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Fair
In the Court of MACT-cum-X Addl. Dist. & Sessions Judge,
(Fast Track Court) Visakhapatnam at Anakapalle.
Present:- C. YAMINI, LLM., PGDCA,
VII ADDL. DIST. & SESSIONS JUDGE (FTC) vsp
(FAC) Chairman-MACT-X Addl. Dist. & Sessions Judge
(FTC), Visakhapatnam at Anakapalle.
Monday, the 20 th day of May, 2013
MVOP 107/2012
Between : Doddi Parvateeswara Rao, S/o. Apparao, Hindu, aged 35 years, r/at Bangarammapalem, Sabbavaram Mandal, Visakhapatnam District. … Petitioner. And :
1.U. Demudu, S/o. Demudu, Hindu, aged not known, but major, owner of Auto bearing Regn. No. AP 31 TU 3549, r/at Kapu Tunglam, BHPV Post, Visakhapatnam.
2.M/s. The New India Assurance Co., Ltd., rep. by its Divisional Manager, Regional Office, Pavan Paradise, Opp. Pollocks School, Dwarakanagar, Visakhapatnam. …… Respondents.
This petition coming on this 29-4-2013 before me for final hearing in the presence of Sri M.A. Prasad, Advocate for Petitioner and Sri K.P. Naidu, Advocate for 2nd Respondent and 1st respondent remained exparte and heard the arguments and having stood over for consideration till this day, this Tribunal delivered the following:
O R D E R
1.Petitioner herein filed this petition under sec. 166 of MV Act claiming compensation of Rs.1,50,000/- for the injuries sustained by him in motor accident.
2.The brief facts of the petition are that on 14-7-11 at about 8-45 PM while the petitioner along with 2 other were travelling in an auto bearing No. AP 31 TU 3549 driven by it’s driver in a rash and negligent manner with high speed and at about 9-30 PM, he suddenly applied brakes, and thereby, he lost control over the speed and auto turned turtle and as a result, he sustained fracture of right fibula and other injuries and immediately he was shifted to NRI hospital, Visakhapatnam and due to the accident, petitioner became permanently disabled and by the date of accident by doing labour works, he used to earn Rs.4500/- p.m. and due to accident, the petitioner became unfit to do his labour works and he underwent operation at NRI hospital and steel rods were inserted and he has to spent Rs.15,000/- for removal of rods and petitioner spent Rs.10000/- towards treatment and also spent Rs.3,000/- towards transportation and thereby R.1 being the owner of auto and R.2 being insurer of the Auto are jointly and severally liable to deposit the compensation.
3. R.1 remained exparte.
R.2 filed counter denying all the material petition averments and further contented that even though the policy is issued by R.2, it is subject to terms and conditions and confirmation of compliance of Sec.64 VB of Insurance Act and R.1's driver was not holding valid and effective
Driving Licence to drive auto as on the date of accident i.e., on 14-7-11 and thereby R.1 violated the MV Act and Policy and there is delay of 12 days in filing the police report and it is not
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registered as Medico Legal Case and as such, it clearly reveals that there was no motor accident at all. The case of petitioner is stage managed and for the purpose of getting compensation, a false case was foisted with the connivance of R.1. R.1's auto was planted for the purpose of getting compensation. R.2 specifically denies the involvement of auto bearing No. AP 31 TU 3549 in the accident. The compensation and interest claimed by the petitioner is excessive. R.2 seeks protection under Sec.147, 149 and 170 of MV Act. R.2 failed to follow the mandatory provisions under Sec.134(c) of MV Act and the concerned police failed to follow the mandatory provision under Sec.158(6) of MV Act and claimed to dismiss the petition with costs.
4.Basing on the above pleadings the following issues are settled for trial:
1.Whether the petitioner sustained injuries in a motor accident occurred on 14-7-2011 due to rash and negligent driving of vehicle bearing AP 31 AU 3549 by it’s driver as pleaded by petitioner?
2.Whether the petitioner is entitled for compensation? If so, to what
amount and from which of the respondents? 3.To what relief?
5.On behalf of petitioner P.Ws.1 & 2 are examined and Ex.A.1 to A.7 are marked.. On behalf of respondents, R.Ws.1 & 2 are examined and got marked Exs.B.1, B.2 and X.1 to X.3.
