Telangana High Court
Hdfc Ergo General Insurance Co. Ltd., vs Bheemankar Nanaji on 30 January, 2025
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.3132 of 2017
JUDGMENT:
1. Aggrieved by the Judgment passed by the Chairman, Motor
Accidents Claims Tribunal -cum- III Additional District Judge,
Asifabad (for short, 'the Tribunal') in O.P.No.121 of 2016, dated
20.07.2017, the 3rd respondent/Insurance Company in the said
O.P. preferred the present Appeal seeking to set-aside the order of
the learned Tribunal
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the Tribunal.
3. The brief facts of the case are that the petitioner, who is an
injured, filed a petition under Section 166 (1)(c) & 163-A of the
Motor Vehicles Act, 1988 claiming compensation of Rs.5,89,151/-
for the injuries sustained by him in a road accident that occurred
on 22.03.2016. As stated by the petitioner/injured, on
22.03.2016, when he was proceeding on motorcycle bearing No.AP-
01-AF-7655 as a pillion rider and when reached Vinay Garden of
Kaghaznagar at about 7.00 p.m., a Tata Magic Auto bearing No.AP-
01-TV-3649, which was driven by its driver in a rash and negligent
manner at high speed, dashed the motorcycle of the petitioner. As
a result, the rider of the motorcycle died on the spot and the
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petitioner sustained Head injury and other injuries all over body.
Immediately, he was taken to Government Hospital, Sirpur Town
and after First Aid, he was taken to Government Hospital at
Mancherial and later took treatment in Sunrise Hospital,
Karimnagar and was admitted in Star Hospital, Banjara Hills,
Hyderabad, as inpatient for a period of 1 week and after
undergoing surgery, he was again admitted in the same Hospital
for a period of 4 days.
4. It is stated by the petitioner/injured that he was aged 24
years and was working as daily wage earner apart from doing
cultivation and used to earn Rs.12,000/- per month. Due to
fracture injuries sustained by him in the alleged accident, he is
suffering from acute pain and unable to attend his daily work and
hence filed claim petition seeking compensation of Rs.5,89,151/-
against the respondents, who are the driver, owner and insurer of
subject Tata Magic Auto bearing No.AP-01-TV-3649 involved in the
accident.
5. Before the Tribunal, respondent Nos.1 & 2/driver and owner
of the crime Tata Magic Auto bearing No.AP-01-TV-3649 remained
ex-parte. Respondent No.3/Insurance Company filed its counter
contending that the petitioner/injured has to be prove his age,
occupation, loss of income due to the alleged accident and also
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contended that respondent No.1 was not having valid driving
license to drive the crime vehicle at the time of accident and
thereby violated the terms and conditions of insurance policy. As
such, respondent No.3 is not liable to pay compensation and that
the compensation claimed is excess and exorbitant and hence,
prayed to dismiss the claim against it.
6. Based on the above pleadings, the learned Tribunal had
framed the following issues:-
i. Whether the petitioner sustained injuries in the
accident that occurred on 22.03.2016 at about
19.00 hours at Vinay Garden of Kaghaznagar?
ii. Whether the said accident was caused due to rash
and negligent driving of Tata Magic Auto bearing
No.AP-01-TV-3649?
iii. Whether the petitioner is entitled to claim
compensation? If so, how much and against which
of the respondents?
iv. To what relief?
7. Before the Tribunal, the petitioner/injured examined himself
as PW1, got examined PW2-Doctor and got marked Exs.A1 to A13
on his behalf. As respondent Nos.1 & 2 remained ex-parte, on
behalf of respondent No.3, no oral or documentary evidence was
adduced.
8. After considering the evidence and documents available on
record, the learned Tribunal had partly-allowed the claim petition
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by awarding a sum of Rs.4,50,000/- towards compensation along
with interest @ 9% per annum from the date of petition till the date
of deposit payable by all the respondent Nos.1 to 3 jointly and
severally. Aggrieved by the same, the 3rd respondent/Insurance
Company in the said O.P. preferred the present Appeal seeking to
set-aside the order of the learned Tribunal.
