Sri.P.Murali Mohan Reddy

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BEFORE THE III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,

S.P.S.R.NELLORE DISTRICT.

Wednesday, this the 25th day of September, 2013

Present:Sri P.MURALI MOHANA REDDY,B.A.B.L.,

CHAIRMAN, III M.A.C.T., NELLORE

M.V.O.P.NO.479/2009

Peram @ Palakurthi Thirupathamma … Claimant

Vs.

1) P. Venkataiah

2) The Oriental Insurance Co. Ltd., represented by its Divisional Manager, Ongole … Respondents

M.V.O.P.NO.480/2009

Palakurthi Nagamani… Claimant

Vs.

1) P. Venkataiah

2) The Oriental Insurance Co. Ltd., represented by its Divisional Manager, Ongole … Respondents

These petitions coming on 23.9.2013 before me for final hearing in the presence of Sri P. Srinivasulu, advocate for the petitioners in both the MVOPs and of Sri T. Kumar, advocate for the 2nd respondent in both the MVOPs and the 1st respondent remained set exparte in both the MVOPs and and having stood over till this day for consideration, this Court made the following:-

COMMON ORDER IN M.V.O.P.Nos.479/2009 & 480/2009

1.M.V.O.P.NO.479/2009:-

This is a claim petition filed by the claimant Under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a motor vehicle accident that occurred on 28.12.2007 at about 9.30 p.m. in between Nainala and Thorrur Cross Road, Nellikodur

Mandal, Warangal District.

2.M.V.O.P.NO.480/2007:-

This is a claim petition filed by the claimant Under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a motor vehicle accident that occurred on 28.12.2007 at about 9.30 p.m. in between Nainala and Thorrur Cross Road, Nellikodur

Mandal, Warangal District.

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3.Both the M.V.O.Ps. arising out of one and the same accident and therefore the above O.Ps. have to be disposed together by this common order.

4.The brief averments mentioned in the petitions are as follows:-

5.The claimants and their relatives used to eke out their livelihood by doing agricultural and also rearing up ducks and selling the same. In a part of their livelihood after finishing the agricultural season. On 28.12.2007 morning they hired the DCM lorry bearing Reg. No.AP-16-U-5664 and loaded 3,400/- ducks at

Chinnamupparam Village to go to the outskirts of Kodada of Nalgonda District for grazing. While proceeding to Kodada, on the way, on the main road between Nainala and Thorruru Cross roads at about 9.30 p.m. the driver of the lorry drove the vehicle in a rash and negligent manner and as a result of which, the total ducks went one side in the body of the van and the lorry over turned and the accident occurred.

6. On information Nellikodur Police registered a case in Crime No.2/2008 under

Sec.337 IPC against the driver of the DCM Lorry bearing Registration No.AP-16-U-5664 belonging to R1.

7.It is further averred in the petition in M.V.O.P.No.479/2009, the claimant by name P. Thirupathamma lost two teeth and one simple injury on her nose in the accident. Her 600 ducks worth about Rs.36,000/- were also died. Immediately after the accident, she was shifted to Government Area Hospital, Mahabubabad. She took treatment nearly 15 days and incurred Rs.15,000/- towards medical expenses.

8.Prior to the accident, she was hale and healthy and aged about 44 years. She was doing agriculture labour work and rearing of duck and earning Rs.3,000/- per month. On account of grievous injuries received in the accident, she could not able to attend any work. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

9.It is further averred in the petition in M.V.O.P.No.480/2009, the claimant by name P. Nagamani lost two teeth and one simple injury on her nose in the accident.

Her 600 ducks worth about Rs.36,000/- were also died. Immediately after the 3 accident, she was shifted to Government Area Hospital, Mahabubabad. She took treatment nearly 15 days and incurred Rs.15,000/- towards medical expenses.

10.Prior to the accident, she was hale and healthy and aged about 30 years. She was doing agriculture labour work and rearing of duck and earning Rs.3,000/- per month. On account of grievous injuries received in the accident, she could not able to attend any work. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

11.R1 is the owner of the lorry bearing No.AP-16-U-5664 and R2 is the insurer of the said vehicle. Thus, both the respondents are jointly and severally liable to pay compensation. Hence these petitions.

12.R1 remained set exparte.

13.R2 filed counter denying all the allegations mentioned in these petitions. This respondent submits that the lorry bearing Reg. No.AP-16-U-5664 is a goods carriage vehicle and the passengers are not entitled to travel in the said lorry. R1 has intentionally and knowingly violated terms and conditions of the policy by allowing passengers to travel in the goods carriage vehicle. Hence, as per the terms and conditions of the policy, passengers are not permitted to travel and this respondent company is not liable to pay any compensation.

14.This respondent denied the age, avocation and income of the claimant at the time of accident. The compensation claimed in this case is highly excessive. Hence prays to dismiss the above petitions with costs.

15.Basing on the pleadings of both parties, the tribunal settled the following issues in M.V.O.P.No.479/2009:-

1) Whether the accident had occurred on 28.12.2007 at 9.30 a.m. in between Nainalathorruru Cross road, Nellikodur Mandal, Warangal was due to rash and negligent driving of the driver of the lorry bearing Reg. No.AP-16-U-5664 and whether the petitioner had injuries as alleged by her in the said accident?

2) Whether the claimant is entitled for any compensation, if so, to what amount and from which of the respondents?

3) To what relief?

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16.The following issues are settled in M.V.O.P.No.480/2009:-

1) Whether the accident had occurred on 28.12.2007 at 9.30 a.m. in between Nainalathorruru Cross road, Nellikudur Mandal, Warangal was due to rash and negligent driving of the driver of the lorry bearing Reg. No.AP-16-U-5664 and whether the petitioner had injuries as alleged by her in the said accident?

2) Whether the claimant is entitled for any compensation, if so, to what amount and from which of the respondents?

3)To what relief?

17. In the above cases both parties filed a joint memo requesting the court to held joint trial, since the claimants are sustained injuries in one and the same accident and that the respondents are one and same and the accident vehicle is one and the same in both the petitions and prays to club M.V.O.P.No.479/2009 to M.V.O.P.No.480/2009.

Accordingly, M.V.O.P.No.479/2009 is clubbed with M.V.O.P.No.480/2009 for joint trial and the evidence is recorded in M.V.O.P.No.480/2009 and the same shall be read in other M.V.O.P. also.

18.During the course of trial, the claimant in M.V.O.P.No.480/2009 is examined as

PW1 and the claimant in M.V.O.P.No.479/2009 is examined as PW2 and got marked

Exs.A1 to A4. R2 examined RW1 and got marked Ex.B1.

19.Both parties filed a memo stating that orders may be passed basing on the evidence available on the record. Hence arguments on both sides treated as nil.

20. ISSUE NO.1 IN M.V.O.P.NOS.479/2009 AND 480/2009:-

It is the case of the claimants that on 28.12.2007 morning they hired the DCM lorry bearing Reg. No.AP-16-U-5664 and loaded 3,400/- ducks at Chinnamupparam

Village to go to the outskirts of Kodada of Nalgonda District for grazing. While proceeding to Kodada, on the way, on the main road between Nainala and Thorruru

Cross roads at about 9.30 p.m. the driver of the lorry drove the vehicle in a rash and negligent manner and caused the accident.

21.In order to establish the rash and negligent act of the driver of the lorry bearing

Registration No.AP-16-U-5664, the claimant in M.V.O.P.No.480/2009 by name P.