6.Issue No.1:-
Oral evidence of P.W.1 coupled with Ex.A.1 attested copy of FIR reveals that on 14- 7-11 at about 9-30 PM while petitioner was traveling in auto bearing No. AP 31 TU from
Sabbavaram to reach Simhachalam and at that time, the driver of the auto drove the same in a rash and negligent manner with high speed and at about 9-30 PM, he suddenly applied brakes, and thereby he lost control over the speed and auto turned turtle and as a result, he sustained fracture of right fibula and other injuries all over the body. The contents of Ex.A.3 attested copy of
MVI Report reveals, the Motor Vehicle Inspector is of the opinion that the accident is not occurred due to any mechanical defects of the vehicle/Auto. After investigation, the investigating officer filed charge sheet against the driver of auto bearing No. AP 31 TU 3549 showing him as responsible for the said accident. Absolutely there is no evidence to rebut the same. Hence placing reliance upon the oral evidence of P.W.1 and on the contents of Ex.A.1 and on the contents
Ex.A.3 MVI report and on the contents Ex.A.4 attested copy of Charge sheet. I find that the said accident took place due to rash and negligent driving of the driver of the auto bearing AP 31 TU 3549 and petitioner herein is receiving grievous injuries in the said accident. Accordingly the issue
No.1 is settled.
7.Issue No.2:-
Learned counsel for the petitioner contended that the driver of the Auto was having
LMV driving licence and auto is light motor vehicle and as such there are no policy violations and violations if any do not bind on and petitioner, he being the third party to the policy and petitioner
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established that petitioner sustained disability and proved the petition averments and as such petitioner is entitled to claimed compensation from R.1 & R.2.
8.Learned counsel for R.2 filed written arguments and main gist is that petitioner failed to prove his burden that the accident took place due to rash and negligent driving of R.1's auto and R.1's auto is passenger carrying auto and as such, one should possesses Auto Rickshaw endorsement to drive the auto and the driver was holding LMV Driving Licence and as such, he is not entitled to drive auto and on the face of policy, it is clearly mentioned that the driver should possess valid and effective Driving Licence as otherwise R.2 is not liable and thereby R.2 violated
MV Act provisions and Policy and R.2 examined R.W.1 & 2 and got marked Exs.B.1, B.2 and
Exs.X1 to X.3 and thereby further established that R.1 was entrusted the vehicle to the person who is not having valid Driving Licence and thereby R.1 contravened the provisions under Sec.3, 5, 10, 11, 14 and 158 of MV Act and R.1 knowingly and willfully committed breach of terms and conditions of policy by handing over the vehicle to a person who was not holding such a valid and effective driving licence and as such, R.2 is not liable to pay any compensation to the petitioner and Sec.147 deals with limitations of liability of the company, and only permitted persons are entitled to travel in the vehicle and Sec.149 (2)(a)(i) © deals with breach of conditions of the policy and ought to proved the breach of conditions of policy and on this count, R.2 is not liable to pay any compensation. There is delay of 12 days for reporting the crime and no such medico legal case is registered and it reveals that there was no motor accident at all and case of the petitioner is stage managed and for the purpose of getting compensation, a false case was foisted with the connivance of the 1st respondent and auto was planted for the purpose of getting compensation and petitioner colluded with R.1 and foisted false case for the purpose of getting compensation from R.2 and R.2 specifically denies the involvement of Auto in the accident. Hence, R.2 is not liable to pay any compensation and police failed to follow the provisions under sec.158(6) of MV
Act and the Hon'ble Apex Court under it’s Special Extraordinary Powers under Art.136 of
Constitution of India and under peculiar facts and circumstances of that particular case, ordered to pay and recovery and this Tribunal has no such extraordinary powers and as such claimed to dismiss the claim against R.2 with costs.
