Reliance General Insurance ... vs Smt Are Posani
2023 Latest Caselaw 1840 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                    M.A.C.M.A. No.773 of 2018

JUDGMENT :

This appeal is filed by the Reliance General Insurance

Company Limited aggrieved of the order and decree dated 29.08.2017

in O.P.No.16 of 2013 on the file of the Chairman, Motor Accident

Claims Tribunal-cum-VIII Additional District Judge, Nizamabad.

2. According to the petitioner, on 19-08-2010 at about 4.30 p.m.

she was travelling in the auto bearing No. AP 25 V 3539 from

Balkonda towards Armoor and when the auto reached the limits of

Chittapur village on National Highway No.7 four way road, at a

distance of 5 kilometers towards South from Balkonda police station,

the driver of the auto drove it in rash and negligent manner at high

speed and lost control over the auto, due to which, the auto turned

turtle, as a result of which, she has sustained grievous injuries and

fractures all over the body. Immediately after the accident she was

shifted in 108 Ambulance to Government Headquarters Hospital,

Nizamabad, where she was treated and from there she was shifted to

Sri Srinivasa Neuro Care Hospital, Nizamabad and took treatment as

inpatient for about two months and underwent major operations to

MGP, J MACMA.No.773 of 2018

right hand and steel rod was inserted. After discharge from the

hospital, she took treatment in the hospital of Dr.Manjunath and

Shashidhar Reddy, Ortho Dentist and took treatment post fixation

status involving left maxilla. She incurred more than Rs.2 lakhs

towards her treatment, medicines and extra nourishment. According

to the petitioner, she was aged 50 years, earning Rs.15,000/- per

month from agriculture and vegetable business. Due to the injuries

sustained by her, she became permanently disabled, unable to eat hard

food, suffering breathlessness and lost her earning capacity. Thus she

is claiming compensation of Rs.3 lakhs against the respondent Nos.1

and 2, who are owner and insurer of the auto jointly and severally.

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

counter disputing the manner of accident, nature of injuries sustained

by the petitioner and treatment taken by her. It is further contended

that as per the First Information Report and charge sheet, auto bearing

No. AP 25 V 3539 was not involved in the accident and it was falsely

implicated and that the said auto was not insured with their company

and therefore, prays to dismiss the petition.

MGP, J MACMA.No.773 of 2018

4. The Tribunal on considering the oral and documentary evidence

available on record, partly allowed the O.P., awarding a total

compensation of Rs.2,75,000/- along with costs and interest @ 6% per

annum from the date of petition till the date of payment or realization

against the respondent Nos.1 and 2 jointly and severally. Aggrieved

thereby, the appellant-Insurance Company has filed this appeal.

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

Company and the learned counsel for the claimant-respondent No.1

herein. Perused the material available on record.

6. The learned Standing Counsel for the appellant-Insurance

Company contended that as per the First Information Report, the

petitioner was proceeding in the auto bearing No. AP 25 U 3539 and

the petitioner wrongly filed the claim against the owner and insurer of

the auto bearing No. AP 25 V 3539 and that the driver of the auto was

not having valid driving license at the time of accident and charge

sheeted for the offence punishable under Section 338 IPC and Section

181 of Motor Vehicles Act and that the tribunal erroneously granted

higher compensation against their Company. Accordingly, prayed to

set aside the impugned order in the O.P.

MGP, J MACMA.No.773 of 2018

7. The learned counsel for the respondent No.1/claimant

contended that the learned Tribunal has awarded just and reasonable

compensation and the same needs no interference by this Court.

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

Standing Counsel for the appellant-Insurance Company contended

that as per the First Information Report, the petitioner was proceeding

in the auto bearing No. AP 25 U 3539 at the time of accident, but the

petitioner wrongly filed the claim petition against the owner and

insurer of the auto bearing No. AP 25 V 3539, PW.1 categorically

stated that on 19.08.2010 at about 4-30 p.m., while she was traveling

in the auto bearing No. AP 25 V 3539 from Balkonda towards

Armoor, when it reached the limits of Chittapur village on National

Highway No.7 four way road, at a distance of 5 kilometers, towards

south from Balkonda police station, the driver of the said auto drove

the vehicle in a rash and negligent manner, lost control over the auto,

due to which it was turned turtle, as a result of which, she has

sustained grievous injuries. Immediately she was shifted in 108

Ambulance to the Government Headquarters Hospital, Nizamabad.

PWs.2 and 3 are the Doctors who treated the petitioner for the injuries

MGP, J MACMA.No.773 of 2018

sustained by her in the said accident. PW-4 is the son of the petitioner

who gave complaint to the police. He deposed that the number of the

vehicle is 'AP 25 V 3539' and denied that the number appearing in his

complaint is 'AP 25 U 3539'. He further added that he writes 'V' in

that fashion. He also deposed that he saw the crime vehicle when he

went to the police station. In his cross-examination he stated that he

do not know that the number is wrongly mentioned in the complaint

and so, he has not approached the police authorities to change the

case.

9. On the other hand, on behalf of respondent No.2-Insurance

Company, RWs.1 to 3 were examined. RW-1 who is the Legal

Retainer of respondent No.2 has reiterated their counter averments.

