Devireddy Venkateswar Reddy vs A. Narsimha Rao And 2 Others
2023 Latest Caselaw 2933 Tel

     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                  M.A.C.M.A No.3046 of 2011

JUDGMENT:

Being not satisfied with the quantum of

compensation awarded and the exoneration of the 3rd

respondent/Insurance Company from the liability of paying the

compensation vide order and decree dated 29.07.2009 passed

in M.A.T.O.P.No.101 of 2002 by the Chairman, Motor Accident

Claims Tribunal (V Additional District Judge) (Fast Tract

Court), Khammam, the appellant/petitioner preferred the

present appeal.

2. For convenience, the parties hereinafter will be

referred to as they are arrayed before the Tribunal.

3. Brief facts of the case are that on 27.04.2001 at

about 6.30 p.m., the petitioner was hit by a Tractor and Trailor

bearing No.AP-20F-1480 & 1481. Due to this, the petitioner

sustained fracture injuries. On a complaint, Police Enkur,

have registered a case in Cr.No.35 of 2001 under Section 337

of I.P.C. against the driver of the crime Tractor and Trailor.

Hence, he filed the claim petition claiming compensation of

Rs.1,00,000/-.

                                2                                   RRN,J
                                                    MACMA No.3046 of 2011

4. Before the Tribunal, respondent No.1/driver and

2nd respondent/owner of the crime Tractor and Trailor, filed a

common counter denying the allegations made in the petition.

5. Respondent No.3/Insurance Company filed a

counter denying the allegations made in the claim petition.

They mainly contended that the driver of the crime Tractor and

Trailor was not possessing a valid driving license and the

crime vehicle was not road worthy to play at the time of the

accident.

6. Respondent No.3/Insurance Company also filed an

additional counter by contending that the petitioner was an

unauthorised passenger travelling in the goods vehicle/tractor

and trailor at the time of the accident. Accordingly, prayed to

dismiss the O.P.

7. To prove his case, the petitioner examined PWs.1 to

4 and got marked Exs.A1 to A6 and Ex.C1. On behalf of

respondent No.3, RWs.1 and 2 were examined and marked

Ex.B1.

8. After considering the claim and the counter filed by

the respondents, and on evaluation of the evidence, both oral 3 RRN,J MACMA No.3046 of 2011

and documentary, the Tribunal has answered issue No.1 in

favour of the petitioner that the accident was the result of rash

and negligent driving of the Tractor and Trailor bearing No.AP-

20F-1480 & 1481 and the O.P. was partly awarded

compensation of Rs.40,800/- with interest @ 7.5% per annum

payable by the respondents No.1 and 2 only while dismissing

the claim against the 3rd respondent/Insurance Company

observed as follows:

"The testimony of P.W.1, the claim petitioner and PW.4, the eyewitness to the accident and Ex.A1/FIR and Ex.A2/chargesheet also make it very cristal clear that accident was occurred when the driver of the tractor trailor drove the same in a rash and negligent manner with high speed when PW.1 was alighting from the tractor. Ex.B1/Insurance policy shows that the tractor trailor is a goods vehicle. Naturally the seating capacity of tractor is only one i.e. the driver as such no others are to be permitted to be travel on the tractor." The Tribunal relied upon in the case of National Insurance Co. Ltd. Vs. Bramarambika & others, 2006 ACJ 671 (Karnataka High Court) it was held that:

"Motor Vehicles Act, 1988, Section 147(1) and Rules of the Road Regulations, 1989, regulation 28 - Motor Insurance - Tractor - passenger risk - Liability of Insurance Company - Permitted seating capacity of tractor is only that of driver - Regulation 28 of Rules of the Road Regulations prohibit carrying of any person on the mudguard of a tractor - Whether Insurance Company is liable for the death of a person who was travelling on the mudguard of a tractor - Held: no."

In view of the above proposition of law since the evidence of PWs 1 and 2 and RWs 1 and 2 coupled 4 RRN,J MACMA No.3046 of 2011

with Exs.A1 and A2, and Ex.B1 Policy makes it quite unequivocal that the claim petitioner was unauthorized passenger on the crime tractor at the time of the accident, as such, respondent No.3/Insurance Company is not liable to pay compensation."

9. Learned counsel appearing for the petitioner had

contended that the Tribunal was at fault in coming to the

conclusion that the respondent No.3/Insurance Company was

not liable to pay compensation as the petitioner was a

gratuitous passenger. He further contended that the Tribunal

did not take into consideration the medical expenses incurred

by the petitioner even though the petitioner has adduced

evidence to that effect and that the Tribunal did not grant any

amount towards pain and suffering. He relied upon the

judgment of the Hon'ble Supreme Court in Manuara Khatun

& others Vs. Rajesh Kr. Singh & others 1.