Nagamani is examined as PW1. She clearly and categorically stated the manner of the accident in her chief affidavit that the driver of the lorry was responsible for the accident.

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22.PW2 P. Thirupathamma is the claimant in M.V.O.P.NO.479/2009. She clearly supported the version of PW1 with regard to manner of the accident.

23.Pws.1 and 2 were cross examined by R2 at length but nothing is elicited except putting suggestions.

24.It is not dispute that the First Information Report was registered by Nellikudur

Police as a case in Crime No.2/2008 under section 337 IPC against the driver of the lorry bearing Registration No.AP-16-U-5664 basing on the report given by one P.

Pondu Rao as per Ex.A1. Ex.A2 is the wound certificate of PW1 which goes to show that she sustained one grievous injury. Ex.A4 is the wound certificate of PW2 which goes to show that she sustained two injuries in the accident.

25.After completion of investigation, the police filed charge sheet against the driver of the lorry bearing Registration No.AP-16-U-5664 stating that he drove the lorry in a rash and negligent manner and caused the accident as per Ex.A3.

26.The 2nd respondent did not dispute the manner of the accident. On the other hand, they did not examine either the driver or the owner of the offending lorry to disprove the testimonies of Pws.1 and 2. Pws.1 and 2 are the injured and direct eye witnesses and their evidence has to be believed.

27.Considering the evidence of Pws.1 and 2 coupled with Exs.A1 to A4,

I am of the clear opinion that the accident occurred due to the rash and negligent act of the driver of the DCM lorry belonging to R1. These issues are answered accordingly and in favour of the claimants.

28.ISSUE NO.2 IN M.V.O.P.NO.479/2009:-

PW2 deposed that she lost two teeth and one simple injury on her nose in the accident. Immediately after the accident, she was shifted to Government Area

Hospital, Mahabubabad for treatment. She took treatment for a period of 15 days and spent Rs.15,000/- towards medical expenses.

29.She further deposed that she did not able to attend any work due to injuries received in the accident. Her 600 ducks worth about Rs.36,000/- were also died.

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30.The claimant did not examine the doctor, who treated her. She did not produce any case sheet to show that how many days she was stayed as inpatient in the hospital. Even she did not file any medical bills. In the absence of any medical evidence, this tribunal cannot come to a conclusion that how many days she was taken treatment in the hospital.

Ex.A4 is the wound certificate of PW2 which reads thus:-

1) Loss of upper two teeth.

2) Swelling defuse right hand elbow.

The doctor noted in the wound certificate, injury No.1 is grievous and injury

No.2 is simple in nature. Though the doctor is not examined, but the wound certificate has to be taken into consideration. There is no documentary proof that 600 ducks of the claimants were died in the accident.

31.In view of the evidence of PW2, I am of the clear opinion that she sustained two injuries and she is entitled to receive just and reasonable compensation.

32.The claimant claimed total compensation of Rs.1,00,000/- which is highly excessive.

33.Towards transport to the hospital Rs.1,000/- is awarded. Towards medical expenses Rs.4,000/- is awarded. Towards pain and suffering Rs.5,000/- is awarded.

Towards mental agony Rs.5,000/- is awarded. Compensation for one grievous injury

Rs.15,000/- and compensation for simple injury Rs.2,000/- is awarded. Thus, the claimant is entitled total compensation of Rs.32,000/-.

34.ISSUE NO.2 IN M.V.O.P.NO.480/2009:-

PW1 deposed that she lost two teeth and one simple injury on her nose in the accident. Immediately after the accident, she was shifted to Government Area

Hospital, Mahabubabad for treatment. She took treatment for a period of 15 days and spent Rs.15,000/- towards medical expenses.

35.She further deposed that she could not able to attend any work due to injuries received in the accident. Her 600 ducks worth about Rs.36,000/- were also died.

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36.The claimant did not examine the doctor, who treated her. She did not produce any case sheet to show that how many days she was stayed as inpatient in the hospital. Even she did not file any medical bills. In the absence of any medical evidence, this tribunal cannot come to a conclusion that how many days she was taken treatment in the hospital.

Ex.A2 is the wound certificate of PW1 which reads thus:-

1) Fracture lumbar vertibra.

The doctor noted in the wound certificate, the above injury is grievous in nature. Though the doctor is not examined, but the wound certificate has to be taken into consideration. There is no documentary proof that 600 ducks of the claimant were died in the accident.

37.In view of the evidence of PW1, I am of the clear opinion that she sustained one grievous injury and she is entitled to receive just and reasonable compensation.

38.The claimant claimed total compensation of Rs.1,00,000/- which is highly excessive.

39.Towards transport to the hospital Rs.1,000/- is awarded. Towards medical expenses Rs.4,000/- is awarded. Towards pain and suffering Rs.5,000/- is awarded.

Towards mental agony Rs.5,000/- is awarded. Compensation for one grievous injury

Rs.15,000/- is awarded. Thus, the claimant is entitled total compensation of

Rs.30,000/-.

40.The learned counsel for the 2nd respondent contended that the claimants were travelling in the goods carrier as a unauthorized passengers and the policy does not cover the risk of the claimants.

41.In support of his contention, R2 examined RW1 M. Subrahmanyam,

Administrative Officer in 2nd respondent company Branch Office at Nellore.

42.He deposed that the crime vehicle DCM lorry bearing Reg. No.AP-16-U-5664 is a goods carriage commercial vehicle. The policy does not cover the risk of passengers travelling in the lorry. R1 violated the terms and conditions of policy by allowing 8 passengers to travel in the goods carriage vehicle. No premium was paid for N.F.P.P.

Hence their company is not liable to pay compensation.

In support of his contention, R2 relied a decision reported in 2013 ACJ 1 in

between Sanjay Kumar Samrat Vs. National Insurance Co. Ltd. and others.

He also relied another decision reported in 2013 ACJ 194 in between New

India Assurance Co. Ltd. Vs. Palamoni Suresh and another.

He also relied another decision reported in 2013 ACJ 826 in between

Lokesh Vs. A.P. Devi and another.

43.A close reading of the above decisions, it is clear that the passengers travelling in the goods vehicle sustained injuries and the policy is covered under the act policy and risk of gratuitous passengers is not covered by the policy. Hence, insurance company is not liable to pay compensation.

44.On the other hand, the claimants contended that the claimants are travelling in the offending vehicle as owner of the goods and the policy is covered their risk and as such R2 is liable to pay compensation.

Ex.B1 is the Act policy which reads thus:-

Use Only for carriage of goods within the meaning of Motor Vehicles Act. The

Policy does not cover (a) Organised racing, Pace Making, reliability trials or speed testing (b) drawing a trailer except the towing (c) carrying passengers in vehicles except employees not exceeding the number permitted in registration document and coming under purview of WC Act 1923.

45.A reading of the policy conditions clearly goes to show that the risk of passengers were not covered by the policy except employees, who are travelling in the vehicle. When Ex.B1 does not cover the risk of the claimants, the insurance company is not liable to pay compensation.

46.It is not dispute that the driver of the lorry bearing Registration No.AP-16-U- 5664 drove the vehicle in rash and negligent manner and caused this accident. The 9 said driver is working under the employment of R1. R1 being the owner of the offending lorry is vicariously liable to pay compensation.