9. Heard arguments of Sri N.Chandrasekhar Reddy, learned
Counsel representing on behalf of Sri A.Ramakrishna Reddy,
learned Standing Counsel for appellant/Insurance Company and
Sri S.Chandrasekhar, learned counsel representing respondent
No.1/injured.
10. The contentions of the learned Standing Counsel for
appellant/Insurance Company are that the petitioner/injured
failed to examine eye witness to prove the manner of accident. It
also contended that the driver of the crime Tata Magic Auto
bearing No.AP-01-TV-3649 do not possess any sort of driving
license at the time of accident and the owner of the said Auto had
willfully handed over the Auto to the driver who do not possess
valid driving license and committed breach of terms and conditions
of policy. As such, the Insurance Company is not liable to pay any
compensation. It also contended that the Tribunal did not permit
the Insurance Company to lead evidence and that the interest
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awarded on the compensation amount is excess and therefore
requested to reduce the same to 7.5% per annum.
11. On the other hand, learned counsel for the respondent
No.1/injured, who appeared through virtual mode, contended that
the learned Tribunal, after considering all the aspects, had
awarded reasonable compensation and interference of this Court is
not necessary.
12. Now the point that emerge for consideration is,
Whether the order passed by the learned Tribunal requires
interference of this Court?
Point:-
13. This Court has perused the evidence and documents
available on record. The petitioner/injured examined himself as
PW1 and reiterated the contents made in the claim petition and
deposed about the manner of accident and injuries sustained to
him. In order to prove the said injuries, he got examined PW2-
Doctor who is specialist in Neuro Surgery. PW2 in his evidence
deposed that the petitioner was referred to their Hospital (Star
Hospital) from Sunrise Hospital to have better treatment and the
petitioner/injured was diagnosed with left temporal contusion with
ICH and underwent surgery for Head injury and was discharged
from their Hospital on 31.03.2016. PW2 further stated that the
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injuries sustained to the petitioner are grievous in nature. Though
PWs 1 & 2 were cross-examined at length, nothing adverse was
elicited to disbelieve their testimony.
14. It is pertinent to mention that a perusal of the record
discloses that the Billing Manager of Star Hospitals was also
examined on behalf of the petitioner/injured and he stated about
the bills and receipts issued by their Hospital. But his evidence is
not shown in the appendix of evidence.
15. As far as documentary evidence is concerned, Ex.A1 is the
FIR registered by Police of Kaghazanagar Police Station, Adilabad
District in Crime No.27 of 2016 under Sections 304-A and 337 IPC,
who conducted investigation and filed charge sheet under Ex.A3
against the driver of crime Tata Magic Auto bearing No.AP-01-TV-
3649 stating that the petitioner/injured received grievous injuries
due to the rash and negligent driving of the driver of subject Tata
Magic Auto. Ex.A2 is the complaint dated 23.03.2016 given by the
petitioner/injured to the Sub-Inspector of Police, Kagaznagar.
Ex.A4 is the MLC record enclosing wound certificate. Ex.A5 is the
MVI report. Ex.A6 is the Registration Certificate of crime Tata
Magic Auto bearing No.AP-01-TV-3649. Exs.A7 and A8 are the
Hospital bills. Ex.A9 is the CT scan of brain. Ex.A10 are the X-
rays. Ex.A11 are the medical bills. Ex.A12 are the bunch of
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prescriptions of Star Hospital. Ex.A13 is the photograph of the
petitioner/injured.
16. Therefore, from the above oral evidence of PWs1 & 2 coupled
with the documentary evidence referred above, it is clear that there
occurred an accident on 22.03.2016 due to the rash and negligent
driving of the driver of Tata Magic Auto bearing No.AP-01-TV-3649
and the petitioner/injured sustained grievous injuries in the said
accident and underwent treatment in PW2's Hospital. Therefore,
the contention of the learned Standing Counsel for
appellant/Insurance Company that the petitioner failed to prove
the manner of accident in the absence of eye witness is
unsustainable.
17. The other contention of the learned counsel for the appellant
is that as the owner of the crime Auto had willfully handed over the
said Auto to the driver who do not possess valid driving license and
committed breach of the terms and conditions of policy, the
appellant/Insurance Company is not liable to pay compensation to
the petitioner/injured.
