B.Rajni Kanth vs P.Rajaiah
2023 Latest Caselaw 1315 Tel

            THE HON'BLE JUSTICE SMT. T.RAJANI
                      MACMA. No.775 of 2008


%23.02.2017

# B.Rajnikanth

                                              ...Appellant

VERSUS

$ P.Rajaiah and another
                                                ...Respondents



< GIST:

> HEAD NOTE:


!Counsel for Appellant: Sri K.Dhanunjaya Reddy and
                        Sri I.Venkata Prasad


^Counsel for Respondents: Sri Ramachandra Reddy Gadi


? Cases referred
1. 2013 (2) ALT 289
2. 2016 ACJ 2694
                                                                     TR, J
                                       2                        MACMA.No.775 of 2008




              THE HONOURABLE JUSTICE SMT.T.RAJANI

                         MACMA. No.775 of 2008

JUDGMENT:

This appeal is preferred by the appellant, who is the petitioner in

the lower Court, assailing the judgment of VII Additional Metropolitan

Sessions Judge-cum-XXI Additional Chief Judge, Hyderabad made in

O.P. No.1415 of 2016 on 16.08.2007 on the grounds that the lower Court

dismissed the petition without looking at the fact that there was

negligence on the part of the respondent; the lower Court did not go into

the facts of the case before dismissing the petition; the lower Court failed

to see Exs.A-1 and A-2, copy of FIR and charge sheet, respectively, which

show that the accident occurred due to rashness and negligence of the

driver of the crime vehicle.

At the hearing, the counsel for the appellant submits that the delay

in giving the report is very well explained by stating in the report,

that after the accident, the owner of the vehicle approached them and

assured that he would pay the compensation and asked them not to file

any case, hence they did not give report immediately and after the owner

failed to comply with his promise, they gave report to the Police.

The said explanation seems to be cogent and there cannot be any other

reason for the appellant not to give a report. The following facts also

would support the above opinion.

As per the FIR, the accident occurred on 07.04.2004 and Ex.X-1,

case sheet of M.G.M. hospital, reveals that the appellant was admitted in

the hospital on 07.04.2004 and injuries were found on the body of the

appellant. Hence, the explanation given by the complainant in the report

can be upheld as cogent as the fact of accident is made probable by the

injuries sustained by the appellant.

TR, J

On the premise that the appellant was traveling as an

unauthorized passenger in the Auto, which is a goods vehicle,

the lower Court dismissed the claim of the appellant in toto, which on

the face of it is erroneous. The reason for not making the award against

the owner is not seen in the judgment. The owner would nevertheless be

liable even if the insurer is exonerated from liability due to violations in

the insurance policy. The vicarious liability of the owner will not cease

due to violations in the policy. The liability of the owner is independent of

the liability of the insurer. The contract between the owner and the

insurer is that of indemnity, subject to the owner complying with the

conditions of the policy. The violation of a condition of the policy would

only deprive the owner of his entitlement for indemnity, but it shall not

affect the third parties.

There is a difference of understanding between the counsels

appearing for the parties, with regard to the coverage of the policy.

The counsel for the appellant contends that as per the insurance policy

marked as Ex.B-1, the risk of one passenger is covered.

The counsel for the respondent, on the other hand, contends that no

premium is paid for coverage of risk of any passenger and the contents of

the policy specifying that one passenger is covered is only a regular

proforma of the policies and it is only the payment of premium that

decides the coverage of risk. No counter argument, to the above

contention, is extended.

The evidence of R.W.1, who is the Deputy Manager-claims in the

second respondent's Insurance Company, is to the effect that there is no

coverage of the passenger traveling in the auto, which is supported by

the terms of the policy. The contents of the report show that the

appellant was traveling as an unauthorized passenger in the auto.

The counsel for the appellant relied on the judgment of the Hon'ble High

Court of Judicature at Hyderabad in the case of UNITED INDIAN TR, J

INSURANCE CO.LTD., REP.BY ITS BRANCH MANAGER, ADILABAD

Vs. MANGILA AJMEERA AND ANOTHER1 which is rendered totally on

a different set of facts. In that case the claimant was traveling as an

unauthorized passenger and there was dispute between the driver of the

lorry and the injured with regard to the return of excess amount paid

and the driver pushed the claimant out of the lorry and drove the lorry in

a rash and negligent manner as a result of which the left side front wheel

of the lorry ran over his right ankle and he sustained injuries. It shows

that by the time the accident occurred, the claimant was not traveling in

the lorry as unauthorized passenger, he was already on the road.