47.R1 insured his vehicle with 2nd respondent company under valid policy vide

Ex.B1. However the policy does not cover the risk of the claimants. So, R1 is liable to pay compensation. R2 is exonerated from liability

48.ISSUE NO.3 IN M.V.O.P.NO.479/2009:-

In the result, this petition is allowed partly by awarding total compensation of

Rs.32,000/- (Rupees Thirty Two Thousand Only) against the claim of Rs.1,00,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. R1 is liable to pay compensation and he is directed to deposit the said amount into the court within one month from the date of this award. R2 is exonerated from their liability. After deposit of such amount, the claimant is permitted to withdraw her total compensation at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees Five Thousand Only).

49.ISSUE NO.5 IN M.V.O.P.NO.480/2009:-

In the result, this petition is allowed partly by awarding total compensation of

Rs.30,000/- (Rupees Thirty Thousand Only) against the claim of Rs.1,00,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. R1 is liable to pay compensation and he is directed to deposit the said amount into the court within one month from the date of this award. R2 is exonerated from their liability. After deposit of such amount, the claimant is permitted to withdraw her total compensation at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees Five Thousand Only).

Dictated to the Junior Assistant, typed by her, corrected and pronounced by me in the

open court, this the 25th day of September, 2013.

III ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,

NELLORE.

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APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner:

PW1: Palakurthy Nagamani; PW2: Peram @ Palakurthi Thirupathamma.

For Respondent:

RW1: M. Subrahmanyam.

Documents Marked

For Petitioner:

Ex.A1: Attested xerox copy of FIR in Crime No.2/2008 of Nellikoduru P.S.; Ex.A2: Attested xerox copy of Wound Certificate; Ex.A3: Attested xerox copy of Charge Sheet; Ex.A4: Attested xerox copy of Wound certificate.

For Respondent:-

Ex.B1: Attested xerox copy of Insurance Policy and its Particulars belonging to R2.

III M.A.C.T./III A.D.J.

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BEFORE THE III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,

S.P.S.R.NELLORE DISTRICT.

Wednesday, this the 25th day of September, 2013

Present:Sri P.MURALI MOHANA REDDY,B.A.B.L.,

CHAIRMAN, III M.A.C.T., NELLORE

M.V.O.P.NO.479/2009

Peram @ Palakurthi Thirupathamma … Claimant

Vs.

1) P. Venkataiah

2) The Oriental Insurance Co. Ltd., represented by its Divisional Manager, Ongole … Respondents

M.V.O.P.NO.480/2009

Palakurthi Nagamani… Claimant

Vs.

1) P. Venkataiah

2) The Oriental Insurance Co. Ltd., represented by its Divisional Manager, Ongole … Respondents

These petitions coming on 23.9.2013 before me for final hearing in the presence of Sri P. Srinivasulu, advocate for the petitioners in both the MVOPs and of Sri T. Kumar, advocate for the 2nd respondent in both the MVOPs and the 1st respondent remained set exparte in both the MVOPs and and having stood over till this day for consideration, this Court made the following:-

COMMON ORDER IN M.V.O.P.Nos.479/2009 & 480/2009

1.M.V.O.P.NO.479/2009:-

This is a claim petition filed by the claimant Under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a motor vehicle accident that occurred on 28.12.2007 at about 9.30 p.m. in between Nainala and Thorrur Cross Road, Nellikodur

Mandal, Warangal District.

2.M.V.O.P.NO.480/2007:-

This is a claim petition filed by the claimant Under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a motor vehicle accident that occurred on 28.12.2007 at about 9.30 p.m. in between Nainala and Thorrur Cross Road, Nellikodur

Mandal, Warangal District.

2

3.Both the M.V.O.Ps. arising out of one and the same accident and therefore the above O.Ps. have to be disposed together by this common order.

4.The brief averments mentioned in the petitions are as follows:-

5.The claimants and their relatives used to eke out their livelihood by doing agricultural and also rearing up ducks and selling the same. In a part of their livelihood after finishing the agricultural season. On 28.12.2007 morning they hired the DCM lorry bearing Reg. No.AP-16-U-5664 and loaded 3,400/- ducks at

Chinnamupparam Village to go to the outskirts of Kodada of Nalgonda District for grazing. While proceeding to Kodada, on the way, on the main road between Nainala and Thorruru Cross roads at about 9.30 p.m. the driver of the lorry drove the vehicle in a rash and negligent manner and as a result of which, the total ducks went one side in the body of the van and the lorry over turned and the accident occurred.

6. On information Nellikodur Police registered a case in Crime No.2/2008 under

Sec.337 IPC against the driver of the DCM Lorry bearing Registration No.AP-16-U-5664 belonging to R1.

7.It is further averred in the petition in M.V.O.P.No.479/2009, the claimant by name P. Thirupathamma lost two teeth and one simple injury on her nose in the accident. Her 600 ducks worth about Rs.36,000/- were also died. Immediately after the accident, she was shifted to Government Area Hospital, Mahabubabad. She took treatment nearly 15 days and incurred Rs.15,000/- towards medical expenses.

8.Prior to the accident, she was hale and healthy and aged about 44 years. She was doing agriculture labour work and rearing of duck and earning Rs.3,000/- per month. On account of grievous injuries received in the accident, she could not able to attend any work. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

9.It is further averred in the petition in M.V.O.P.No.480/2009, the claimant by name P. Nagamani lost two teeth and one simple injury on her nose in the accident.

Her 600 ducks worth about Rs.36,000/- were also died. Immediately after the 3 accident, she was shifted to Government Area Hospital, Mahabubabad. She took treatment nearly 15 days and incurred Rs.15,000/- towards medical expenses.

10.Prior to the accident, she was hale and healthy and aged about 30 years. She was doing agriculture labour work and rearing of duck and earning Rs.3,000/- per month. On account of grievous injuries received in the accident, she could not able to attend any work. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

11.R1 is the owner of the lorry bearing No.AP-16-U-5664 and R2 is the insurer of the said vehicle. Thus, both the respondents are jointly and severally liable to pay compensation. Hence these petitions.

12.R1 remained set exparte.

13.R2 filed counter denying all the allegations mentioned in these petitions. This respondent submits that the lorry bearing Reg. No.AP-16-U-5664 is a goods carriage vehicle and the passengers are not entitled to travel in the said lorry. R1 has intentionally and knowingly violated terms and conditions of the policy by allowing passengers to travel in the goods carriage vehicle. Hence, as per the terms and conditions of the policy, passengers are not permitted to travel and this respondent company is not liable to pay any compensation.

14.This respondent denied the age, avocation and income of the claimant at the time of accident. The compensation claimed in this case is highly excessive. Hence prays to dismiss the above petitions with costs.

15.Basing on the pleadings of both parties, the tribunal settled the following issues in M.V.O.P.No.479/2009:-

1) Whether the accident had occurred on 28.12.2007 at 9.30 a.m. in between Nainalathorruru Cross road, Nellikodur Mandal, Warangal was due to rash and negligent driving of the driver of the lorry bearing Reg. No.AP-16-U-5664 and whether the petitioner had injuries as alleged by her in the said accident?

2) Whether the claimant is entitled for any compensation, if so, to what amount and from which of the respondents?

3) To what relief?

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16.The following issues are settled in M.V.O.P.No.480/2009:-

1) Whether the accident had occurred on 28.12.2007 at 9.30 a.m. in between Nainalathorruru Cross road, Nellikudur Mandal, Warangal was due to rash and negligent driving of the driver of the lorry bearing Reg. No.AP-16-U-5664 and whether the petitioner had injuries as alleged by her in the said accident?