9. To substantiate his contest R.2 relied on the following decisions reported in,
1) 2009(5) ALT, page 405,
2) 2008 ACJ, page 627,
3) 2006 ACJ 1336,
4) 2008 ACJ Volume-4 2161,
5) 2008 ACJ 654,
6) 2008 ACJ, page 2860,
7) 2009(3) ALT, page 121,
8) 2008 ACJ, page 213,
9) 2010 (5) ALT, page 105,
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10 Evidence of P.W.1 coupled with Ex.A.2 attested copy of wound certificate reveals that in that accident, petitioner herein sustained the following injuries i.e., pain, swelling with tenderness at lower middle 1/3 rd of right fore arm and X Ray reveals fracture right fibula. Evidence of P.W.1 further reveals that by the time of the accident he was doing labour works and used to earn
Rs.4500/- p.m. And due to accident, he became permanently disabled and not in a position to attend his normal duties and due to right fibula fracture, he is unfit to do labour work and lost his earnings.
11.Evidence of P.W.2 Doctor coupled with Ex.A.7 disability certificate reveals that he is working as Professor of Orthopedics in Maharaja University of Medical Sciences of Nellimerla,
Vizianagaram District and he received summons from the court and on 10-11-12 around 6 PM, he examined the petitioner and found the injuries and accordingly issued Ex.A.7 disability certificate and as per Ex.A.7, the percentage of disability is 20% and due to injures as well as such disability, the petitioner is facing difficulty and he admitted in his cross that he has not given any treatment to the petitioner and as per Ex.A.7, petitioner received fracture to fibula and he do not remember whether he issued Ex.A.7 after taking X Ray or not and witness says that petitioner lost functioning of his right leg and the injury is healed and there is board to issue disability certificate in Visakhapatnam.
12.Evidence of P.W.2 Doctor does not reveals that the restriction of movements of petitioner’s right leg and so also the flexion or shortening if any. Under the circumstances disability of the petitioner is taken into consideration 15%. Petitioner herein failed to prove that he is having labour work throughout the year and thereby having constant income of Rs.4,500/- p.m.
throughout the year and as such income of the petitioner is notionally taken into consideration is
Rs.18,000/- p.a. Undisputedly the age of the petitioner is 34 years as per Ex.A.2 wound certificate. As such age of the deceased is taken into consideration as 34 years.
13. Therefore, taking into consideration of the age of the petitioner as 34 years, the multiplier can be applied as '17', income at Rs.18,000/- p.a. and disability at 15%, petitioner herein is entitled to Rs.45,900/- towards his permanent disability and loss of his income.
14. Since petitioner herein sustained one fracture injury and one simple injury at right fore arm, petitioner is entitled to Rs.10,000/- towards pain and sufferance of fracture right fibula and Rs.2000/- for the other injury, since the petitioner failed to establish the nature of the 2nd injury.
15. Evidence of P.W.1 further reveals that he spent Rs.10,000/- towards treatment and
Rs.3,000/- towards transport and requires Rs.15,000/- towards further treatment. But he filed medical bills worth Rs.3,175/- only under Ex.A.6. Considering the nature of injury sustained by the petitioner and the disability, petitioner herein might have spent some amount towards medical
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expenses and he needs some more amounts to medical expenses for pain killers etc.. and as such petitioner herein is granted Rs.5,000/- towards medical expenses already spent by him and also towards future medical expenses.
16. Evidence of R.W.1 is that he is working as A.O. (Legal) in R.2 company and R.2 issued Ex.B.1 policy subject to terms and conditions and the R.1's auto bearing No. AP 31 TU 3549 is passenger carrying transport vehicle and to driver such vehicle, one should possess auto
Rickshaw D.L,,/transport endorsement, but in this case P. Apparao who drove the auto by the time of accident was not having valid and effective D.L. by the date of accident and he was holding only
LMV transport non-transport D.L. by the date of accident i.e., on 14-7-11 and on the face of policy, it is clear that one should possess valid and effective D,L,. and thereby R.1 violated the
Ex.B.1 policy conditions and Sec.3 of MV Act conditions while knowingly entrusting the auto to the driver who is not holding valid and effective D.L. and as per criminal case record, there is delay of 12 days in reporting the crime and accident was occurred on 14-7-2011 and police complaint was lodged at belated stage on 26-7-11 and the reasons mentioned in the FIR for delay is false and created and it is the duty of the Medical Officer where the injured was admitted to intimate the same to the concerned police under Medico Legal Case,. But in this case, no such MLC intimation was given by the hospital where the petitioner was allegedly under gone treatment. This clearly reveals that there was no motor accident at all and the case of the petitioner is stage managed and auto bearing No.AP 31 TU 3549 was planted for the purpose of getting compensation and petitioner and R.1 colluded and filed the false O.P. And R.2 denied the involvement of the above auto in the accident and compensation and interest claimed by the petitioner is excessive and R.2 is not liable to pay any compensation to the petitioner.
