Telangana High Court

S Suribabu Reddy, Khammam Dist vs R S Alliance Insurance Company ... on 28 April, 2023

Bench: M.G.Priyadarsini

          HONOURABLE JUSTICE M.G. PRIYADARSINI

          M.A.C.M.A.Nos.2796 of 2016 and 391 of 2017

COMMON JUDGMENT:


      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.2796 of 2016 filed by the

Insurance Company and M.A.C.M.A.No.391 of 2017 filed by the

claimant, assailing the quantum of compensation, are directed

against the very same order and decree, dated 22.06.2016 made

in M.V.O.P.No.929 of 2011 on the file of the Chairman, Motor

Accidents Claims Tribunal-cum-IV Additional District Judge,

Khammam (for short "the Tribunal").


2.    For the sake of convenience, the parties hereinafter will be

referred to as arrayed before the Tribunal.


3.    Brief facts of the case are that the claimant filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

against     the   respondent     claiming     compensation      of

Rs.25,00,000/- for the injuries sustained by him in the motor

vehicle accident that occurred on 29.05.2011. According to

him, on the fateful day, the claimant, along with one Mr.

A. Suresh, was travelling in swift car bearing No. AP 20 Q 9549.

The car was owned by the claimant, insured with respondent,

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being driven by its driver namely Ramasahayam Ashok Reddy.

When the said Car reached near Maremma temple, the driver, in

the process of averting to hit the buffaloes which came across

the road, hit a tree. As a result, the claimant sustained

comminuted fracture midshaft of left humerus, fracture to both

bones of left leg in the distal 1/3rd, fracture both bones of right

leg in the middle 1/3rd with illizarao fixator institu, comminuted

posterior wall fracture of left acetabulum with posterior

dislocation of left hip. Immediately, he was shifted to

Dr.P.N.V.S.V.Prasad hospital, Khammam, where illizarao

fixation of right leg was done and thereafter, he was admitted in

Apollo hospital, Hyderabad, where he underwent surgeries and

discharged on 20.06.2011. However, due to pain in left hip joint,

he got admitted in Sun Shine hospital, Hyderabad on

08.08.2011, where the implants were removed and total left hip

replacement and plastic surgery was done and discharged on

15.09.2011. He incurred expenditure of Rs.12,50,000/- towards

medical treatment. Due to the said accident, he sustained

permanent disability and lost his earning capacity. Thus, the

claimant laid the claim against the respondent for Rs.25.00

lakhs.

MGP, J Macma_2796_2016 and 391_2017

4. Before the Tribunal, the respondent-Insurance Company

filed counter disputing the manner of accident, nature of

injuries sustained by the claimant, age, avocation and income of

the claimant and further contended that the claimant being the

owner of the vehicle, the respondent-Insurance Company, under

policy would indemnify risk of the claimant arising as against

third parties. However, the claimant is not a third party and he

did not pay any extra premium to cover his risk. Therefore,

prayed to dismiss the claim petition as the claim cannot be

prosecuted by the injured.

5. Considering the oral and documentary evidence available

on record, the Tribunal has awarded an amount of

Rs.2,00,000/- towards compensation to the claimant along

with costs and interest @ 9% per annum from the date of filing

the petition till realization against the respondent.

6. Heard the learned Standing Counsel for the Insurance

Company and learned counsel for the claimant. Perused the

material available on record.

7. The learned Standing Counsel appearing on behalf of

Insurance Company (appellant in MACMA No.2796 of 2016) has

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specifically contended that the premium paid for own damages

is towards damage to vehicle and not for the bodily injury to the

owner/insured and since the owner/insured has no liability to a

third party, no liability can be fastened on the Insurance

company. Furthermore, the learned Standing Counsel

vehemently argued that the claimant being the owner and co-

traveller in the said car which was driven by another person, is

not liable to claim the compensation as he does not come under

third party risks and no liability can be fastened against the

Insurance Company. Hence, prayed to set aside the order

passed by the Tribunal.

8. The learned counsel for the claimant (appellant in

MACMA No.391 of 2017) has submitted that although the

claimant, by way of evidence of P.W.1 and Ex.A.3 to A.13,

established the fact that he had sustained disability due to the

injuries received by him in the accident, the Tribunal did not

take into consideration the same and discarded the evidence

produced by the claimant and awarded very meager amount

under various heads.

MGP, J Macma_2796_2016 and 391_2017

9. Admittedly, there is no dispute with regard to the manner

of accident. The Tribunal after evaluating the evidence of PW.1

coupled with the documentary evidence available on record i.e.

Exs.A.1, FIR & A.2, Final Report, held that the accident

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

bearing No. AP 20 Q 9549. 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 the offending

Car.