2) Whether the claimant is entitled for any compensation, if so, to what amount and from which of the respondents?

3)To what relief?

17. In the above cases both parties filed a joint memo requesting the court to held joint trial, since the claimants are sustained injuries in one and the same accident and that the respondents are one and same and the accident vehicle is one and the same in both the petitions and prays to club M.V.O.P.No.479/2009 to M.V.O.P.No.480/2009.

Accordingly, M.V.O.P.No.479/2009 is clubbed with M.V.O.P.No.480/2009 for joint trial and the evidence is recorded in M.V.O.P.No.480/2009 and the same shall be read in other M.V.O.P. also.

18.During the course of trial, the claimant in M.V.O.P.No.480/2009 is examined as

PW1 and the claimant in M.V.O.P.No.479/2009 is examined as PW2 and got marked

Exs.A1 to A4. R2 examined RW1 and got marked Ex.B1.

19.Both parties filed a memo stating that orders may be passed basing on the evidence available on the record. Hence arguments on both sides treated as nil.

20. ISSUE NO.1 IN M.V.O.P.NOS.479/2009 AND 480/2009:-

It is the case of the claimants that on 28.12.2007 morning they hired the DCM lorry bearing Reg. No.AP-16-U-5664 and loaded 3,400/- ducks at Chinnamupparam

Village to go to the outskirts of Kodada of Nalgonda District for grazing. While proceeding to Kodada, on the way, on the main road between Nainala and Thorruru

Cross roads at about 9.30 p.m. the driver of the lorry drove the vehicle in a rash and negligent manner and caused the accident.

21.In order to establish the rash and negligent act of the driver of the lorry bearing

Registration No.AP-16-U-5664, the claimant in M.V.O.P.No.480/2009 by name P.

Nagamani is examined as PW1. She clearly and categorically stated the manner of the accident in her chief affidavit that the driver of the lorry was responsible for the accident.

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22.PW2 P. Thirupathamma is the claimant in M.V.O.P.NO.479/2009. She clearly supported the version of PW1 with regard to manner of the accident.

23.Pws.1 and 2 were cross examined by R2 at length but nothing is elicited except putting suggestions.

24.It is not dispute that the First Information Report was registered by Nellikudur

Police as a case in Crime No.2/2008 under section 337 IPC against the driver of the lorry bearing Registration No.AP-16-U-5664 basing on the report given by one P.

Pondu Rao as per Ex.A1. Ex.A2 is the wound certificate of PW1 which goes to show that she sustained one grievous injury. Ex.A4 is the wound certificate of PW2 which goes to show that she sustained two injuries in the accident.

25.After completion of investigation, the police filed charge sheet against the driver of the lorry bearing Registration No.AP-16-U-5664 stating that he drove the lorry in a rash and negligent manner and caused the accident as per Ex.A3.

26.The 2nd respondent did not dispute the manner of the accident. On the other hand, they did not examine either the driver or the owner of the offending lorry to disprove the testimonies of Pws.1 and 2. Pws.1 and 2 are the injured and direct eye witnesses and their evidence has to be believed.

27.Considering the evidence of Pws.1 and 2 coupled with Exs.A1 to A4,

I am of the clear opinion that the accident occurred due to the rash and negligent act of the driver of the DCM lorry belonging to R1. These issues are answered accordingly and in favour of the claimants.

28.ISSUE NO.2 IN M.V.O.P.NO.479/2009:-

PW2 deposed that she lost two teeth and one simple injury on her nose in the accident. Immediately after the accident, she was shifted to Government Area

Hospital, Mahabubabad for treatment. She took treatment for a period of 15 days and spent Rs.15,000/- towards medical expenses.

29.She further deposed that she did not able to attend any work due to injuries received in the accident. Her 600 ducks worth about Rs.36,000/- were also died.

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30.The claimant did not examine the doctor, who treated her. She did not produce any case sheet to show that how many days she was stayed as inpatient in the hospital. Even she did not file any medical bills. In the absence of any medical evidence, this tribunal cannot come to a conclusion that how many days she was taken treatment in the hospital.

Ex.A4 is the wound certificate of PW2 which reads thus:-

1) Loss of upper two teeth.

2) Swelling defuse right hand elbow.

The doctor noted in the wound certificate, injury No.1 is grievous and injury

No.2 is simple in nature. Though the doctor is not examined, but the wound certificate has to be taken into consideration. There is no documentary proof that 600 ducks of the claimants were died in the accident.

31.In view of the evidence of PW2, I am of the clear opinion that she sustained two injuries and she is entitled to receive just and reasonable compensation.

32.The claimant claimed total compensation of Rs.1,00,000/- which is highly excessive.

33.Towards transport to the hospital Rs.1,000/- is awarded. Towards medical expenses Rs.4,000/- is awarded. Towards pain and suffering Rs.5,000/- is awarded.

Towards mental agony Rs.5,000/- is awarded. Compensation for one grievous injury

Rs.15,000/- and compensation for simple injury Rs.2,000/- is awarded. Thus, the claimant is entitled total compensation of Rs.32,000/-.

34.ISSUE NO.2 IN M.V.O.P.NO.480/2009:-

PW1 deposed that she lost two teeth and one simple injury on her nose in the accident. Immediately after the accident, she was shifted to Government Area

Hospital, Mahabubabad for treatment. She took treatment for a period of 15 days and spent Rs.15,000/- towards medical expenses.

35.She further deposed that she could not able to attend any work due to injuries received in the accident. Her 600 ducks worth about Rs.36,000/- were also died.

7

36.The claimant did not examine the doctor, who treated her. She did not produce any case sheet to show that how many days she was stayed as inpatient in the hospital. Even she did not file any medical bills. In the absence of any medical evidence, this tribunal cannot come to a conclusion that how many days she was taken treatment in the hospital.

Ex.A2 is the wound certificate of PW1 which reads thus:-

1) Fracture lumbar vertibra.

The doctor noted in the wound certificate, the above injury is grievous in nature. Though the doctor is not examined, but the wound certificate has to be taken into consideration. There is no documentary proof that 600 ducks of the claimant were died in the accident.

37.In view of the evidence of PW1, I am of the clear opinion that she sustained one grievous injury and she is entitled to receive just and reasonable compensation.

38.The claimant claimed total compensation of Rs.1,00,000/- which is highly excessive.

39.Towards transport to the hospital Rs.1,000/- is awarded. Towards medical expenses Rs.4,000/- is awarded. Towards pain and suffering Rs.5,000/- is awarded.

Towards mental agony Rs.5,000/- is awarded. Compensation for one grievous injury

Rs.15,000/- is awarded. Thus, the claimant is entitled total compensation of

Rs.30,000/-.

40.The learned counsel for the 2nd respondent contended that the claimants were travelling in the goods carrier as a unauthorized passengers and the policy does not cover the risk of the claimants.

41.In support of his contention, R2 examined RW1 M. Subrahmanyam,

Administrative Officer in 2nd respondent company Branch Office at Nellore.

42.He deposed that the crime vehicle DCM lorry bearing Reg. No.AP-16-U-5664 is a goods carriage commercial vehicle. The policy does not cover the risk of passengers travelling in the lorry. R1 violated the terms and conditions of policy by allowing 8 passengers to travel in the goods carriage vehicle. No premium was paid for N.F.P.P.

Hence their company is not liable to pay compensation.