17 Evidence of R.W.1 is that he is working as Junior Assistant in RTA Office, VSP and received summons from the court for cause production of certain documents and he is authorized by RTO , VSP to produce the documents as required by the court and also give evidence and
Ex.A.1 is authorization and Ex.X.2 is RC Extract and Ex.X.3 D.L. Extract of one P. Apparao and as per Ex.X.2, the vehicle is registered as auto rickshaw. In order to drive such an auto rickshaw, the driver must possess auto rickshaw endorsement D.L. As per Ex.X.3 the driver Apparao had no specific driving licence to driver auto rickshaw and he has no right of licence to drive auto rickshaw.
18 Thus by examining Rws1 & 2 and by marking Ex.B.2/X3 D.L. Extract of driver Apparao and and Ex.X.2 R.C. Extract and Ex.B.1 policy, R.2 herein established that the crime vehicle is auto and one should possess auto rickshaw DL to drive auto, and the driver Appprao who drove the crime vehicle / auto by the date of accident was not having valid and effective DL i.e., auto rickshaw DL to drive auto and thereby R.1 violated Ex.B.1 policy conditions.
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19.In the decision relied on by the learned counsel for R.2 reported in 2009(5) ALT, page
405, Bajaj Allianz General Insurance Co., Ltd., rep. by its Divisional Manager,
Visakhapatnam Vs. Bhumi Reddy Venkata Satya Rama Rao and another, wherein our
Hon'ble High Court held in Para 20 that,
“The object of Sec.158(6) of the Act is to ensure prompt and fruitful investigation, to avoid false and fraudulent claims and also to safeguard the interests of the victims of the motor accidents. In the instant case, the genuineness of the claim made by the 1st respondent has to be tested basing on the circumstances in which the private complaint regarding the accident came to be filed before the Magistrate with abnormal delay and the natural course of human behaviour. The significant feature which requires careful consideration is that the 1st respondent conveniently omitted to mention anything about the delay in lodging the report with the police as well as the delay in filing the complaint before the Magistrate in his claim petition filed before the Tribunal. For the first time in his evidence before the Tribunal he sought to explain the delay stating that it was on account of the promise made by the 2nd respondent to settle the matter. The very fact that the first respondent who is an advocate by profession did not lodge any report with police about the accident and filed a private complaint before the Magistrate with a delay of 53 days indicates that there is every possibility of collusion between the driver/owner and the 1st respondent. Since there is abnormal delay in filing the complaint before the Magistrate without informing the police about the incident, it is obligatory on the part of the 1st respondent to examine the driver/owner of the offending vehicle to prove the explanation offered by him that the delay was occasioned only on account of the talks of compromise between the parties. From the peculiar facts and circumstances of the case, the possibility of the 1st respondent receiving some amount under the compromise with the driver/owner of the vehicle and filing the claim petition to have undue advantage for extracting some more amount from the appellant/insurance company cannot also altogether be ruled out. All these doubts have to be repelled by the 1st respondent by adducing cogent evidence, but he did not adduce any satisfactory evidence before the Tribunal to prove that his claim is true and genuine. The Tribunal having arrived at a positive conclusion that the explanation offered by the 1st respondent regarding the abnormal delay of filing the complaint
before the Magistrate is quite unconvincing erroneously held that Ex.A.1, true copy of F.I.R. and
Ex.A.3 true copy of charge sheet disclose negligence on the part of the person who was driving the offending vehicle. In fact those two documents are nothing but the reproduction of the complaint petition filed by the 1st respondent. Without there being any authentic evidence and without considering the peculiar facts and circumstances of the case the Tribunal has fallen into grave error in arriving at the conclusion that the 1st respondent/claimant proved that the accident was on account of rash and negligent driving of the person who was driving the Bajaj CT motor cycle. The finding of the learned Tribunal which is the result of non-application of mind to the evidence available on record and the facts and circumstances of the case is unsustainable in law and is liable to be set aside.”
