United India Insurance Co Ltd., ... vs Ancha Srinivas, Warangal Dist 2 ...
2023 Latest Caselaw 563 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                      M.A.C.M.A. No. 1775 of 2017

JUDGMENT:

Being dissatisfied with the order and decree passed by the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-VIII

Additional District Judge, Warangal, in M.V.O.P.No.1172 of 2012

dated 24.10.2016, United India Insurance Company Limited 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 12-04-2012 he

went to Huzurabad along with his daughter Rajitha to drop her at

Huzurabad and while returning on his Hero Honda Pleasure vehicle

bearing No. AP 36 AP 0521, he reached near Bhavupet cross road, at

that time an Indica car bearing No. AP 05 AN 6790 proceeding from

Hanamkonda to Huzurbad in rash and negligent manner with high

speed and dashed to his motorcycle, as a result, he fell down from the

motorcycle and received injuries. Immediately he was shifted to

MGM Hospital in 108 Ambulance and from there he was shifted to

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Yashoda Hospital, Secunderabad, where surgery was conducted for

fracture injury. He spent more than Rs.3 lakhs for his treatment in

various hospitals and is unable to move from bed. Further he has to

undergo another surgery which costs more than Rs.1 lakh. Thus, the

petitioner claimed compensation of Rs.4,00,000/- under various heads

against the respondent Nos.1 to 3, owner, insurer and driver of the

offending vehicle respectively.

4. Respondent No.3 remained ex parte. Respondent Nos.1 and 2

filed separate counters disputing the manner of accident, age,

avocation and income of the petitioner. Respondent No.1 admitted his

ownership of the car bearing No. AP 05 AN 6790 and further

contended that the said car was insured with respondent No.1 as on

the date of accident. Respondent No.2 further contended that the

compensation claimed by the petitioners is highly excessive and prays

to dismiss the petition.

5. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.2,61,278/- towards

compensation to the claimant against the respondent Nos.1 to 3 jointly

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and severally, along with proportionate costs and interest @ 7.5% per

annum from the date of petition till the date of realization.

6. 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.

7. 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 and the

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

Company as the driver of the offending vehicle was not having valid

driving license at the time of accident and the amount awarded by the

tribunal is exorbitant. Accordingly, prayed for setting aside the

impugned order in the O.P.

8. 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

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compensation and the same needs no interference by this Court.

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

9. With regard to the manner of accident, the learned Standing

counsel for the Insurance Company pleaded that there was

contributory negligence on the part of both the petitioner and the

driver of the offending vehicle, except the contention in the counter,

no evidence is produced by the Insurance Company to prove the

contributory negligence. However, after evaluating the evidence of

PWs.1 and 2 coupled with the documentary evidence available on

record, the Tribunal rightly held that the accident occurred due to the

rash and negligence on the part of the driver of the offending car.

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

according to the evidence of PW-2, the Doctor who treated the

petitioner, he was admitted in their hospital on 13-04-2012, operated

on 13-04-2012 with fixation of both bones of tibia and fibula with

place and screw and on the same day skin grafting was done and he

was discharged on 21-04-2012. Therefore, considering the nature of

injury and the amount spent by him towards his treatment, the tribunal

awarded Rs.30,000/- towards pain and suffering for grievous injury,

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Rs.1,81,278/- towards medical expenses, Rs.30,000/- towards future

medical expenses and Rs.20,000/- towards incidental expenses. Thus

in all the petitioner awarded an amount of Rs.2,61,278/- which is just

and reasonable.

11. With regard to the liability, it is contended by the learned

Standing counsel for the 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-1 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. The Insurance Company though

filed Exs.B1 to B5, did not file any acknowledgment to show that the

respondent Nos.1 and 3 received the notices issued by them. In that

light, the evidence of RW-1 is not of much assistance to the insurer in

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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. 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 Insurance Company cannot be sustained

and it is hereby 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, the the

tribunal rightly held that the respondent Nos.1 to 3 being the owner,

(1998) 9 SCC 160

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insurer and driver of the car are jointly and severally liable to pay

compensation to the petitioner. 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.

12. 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

03.02.2023 pgp