In support of his contention, R2 relied a decision reported in 2013 ACJ 1 in

between Sanjay Kumar Samrat Vs. National Insurance Co. Ltd. and others.

He also relied another decision reported in 2013 ACJ 194 in between New

India Assurance Co. Ltd. Vs. Palamoni Suresh and another.

He also relied another decision reported in 2013 ACJ 826 in between

Lokesh Vs. A.P. Devi and another.

43.A close reading of the above decisions, it is clear that the passengers travelling in the goods vehicle sustained injuries and the policy is covered under the act policy and risk of gratuitous passengers is not covered by the policy. Hence, insurance company is not liable to pay compensation.

44.On the other hand, the claimants contended that the claimants are travelling in the offending vehicle as owner of the goods and the policy is covered their risk and as such R2 is liable to pay compensation.

Ex.B1 is the Act policy which reads thus:-

Use Only for carriage of goods within the meaning of Motor Vehicles Act. The

Policy does not cover (a) Organised racing, Pace Making, reliability trials or speed testing (b) drawing a trailer except the towing (c) carrying passengers in vehicles except employees not exceeding the number permitted in registration document and coming under purview of WC Act 1923.

45.A reading of the policy conditions clearly goes to show that the risk of passengers were not covered by the policy except employees, who are travelling in the vehicle. When Ex.B1 does not cover the risk of the claimants, the insurance company is not liable to pay compensation.

46.It is not dispute that the driver of the lorry bearing Registration No.AP-16-U- 5664 drove the vehicle in rash and negligent manner and caused this accident. The 9 said driver is working under the employment of R1. R1 being the owner of the offending lorry is vicariously liable to pay compensation.

47.R1 insured his vehicle with 2nd respondent company under valid policy vide

Ex.B1. However the policy does not cover the risk of the claimants. So, R1 is liable to pay compensation. R2 is exonerated from liability

48.ISSUE NO.3 IN M.V.O.P.NO.479/2009:-

In the result, this petition is allowed partly by awarding total compensation of

Rs.32,000/- (Rupees Thirty Two Thousand Only) against the claim of Rs.1,00,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. R1 is liable to pay compensation and he is directed to deposit the said amount into the court within one month from the date of this award. R2 is exonerated from their liability. After deposit of such amount, the claimant is permitted to withdraw her total compensation at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees Five Thousand Only).

49.ISSUE NO.5 IN M.V.O.P.NO.480/2009:-

In the result, this petition is allowed partly by awarding total compensation of

Rs.30,000/- (Rupees Thirty Thousand Only) against the claim of Rs.1,00,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. R1 is liable to pay compensation and he is directed to deposit the said amount into the court within one month from the date of this award. R2 is exonerated from their liability. After deposit of such amount, the claimant is permitted to withdraw her total compensation at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees Five Thousand Only).

Dictated to the Junior Assistant, typed by her, corrected and pronounced by me in the

open court, this the 25th day of September, 2013.

III ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,

NELLORE.

10

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner:

PW1: Palakurthy Nagamani; PW2: Peram @ Palakurthi Thirupathamma.

For Respondent:

RW1: M. Subrahmanyam.

Documents Marked

For Petitioner:

Ex.A1: Attested xerox copy of FIR in Crime No.2/2008 of Nellikoduru P.S.; Ex.A2: Attested xerox copy of Wound Certificate; Ex.A3: Attested xerox copy of Charge Sheet; Ex.A4: Attested xerox copy of Wound certificate.

For Respondent:-

Ex.B1: Attested xerox copy of Insurance Policy and its Particulars belonging to R2.

III M.A.C.T./III A.D.J.

1

BEFORE THE III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,

S.P.S.R.NELLORE DISTRICT.

Friday, this the 27th day of September, 2013

Present:Sri P.MURALI MOHANA REDDY,B.A.B.L.,

CHAIRMAN, III M.A.C.T., NELLORE

***

M.V.O.P.NO.1021/2009

Ramaswamy Rajamannar @ Raja … Claimant

Vs.

1) Chella Ankamma

2) The New India Assurance Co. Ltd.,

rep. by its Branch Manager, Nellore. ... Respondents

This petition coming on 24.9.2013 before me for final hearing in the presence of Sri S.V.V.S.S. Durga Prasad Rao, advocate for the claimant and of Sri P.Vijaya Kumar Reddy, advocate for the 2nd respondent and the 1st respondent remained set exparte and having stood over till this day for consideration, this Court made the following:-

ORDER

This is a claim petition filed by the claimant under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.50,000/- against the respondents due to damage of his glass articles in a Motor Vehicle Accident that occurred on 8.10.2007 at about 11.00 a.m., near Sri Rajeswari Glass & Frame works, Opp: Vinayaka Theatre,

Santhapet, Nellore.

2.The brief averments mentioned in the petition are as follows:-

3.On 8.10.2007 at about 11.00 a.m. the claimant kept the cooling glass package of 8/4 size 6 mm in front of the shop, at that time, one auto bearing No.AP-26-X-8444 driven by its driver in a rash and negligent manner and lost control over the auto and dashed against the package contain of the above said cooling glasses. As a result of which the package of the cooling glasses worth Rs.43,000/- broken into pieces.

4.On information North Traffic Police registered a case in Crime No.56/2007 under

Section 279 IPC against the driver of the Auto bearing Reg. No.AP-26-X-8444 belonging to R1.

5.It is further averred in the petition that the claimant lossed the total cooling glasses package in the accident and also loss of earning on the damaged items, 2 transportations etc. The claimant claimed total compensation of Rs.50,000/- as shown in Para 25 of the petition in detail.

6.R1 is the owner of the Auto bearing No.AP-26-X-8444 and R2 is the insurer of the said vehicle. Thus, both the respondents are jointly and severally liable to pay compenation. Hence this petition.

7.R1 remained set exparte.

8.R2 filed counter denying all the allegations mentioned in the petition. This respondent denied the manner of the accident as alleged in the petition and the petitioner is put to strict proof of the same. This respondent submits that the driver of the offending auto was not having valid driving licence at the time of accident. The compensation claimed in this case is highly excessive. Hence prays to dismiss te petition with costs.

9. Basing on the pleadings of both parties, the tribunal settled the following issues:-

1) Whether the pleaded accident occurred, resulting in damage of glass articles of the petitioner, if so, was it due to rash and negligent driving of the driver of the auto bearing Reg. No.AP-26-X-8444?

2)Whether the claimant is entitled for compensation, if so, to what amount and from which of the respondents?

3)To what relief?

10.During the course of trial, the claimant is examined as PW1 and got marked

Exs.A1 to A3. R2 examined RW1 and got marked Exs.B1 and B2.

11.The petitioner filed a memo stating that he has no arguments. R2 filed written arguments and perused the same.

12.ISSUE NO.1:-

It is the case of the claimant that on the date of accident, the driver of the auto bearing No.AP-26-X-8444 drove the vehicle in a rash and negligent manner and 3 dashed against the package contain of the cooling glasses, which was kept infront of the shop of the claimant. Due to the impact, the cooling glasses broken into pieces.

13.In order to establish the rash and negligent act of the driver of the auto, the claimant R. Rajamannar @ Raja is examined as PW1. He clearly and categorically stated the manner of the accident in his chief affidavit that the driver of the auto was responsible for the accident.

14.R2 cross examined this witness but nothing is elicited except putting suggestions.