20.In the present case the contents of Ex.A.1 A/c. Copy of FIR reveals that her husband received injuries in the accident and her husband sustained fracture and joined in NRI
Hospital and her husband was operated on Saturday and she was searching for money for operation and she has no other male assistance and she was attended to her husband at Hospital and as a result the delay in report occurred. Thus petitioner's wife properly explained the delay in reporting the crime in FIR itself As such the facts of the decision relied on by the learned counsel for R.2 reported in 2009(5) ALT page 405 is different from the facts of the present case.
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2)In the decision relied on by the learned counsel for R.2 reported in 2008 ACJ, page 627, New India Assurance Co., Ltd., Vs. Prabhu Lal, wherein two Hon'ble Judges of our
Hon'ble Supreme Court held in para 42 that,
“For the aforesaid reasons, in our opinion, the conclusion arrived at by the District Forum cannot be said to be faulty, it was right in holding that on the basis of the evidence adduced by the insurance company, the complainant was not entitled to claim any compensation from the insurance company and insurance company cannot be held liable. The decision could have been interfered with by the State Commission or by the National Commission and hence the orders of the State Commission and Natijonal Commission liable to be set aside by restoring the order passed by the District Forum, we do accordingly.”
3) In the decision relied on by the learned counsel for R.2 reported in 2006 ACJ 1336, National Insurance Co. Ltd., v. Kusum Rai and others wherein two Hon'ble Judges of Hon'ble Supreme Court held at para- 17 that : “17. Although, thus, we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid license and the High court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India, but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan, 2004 ACJ 721 (SC).”
4) In the decision reliedi on by the learned counsel for R.2 reported in 2008 ACJ Volume-4 2161, New India Assurance Co. Ltd., v. Roshan Ben Rahenan Sha Fakir and others wherein the Hon'ble Single judge of our Hon'ble Supreme Court held at para- 10 that :“10. Section 10 of the Act provides for classes of the D.L. Different classes of vehicles have been defined in different provisions of Motor Vehicles Act. The 'transport vehicle' is defined in section 2(47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub- section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three-wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the Table appended thereto. The license granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.5.2004 to 12.5.2024. Section 14(2) (a) provides that a D.L. issued or renewed under the Act shall, in case of a license to drive a transport vehicle will be effective for a period of 3 years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that license was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid D.L. for driving a transport vehicle.” “14. In National Insurance Company Ltd., v. Annappa Irappa Nesaria and Ors., 3 [{2008)1 SCALE 642, it was noticed that the provisions of the Act have undergone a change. The definition of light motor vehicle would not include a light transport vehicle. In that case, keeping in view the date on which the accident took place, it was held: From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid license to drive a light motor vehicle, therefore, was authrorized to drive a light goods vehicle as well.
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15. For the reasons aforementioned, the impugned judgment cannot be sustained. The same is set aside accordingly. However, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct that the appellant may satisfy the award in favour of the claimants to recover the same from the owner. The appeal is allowed with the aforementioned directions. No costs.”
5) In the decision relied on by learned counsel for R.2 reported in 2008 ACJ 654,
Surana Durvasula (died) by L.Rs. v. Bhava Narayana Murty and others wherein our
Hon'ble High Court held at para-14 that,
“14. Since Ex.A.4 charge sheet shows that respondent No.1 was prosecuted for driving the tractor without having a valid driving license and since respondent No.1 did not produce his driving license, and since respondent No.2 while entrusting the tractor to respondent No.1, did not take care to verify whether he has a valid driving license or not, and did not also come into the witness-box to state that he has taken all the necessary precautions and took steps to entrust the vehicle to a person who has a valid driving license, since as per Ex.B2, respondent No.3 would not be liable to pay compensation if the driver of the offending vehicle does not hold a valid driving license, respondent No.3 is not liable to pay the compensation payable to the appellants. The point is answered accordingly.”
6) In the decision relied on by the learned counsel for R.2 reported in 2008 ACJ, page 2860, National Insurance Co., Ltd., Vs. Vidhyadhar Mahariwala and others, wherein two Hon'ble Judges of our Hon'ble Supreme Court held that in para 11; “In Ishwar Chandra’s case, 2007 ACJ 1067 (SC), the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from respondent No.2. Appeal Allowed.”