RW-2 who is the Junior Assistant of Regional Transport Authority,

Nizamabad. RW-3 is the then Assistant Sub-Inspector of Police,

Balgonda police station deposed that as per Ex.A1, the crime vehicle

was auto bearing No. AP 25 U 3539 and that after investigation

charge sheet was filed on the same crime vehicle. In the cross-

examination RW-3 deposed that CD file does not contain any photos

of crime vehicle bearing No. AP 25 U 3539. Generally the

MGP, J MACMA.No.773 of 2018

Investigation officer used to obtain receipt when vehicle was released

as it was seized. According to CD file, no receipt was found for the

release of crime vehicle. Further Ex.B4 Copy of Registration

Certificate of auto bearing No. AP 25 V 3539 clearly shows that the

owner of the said vehicle is 'Pedda Balaiah Sangam' who is the

respondent No.1 in the present case. Therefore, after evaluating the

evidence of PWs.1 and 4 and RWs.1 to 3 coupled with documentary

evidence, the tribunal rightly held that the accident occurred due to

rash and negligent driving of the driver of the offending vehicle i.e.,

auto bearing No. AP 25 V 3539. Hence, there are no grounds to

interfere with the findings of the tribunal on this aspect.

10. Coming to the quantum of compensation, the petitioner has

sustained fracture of nasal bone, left maxillary, loss of teeth and other

teeth loosened, zygomatic and temporal soft tissue swelling, fracture

of scapula of left side, fracture of 2nd to 5th ribs, fracture condyle of

mandible on L/3, fracture 1/3 of right radius, left wrist and other

grievous injuries all over the body. She took treatment in Government

Headquarters Hospital, Nizamabad, Sri Srinivasa Neuro Care

Hospital, Nizamabad and in the hospital of Dr.Manjunath and

MGP, J MACMA.No.773 of 2018

Shashidhar Reddy, Ortho Dentist and underwent treatment and she

spent more than Rs.2 lakhs for her treatment and medicines. PW-2 the

Doctor who treated the petitioner deposed that the petitioner went to

his hospital on 19.8.2010 and treated till 26.8.2010 as inpatient and he

found that the petitioner has sustained 1) Inter hemisphere bleed in the

head, 2) multiple facial bone injuries, 3) fracture of left mandible, 4)

fracture in left scapula of the neck, 5) fracture of right wrist and 6)

fracture of left side ribs (2nd to 5th). PW-3 also the Doctor who treated

the petitioner deposed that the petitioner was admitted into their

hospital on 27.8.2010 and took treatment till 2.9.2010 and the

petitioner was treated for swelling of the right forearm, which is

grievous in nature. Therefore, the tribunal considering the evidence of

PWs.1 to 3 coupled with the documentary evidence available on

record, nature of injuries sustained by the petitioner and the treatment

taken by her, awarded an amount of Rs.1,20,000/- for the injuries

sustained by her, Rs.50,000/- for head injury, Rs.50,000/- towards

pain and suffering, Rs.30,000/- towards loss of earnings for a period

of six months at Rs.5,000/- per month, and Rs.25,000/- towards

transportation and extra nourishment. Thus in all the tribunal awarded

Rs.2,75,000/- under various heads, which is just and reasonable.

MGP, J MACMA.No.773 of 2018

Thus, there are no valid grounds to interfere with the findings of the

Tribunal on this aspect.

11. 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. RW-2 who is the Junior

Assistant of Regional Transport Authority, Nizamabad has

categorically deposed that Sangem Erranna (driver of the crime

vehicle/accused) is not issued any driving license. Though RW-2

deposed that owner of auto bearing No. AOP 25 V 3539 is Susheela

Batula w/o B.Gangaram, Ex.B4 Copy of Registration Certificate of

auto bearing No. AP 25 V 3539 clearly shows that the owner of the

said vehicle is 'Pedda Balaiah Sangam' who is the respondent No.1 in

the present case.

12. It is, no-doubt, true that by the time of accident, the offending

vehicle was insured with the appellant and Ex.B.1 policy was very

much in force by the said date. There is also no dispute that in the

case of third party risks, as per the decision in National Insurance

MGP, J MACMA.No.773 of 2018

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" and 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 case of Shamanna (supra),

following its earlier decision in Swaran Singh (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. Therefore, respondent No.2 is directed to first satisfy the

award by paying the compensation and then recover the same from the

owner of the crime vehicle.

(2004) 3 SCC 297

MGP, J MACMA.No.773 of 2018

13. In the result, the appeal is partly allowed by setting aside the

order and decree passed by the tribunal to the extent of fastening

liability to pay the compensation as jointly and severally on the

appellant as well as owner of the offending vehicle. However,

considering the principle "pay and recover", the appellant-Reliance

General Insurance Company Limited is hereby directed to first satisfy

the award by paying the compensation to the petitioner and then

recover the same from the owner of the crime vehicle without filing

any separate suit. Except the said modification as to the liability, the

rest of the impugned award is not disturbed.

Pending miscellaneous applications, if any, shall stand closed.

_______________________________ JUSTICE M.G.PRIYADARSINI

28.04.2023.

Pgp