15.The First Information Report was registered by North Traffic Police, Nellore as a case in Crime No56/2007 under Section 279 IPC against the driver of the auto bearing

Reg. No.AP-26-X-8444 basing on the report given by PW1 as per Ex.A1. Ex.A2 is the rough sketch of the scene of offence.

16.After completion of investigation, the police filed charge sheet against the driver of the auto bearing Reg. No.AP-26-X-8444 stating that he drove the vehicle in a rash and negligent manner and caused the accident. The name of PW1 is referred in the charge sheet as LW1 as per Ex.A3.

17.There is no contra evidence on record to disprove the testimony of PW1 about the manner of the accident.

18.So, the evidence of PW1 coupled with Exs.A1 to A3, it is clear that the accident occurred due to rash and negligent act of the driver of the offending auto bearing

Reg. No.AP-26-X-8444 belonging to R1. This issue is answered accordingly and in favour of the claimant.

19.ISSUE NO.2:-

PW1 deposed that his cooling glasses package 8/4 size 6 mm which was kept infront of his shop were broken into pieces. The damaged cooling glasses worth of

Rs.40,000/-. He further stated that he had lossed the total cooling glasses number in 4 20 in the accident. He sustained loss of earning on the damaged item of Rs.4,000/- and spent Rs.3,000/- towards transportation of the glasses.

20.The claimant did not examine any witness to prove the damage of cooling glasses. It is the duty of the claimant immediately after the accident to appoint a qualified Surveyor to assess the damage of articles. Even he did not file any photos.

In these types of cases, the surveyor report plays vital role. There is no documentary proof that the claimant sustained damage of cooling glasses Rs.43,000/-.

21.In view of the evidence on record, the claimant is only entitled Rs.15,000/-.

22.The learned counsel for the 2nd respondent contended that the driver of the offending auto was not possessing valid driving licence and therefore their company is not liable to pay any compensation.

23.In support of his contention, the 2nd respondent examined RW1 Ch. Rambabu, working as Senior Assistant in 2nd respondent, Branch Office at Ongole. He deposed that the driver of the auto bearing Reg. No.AP-26-X-8444 has only non-transport licence as per investigation report. As on the date of accident, the driver was driven the transport vehicle. It is the violation of rules as per the policy. Hence their company is not liable to pay any compensation. RW1 produced the documents Exs.B1 and B2.

24. On the other hand, the learned counsel for the claimant contended that if there is any violation of policy conditions, the insurance company is liable to pay compensation at 1st instance, then recover the same from the owner of the offending auto. In support of his contention, he relied a decision reported in AIR 2011 (SC) 1234 (Punjab & Haryana) Kusum Latha Vs. Satbir and others.

It was held that, in view of dispute about license of driver of offending vehicle, the

Insurance Company held liable to pay compensation at first instance and later recover it from the owner of the vehicle.

5

25.Ex.B1 is the package policy issued by the 2nd respondent company and the same is in force. Ex.B2 is the attested xerox copy of driving licence issued by

Additional licencing authority, Nellore. Ex.B2 was issued on 8.6.2007 and the same is

valid upto 7.6.2027. The accident in this case was occurred on 8.10.2007. So, as on the date of accident, the driver was possessing non-transport driving licence. It is the violation of policy conditions. In view of legal position held in “Kusuma Lata” case, the insurance company is liable to pay compensation at 1st instance, then recover the same from the owner of the offending vehicle.

26.It is not dispute that the driver of the auto bearing Reg. No.AP-26-X-8444 drove the vehicle in a rash and negligent manner and caused the accident. The said driver is working under the employment of R1 and R1 being the owner of the offending vehicle is vicariously liable to pay compensation. R1 insured his vehicle with 2nd respondent company under valid policy vide Ex.B1. R1 is liable to pay compensation but in view of the legal position, R2 is liable to pay compensation at 1st instance, then recover the same from the owner of the offending vehicle. This issue is answered accordingly.

27.ISSUE NO.3 :-

In the result, this petition is allowed partly by awarding total compensation of

Rs.15,000/- (Rupees Fifteen Thousand Only) against the claim of Rs.50,000/- along with interest at the rate of 7.5% per annum from the date of petition to till the date of realization with proportionate costs. R1 is liable to pay compensation but in view of the legal position, R2 is liable to pay compensation at 1st instance, then recover the same from the owner of the offending vehicle and R2 is directed to deposit the said amount into the court within one month from the date of this award. After deposit of such amount, the claimant is permitted to withdraw entire award amount at once.

The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at

Rs.500/- (Rupees Five Hundred Only).

6

Dictated to the Junior Assistant, typed by him, corrected and pronounced by me in the open

court, this the 27th day of September, 2013.

III ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner: For Respondent:

PW1: R. Rajamannar @ Raja.RW1:Ch. Rambabu.

Documents Marked

For Petitioner:

Ex.A1: Attested Xerox copy of FIR in Crime No.562007 of North Traffic P.S., Nellore; Ex.A2: Attested Xerox copy of Rough Sketch of the scene of offence in Crime No.56/2007 of North Traffic P.S., Nellore; Ex.A3: Attested Xerox copy of Charge Sheet on the file of II A.J.M.F.C., Nellore.

For Respondent:

Ex.B1: Certified true copy of Insurance Policy; Ex.B2: Attested Xerox copy of Driving licence extract of driver by name Ch. Venkata Krishna.

III M.A.C.T./III A.D.J.

1

BEFORE THE III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,

S.P.S.R.NELLORE DISTRICT.

Friday, this the 27th day of September, 2013

Present:Sri P.MURALI MOHANA REDDY,B.A.B.L.,

CHAIRMAN, III M.A.C.T., NELLORE

M.V.O.P.NO.828/2009

Kancherla Venkataramanamma… Claimant

Vs.

1) P. Sridevi

2) United India Insurance Co. Ltd., rep. by its Divisional Manager,

Brindavanam, Nellore. ... Respondents

This petition coming on 25.9.2013 before me for final hearing in the presence of Sri Sk. Abdul Samath, advocate for the claimant and of Sri M. Ravindra Reddy, advocate for the 2nd respondent and the 1st respondent remained set exparte and having stood over till this day for consideration, this Court made the following:-

ORDER

This is a claim petition filed by the claimant under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a Motor Vehicle Accident that occurred on 11.7.2008 at 12.30 p.m. near Prasanthi Nagar, 3rd mile, Nellore Rural.

2.The brief averments mentioned in the petition are as follows:-

3.On 11.7.2008 the claimant was travelling in the auto bearing Reg.

No.AP-26-Y-4429 from Nellore to Devispet along with other passengers and when the said auto reached at about 12.30 p.m. near Prasanthi Nagar, 3rd mile, N.V. Gardens,

Nellore Rural, then the driver drove the auto in a rash and negligent manner and on seeing a boy, who came suddenly across the road, he applied sudden breaks to avert accident. As a result of which, the auto turned turtle and the claimant sustained injuries.

4.On information Nellore Rural Police registered a case in Crime No.192/2008 under Section 337 IPC against the driver of the auto bearing Reg. No.AP-26-X-4429 belonging to R1.

2

5.It is further averred in the petition that after the accident, the claimant was shifted to Government Hospital, Nellore for treatment. Subsequently, he was shifted to Narayana Hospital, Nellore for better treatment. In the said hospital, the doctor did surgery to the left leg of the claimant and inserted rods. She spent Rs.25,000/- towards medical expenses.