7) In the decision relied on by the learned counsel for R.2 reported in 2009(3) ALT, page 121, National Insurance Company Ltd., rep. by its Divisional Manager, Eluru, West Godavari District Vs. Dupati Singaiah and others, wherein our Hon'ble High Court held in para 20 that; “In motor accident claims cases except in a few instances driver and owner always remain ex parte. Owner who is covered by policy of insurance takes it for granted that in the event of negligence being proved, insurance company would discharge its statutory liability. Even where owner appears and opposes claim petition, it is not done with all seriousness. It is only for insurance company, which, has to lead evidence both on the question of negligence and also on question of liability. Insofar as question of negligence or income of deceased/injured is concerned, insurance company seldom has any information except where they appoint an investigator/surveyor to enquire into these aspects. Therefore main defence available to an insurer is as contained in Section 149(2) of the Act. Parliament appears to have recognized this aspect of the matter and made a specific provision containing circumstances under which insurance company can get out of liability and seek exoneration. If the insurance company leads evidence to show that licence found in the vehicle involved in the accident is fake licence or that at the time of accident driver had no licence or valid licence, it would be sufficient proof of breach of condition as per Sec.149(2)(a) of the Act.”
8) In the decision relied on by the learned counsel for R.2 reported in 2008 ACJ, page 213, United India Insurance Co., Ltd., Vs. Anubai Gopichand Thakare and others, wherein
Hon'ble Bomay High Court held in para 20 that-
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“The purposive interpretation of section 168 of the Motor Vehicles Act would make it manifest that the provision relates to power of the Tribunal to determine the question of justness of the award and the quantum of compensation. It may be said that section 168 is enabling provision but it does not empower the Tribunal to issue direction to the insurer to pay the amount of compensation, though a finding is reached that the insurer is not liable to pay suit amount on account of fundamental break of the terms of insurance policy. Considering all the relevant aspects of the matter and having regard to the case-law referred to above, I have no hesitation in holding that the directions given by the Tribunal, the bunch of present appeals are incorrect, improper and illegal. The impugned order is, therefore, unsustainable.”
9) In the decision relied on by the learned counsel for R.2 reported in 2010 (5) ALT, page 105, New India Assurance Co., Ltd., Tirupati Vs. G. Sampoorna and others, wherein our Hon'ble High Court held in para 9 that; “In the instant case, by examining R.W.1, who has categorically deposed that the driving licence of the driver of the Tractor, which caused accident, was valid only up to 24-1-2002, the appellant has discharged the initial burden lying on it. Neither respondent Nos.1 to 5 (claimants) nor respondent No.6 (the owner) placed any evidence to prove that the licence was renewed subsequently and was in force at the time of the accident and thereby they failed to discharge the onus shifted to them. The Tribunal has, therefore, committed a serious error in holding that it cannot be said that there was no valid licence for the driver on the date of accident. There was no justification for drawing the presumption by the Tribunal on the facts and available evidence on record that the driving licence was valid and subsisting at the time of the accident. It has therefore necessarily to be held that the driver of the Tractor in question was not holding valid licence at the time of the accident and the appellant had no liability for payment of compensation.”
21.In the decision relied on by the learned counsel for petitioner reported in 2011(1) ALD, page 48, wherein our Hon'ble High Court held in para 10 & 11 that, “10. So far as the second aspect is concerned, the Tribunal held that the driving licence Ex.B.1 was only for light motor vehicles and that the driver was not permitted to drive a transport vehicle. the view taken by the Tribunal cannot be sustained. The reason is that the connotation ‘light motor vehicle’ is relevant, in the context of the size and make of the vehicle, and not the use, to which it is put. The expression ‘transport vehicle’, on the other hand, deals with the use and not the size of the vehicle. For instance, even a small vehicle, like, Auto rickshaw can be treated as a transport vehicle, because of its use, whereas a big sedan or car can be used as private vehicle.” “11. The LMV licence issued to a driver enables him to drive the vehicle of that category. It is immaterial whether such vehicle is being used as purely for private purposes, or as a transport vehicle. admittedly, the vehicle involved in the accident was a light motor vehicle, and Ex.B.1 is a LMV licence. Therefore, both the reasons assigned by the Tribunal cannot be sustained.”
