S Muralimohan, Secunderabad vs Santhosh, Gulbarga, Karnataka ...
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     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.NO.15 OF 2015

JUDGMENT:

Heard learned counsel Sri S.Sudarshan Reddy for the

appellant/claimant and the learned counsel Sri. V.Srinivasa Rao

for the respondent no.2-insurance company.

2. The present appeal has been filed by the appellant-claimant

dissatisfied with the award passed by the I Additional Chief Judge,

City Civil Court, Secunderabad (for short, 'Tribunal') in O.P.No.284

of 2008, dated 18.07.2014 and thereby seeking for enhancement of

compensation.

3. The brief factual matrix of the present appeal is as under.

4. On 10.03.2008, claimant along with his colleague Mr.

Ravinder Reddy hired a car bearing registration No.KA-03/B-2980

to go to Gulbarga from Bangalore and on the way at around 4.00

p.m., near Shapur town, lorry bearing registration No.KA-32-8452

driven by its driver in a rash and negligent manner with high speed

and dashed their car. As a result, he sustained multiple fracture

injuries, immediately he was shifted to local hospital and later

shifted to Yashoda Hospital at Malakpet, Hyderabad for better LNA,J MACMA No.15 of 2015

treatment. The Police, Shapur Police Station registered a case

against the driver of the crime vehicle in Crime No.29/2008 under

Section 338 of IPC and investigated into the case.

5. The appellant/claimant filed the claim petition against the

owner of the offending vehicle and insurance company under

Section 166 of Motor Vehicles Act, 1988 before the MACT claiming

compensation of Rs.5,00,000/- for the injuries sustained by him in

the motor accident.

6. The claimant claimed that he was a Lecturer by occupation

in Vision PU College at Bangalore, aged 31 years as on the date of

accident, hale and healthy and was getting an income of

Rs.25,000/- per month.

7. The respondent No.1 herein, who is owner of the offending

vehicle, remained ex-parte.

8. The 2nd respondent-Insurance Company filed counter

denying the allegations made in the claim petition including the

manner of accident, age, avocation, injuries sustained by the

appellant and expenditure incurred towards treatment, the validity

of the driving license of the driver of the crime lorry and further LNA,J MACMA No.15 of 2015

contended that claim petition is bad for non-joinder of owner of the

car involved in the accident and prayed to dismiss the claim

petition.

9. Basing on the above pleadings, the MACT had framed the

following issues:

i) Whether the accident occurred owing to the rash and negligent driving of lorry bearing No.KA-32/8452 ?

ii) Whether the petitioner is entitled to any compensation, if so, what amount and against whom ?

iii) To what relief ?

10. In order to substantiate the case, the claimant-injured

examined himself as P.W.1 and Dr.Arun Kumar, Orthopedic

Surgeon was examined as PW2, and P.W.3-Ch.V.Krishna Reddy,

administrator in Vision PU College, and Exs.A1 to Ex.A13 and

Exs.X1 and X2 were marked on his behalf. On behalf of

respondent No.2-insurance company, R.W1 was examined and

Exs.B1 & B2 were marked.

11. The MACT, on due consideration of the material and

evidence placed on record, came to conclusion that the accident

took place due to the rash and negligent driving of the driver of LNA,J MACMA No.15 of 2015

offending vehicle and awarded compensation to the claimant as

under:

      Sl.No.                       Head                        Compensation awarded

      1             Medical expenses                           Rs. 1,27,937/-

      2             Loss of earnings                           Rs. 1,52,000/-

      3             Pain and suffering                         Rs.   10,000/-

      4             Extra nourishment                          Rs. 10,000/-

      5             Transport charges                          Rs.   5,000/-

                                          Total:               Rs. 3,04,937/-

12. The owner of the vehicle alone i.e., respondent no.1 was held

to be liable to pay the said compensation with proportionate costs

and interest @ 7.5% per annum from the date of the petition till

the date of realization.

13. During the course of hearing of appeal, learned counsel for

appellant/claimant submitted that the MACT failed to appreciate

the evidence of P.Ws.1 to 3 and exhibits, and awarded meagre

amount of compensation. He submitted that the claimant

sustained right thigh fracture and left forearm fracture, which was

proved by the claimant by examining P.W.2, but the MACT has

awarded meagre amount towards pain and suffering. He further LNA,J MACMA No.15 of 2015

submitted that appellant is unable to move from his bed and do

any work, due to which, his future earnings and amenities were

completely affected and suffered mental disability. He further

submitted that MACT ought to have seen that no evidence is

placed by the insurance company to show that owner of the crime

vehicle violated policy conditions. He further submitted that MACT

erred in not following the guidelines laid down by the Hon'ble

Supreme Court and High Courts in exonerating insurance

company from its liability. In support of the said contention,

learned counsel for the appellant relied upon the decisions in

National Insurance Co. Ltd., vs. Swaran Singh and others 1 ,

Mukund Dewangan vs. Oriental Insurance Co.Ltd., 2 and

Oriental Insurance Co. Ltd., vs. Anita and others 3.

