Bajaj Allianz General Insurance ... vs Smt.B.Prabhavathi Anr
2022 Latest Caselaw 5467 Tel

           HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                     M.A.C.M.A. No. 853 of 2015

JUDGMENT:

Being dissatisfied with the order and decree passed by the

Chairman, Motor Accident Claims Tribunal-cum-II Additional

District Judge, Ranga Reddy District at L.B.Nagar in

M.V.O.P.No.1113 of 2011 dated 01.10.2014, the appellant/Insurance

Company has filed the present appeal.

2. For the sake of convenience, the parties have been referred to

as arrayed before the Tribunal.

3. Brief facts of the petitioner's case are that on 07-10-2011 while

the petitioner was traveling in Mahindra Mini bus from her native

place Pashamvarigudem Village, Haliya Mandal, after celebrating

Dashera festival and when the petitioner got down the bus to attend

the calls of nature, in the meantime, a car bearing No. AP.29.AR.0024

came in rash and negligent manner at high speed and dashed her, as

such, she suffered severe multiple injuries and was shifted to

Kamineni Medical College Hospital, Narketpally, by 108 Ambulance

service, where first aid was given and from there she was shifted to

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Kamineni Hospital, L.B.Nagar and again she was shifted to Indus

Hospital where she underwent neuro surgery on her head and

operation to her right leg and right hand elbow and rods were

implanted. Thus, she claimed compensation of Rs.5,00,000/- under

various heads.

4. Respondent No.1 remained ex parte; Respondent No.2 filed

counter disputing the manner of accident and the nature of injuries

sustained by the petitioner and the treatment taken by her.

5. Based on the above pleadings, the Tribunal framed the

following issues:

1. Whether the accident is occurred due to rash and negligent driving of driver of Santro Car bearing No. AP 29 AR 0024?

2. Whether the petitioner is entitled for compensation, if so, at what extent and from which of the respondents?

3. To what relief?

6. In order to prove the issues, PWs.1 to 3 were examined and

Exs.A1 to A12 got marked on behalf of the petitioner. On behalf of

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respondent No.2, RWs.1 and 2 were examined and Exs.B1 to B3 were

marked.

7. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.2,36,510/- towards

compensation to the appellant-claimant against the respondent Nos.1

and 2 jointly and severally, along with proportionate costs and interest

@ 6% per annum from the date of filing of the petition till realization.

8. Heard the learned Standing Counsel for the appellant-Insurance

Company and the learned Counsel for the respondent No.1/claimant.

Perused the material available on record.

9. The learned Standing Counsel for the appellant-Insurance

Company contended that the decree of the Tribunal is contrary to law,

weight of evidence and probabilities of the case; that there was no

negligence on the part of the driver of the offending vehicle; that the

driver of the offending vehicle was not having valid driving license

and the Tribunal has erred in fastening the liability on the appellant-

Insurance Company and the amount awarded is exorbitant.

Accordingly, prayed for setting aside the impugned order in the O.P.

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10. The learned Counsel appearing on behalf of respondent No.1-

claimant submitted that the Tribunal after considering the oral and

documentary evidence available on record, has awarded reasonable

compensation and the same needs no interference by this Court.

Therefore, the learned counsel sought for dismissal of the appeal.

11. With regard to the manner of accident, though the learned

Standing counsel for the Insurance Company pleaded that there was

no negligence on the part of the driver of the offending vehicle, as

there is no oral or documentary evidence was produced by the

Insurance Company to prove the negligence on the part of the

claimant, considering the evidence of PW-1 coupled with the

documentary evidence produced by him, the Tribunal rightly held that

the accident occurred due to the rash and negligence on the part of the

driver of the offending vehicle.