22. In the decision reported in 2004 ACJ page-1, National Insurance Co. Ltd., v. Swarna Singh and others wherein three Hon'ble Judges of our Hon'ble Supreme court held at para-102 that: “ 102. The summary of our findings to the various issues as raised in these petitions are as follows:
1. xxxxxxxxxxx
2. xxxxxxxxxxx
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3. xxxxxxxxxxx
4. xxxxxxxxxxx
5. xxxxxxxxxxx
6. xxxxxxxxxxx
7. xxxxxxxxxxxx
8. xxxxxxxxxxxx
9. xxxxxxxxxx
10.Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved it's defence in accordance with the provisions of section 149 (2) read with sub-section (7), as interpreted by the court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under section 174 of the Act as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act, the insurer fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.”
23. In view of our 3 Hon'ble Judges of our Hon'ble Supreme Court decisions, the decision relied on by the learned counsel for R.2 reported in 2008 ACJ page 213 of Hon'ble
Bombay High Court's decision is not binding on this court. By following the three Hon'ble
Judges of our Hon'ble Supreme court reported in 2004 ACJ page-1, R.2 is initially directed to
pay the compensation.
24. Therefore, R.1 being the owner of the Auto bearing No. AP 31 TU 3549 and R.2 being his insurer are jointly and severally liable to deposit the same and on such deposit R.2 is entitled to recover the same from R.1 in execution proceedings without filing separate suit. Accordingly issue No.2 is settled.
25.ISSUE No..3:-
IN THE RESULT, petition is allowed in part, granting compensation of
Rs.62,900/- (Rupees Sixty twos thousand and nine hundred only) with interest at
7.5% p.a. From the date of the petition till the date of deposit with proportionate costs and interest. R.1 & R.2 are jointly and severally liable to deposit the same.
Time for deposit is one month. On such deposit, R.2 is entitled to recover the
same from R.1 in execution proceedings without filing separate suit. Petitioner is
permitted to withdraw an amount of Rs.50,000/- and balance compensation of
Rs.12,900/- with proportionate costs and interest shall be invested in any
Nationalized Bank in a fixed deposit for 36 months and on maturity petitioner is
permitted to withdraw the entire compensation in lumpsum., The Advocate fee is
fixed at Rs.1000/-.
Typed to Dictation on Computer System to Personal Assistant, corrected and
pronounced by me in the open court, this the 20 th day of May 2013.
VII Addl. Dist. & Sessions Judge (FTC)/VSP
(FAC) X A DDL . D IST . & S ESSIONS J UDGE , (FTC),
V ISAKHAPATNAM AT A NAKAPALLE .
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APPENDIX OF EVIDENCE
Witnesses Examined
For Petitioner: For Respondents:
P.W.1 : Doddi Parvateeswasra RaoR.W.1 : M. Jagannadharao P.W.2 : Dr. M. Venkateswara RaoR.W.2 : Gandi Suresh
No of Documents marked
For Petitioner:-
Ex.A.1 : Attested Copy of First Information Report dt.26-7-2011 Ex.A.2 : attested Copy of Wound Certificate
Ex.A.3 : Attested copy of MVI Report 3-8-2011 Ex.A.4 : Attested copy of Charge Sheet Ex.A.5 : Discharge Summary Ex.A.6 : Bunch of Medical Bills for Rs.3,175/- Ex.A.7 : Disability Certificate.
For Respondents:-
Ex.B.1 : Copy of Insurance Policy Ex.B.2 : Extract of the Driving Licence of the driver of auto by name Apparao
Ex.X.1 : Authorization Letter Ex.X.2 : R.C. Extract Ex.X.3 : Driving Licence Extract of one P. Apparao.
VII Addl. Dist. & Sessions Judge (FTC)/VSP
(FAC) X A DDL . D IST . & S ESSIONS J UDGE , (FTC),
V ISAKHAPATNAM AT A NAKAPALLE .
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DATE OF PRESENTATION :18-10-2011 DATE OF FILING : 6-1-2012
In the Court of MACT-cum-X Addl. Dist. & Sessions Judge,
(Fast Track Court) Visakhapatnam at Anakapalle.
