Telangana High Court

Shaik Ahmed vs Harbinder Singh And Anr on 1 February, 2024

          THE HONOURABLE SMT. JUSTICE K. SUJANA
                      M.A.C.M.A.No.2206 of 2008
JUDGMENT:

Feeling aggrieved and dissatisfied with the dismissal of

O.P.No.606 of 2004 passed by the Motor Accident Claims Tribunal-

cum-V Additional District Judge (Fast Track Court), Nizamabad (for

short 'the Tribunal') vide judgment and decree, dated 10.03.2008, the

appellant preferred the present appeal.

2. The appellant filed the claim petition before the Tribunal under

Section 166(1)(a) of the Motor Vehicles Act, 1988 and Rule 455 of A.P.

Motor Vehicles Rules, 1989, claiming compensation of Rs.3,00,000/-

(Rupees Three Lakhs only) for the injuries sustained by him in the

road accident that occurred on 19.01.2004.

3. Respondent No.1 is the owner of the lorry and respondent No.2

is the Insurer of the said lorry.

4. The facts of the case are that on 19.01.2004 at about 10.45

P.M., the appellant was travelling in the lorry bearing No.AP-1-T-2957,

along with goods, when it reached near Star Point Hotel, Malapalli,

Nizamabad, the driver of the lorry drove it in a rash and negligent

manner with high speed, due to which it turned turtle and the poultry

feed bags fell down on a car and the appellant sustained multiple and

grievous injuries i.e., fracture to his left hand wrist, left shoulder, left

SKS,J MACMA.No.2206_2008 leg, multiple and grievous injuries and also injuries on head, chest,

hands and on other parts of the body. Immediately, the appellant was

shifted to the Government Headquarters Hospital, Nizamabad and

later he was shifted to private nursing home and took treatment and

underwent several operations and a rod was inserted in his left leg and the

appellant incurred more than Rs.1,00,000/- towards medical expenditure

and he is still undergoing treatment. Before the accident,

the appellant was hale and healthy, doing vegetable, fruits and poultry

grains business and earning Rs.10,000/- per month and was

contributing his entire earnings to his family members, who are

dependents upon his earnings. Due to the accident, the appellant lost

his earning capacity and he is not able to attend his regular work as

he sustained permanent disability, as such, he filed O.P. against

respondent Nos. 1 and 2 claiming compensation of Rs. 3,00,000/-

5. Respondent No.1, who is the owner of the crime vehicle,

remained ex parte.

6. Respondent No.2 filed a written statement denying the age,

income and occupation of the appellant, manner of the accident,

nature of the injuries and also health condition of the appellant and

further denied that the person, who drove the crime vehicle at the

material time of accident, was having valid and subsisting driving

license and that respondent No.1, who is the registered owner of the

SKS,J MACMA.No.2206_2008 crime vehicle, was having valid permit and registration certificate to

run the vehicle. It is further contended that the amount claimed by

the appellant in the O.P. for the simple injuries sustained by him is

highly excessive and arbitrary, as such, prayed to dismiss the claim

petition.

7. Based on the above pleadings, the Tribunal framed the following

issues:

1. Whether the accident was due to rash and negligent driving of lorry bearing No. AP-1-T-2957 by its driver?

2. Whether the petitioner is entitled for compensation? If so, to what amount and against which of the respondents?

3. To what relief?

8. In order to prove the claim, the appellant examined himself as

PW1 and also examined the Doctor, who treated him as PW2 and got

marked Exs.Al to A8. Ex.Al is the certified copy of FIR in Crime

No.19 of 2004 of Police Station Traffic, Nizamabad, Ex.A2 is the

certified copy of charge sheet, Ex.A3 is the certified copy of injury

certificate, Ex.A4 is the out-patient ticket, Ex.A5 is the receipt issued

by APVVP, Nizamabad, Ex.A6 is the photocopy of registration

certificate, Ex.A7 is the photocopy of insurance policy and Ex.A8 is the

x-ray film. On behalf of respondent No.2, RW1 was examined and

Exs.B1 and B2 were marked on its behalf. Ex.B1 is the photocopy of

insurance policy and Ex.B2 is the attested copy of statement of Shaik

Ahmed(PW1).

SKS,J MACMA.No.2206_2008

9. The Tribunal on considering the entire evidence, both oral and

documentary has dismissed the claim petition. Aggrieved by the

same, the appellant filed the present appeal.

10. Heard Sri Y.S.Yellanand Gupta, learned counsel appearing on

behalf of the appellant as well as Sri N.S.Bhaskara Rao, learned

Standing Counsel appearing on behalf of respondent No.2-Insurance

Company.

11. Learned counsel for the appellant would submit that the

Tribunal has wrongly came to a conclusion that respondent No.2-

Insurance Company is not liable to pay the compensation to the

appellant and erred in dismissing the claim petition without any

proper reason, though the appellant has proved that he sustained

injuries in the motor vehicle accident that occurred on 19.01.2004.

