Sk.Sharief vs Chitapothula Venkateswara Rao, ...
2023 Latest Caselaw 918 Tel

     HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                   M.A.C.M.A. No.816 of 2019

JUDGMENT:

This appeal is filed by the claimant, aggrieved of the

award and decree dated 16.07.2007 made in O.P.No.1481 of

2002 on the file of the Motor Accidents Claims Tribunal-III

Additional District Judge (FTC-II), Khammam, seeking

enhancement of compensation and in exonerating the insurance

company from the liability of payment of compensation.

2. The appellant herein is the claimant before the Tribunal.

He filed the O.P. under Section 166 of the Motor Vehicles Act,

1988 claiming compensation of RS.2,00,000/- for the injuries

sustained by him in the motor vehicle accident that occurred on

20.07.2002. According to the appellant, on 20.07.2002 while

himself and another were proceeding on a motorcycle from

Tekulapalli to Khammam, at about 10:00 p.m., when they

reached near Pandithapuram Main Road, opposite to Saibaba

Temple, the offending vehicle i.e., Lorry bearing No.AP 16 U

4064, owned by the respondent No. 2 and insured with

respondent No.3, was stationed across the road without

blinking parking lights/indicators by its driver, respondent

No.1, and the claimant dashed the stationed lorry from the back

side in the process to avoid a vehicle coming from opposite side.

As a result, the claimant sustained several grievous injuries.

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Immediately after the accident, he was shifted to Cure

Emergency Hospital, Khammam, where he underwent operation

for fracture injuries and he had taken treatment as inpatient for

two months. Therefore, he laid the claim against respondent

Nos.1 to 3 for Rs.2,00,000/- towards compensation under

different heads.

3. The Tribunal, considering the claim, counter filed by

respondent No.3 and on evaluation of oral and documentary

evidence, allowed the O.P. in part awarding a total

compensation of Rs.69,964/- but the Tribunal having assessed

the compensation at Rs.69,964/-, deducted 50% therefrom

towards contributory negligence on the part of the claimant.

The net amount of Rs.34,982/- along with costs and interest @

7.5% per annum was directed to be deposited by respondent

Nos.1 and 2 i.e., driver and owner of the crime vehicle by

exonerating the insurance company, respondent No.3, on the

ground that the driving licence of the driver of the crime vehicle

was expired even before the date of accident. Seeking

enhancement of compensation and challenging the findings of

the Tribunal in holding that there was contributory negligence

on the part of the claimant at 50% and exonerating the

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insurance company from its liability of payment of

compensation, the claimant has filed this appeal.

4. Heard both sides and perused the record.

5. The learned Counsel for the appellant-claimant has firstly

contended that though the claimant has received multiple

grievous injuries, underwent operation on nasal bone,

mandible, maxilla apart from major injury to eye brows, the

Tribunal awarded meager amount towards pain and suffering.

Further, the Tribunal erred in not awarding any amount under

the head of injuries, transportation, extra nourishment and

attendant charges. Secondly, it is contended that the accident

took place at 10:00 p.m., and at the time of the accident the

crime vehicle was stationed across the road without any

indicators such as parking lights and blinkers, as seen from

Exs.A.1, FIR copy and Ex.A.2, charge sheet and in these

circumstances, the Tribunal ought not to have held that there

was contributory negligence on the part of the claimant in

causing the accident. It is lastly contended that although the

licence of the driver of the crime vehicle was expired by the date

of accident, the Tribunal ought to have directed the insurance

company to pay the compensation at the first instance and then

recover the same from the owner of the vehicle. Therefore, the

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findings of the tribunal in fixing 50% contributory negligence on

the part of the claimant and also exonerating the insurance

company from its liability of payment of compensation are

erroneous and need to be set aside.

6. On the other hand, learned Standing Counsel for

respondent No.3, insurance company, has contended that

considering the evidence brought on record, the Tribunal has

rightly awarded the compensation and the same needs no

interference. As regards the negligence, it is contended that

Ex.B3, Crime Details Form, indicates a rough sketch which

clearly shows that the lorry was stationed within the road

margin but not on the road or across the road and therefore,

considering the same, the Tribunal has rightly fixed

contributory negligence on the part of the claimant at 50%. It

is further contended that as the driver of the crime vehicle was

not having valid and effective driving licence at the time of the

accident, the Tribunal has rightly exonerated the insurance

company from its liability to pay the compensation.

7. As seen from the record, the accident took place at 10:00

p.m. There is no dispute that the claimant had dashed the

stationed lorry from behind which was parked on the road side.

The record does not disclose that the driver of the crime vehicle

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had taken any precautions such as blowing parking lights.