Present:- C. YAMINI, LLM., PGDCA,
VII ADDL. DIST. & SESSIONS JUDGE (FTC) vsp
(FAC) Chairman-MACT-X Addl. Dist. & Sessions Judge
(FTC), Visakhapatnam at Anakapalle.
Monday, the 20 th day of May, 2013
MVOP 107/2012
Between : Doddi Parvateeswara Rao, S/o. Apparao, Hindu, aged 35 years, r/at Bangarammapalem, Sabbavaram Mandal, Visakhapatnam District. … Petitioner. And :
3.U. Demudu, S/o. Demudu, Hindu, aged not known, but major, owner of Auto bearing Regn. No. AP 31 TU 3549, r/at Kapu Tunglam, BHPV Post, Visakhapatnam.
4.M/s. The New India Assurance Co., Ltd., rep. by its Divisional Manager, Regional Office, Pavan Paradise, Opp. Pollocks School, Dwarakanagar, Visakhapatnam. …… Respondents.
This petition is filed by the petitioner against the respondents 1 & 2 under Sec.166 of M.V. Act r/w Rule 455 of A.P. Motor Vehicle Rules, praying to award compensation of Rs.1,50,000/- for the injuries sustained to the petitioner in a motor accident with the offending vehicle i.e., Auto bearing No. AP 31 TU 3549 occurred on 14- 7-2011 at 9-30 PM at Pedanaidupalem Junction, Sabbavaram Mandal and also with costs and interest @ 18% p.a. from the date of the petition till realization.
The value of the petition is Rs.1,50,000/- and a court fee of Rs.860/- is paid thereon under Rule 475 (1) of A.P. Motor Vehicles Rules.
This petition coming on this 29-4-2013 before me for final hearing in the presence of Sri M.A. Prasad, Advocate for Petitioner and Sri K.P. Naidu, Advocate for 2nd Respondent and 1st respondent remained exparte and heard the arguments and having stood over for consideration till this day, this Tribunal doth order and;
D E C R E E
1.that the petition be and the same is hereby allowed in part against the respon-
dents 1 & 2, granting compensation of Rs.62,900/- (Rupees Sixty two thousand
and Nine hundred only) with proportionate costs and subsequent interest @ 7.5%
p.a. from the date of petition till the date of deposit;
2.that the respondents 1 & 2 be and the same are hereby directed to deposit such
compensation amount within a period of one month from the date of this order;
3. thaton such a deposit, 2nd respondent is entitled to recover the same from 1st respondent in execution proceedings without filing separate suit,
4. that petitioner is permitted to withdraw an amount of Rs.50,000/- (Rupees Fifty thousand only) and balance compensation of Rs.12,900/- with proportionate costs and interest shall be invested in any Nationalized Bank in a Fixed Deposit for 36
months;
Contd…
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5. that on maturity, petitioner is permitted to withdraw the entire compensation in lump sum,
6. that the rest of the claim be and the same is hereby dismissed,
7. that the respondents 1 & 2 do pay to the petitioner a sum of Rs.416-00 (Rupees Four hundred and sixteen only) towards proportionate costs of the petition;
8. that the Advocate fee is fixed at Rs.1000/- (Rupees one thousand only)
Given under my hand and the seal of this Tribunal, this the 20 th day of May
2013.
VII A DDL . D IST . & S ESSIONS J UDGE (FTC)/VSP
(FAC) X A DDL . D IST . & S ESSIONS J UDGE ,
(FTC), V ISAKHAPATNAM AT A NAKAPALLE
M EMORANDUM OF C OSTS
NO COST MEMO FILED ON EITHER SIDE
F OR P ETITIONER : F OR R ESPONDENTS :-
Stamp on Vakalat : Rs. 3-00 No costs memo is filed Court Fee on petition : Rs. 860-00 C.F. on Process : Rs. 130-00 ------------------- Inst. Costs allowable : Rs. 993-00 ------------------- Inst. Prop. Costs allowed : Rs.416-00
VII A DDL . D IST . & S ESSIONS J UDGE (FTC)/VSP
(FAC) X A DDL . D IST . & S ESSIONS J UDGE ,
(FTC), V ISAKHAPATNAM AT A NAKAPALLE
14