Telangana High Court

Smt.Shameem Begum vs Shaik Khaleel And Anr on 7 November, 2023

Bench: Laxmi Narayana Alishetty

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.NO.470 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.276 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 fracture of both legs, head injury LNA,J MACMA No.470 of 2015

and other parts of the body and immediately she shifted to

M.J.Hospital, Armoor and later, she was admitted in Sri Sai

Tirumala Orthopedic 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.3,00,000/- for

the injuries sustained by her in the accident.

6. The claimant claimed that she was aged about 28 years as

on the date of accident, hale and healthy and working as Teacher

in Government Primary School at Bhainsa. Due to this accident,

she is unable to work and attend her 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.470 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 to 3 were examined and Exs.A1 to A10 and Ex.X1

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.470 of 2015

offending vehicle and awarded a sum of Rs.1,57,000/- 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.470 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:

a. According to the evidence of P.W.3-Doctor, he treated the

appellant/injured and found two fractures and three lacerated

wounds i.e., 1) supercondylar fracture of left femur, 2) superacondyle

fracture of the right femur, 3) forehead lacerated wound, 4) lacerated

wound at fore head and 5) lacerated wound on left hand. P.W.3

deposed that supracondylar plates were fixed for injury nos.1 and 2

and he issued Ex.A2-wound certificate, Ex.A3-discharge certificate,

Ex.A5 laboratory reports, and Ex.A10-X-ray films (2) relates to

claimant. He further deposed that claimant requires further surgeries

to remove the implants, which costs Rs.30,000/-. In his cross-

examination, nothing is elicited to discard his testimony. However, LNA,J MACMA No.470 of 2015

the MACT erred in awarding lumpsum of Rs.70,000/- towards

injuries, pain and sufferings.

b. In considered view of this Court, taking into consideration the

evidence of P.W.3-Doctor and Exs.A2, A3, A5 and Ex.A10 and injuries

sustained by the appellant, appellant is entitled to Rs.1,00,000/-

towards injuries, pain and suffering as against Rs.70,000/- awarded

by MACT.

ii) Loss of earnings:

a. With regard to the loss of earnings of the appellant, the MACT

held that considering the nature of injuries sustained by the

appellant, it can be safely concluded that appellant might be away

from her regular work for a period of two months and considering

Ex.A8 salary certificate of appellant, which reveals that appellant is

working as Govt. Teacher and drawing monthly salary of Rs.14,190/-,

awarded Rs.28,000/- towards loss of earnings.

b. Considering the fracture injuries and lacerated wounds

sustained by the appellant and Exs.A2, A3, A5 and Ex.A10, this

Court is the view that, the appellant might have suffered with injuries

at least four months, for which period she could not have attended to

her regular works, therefore, she is entitled to four months salary LNA,J MACMA No.470 of 2015

towards loss of earnings, which would come to Rs.56,000/- as against

Rs.28,000/- awarded by MACT.

iii) Future medical expenses towards removal of implants:

a. With regard to the expenses towards removal of implants, the

MACT has awarded an amount of Rs.15,000/-.

b. Considering the fracture injuries sustained by the appellant, in

considered opinion of this Court, appellant is entitled to an amount of

Rs.20,000/- towards expenses for removal of implants as against

Rs.15,000/- awarded by MACT.

15. With regard to dismissal of the claim against insurance

company, it is relevant to mention that respondent no.2-insurance

contended that driver of the crime vehicle was not having driving

license. In support of the same, respondent no.2-insurance

company examined RW.1, who is an 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 LNA,J MACMA No.470 of 2015

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-legal notice, 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.

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

examined R.W.2, who is the Investigating Officer. P.W.2 deposed

that the police 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.

17. 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.

18. 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.470 of 2015

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

offending vehicle is concerned.

19. 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 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.

(2004) 3 SCC 297 LNA,J MACMA No.470 of 2015

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."

20. 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 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.

21. So far as the amounts awarded by the MACT on other heads,

the same shall remain intact.

Conclusion:

22. In considered view of this Court, the amount of compensation

is re-calculated as under:

      Sl.No.                         Head                       Amount awarded
      1          Injury, pain and suffering                     Rs.1,00,000/-
      2          Medical bills                                  Rs. 38,000/-
      3          Loss of earnings                               Rs. 56,000/-
      4          Future medical expenses for removal of         Rs. 20,000/-
                 implants
      5          Expenses      for    transportation,   extra   Rs.    6,000/-
                 nourishment, attendant charges
                                                Total :         Rs.2,20,000/-
                                                                             LNA,J
                                                             MACMA No.470 of 2015




23.   Accordingly,   the   Appeal        is   partly   allowed    enhancing

compensation from Rs.1,57,000/- to Rs.2,20,000/-. The enhanced

amount shall carry interest at the rate of 7.5% per annum from the

date of the petition till the date of realization, payable to the

appellant. The respondent no.2-insurance company is directed

to 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 i.e.,

respondent no.1. On such deposit, the claimant is entitled to

withdraw the entire compensation amount. There shall be no

order as to costs.

24. Pending miscellaneous applications if any shall stand closed.