Telangana High Court

K.Venkatesh vs Shanker Mallikarjun on 21 September, 2022

Bench: P.Madhavi Devi

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


              M.A.C.M.A. NOS.2390 AND 2580 OF 2017


                       COMMON JUDGMENT


      M.A.C.M.A.No.2390 of 2017 is filed by the insurance company

challenging    its   liability   to   pay   the   compensation,     while

M.A.C.M.A.No.2580 of 2017 is filed by the claimant/injured seeking

enhancement of the compensation. Both the Appeals are against the

award and decree dt.09.01.2017 in M.V.O.P.No.784 of 2012 on the file

of the Motor Accidents Claims Tribunal-cum-XIII Additional Chief

Judge (Fast Track Court), City Civil Court, Hyderabad (for short, "the

Tribunal').


2.    Brief facts leading to the filing of the above Appeals are that on

29.10.2011, at about 4.20 p.m., the claimant was travelling on his motor

cycle bearing No.AP 13Q 3334 from Balanagar to Prashanthnagar, KVB

Company when Tata Ace vehicle bearing No.AP 09TA 3393 came at

high speed from sub road to main road and dashed against the claimant's

motor cycle and consequently the claimant fell down and sustained

fractures of both hands, head injury, injuries to face, shoulder and blunt
                                                MACMA Nos.2390 & 2580 of 2017

                                      2

injuries all over the body. The claimant was shifted to a nearby hospital

and thereafter, he has recuperated and recovered from the injuries.

Police have registered an FIR in P.S. Kukatpally as Crime No.996 of

2011 under Section 337 of the IPC against the crime vehicle and its

driver. The claimant, thereafter filed the claim petition before the

Tribunal seeking compensation of Rs.6,00,000/- for the injuries caused

to him. The Tribunal has framed the following issues for trial:


     (1) Whether the accident took place due to rash and negligent driving
        of the driver of the Tata ACE vehicle bearing No.AP 09TA 3393
        causing injuries to the petitioner?

     (2) Whether the petitioner is entitled for compensation. If so, to what
        extent and from whom?

3.      As regards issue No.1, the Tribunal has held that the accident has

occurred due to the rash and negligent driving of Tata ACE vehicle AP

09TA 3393 and as regards issue No.2 also, it was held that the petitioner

is entitled for a compensation of Rs.2,05,000/- in all.


4.      As regards the liability of the insurance company, the owner of

the vehicle had remained ex parte and the respondent insurance

company had initially filed a counter affidavit denying its liability and MACMA Nos.2390 & 2580 of 2017

subsequently an additional counter was filed stating that the company

had never issued the insurance policy to the crime vehicle bearing

No.AP 09TA 3393 as there is no office Code 630300 as mentioned in

the original petition. It was submitted that the office mentioned in the

insurance policy as Bowenpally is not of their insurance company and

even the rubber stamp is of not their company. Therefore, they denied

their liability to pay any compensation on the basis of the fake insurance

policy produced by the owner of the vehicle, which was relied upon for

fastening the liability on the insurance company.

5. The Tribunal, however, observed that though the insurance

company has stated to have issued a police complaint, it was not stated

as to whether an FIR was registered or not and what was the outcome of

such a criminal complaint. It is submitted that as per Ex.B5, the policy is

valid and it was in force till 06.01.2012 and the same was not cancelled.

The Tribunal, therefore, did not accept the contentions of the respondent

insurance company and has held that the respondents have failed to

establish that it is a fake policy. Accordingly, the Tribunal has awarded

compensation by holding both the respondents liable jointly and

severally.

MACMA Nos.2390 & 2580 of 2017

6. Challenging the liability of the insurance company even though it

is recorded that the policy is a fake policy, the insurance company has

filed M.A.C.M.A.No.2390 of 2017 by raising various grounds of appeal.

Seeking enhancement of the compensation awarded by the Tribunal, the

claimant has filed M.A.C.M.A.No.2580 of 2017.

7. I shall first deal with the appeal of the insurance company.

8. Learned counsel for the insurance company, Sri A. Ramakrishna

Reddy, vehemently argued and tried to demonstrate that the policy

furnished by the owner of the vehicle, which is marked as Ex.B5, is a

fake document. He has also drawn the attention of this Court to the

police complaint given by the insurance company regarding the alleged

fake document. Therefore, he submits that the insurance company is not

liable to make payment of any compensation to the claimant.

9. Learned counsel for the claimant, Sri K. Hari Mohan Reddy,

however, opposed the same and submitted that the insurance policy has

been produced by respondent No.1 and respondent No.2, i.e., the

insurance company, though has alleged that it is a fake document, has

not taken the police complaint to its logical conclusion and that the MACMA Nos.2390 & 2580 of 2017

insurance company has not proved that it is a fake document. In view

thereof, the learned counsel submitted that the claimant should be paid

compensation and should be allowed to withdraw the same as he is

suffering from grave financial difficulties in view of non-payment of the

compensation, as the claimant had to incur huge expenditure to get

himself treated and recuperated.

10. Having regard to the rival contentions and the material on record

including the material placed by the insurance company before the

Tribunal, this Court finds that the insurance company has filed premium

04.01.2011 to 10.01.2011 and also the certified copy of the collection

company has not received any premium for the said vehicle. However,

these documents need verification and this Court is not equipped with

necessary paraphernalia to do such verification. The insurance company

having given police complaints dt.28.08.2005 and 01.02.2016 ought to

have pursued the same and brought them to their logical conclusion as to

whether the document of insurance policy is a fake or genuine

document. Mere filing of police complaints would not be sufficient to MACMA Nos.2390 & 2580 of 2017

declare the document as a fake document. The veracity of the document

has to be proved beyond reasonable doubt by the investigating agency.