10. Though the claimant seeks enhancement of compensation

by way of appeal being MACMA No. 391 of 2017, the Insurance

Company, by way of appeal No. 2796 of 2016 challenges the

very liability to pay the compensation on the ground that the

claimant cannot be treated as third party in order to claim

compensation. According to Mr. A. Ramakrishna Reddy, the

learned Standing Counsel for the Insurance Company,

admittedly, the claimant is the owner of the car and in order to

fasten the liability on the Insurance Company, the claimant is

required to establish either that he is a third party or that his

risk is covered under the terms and conditions of the policy. It

is his contention that as the claimant himself was the owner of

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the car, who was travelling in the car as an occupant, but not as

driver, he cannot be treated as a third party. The vicarious

liability of the Insurance Company to indemnify the liability of

the owner of the vehicle is in respect of third parties and not to

the owner himself and therefore, the claimant is not entitled for

any compensation. Whereas, the learned counsel for the

claimant, by placing reliance on catena of decisions, submitted

that the claim petition is maintainable against the insurer since

under Ex.B.1 policy, premium was paid towards the Personal

Accident Cover Policy, to cover the bodily injuries or the death of

the owner-cum-driver and even it is accepted that he was not

driving the car at the time of the accident, still, having agreed

under the contract of insurance, to indemnify the owner, the

Insurance Company is liable to pay the compensation

irrespective of the fact as to whether the owner travelled as an

occupant or driven the vehicle. On the quantum of

compensation, it is submitted that though the claimant has

adduced sufficient evidence in order to establish that he had

suffered permanent disability and incurred heavy amounts

towards medicines & treatment, the Tribunal has awarded

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meagre amounts and therefore, the same needs to be enhanced

reasonably.

11. Dealing with the issue of liability of the Insurance

Company in similar circumstances, a Division Bench of the

composite of High Court of A.P. in Royal Sundaram Alliance

Insurance Co. Ltd., Secunderabad v. Vemavaram Sudheer

Babu & Ors.1, has categorically observed at para No. 22 as

under:-

"22. ...The policy would show that it has covered the risk of the occupants of the car and that of the owner-cum-driver. By looking at the extent of coverage given by the policy, the intention of the insurer can be gathered. The terms imply that the policy was taken with an intention to give coverage to all the risks arising out of the use of the vehicle. In such circumstances, giving a narrow interpretation to the words "owner-cum- driver", to mean the owner, only while driving the car, would be against the spirit of the terms of the policy. Hence, we opine that the owner, who was travelling in the car as an occupant is also covered by the terms of the policy."

(emphasis added)

2019 (2) ALD 343 (DB)

MGP, J Macma_2796_2016 and 391_2017

12. Therefore, in the light of the above decision, the

contention of the learned Standing Counsel for the Insurance

Company that the claimant is not entitled even for the Personal

Accident Benefit Claim as he was in the car only as an occupant

but not as owner-cum-driver does not merit consideration and

the same is hereby rejected.

13. As regards the quantum of compensation, considering the

fact that it is a case of owner suffering injuries and as Ex.B.1

policy is package policy, the Tribunal at para No.20 held as

under:-

"20. Ex.B.1 is the policy of insurance. It is a package policy and it shows that the owner has paid a premium of Rs.100/- towards personal accident benefit. The Insurance Company delimited its liability to a tune of Rs.2,00,000/- (Rs.Two lakhs only). RW.1 during his cross examination admitted the truth of this. Thus, there is Personal Accident Benefit Claim and it was agreed between the present claimant and the respondent, that the liability of the Insurance Company is to a tune of Rs.2,00,000/- (Rs.Two lakhs only) for the owner. This policy under Ex.B.1 does indicate that it covers so much of the claim for bodily injuries as well as death. In the case at hand, we have already seen that the petitioner suffered serious injuries and is permanently disabled. He is entitled to make a claim only to a tune of Rs.2,00,000/- (Rs. Two lakhs only) under Ex.B.1 and the

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rest of the claim is not amenable for adjudication by this Tribunal. Therefore, the petitioner is entitled to claim compensation of Rs.2,00,000/- (Rs.Two lakhs only) and that has to be paid by the respondent...."

14. The said findings of the Tribunal are based on

appreciation of the nature of policy, Ex.B.1 and as it provides

for Personal Accident Benefit claim to the tune of Rs.2,00,000/-,

the Tribunal has rightly held that the claimant is entitled only to

make a claim only to the tune of Rs.2,00,000/- while rejecting

the rest of the claim. The said finding of the Tribunal does not

suffer from any infirmity warranting interference by this Court.

15. In the result, both the appeals are dismissed confirming

the order of the Tribunal dated 22.06.2016 in M.V.O.P. No. 929

of 2011. No order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.