6.Prior to the accident, she was hale and healthy and aged about 30 years. She is Washer Woman and running laundry business at her village and used to earn

Rs.6,000/- per month. On account of injuries received in the accident, she could not able to attend any work and became permanently disabled person. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

7.R1 is the owner of the auto bearing No.AP-26-Y-4429 and R2 is the insurer of the said vehicle. Thus, both the respondents are jointly and severally liable to pay compenation. Hence this petition.

8.R1 remained set exparte.

9.R2 filed counter denying all the allegations mentioned in the petition. This respondent submits that on the date of accident, the offending auto is running with morethan 3 passengers. Due to overload of the auto, the driver unable to control the vehicle and caused the accident. This respondent denied the age, avocation and income of the claimant at the time of accident. The compensation claimed in this case is highly excessive. Hence prays to dismiss the petition with costs.

10.Basing on the pleadings of both parties, the tribunal settled the following issues:-

1) Whether the accident had occurred at 12.30 hours on 11.7.2008 near Prasanthi Nagar, 3rd mile, N.V. Gardens, Nellore Rural Mandal, was due to rash and negligent driving of the driver of the auto bearing Reg. No.AP-26-Y-4429 and caused injuries to the petitioner or not?

2)Whether the claimant is entitled for compensation, if so, to what amount and from which of the respondents?

3

3)To what relief?

11.During the course of trial, the claimant is examined as PW1 and got marked

Exs.A1 to A7. R2 did not adduce either oral or documentary evidence.

12.Both parties filed a memo stating that the orders may be passed basing on the evidence available on the record.

13.ISSUE NO.1:-

It is the case of the claimant that on the date of accident, the claimant was travelling in the auto bearing Reg. No.AP-26-Y-4429 from Nellore to Devispet along with other passengers and when the said auto reached at about 12.30 p.m. near

Prasanthi Nagar, 3rd mile, N.V. Gardens, then the driver drove the auto in a rash and negligent manner and caused the accident.

14.In order to establish the rash and negligent act of the driver of the auto, the claimant K. Venkataramanamma is examined as PW1. She clearly and categorically stated the manner of the accident in her chief affidavit that the driver of the auto was responsible for the accident.

15.R2 cross examined this witness but nothing is elicited except putting suggestions.

16.The First Information Report was registered by Nellore Rural Police as a case in

Crime No.192/2008 under Section 337 IPC against the driver of the auto bearing Reg.

No.AP-26-Y-4429 basing on the report given by K. Venkataramanaiah as per Ex.A1.

Ex.A2 is the wound certificate of PW1 which goes to show that she sustained three injuries in the accident.

17.After completion of investigation, the police filed charge sheet against the driver of the auto bearing Reg. No.AP-26-Y-4429 stating that he drove the vehicle in a rash and negligent manner and caused the accident. The name of PW1 is referred in the charge sheet as LW3 as per Ex.A3.

4

18.There is no contra evidence on record to disprove the testimony of PW1 about the manner of the accident.

19.So, the evidence of PW1 coupled with Exs.A1 to A3, it is clear that the accident occurred due to rash and negligent act of the driver of the offending autobearing Reg.

No.AP-26-Y-4429 belonging to R1. This issue is answered accordingly and in favour of the claimant.

20.ISSUE NO.2:-

PW1 deposed that she received 4 injuries in the accident. After the accident, she was shifted to Government Hospital, Nellore for treatment. Subsequently, she was shifted to Narayana Hospital, Nellore for better treatment. On 21.7.2008 the doctor did surgery to her left leg and steel plates and iron stools were inserted. She spent Rs.25,000/- towards medical expenses.

21.She further stated that she cannot squat on the floor by bending on her both legs. Even now, she is getting pain in her left leg due to non-healing of the fracture and she became permanently disabled person.

22.The claimant did not examine the doctor, who treated her in different hospitals.

She did not filed any case sheet to show that how many days she was stayed in the hospital as inpatient. Ex.A4 is the requisition to the police. Ex.A5 is the discharge summary issued by Narayana Hospital, Nellore which shows that the patient stayed in the hospital 18 days for treatment as inpatient. Ex.A6 is the blood bank receipts.

Ex.A7 are the bunch of medical bills and prescriptions issued by Narayana Hospital,

Nellore for Rs.2,729/-.

23.Ex.A2 is the wound certificate which reads thus:-

1) Swelling and deformity over left lower third of thigh with 8 x 8 cms abrasion red in colour.

2) 10 x 10 cms red abrasion over left below deltoid region.

3) 3 x 3 cms abrasion over left dorsum of foot bleeding present.

5

The doctor noted in the wound certificate, injury No.1 is grievous in nature and other injuries are simple in nature.

24.Though the claimant did not examine the doctor but the wound certificate can be taken into consideration to decide the nature of injuries received by the claimant.

There is no documentary proof that the claimant was running laundry shop.

25.The evidence of Pw1 coupled with Ex.A2, I am of the clear opinion that the claimant sustained one grievous and two simple injuries in the accident and she is entitled to receive just and reasonable compensation.

26.The claimant claimed total compensation in this case is Rs.1,00,000/- which is highly excessive.

27.Towards transport to the hospital Rs.1,000/- is awarded. Towards medical expenses Rs.4,000/- is awarded. Towards pain and suffering Rs.5,000/- is awarded.

Towards mental agony Rs.5,000/- is awarded. Compensation for one grievous injury

Rs.15,000/- is awarded. Compensation for two simple injuries each Rs.2,000/- and total Rs.4,000/- is awarded. So, the claimant is entitled total compensation of

Rs.34,000/-.

28.It is not dispute that the driver of the auto bearing Reg. No.AP-26-Y-4429 drove the vehicle in a rash and negligent manner and caused the accident. The said driver is working under the employment of R1 and R1 being the owner of the offending vehicle is vicariously liable to pay compensation. R1 insured his vehicle with 2nd respondent company under valid policy. So, both R1 and R2 are jointly and severally liable to pay compensation along with interest accrued thereon. This issue is answered accordingly.

29.ISSUE NO.3 :-

In the result, this petition is allowed partly by awarding total compensation of

Rs.34,000/- (Rupees Thirty Four Thousand Only) against the claim of Rs.1,00,000/- 6 along with interest at the rate of 7.5% per annum from the date of petition to till the date of realization with proportionate costs. R1 and R2 are jointly and severally liable to pay compensation and they are directed to deposit the said amount into the court within one month from the date of this award. After deposit of such amount, the claimant is permitted to withdraw entire award amount at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees

Five Hundred Only).

Dictated to the Junior Assistant, typed by him, corrected and pronounced by me in the open

court, this the 27th day of September, 2013.

III ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner: For Respondent:None

PW1: K. Venkata Ramanamma.

Documents Marked

For Petitioner: For Respondent:Nil

Ex.A1: Attested xerox copy of FIR in Crime No.192/2008 of Nellore Rural P.S.; Ex.A2: Attested Xerox copy of Wound Certificate; Ex.A3: Attested Xerox copy of Charge Sheet; Ex.A4: Requisition to the police; Ex.A5: Discharge summary issued by Narayana Hospital, Nellore; Ex.A6: Blood bank receipts; Ex.A7: Bunch of medical bills issued by Narayana Hospital, Nellore.

III M.A.C.T./III A.D.J.

1

BEFORE THE III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,

S.P.S.R.NELLORE DISTRICT.