18. In this regard, it is relevant to state that though the learned
counsel for the appellant/Insurance Company contended that the
driver of the crime vehicle do not possess valid driving license at
the time of accident, but it had not taken any steps to examine
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RTA Authorities to substantiate their contention except giving mere
suggestions to PW1. It is well settled law that the RTA officials are
the competent persons to adjudicate as to whether a person is
having valid driving license or not. In the present case, the
respondents failed to examine any of the RTA officials to establish
that the driver of the crime vehicle was not holding valid driving
license. Hence, the contention of the learned counsel for the
appellant in this regard is unsustainable. Moreover, the policy
conditions regarding driver not holding valid and effective driving
license at the time of accident cannot be considered as
fundamental breach that had contributed to the cause of accident
to discharge the appellant/Insurance Company from its liability.
In such circumstances, as stated supra, mere absence, fake or
invalid driving license or disqualification of the driver for driving at
the relevant time are not in themselves defenses available to the
insurer against either the insured or the third parties, more
particularly, when no material is placed by the Insurance Company
to substantiate their contention.
19. In view of the above discussion, it is made clear that the
Insurance Company cannot be exonerated from its liability in
paying compensation.
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20. It is further contended that the Tribunal did not give an
opportunity to the appellant/ Insurance Company to lead its
evidence.
21. In this regard, a perusal of docket proceedings of the
Tribunal discloses that the respondent No.3/Insurance Company
was given time from 14.02.2017 to 25.04.2017 to adduce evidence
on its behalf. As they failed to adduce their evidence within the
stipulated time, the Tribunal posted the O.P. for judgment.
Subsequently, on 01.05.2017, respondent No.3/Insurance
Company filed a petition and the same was allowed and the matter
was reopened on 02.05.2017. Later on, after closure of petitioner's
evidence, when the matter is again posted for evidence of
Insurance Company on 13.07.2017, the Insurance Company failed
to examine any witness on its behalf. Hence, the Tribunal posted
the matter for judgment.
22. From the above docket proceedings, it is clear that inspite of
giving ample opportunity to the respondent No.3/Insurance
Company to adduce evidence on its behalf, they failed to utilize the
same and blaming the Tribunal that it failed to give sufficient
opportunity to them. Hence, the contention of the learned
Standing Counsel for Insurance Company that the Tribunal did not
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give an opportunity to lead its evidence is termed to be
unsustainable.
23. The other contention of the learned counsel for the
Appellant/Insurance Company is with regard to awarding excess
interest @ 9% per annum by the Tribunal instead of 7.5% per
annum.
24. A perusal of quantum of compensation in the impugned
judgment shows that the learned Tribunal, in the absence of
documentary proof, assessed the earnings of the petitioner equal to
that of daily wage earner and fixed his monthly income @
Rs.4,000/- and calculated loss of earnings for 6 months which
comes to Rs.24,000/-. The Tribunal also awarded a sum of
Rs.50,000/- towards pain and suffering for the said injuries, a sum
of Rs.10,000/- towards treatment and medical expenses and a
sum of Rs.3,65,821/- towards medical expenses incurred by the
petitioner as per Exs.A7, A8 and A11. Hence the total
compensation to which the petitioner/injured entitled to comes to
Rs.4,49,821/- which was rounded to Rs.4,50,000/-. This Court do
not find any reason to interfere with the finding arrived by the
Tribunal as the same appears to be reasonable.
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25. In so far as interest on the compensation amount is
concerned, this Court, by relying upon the decision of the Hon'ble
Apex Court in Rajesh and others v. Rajbir Singh and others 1,
reduces the rate of interest awarded by the Tribunal from 9% per
annum to 7.5% per annum.
26. In the result, M.A.C.M.A.No.3132 of 2017 filed by Insurance
Company is partly-allowed by reducing the rate of interest awarded
by the Tribunal from 9% per annum to 7.5% per annum. Except
the said finding, the findings arrived at by the learned Tribunal in
all other aspects shall remain same. There shall be no order as to
costs.
27. Miscellaneous petitions pending, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.30.01.2025
ysk
1 2013 ACJ 1403 = 2013 (4) ALT 35