Even the Insurance Company did not take any steps to summon

the driver of the vehicle in order to establish that at the time of

the accident the driver had taken all the precautions such as

giving blinkers/parking lights and placing sign boards around

the vehicle. However, the Tribunal basing on Ex.B3 came to

the conclusion that there was contributory negligence on the

part of the claimant at 50%. The record further discloses that

the charge sheet, Ex.A2, was filed against the driver of the crime

vehicle, respondent No.1 holding that the accident occurred due

to his negligence in parking of the vehicle across the road.

Merely because the claimant has dashed the crime vehicle from

behind, it cannot be concluded that there was contributory

negligence on the part of the claimant. Admittedly, the time of

the accident was 10:00 p.m., by which time the claimant cannot

be expected to observe the stationed lorry in front of him that

too without blinkers/parking lights. Careless parking of the

vehicle without indication or without parking lights and not

taking proper care of the parked vehicle also amounts to rash

and negligent use of the vehicle. Such being the case, the

contributory negligence fixed by the Tribunal on the part of the

claimant at 50% is on higher side and considering the

circumstances of the case more particularly, Ex.B.3, the

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contributory negligence on the part of the claimant is fixed at

20%.

8. So far as the quantum of compensation amount awarded

by the Tribunal is concerned, as seen from Ex.A3, wound

certificate, issued by Cure Emergency Hospital, Khammam, the

claimant had suffered three injuries i.e., fracture of left frontal

bone, fracture of right maxilla and fracture floor of left cheek

and all the three injuries are grievous in nature. That apart,

Ex.A4 is the discharge summary, issued by Cure Emergency

Hospital, Khammam, which discloses that the claimant was

admitted in the hospital on 21.07.2002 and was discharged on

28.07.2002. Considering the said evidence, the Tribunal

awarded only Rs.40,000/- under the head of pain and suffering

and no amount was awarded for three grievous injuries

sustained by the claimant. Therefore, considering Exs.A3 and

A4, this Court is inclined to award a sum of Rs.60,000/- for

three grievous injuries i.e., Rs.20,000/- for each grievous injury.

9. The record further discloses that though the claimant has

taken treatment as in-patient in a private hospital for a

considerable period, no amount was awarded by the Tribunal

under the head of extra nourishment, transportation and

attendant charges. Thus, considering the nature and period of

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treatment undergone by the claimant, this Court is inclined to

award a sum of Rs.15,000/- towards extra nourishment,

transportation and attendant charges. Considering the nature

of treatment undergone by the claimant in a private hospital

and Exs.A10 to A15, hospital receipts and medical bills, the

Tribunal has rightly awarded Rs.13,464/- towards medical

expenses. Thus, in all the claimant is entitled to Rs.1,28,464/-.

Since there was contributory negligence of the claimant at 20%,

the claimant is entitled to Rs.1,02,771/- towards 80%

compensation.

10. As regards the aspect of liability of payment of

compensation, as per the record and evidence brought on

record, the driving licence of the driver of the offending vehicle

stood expired even before the occurrence of accident. Thus,

there is breach of terms and conditions on the part of the owner

of the offending vehicle as he had entrusted the vehicle to a

person, who was not holding valid driving licence by the time of

accident. But the fact remains that by the time of accident, the

offending vehicle was insured with the appellant and Ex.B.1

policy was very much in force. In case of third party risks, as

per the decision in National Insurance Company Ltd. V.

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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" 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 Shamanna v. The Divisional

Manager, the Oriental Insurance Company Limited and

Others2, 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." In view of the above, the

Insurance Company is under obligation to pay the

compensation amount at the first instance and then recover the

same from the owner of the vehicle.

(2004) 3 SCC 297

2018 ACJ 2163

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11. In the result, the M.A.C.M.A. is allowed in part and the

compensation amount awarded by the Tribunal is hereby

enhanced from Rs.34,982/- to Rs.1,02,771/-. The enhanced

amount shall carry interest at 7.5% p.a. from the date of

petition till the date of realization. However, following the

doctrine 'pay and recover', the Insurance Company-3rd

respondent is directed to pay the aforesaid compensation

amount to the appellant-claimant, at the first instance and

thereafter recover the same from the owner of the offending

vehicle i.e., the 2nd respondent without initiating any separate

proceedings. Time to deposit the said compensation is for two

months from the date of receipt of a copy of this order. On such

deposit, the claimant is at liberty to withdraw the same without

furnishing any security. No costs.

Pending miscellaneous applications, if any, shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

23.02.2023 tsr

MGP, J Macma_816_2019

HONOURABLE JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.816 of 2019

DATE: 23-02-2023