12. With regard to the quantum of compensation is concerned,

according to the petitioner, she sustained severe injuries on her head,

multiple fractures on right leg, right hand, elbow and waist and injury

on right eyebrow in the accident and immediately after the accident,

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she was shifted to Kamineni Medical College Hospital, Narketpally

and after first aid, she was shifted to Kamineni Hospital, L.B.Nagar

and from there to Indus Hospital, where she underwent Neuro surgery

on her head and also operation to her right leg and right hand elbow

was done and rods were implanted and the doctors opined she needs

further surgery. She had spent Rs.2,00,000/- towards surgery

expenses.

13. According to PW-2, who is the Administrative Officer, Venus

Hospital, the petitioner was admitted in their hospital on 22.12.2011

with complaint of ceviation of mouth to left and unable to close right

eye completely, fever and vomiting with loose stools and discharged

on 24.12.2011. According to PW-3, Medical Superintendent of Indus

Hospitals, the petitioner was admitted in their hospital on 7.10.2011

with injury sustained PT Humorous and right femur multiple large

abrasion, which are grievous fractures and she undergone surgery for

both fractures and discharged on 27.10.2011 and after the patient

developed infections she joined on 27-10-2011 to 8-10-2011 as in-

patient. The treatment given from 27-10-2011 to 8-11-2011 was not

covered under Arogyashree scheme. Ex.A15 medical bills were

prescribed by him at their hospital. Further she has to incur

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Rs.30,000/- for removal of implants. Therefore, considering the

evidence of PWs.1 to 3, the tribunal rightly awarded an amount of

Rs.50,000/- for two grievous injuries, Rs.9,305/- towards loss of

income, Rs.50,000/- towards future medical expenses for removal of

implants and Rs.1,27,205/- towards medical expenses and treatment

charges. Thus in all the petitioner is awarded an amount of

Rs.2,36,510/- which is just and reasonable.

14. With regard to the liability, it is contended by the appellant-

Insurance Company that the driver of the offending vehicle was not

having valid driving license and the police also filed charge sheet

against the driver of the offending vehicle for the offence under

Section 181 of the Motor Vehicles Act. As per Section 149(2) of the

Motor Vehicles Act, 1988, heavy burden lies upon the insurer to prove

that the driver of the vehicle had no valid driving license at the time of

the accident. The evidence of RW-2 does not establish that the driver

of the offending vehicle was having a valid and effective driving

license as on the date of the accident or not. But it only discloses the

fact that the driver has been prosecuted for not producing the driving

license. In that light, the evidence of RW-2 is not of much assistance

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to the insurer in order to establish the fact that the driver of the

offending vehicle did not possess a valid and effective driving license

at the time of the alleged accident. Though Exs.B2 and B3 copy of

the notices sent to owner and driver of the offending vehicles were

filed by the Insurance Company, the acknowledgement of the same

were not filed. When the notice has not been effectively served upon

the owner of the vehicle, then, under such circumstances, the evidence

of RW-2 will not help the insurer. This evidence also does not come

to the aid of the insurer to discharge its primary duty to establish that

there was breach of terms of the policy. As per the principles laid

down by the Apex Court in RUKMANI AND OTHERS v. NEW INDIA

ASSURANCE CO. AND OTHERS1, when the insurer had failed to prove the

defence raised in the statement of objections, such a plea cannot be accepted.

When the police officer or the records are not summoned from the transport

authority to establish the fact that the driver of the offending vehicle was not

having a valid and effective driving license, then, under such circumstances, it has

to be held that the insurer has failed to discharge its burden. Under these

circumstances, the contention of the learned counsel for the

appellant/Insurance Company cannot be sustained and it is hereby

(1998) 9 SCC 160

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rejected. Further the Motor Vehicles Act is a beneficial piece of

legislation. It has been time and again held that trappings of civil and

criminal proceedings cannot be applied in a very strict manner.

Therefore, in view of the above discussion, this Court is of the opinion

that there are no valid grounds to interfere with the cogent findings

given by the Tribunal and the appeal is liable to be dismissed.

15. In the result, the M.A.C.M.A. is dismissed. There shall be no

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

______________________ M.G.PRIYADARSINI,J

29.10.2022 pgp