The tussle between the driver and the deceased is after he ceased to be a

traveler in the lorry. The accident is not due to the negligent driving of

the lorry while the deceased was traveling in the capacity of a gratuitous

passenger but due to his being pushed down the lorry and due to being

run over by the lorry due to the reckless driving of the driver.

The appellant's counsel relies on another ruling which is rendered

by the High Court of Karnataka in the case of ANANTHAMMA Vs.

DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD. AND

ANOTHER2 wherein the facts are that while the claimant was getting

down from the offending lorry, the driver of the lorry moved the vehicle

negligently, due to which she fell down from the lorry and sustained

injuries as the rear wheel of the lorry ran over her leg. The Tribunal has

given a finding that the actionable negligence is on the part of the driver

of the lorry, hence, the contention of the insurance company that

claimant was traveling as an unauthorized passenger in a goods vehicle

and they are not liable to compensate the claimant is not acceptable;

on the other hand, they are liable to compensate the claimant. But this

court is not persuaded by the above ruling. The very reason for the

deceased getting down the lorry is because he travelled in the lorry.

1     2013 (2) ALT 289
2     2016 ACJ 2694
                                                                    TR, J

Till he completely alights the lorry, he continues to be in the same

capacity as he was during his travel in the lorry i.e. gratuitous

passenger.

In this case, the victim was in the lorry when the driver exhibited

his negligence, unlike in the first cited ruling wherein the victim was not

in the vehicle by the time the driver showed his negligence. In my

opinion, the capacity of travel of the victim at the time of the driver

exhibiting negligence is the crucial factor for deciding the status of the

victim. Hence, not persuaded by the rationale in the said ruling,

this Court does not rely on the said judgment. Hence, no liability can be

fixed on the insurer. In any case, for the reasons already stated,

the owner of the vehicle would be liable for compensation.

With regard to the quantum of compensation, it can be seen that

the appellant sustained one fracture injury towards which Rs.10,000/-

can be awarded. The medical bills are to an extent of Rs.80,000/-.

The nature of the injury, the discharge summary of Medicity hospital and

the medical certificate issued by MGM hospital would suggest that the

appellant might have incurred the said expenditure in all probability.

The evidence of P.W.3, who is the Professor of Orthopedic in Medicity

Medical College, Medchal, shows that the appellant was given treatment

of regular dressing and K-wire was applied, a rush nail was inserted into

fibula and a plaster was also applied to the appellant. The fracture was

not united and was infected and the treatment was also given for the said

infection. The evidence of P.W.3 also shows that the appellant has to

undergo another complicated operation for union of fracture and that the

same would cost about Rs.1,00,000/-. Hence, in view of the above

evidence, Rs.1,00,000/- is awarded towards future expenses for future

surgery of the appellant.

TR, J

With regard to the disability, P.W.3 does not explain the nature of

the disability but he speaks that he assessed the appellant's disability at

40% and issued Ex.A-6. The appellant sustained shortening of more than

two inches of left leg. 20% of disability was assessed for shortening of the

leg and remaining 20% was assessed for the rest of the fracture, which is

not comprehensible.

The appellant is stated to be a student at that time hence,

his income cannot be assessed and there is no evidence with regard to

the avocation that the appellant would be taking up after his studies.

It is likely that he would be taking up a white collared job, which does

not involve much manual work. However, considering the disability,

Rs.30,000/- is awarded towards loss of future amenities of life, though

no compensation is awarded towards loss of future income of the

appellant. Hence, an amount of Rs.2,20,000/- is awarded to the

appellant.

In the result, the appeal is partly allowed and the judgment of the

lower Court is set aside awarding compensation of Rs.2,20,000/- to the

appellant. The 1st respondent shall satisfy the said award. The judgment

of the lower Court, so far as dismissing the claim of the appellant against

second respondent is concerned, is confirmed.

As a sequel, miscellaneous petitions, if any, stand closed. There

shall be no order as to costs.

________________________ JUSTICE SMT. T.RAJANI Date: 23.02.2017 Note: L.R. copy to be marked Yes/No.

LSK