Hence, he prayed to set aside the order, dated 10.03.2008 passed by

the Tribunal in O.P.No.606 of 2004.

12. On the other hand, learned Standing Counsel for respondent

No.2-Insurance Company would submit that the appellant is a

gratuitous passenger and he is not the owner of goods carrying in the

crime vehicle and no document is filed by the appellant to prove his

ownership over the goods. Therefore, the Tribunal has rightly

dismissed the claim petition and he prayed to dismiss the appeal.

SKS,J MACMA.No.2206_2008

13. Having regard to the rival submissions and material on record,

though it is admitted that the accident was occurred and the appellant

was travelling in the crime vehicle, the Tribunal has dismissed the

claim petition only on the ground that respondent No. 2 is not liable to

pay the compensation to the appellant, who is a gratuitous passenger.

The Hon'ble Supreme Court in Manuara Khatun and others vs.

Rajesh Kumar Singh and others 1 , held at paragraph No.16 as

follows:

"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), 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 fact that since the victim was traveling in offending vehicle as "gratuitous passenger and hence, the Insurance 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 of 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'."

14. In the above judgment, the Hon'ble Supreme Court observed that

the Insurance Company is liable to pay the compensation to the party.

Since the facts of the present case are similar to the case of Manuara

Khatun (one supra), the Insurance Company is directed to pay the

compensation amount at the first instance to the appellant and then

recover the same from the owner of the vehicle.

2017 (4) SCC 796

SKS,J MACMA.No.2206_2008

15. As regards the quantum of compensation, PW1 filed Ex.A1/FIR

in Crime No 19 of 2004, Ex.A2/charge sheet and Ex-A3/injury

certificate which shows that the accident occurred on 19.01.2004 and

the appellant sustained injuries. To prove the injuries sustained by

him in the accident, the appellant filed Ex.A4/out-patient ticket,

Ex.A5/receipt issued by APVVP, Nizamabad and Ex.A8/x-ray film and

he also examined Doctor viz., Dr. M.Raghuveer as PW2. A perusal of

Ex.A3/injury certificate discloses that the appellant sustained one

simple injury and one grievous injury and he was admitted in the

hospital on 18.01.2004 and discharged on 22.01.2004. In his

evidence, PW2 deposed that he examined appellant/PW1 and found

blunt injury on left shoulder and fracture of proximal phalanyx of left

fourth finger. He further deposed that PWI was admitted in

orthopedic ward and taken x-ray of left wrist joint/Ex.A8 which shows

fracture.

16. As the appellant suffered one grievous injury and one simple

injury, he is entitled to Rs.25,000/- and Rs.5,000/- under the head

pain and suffering. Further, as per Ex.A3/injury certificate, the

appellant was admitted in the hospital on 18.01.2004 and discharged

on 22.01.2004 and later the appellant was shifted to private nursing

home and took treatment and underwent several operations and a rod

was inserted in his left leg, however no medical bills were filed by the

appellant to prove the expenses incurred by him. Since the appellant

SKS,J MACMA.No.2206_2008 suffered a fracture Injury, he is awarded Rs.10,000/ towards medical

expenses and Rs. 25,000/- is awarded towards transportation charges

and extra nourishment. Further, the appellant was doing vegetable,

fruits and poultry grains business and earning Rs.10,000/- per

month, but no document is filed by him to prove the same. As the

appellant suffered fractures, he would not have attended his regular

duties for six months, therefore, taking the income of the appellant at

Rs.5,000/- per month, he is entitled to Rs.30,000/- towards loss of

earnings. Further, an amount of Rs.5,000/- is awarded towards

Damage to clothes.

17. In the light of the above mentioned discussion, the appellant is

entitled to the following amounts:

                 Heads                                 Amounts


      Pain and suffering (one grievous                  Rs.30,000/-
      injury and one simple injury)              (Rs.25,000/- + Rs.5000/-)

                Medical expenses                       Rs. 10,000/-

            Transportation and extra                   Rs.25,000/-
                 nourishment

          Loss of temporary earnings                   Rs.30,000/-


                Damage to clothes                      Rs. 5,000/-

                     Total                            Rs.1,00,000/-

                                                                                 SKS,J
                                                                    MACMA.No.2206_2008

18. Accordingly, the M.A.C.M.A.No.2206 of 2008 is allowed in part

by awarding Rs.1,00,000/- together with interest at 7.5% p.a. from the

date of petition till the date of realization. However, following the

doctrine 'pay and recover', the Insurance Company-respondent No.2 is

directed to pay the compensation amount to the appellant, at the first

instance and thereafter recover the same from the owner of the

offending vehicle i.e., respondent No.1 without initiating any separate

proceedings. Time to deposit the compensation is one month from the

date of receipt of a copy of this judgment. On such deposit, the

appellant is permitted to withdraw the entire compensation amount

without furnishing any security. There shall be no order as to costs.

As a sequel, miscellaneous petitions, pending if any, shall stand