10. Learned counsel for respondent No.3/Insurance

Company contended that the Tribunal was justified in

dismissing the claim against them as the petitioner was a

gratuitous passenger on the goods vehicle i.e. tractor and no

Civil Appeal No.3047 of 2017 dt.21.02.2017 5 RRN,J MACMA No.3046 of 2011

interference is required by this Court. Accordingly, prayed to

dismiss the appeal.

11. Heard both sides and perused the record.

12. At the outset, it has to be decided whether

respondent No.3/Insurance Company is liable to pay

compensation or not.

13. Upon bare reading of the impugned order, it is

observed that the Tribunal found that the 3rd

respondent/Insurance Company is not liable to pay

compensation as the petitioner was an unauthorised passenger

on the crime tractor. But, a perusal of the judgment of the

Hon'ble Supreme Court in Manuara Khatun (supra) held as

under:

"16) This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance 6 RRN,J MACMA No.3046 of 2011

Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".

The facts in the above case are squarely applicable to the case

on hand. Applying the above decisions to the present case,

this Court is of the view that the 3rd respondent/Insurance

Company can be directed to pay the compensation amount to

the appellant/petitioner and then recover the same from the

respondent No.2/owner of the vehicle.

14. Now, coming to the quantum of compensation, it is observed

from the impugned order that the petitioner got examined PW.2/Dr.

Seetaiah and PW.3/Dr. T. Madan Singh and filed Ex.A3 Medical

Certificate, Ex.A4 medical bills numbering 19, Ex.A5 medical

prescriptions four in number. Ex.A3 Medical certificate was issued

by Government Area Hospital, Kothagudem, shows that petitioner

sustained the following injuries:

i) Laceration 5x1x1cm on right scrotum - simple 7 RRN,J MACMA No.3046 of 2011

ii) Contusion 15x15 cm on upper part of thigh - grievous

Ex.A3 contains the reference of X-ray and the X-ray report of

petitioner underwent by him at Government Hospital, Khammam, is

appended to Ex.A3 and the same shows that PW.1 sustained

fracture superior pubic rami.

15. The Tribunal granted Rs.2,000/- to the first simple injury, and

a sum of Rs.20,000/- is awarded to the fracture of the superior

pubic ramus left. However, this Court grants Rs.10,000/- to the

simple injury. The Tribunal rightly awarded Rs.20,000/- to the

fracture injury and Rs.4,000/- towards medical bills, which needs

no interference. The Tribunal did not grant any amount towards

pain and suffering. However, this Court is inclined to grant the

petitioner a sum of Rs.10,000/- towards pain and suffering.

Petitioner claimed that he was earning Rs.100/- per day through his

mason work, but except for his self-serving testimony, he has not

placed any authenticate material to show that he was mason and

earning Rs.100/- per day. The Insurance Company, though denied

the avocation and income of the petitioner, it has not adduced any

positive or rebuttal evidence to prove its contentions. In such

circumstances, considering the age of the petitioner, the Tribunal

has fixed Rs.80/- per day as the same was the minimum wage 8 RRN,J MACMA No.3046 of 2011

prescribed and paid by the Government to the workers under the

Food for work programme. Thus, the Tribunal awarded a sum of

Rs.4,800/- under the head loss of earnings for two months.

However, this Court is inclined to enhance the petitioner's income

from Rs.80/- to Rs.150/- per day and monthly incomes to

Rs.4,500/- and the petitioner is entitled to Rs.9,000/- towards loss

of earnings for two months.

16. In view of the foregoing reasons, this appeal deserves to

be allowed in part.

17. Accordingly, the M.A.C.M.A. is allowed in part by

enhancing the compensation amount of Rs.40,800/- to

Rs.53,000/- (Rs. Fifty three thousand only) with costs and

interest at 7.5% from the date of petition till the date of

realisation. Respondents No.1 to 3 are directed to deposit the

above said amount along with interest and costs within two

months from the date of receipt of a copy of this judgment. The

petitioner is permitted to withdraw the entire amount upon

such deposit. The 3rd respondent/Insurance Company is

directed to deposit the above said amount at the first instance

and then recover the amount from the 2nd respondent/owner 9 RRN,J MACMA No.3046 of 2011

of the vehicle, in accordance with law. There shall be no order

as to costs.

As a sequel of which, miscellaneous petitions, if any

pending, shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 06th day of October 2023 BDR