14. On the other hand, learned counsel for the insurance company

would submit that on due consideration of the evidence and material

placed, the Hon'ble MACT has rightly awarded the compensation and

no case is made out to interfere with the award passed by the MACT

and therefore, prayed for dismissal of the appeal against the

insurance company.

(2004) 3 SCC 297

(2017) 14 SC 663

2015 ACJ 143 LNA,J MACMA No.15 of 2015

Consideration:

15. A perusal of the impugned award shows that the Doctor,

who was examined as P.W.2, deposed that the appellant sustained

right thigh fracture and left foreman fracture and on 13.3.2008 left

forearm was operated by plating of both radius and ulna and on

14.03.2008 right thigh bone fracture was operated and further

deposed that surgery was required for removal of implants and it

would cost around Rs.40,000/-.

16. Considering the evidence of P.W.2 and Ex.X1-prescription,

this Court is of the view that appellant is entitled to an amount of

Rs.25,000/- each to fracture injuries, and Rs.40,000/- for further

surgery for removal of implants, which comes to Rs.90,000/-

towards pain, suffering and trauma.

17. Considering the evidence and material placed on record, this

Court is of the view that MACT has rightly awarded the amounts on

various heads and thus, there is no material to interfere with the

award of the MACT under the other heads.

18. With regard to dismissal of the claim against insurance

company is concerned, it is relevant to mention that respondent LNA,J MACMA No.15 of 2015

no.2-insurance contended that driver of the crime vehicle was not

having driving license and in support of the same, respondent

no.2-insurance company examined RW.1 i.e., V.Hemavathi,

Administrative Officer, working in the office of the insurance

company. RW.1 in her evidence deposed that Ex.B2- notice was

issued to the owner of the crime vehicle to furnish the driving

license of the driver who drove the vehicle at the time of the

accident. But, the owner of the vehicle did not produce the details

of driving license of the driver. She further deposed that as seen

from Ex.A2-certified copy of charge sheet, the driver of lorry was

charged for the offence under Section187 of MV Act for not holding

a valid license and therefore, the insurance company is not liable

to pay compensation.

19. Basing on the evidence of RW.1 and other material, the

Tribunal had come to the conclusion that driver of the offending

vehicle was not having driving license as on the date of accident

and thus, violated the terms of Ex.B1-insurance policy and

exonerated the insurance company from the liability.

20. In the light of evidence and the material placed on record,

this Court does not find any reason to interfere with the conclusion LNA,J MACMA No.15 of 2015

arrived at by the Tribunal insofar as driving license of driver of

offending vehicle is concerned.

21. With regard to exoneration of insurance company from its

liability for payment of compensation amount, it is relevant to

mention that the Motor Vehicles Act is beneficial legislation aimed

at providing relief to victims and their families. In Swaran Singh

(supra), the Hon'ble Apex Court held as under:

"107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.

108. Although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also LNA,J MACMA No.15 of 2015

be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent."

22. In the light of decision of Hon'ble Apex Court in Swaran

Singh (supra), in considered view of this Court, the insurance

company has to satisfy the award passed by the Tribunal and

thereafter, the insurance company is entitled to recover the same

from the owner of the offending vehicle.

23. Conclusion:

In view of the above, the compensation amount is re-

calculated as under:

      Sl.No.                     Head                   Compensation awarded

      1          Medical expenses                       Rs. 1,27,937/-

      2          Loss of earnings                       Rs. 1,52,000/-

      3          Pain, suffering and trauma             Rs.   90,000/-

      4          Extra nourishment                      Rs. 10,000/-

      5          Transport charges                      Rs.   5,000/-

                                        Total:          Rs. 3,84,937/-

24. The Appeal is partly allowed. The compensation amount is

enhanced from Rs.3,04,937/- to Rs.3,84,937/-. The enhanced LNA,J MACMA No.15 of 2015

compensation amount shall carry interest at the rate of 7.5% per

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

payable by the respondent no.1. The appellant-insurance

company is directed to first deposit the compensation amount

within a period of six (6) weeks from the date of receipt of copy

of this order and thereafter, the insurance company is entitled

to recover the entire compensation amount from the owner of

the vehicle. On such deposit, the appellant is entitled to withdraw

the entire amount. There shall be no order as to costs.

25. Pending miscellaneous applications if any shall stand closed.

____________________________________ LAXMI NARAYANA ALISHETTY,J Date:07.11.2023 kkm