Telangana High Court

Abdul Waseem vs Shaik Khaleel And Another on 7 November, 2023

Bench: Laxmi Narayana Alishetty

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.NO.154 OF 2015

JUDGMENT:

Heard learned counsel Sri P.Radhive Reddy for the appellant

and learned counsel Sri V.Sambasiva Rao for insurance company

for the respondent no.2.

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

dissatisfied with the award passed by the Chairman, Motor

Accidents Claims Tribunal (District Judge) at Nizamabad, (for

short, 'MACT') in O.P.No.274 of 2010, dated 17.11.2014 and

thereby seeking for enhancement of compensation.

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

4. On 01.01.2010, at about 6.30 am, while the appellant and

other passengers travelling from Hyderabad to Nirmal in Tata

Sumo vehicle bearing registration No.MH-32-C-0551 and when

Tata Sumo reached shivar of Perkit village of Armoor Mandal,

driver of Tata Sumo drove the said vehicle in rash and negligent

manner at high speed on the wrong side of the road and dashed

against one lorry which was coming in opposite direction. Due to

which, the appellant sustained injury on right ear, fracture of back LNA,J MACMA No.154 of 2015

bone, damage to lever, injury on face, head and other parts of the

body. Immediately he shifted to Amrutha Laxmi Multi Specialty

Hospital, Nizamabad. The Police, Armoor Police Station registered a

case in Crime No.1/2010 against the driver of the offending vehicle

and investigated into the case.

5. The appellant filed the claim petition against the owner of

the offending vehicle and insurance company under Section 163-A

of the Motor Vehicles Act read with Rule 455 of A.P.M.V.Rules,

1989 before the MACT claiming compensation of Rs.1,00,000/- for

the injuries sustained by him in the accident.

6. The claimant claimed that she was aged about 21 years as

on the date of accident, hale and healthy and pursuing B.Tech and

doing business and earning Rs.10,000/- per month. Due to

injuries suffered, he is unable to work and attendhis regular duties

and became dependent on others.

7. The respondent No.1, the owner of the offending vehicle

remained ex-parte.

8. The 2nd respondent-Insurance Company filed counter

denying allegations made in the claim petition including the LNA,J MACMA No.154 of 2015

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

appellant and expenditure incurred towards treatment. It was

further contended that driver of the offending vehicle was not

having valid driving license and finally, prayed for dismissal of the

claim petition.

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

following issues:

i) Whether the accident has taken place due to rash and negligent driving of Tata Sumo bearing No.MH-32- C-0551 by its driver ?

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

iii) To what relief ?

10. In order to substantiate the case, on behalf of the claimant-

injured, P.Ws.1 and 2 were examined and Exs.A1 to A8 were

marked. On behalf of the insurance company, R.Ws.1 & 2 were

examined and Ex.B1 to B6 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.154 of 2015

offending vehicle and awarded a sum of Rs.35,000/- towards

compensation to the appellant along with interest @ 7.5% per

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

proportionate costs. The claim against the respondent no.2

insurance company is dismissed. The owner of the offending

vehicle i.e., respondent No.1 alone was liable to pay the said

compensation within a month from the date of this order.

12. During the course of hearing of the appeal, learned counsel

for appellant submitted that the MACT ought to have considered

granted the compensation as prayed due to grievous injuries

sustained by the appellant. Further, the MACT erred in

exonerating the insurance company and fixing the liability against

the owner of the vehicle. He further submitted that MACT also

erred in awarding meagre amounts towards compensation for pain

and suffering, medical expenses, extra nourishment and

transportation and finally prayed for enhancement of

compensation.

13. The learned counsel for insurance company submitted that

the MACT has rightly awarded the compensation towards injuries

sustained by the claimant and the ground raised by the appellant LNA,J MACMA No.154 of 2015

are untenable and no case is made out warranting interference by

this Court with the impugned award passed by the MACT and

prayed for dismissal of the appeal.

Consideration:

14. With regard to the compensation, the MACT on considering the

evidence and material placed on record had awarded the following

amounts:

i) Injury, pain and suffering:

In so far as the quantum of compensation towards injury,

pain and suffering, though the appellant has not examined the

Doctor, who treated him with regard to the injuries suffered by

him, the MACT had considered the fact that appellant suffered

injuries and taking treatment and awarded an amount of

Rs.20,000/- towards injury, pain and suffering.

ii) Medical expenses:

The MACT on considering Ex.A4-ultrasound scanning report

of appellant, Ex.A5-laboratory report, Ex.A6-medicall bills for an

amount of Rs.7,241/- and Ex.A8-X-ray report, had granted a sum

of Rs.10,000/- towards medical expenses.

LNA,J MACMA No.154 of 2015

15. In considered view of this Court, the MACT had awarded just

and proper compensation to the appellant. The appellant failed to

make out any valid ground and further, there is no material on

record warranting this Court to interfere to enhance the

compensation amount.

16. The other contention raised by the learned counsel for

appellant with regard to dismissal of the claim against insurance

company is concerned, it is relevant to mention that respondent

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, who is employee of

respondent no.2-insurance company and he deposed that driver of

respondent no.1 was not possessing driving license to drive the

vehicle at the time of accident. RW.1 further deposed that during

investigation, the investigating officer found that driver of crime

vehicle was not possessing driving license and he was charge

sheeted for the offence under Section 181 of MV Act. Insurance

company got issued legal notices to the driver and owner of the

vehicle, but they did not respond. Exs.B1-copy of insurance policy,

Ex.B2-C.C. of charge sheet, Ex.B3-CC of legal notice, Ex.B4-postal LNA,J MACMA No.154 of 2015

receipts, Ex.B5-returned postal cover of respondent no.1 and

Ex.B6-returned postal cover sent to driver were marked through

the evidence of RW.1.

17. In support of the said contention, insurance company got

examined R.W.2, who is the investigating officer. P.W.2 deposed

that he filed charge sheet against the driver of crime vehicle for the

offence under Section 181 of MV ACT for not possessing the driving

license at the time of the accident.

18. Basing on the evidence of RWs.1 and 2 and other material,

the Tribunal has come to 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.

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

this Court does not find any reason to interfere with the conclusion

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

offending vehicle is concerned.

20. With regard to exoneration of insurance company from its

liability for payment of compensation amount, the Motor Vehicles

Act is beneficial legislation aimed at providing relief to victims and LNA,J MACMA No.154 of 2015

their families. In National Insurance Co. Ltd., vs. Swaran Singh

and others 1, 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 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."

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

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

(2004) 3 SCC 297 LNA,J MACMA No.154 of 2015

company has to first 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.

22. In the result, the award passed by the MACT is affirmed.

However, dismissal of the claim petition against the 2nd

respondent-insurance company is set aside and thus, the appeal is

partly allowed. The respondent no.2-insurance company is

directed to deposit the compensation amount awarded by the

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