Since the appellant insurance company has not followed up its

complaints and has not discharged its duty of proving the document to

be a fake document, the Tribunal has not accepted its contention and has

accordingly held that both the owner of the vehicle as well as the

insurance company have jointly and severally liable to pay

compensation.

11. The learned counsel for the claimant has also relied upon the

judgment of this Court in the case of Imran Basha Vs. United India

Insurance Co. Ltd., Mahaboobnagar and another dated 05.11.20131,

wherein under similar circumstances, a Division Bench of this Court has

held that insurance being a social security measure to protect interest of

victims of accidents, approach in this behalf must be to advance

intention of legislature and if any doubt exists, it must be read in favour

of the person for whose benefits the provisions are made and in the

event of any defect in the policy or if liability improperly fastened upon

insurance company, law permits it to pay amount and recover the same

2014 (1) ALD 547 (DB) MACMA Nos.2390 & 2580 of 2017

from the owner of the vehicle. The insurance company was therefore

held liable to pay the amount covered by the order passed by the

Tribunal.

12. Respectfully following the above decision of the Division Bench,

which is on similar set of facts, this Court is of the opinion that the

insurance company has not been able to prove that the insurance policy

is a fake document and that it is not liable to pay the compensation. In

view of the same, the grounds of appeal raised by the insurance

company are all rejected. However, liberty is given to the insurance

company to proceed against the owner of the vehicle if the policy has

been declared to be a fake document.

13. As regards the claimant's appeal in M.A.C.A.M.No.2580 of 2017,

the claimant is seeking enhancement of the compensation under the

following heads:

(1) Monthly income of the claimant to be considered at Rs.20,000/- per month;

(2) To consider disability of the claimant at 20% and loss of earning capacity at 40%;

(3) Damage to clothing and articles at Rs.2,000/-;

MACMA Nos.2390 & 2580 of 2017

(4) Loss of amenities, social status, shock and mental agony at Rs.50,000/-; and

(5) Granting Rs.30,000/- towards pain and suffering and Rs.1,00,000/- towards permanent disability.

14. Learned counsel for the claimant submitted that the claimant was

working as a business development Executive in the 'first flight courier'

company and was earning Rs.20,000/- per month and his nature of work

was extensive travelling on motor cycle, picking up courier boxes and

shifting them to the office, but due to the accident, he has lost his job

and sustained loss of earnings.

15. Though the claimant has not stated the period of immobilisation

due to the accident, this Court deems it fit and proper to consider it as

three (3) months period and if the income of the claimant per month is

considered at Rs.15,000/-, the loss of earnings would be around

Rs.45,000/-. The Tribunal has taken it only at Rs.30,000/- and therefore,

it is enhanced to Rs.45,000/-.

16. As regards the medical expenses, the claimant has been allowed

the entire claim of medical expenses. The claimant would be further

entitled to the compensation towards disability which is mentioned as MACMA Nos.2390 & 2580 of 2017

20% by the doctor who has treated him. The Tribunal has not awarded

any compensation towards disability. This Court accordingly allows

compensation for 20% disability and 10% towards loss of earning

capacity and around Rs.20,000/- towards pain and suffering and

Rs.2,000/- towards damage to clothes. The compensation is enhanced

accordingly.

17. Since it has been held that the insurance company is jointly and

severally liable along with the owner of the vehicle for payment of the

compensation, this Court directs the insurance company to pay the entire

compensation to the claimant and shall be at liberty to proceed against

the owner of the vehicle for recovery of the same. The insurance

company is directed to deposit the compensation within a period of 90

days from the date of receipt of a copy of this judgment. On such

deposit of the compensation by the insurance company, the claimant is

permitted to withdraw the same without furnishing any security.

18. In the result,--

(i) M.A.C.M.A.No.2390 of 2017 filed by the insurance

company is dismissed with the directions in para 12 above.

MACMA Nos.2390 & 2580 of 2017

However, liberty is given to the insurance company to

proceed against the owner of the vehicle to recover the

compensation if the subject insurance policy is declared to

be a fake document in the proceedings initiated on account

of the police complaints dt.28.08.2005 and 01.02.2016.

(ii) M.A.C.M.A.No.2580 of 2017 filed by the claimant is partly

allowed with the directions in para 17 above and the

claimant is entitled to the following amounts:

                  Head                            Compensation awarded

                  (1) Annual Income               Rs.1,80,000/- (15,000x12)

                  (2) Loss of future earnings
                      per annum (10% of the
                      annual income) on
                      account of disability and
                      loss of earning capacity    Rs.18,000/-

                  (3) Multiplier applicable as
                      per age of the claimant
                      (Sarala Verma and others
                      Vs. Delhi Transport
                      Corporation and another2) 17

                  (4) Loss of future earnings
                      (18,000x17)                 Rs.3,06,000/-

                  (5) Loss of earnings            Rs.45,000/-


    (2009) 6 SCC 121
                                                 MACMA Nos.2390 & 2580 of 2017




              (6) Medical expenses              Rs.30,000/-

              (7) Pain and suffering            Rs.20,000/-

              (8) Damage to clothes             Rs.2,000/-

              (9) Expenses for future
                  operation as awarded
                  by the Tribunal               Rs.30,000/-

              (10) Extra nourishment,
                   Travelling and
                   Attendant charges
                   as awarded by the
                   Tribunal                     Rs.25,000/-