Thursday, this the 12th day of September, 2013

Present:Sri P.MURALI MOHANA REDDY,B.A.B.L.,

CHAIRMAN, III M.A.C.T., NELLORE

M.V.O.P.NO.443/2007

1) Marpudi Kumara Swamy

2) Marpudi Suneetha (Added as per orders in I.A.No.185/2011,

dated 4.7.2012)… Claimant

Vs.

1) Avula Mallikarjuna

2) National Insurance Co. Ltd., Vijaya Complex Daravari Garden,

S.T.N. Road, Ongole.... Respondents

This petition coming on 10.9.2013 before me for final hearing in the presence of Sri P. Srinivasulu, advocate for the claimant and of Sri D. Gurukumar, advocate for the 1st respondent, and Sri I. Bhaskar Prasad Rao, advocate for the 2nd respondent and having stood over till this day for consideration, this Court made the following:-

ORDER

This is a claim petition filed by the claimant under Section 166 of Motor

Vehicles Act claiming total compensation of Rs.1,00,000/- against the respondents due to injuries received by the claimant in a Motor Vehicle Accident that occurred on 1.8.2005 at 11.00 a.m., on GNT Road, near Batladinne Cross Road, Kavali Mandal.

2.During the pendency of this claim petition, the claimant died and his legal heir i.e. the present claimant was brought on record.

3.The brief averments mentioned in the petition are as follows:-

4.On 1.8.2005 at about 11.00 a.m. the claimant and some other passengers boarded the auto bearing Reg. No.AP-26-W-4572 in order to go to Allur to Kavali.

When the vehicle reached near Batladinne cross road, then the driver drove the same in a rash and negligent manner and dashed against the divider of the road and turned turtle. Due to the impact, the claimant received grievous injuries.

2

5.On information Rural Police, Kavali registered a case in Crime No.96/2005 under Section 337 IPC against the driver of the Auto bearing Reg. No.AP-26-W-4572 belonging to R1.

6.It is further averred in the petition that after the accident, the claimant was shifted to Government Hospital, Kavali for treatment. Thereafter, he took treatment at Balaji Bone and Joint Clinic.

7.Prior to the accident, he was hale and healthy and aged about 62 years. He was working as a Cooli and earning Rs.3,000/- per month. On account of injuries received in the accident, he could not able to attend any work. The claimant claimed total compensation of Rs.1,00,000/- as shown in Para 25 of the petition in detail.

8.R1 is the owner of the Auto bearing No.AP-26-W-4572 and R2 is the insurer of the said vehicle. Thus, both the respondents are jointly and severally liable to pay compenation. Hence this petition.

9.R1 filed counter denying all the allegations mentioned in the petition. He insured the said vehicle with 2nd respondent under valid policy in force by the date of accident. So, R2 is liable to pay compensation. Hence prays to dismiss the petition with costs.

10.R2 filed counter denying all the allegations mentioned in the petition. This respondent submits that on the date of accident, nearly 12 passengers apart from the driver were proceeding in the auto. The seating capacity of the said auto is only 3 +1. As such, this respondent is not liable to pay any compensation. This respondent denied the age, avocation and income of the claimant at the time of accident. The compensation claimed in this case is highly excessive. Hence prays to dismiss the petition with costs.

11.R2 filed additional counter stating that the present claimant is the grand daughter-in-law of the deceased. She has to file succession certificate issued by the competent authority to show that she is the legal heir of the deceased claimant. The 3 present claimant is not entitled any compensation. The deceased claimant died due to his normal course of illness but not due to injuries sustained by him in the accident.

Hence prays to dismiss the petition with costs.

12.Basing on the pleadings of both parties, the tribunal settled the following issues:-

1) Whether the accident occurred due to rash and negligent driving of the driver of the Auto bearing Reg. No.AP-26-W-4552 by its driver and caused injuries to the petitioner or not?

2)Whether the claimant is entitled for compensation, if so, to what amount?

3)Which of the respondents are liable to pay compensation?

4)To what relief?

13.ADDITIONAL ISSUE:-

1) Whether the deceased M. Kumaraswamy died due to injuries received in the accident or his normal course of illness?

14.During the course of trial, the claimant is examined as PW1 and got marked

Exs.A1 and A2. On behalf of R2, RW1 is examined and Ex.B1 is marked.

15.Heard the arguments of the learned counsel for the claimant and learned counsel for the 2nd respondent.

16.ISSUE NO.1:-

It is the case of the claimant that on the date of accident, the deceased claimant and some other passengers boarded the auto bearing Reg. No.AP-26-W-4572 in order to go to Allur to Kavali. When the vehicle reached near Batladinne cross road, then the driver drove the same in a rash and negligent manner and dashed against the divider and caused the accident.

17.In order to establish the rash and negligent act of the driver of the auto, the claimant M. Suneetha is examined as PW1. She clearly and categorically stated the manner of the accident in her chief affidavit that the driver of the auto was responsible for the accident.

4

18.R2 cross examined this witness but nothing is elicited except putting suggestions.

19.The First Information Report was registered by Kavali Rural Police as a case in

Crime No.96/2005 under Section 337 and 338 IPC against the driver of the auto bearing Reg. No.AP-26-W-4572 basing on the report given by the original claimant as per Ex.A1. Ex.A2 is the wound certificate of deceased claimant which goes to show that he sustained two injuries in the accident.

20.The 2nd respondent examined RW1 T. Siva Reddy, who is working as Assistant

Manager in 2nd respondent company. He deposed the manner of the accident, in his chief affidavit. In his cross examination, he says that he did not witness the accident.

Therefore, his evidence is no way helpful.

21.So, the evidence of PW1 coupled with Exs.A1 and A2, it is clear that the accident occurred due to rash and negligent act of the driver of the offending auto bearing Reg. No.AP-26-W-4572 belonging to R1. This issue is answered accordingly and in favour of the claimant.

22.ISSUE NO.2:-

PW1 deposed that the deceased Kumara Swamy was her grandfather. On the date of accident, he received fracture on left forearm. Immediately, he was shifted to

Government Area Hospital, Kavali for treatment. Later he was shifted to Sri Balaji

Bone and Joint Clinic for better treatment. He was stayed as inpatient from 1.8.2005 to 15.8.2005 and spent Rs.15,000/- towards medical expenses. She further deposed that due to injuries received in the accident, her grandfather died.

23.The claimant did not examine the doctor, who treated the deceased claimant i.e. M. Kumaraswamy. There is no documentary proof that after the accident, what type of treatment the deceased claimant has taken. If at all, the deceased died due to injuries, it is the duty of the claimant to inform the police and the police has to conduct inquest, then the doctors also conduct P.M. Examination but there is no such 5 documents before the court that the deceased died due to injuries received in the accident since the claimant did not examine the doctor, who treated the deceased claimant. On the other hand, there is no evidence on record with regard to injuries and also death of the deceased.

24.The claimant did not file case sheet to show that how many days the deceased was stayed in the hospital. Even she did not file any medical bills.

25.In view of the evidence on record, I am of the clear opinion that the deceased claimant sustained two grievous and one simple injury in the accident. Therefore, the present claimant is entitled to receive total compensation of Rs.15,000/- under heads of extra nourishment and medical expenses.

26.ISSUE NO.3:-

It is not dispute that the driver of the Auto bearing Reg. No.AP-26_W-4572 drove the vehicle in a rash and negligent manner and caused the accident. The said driver is working under the employment of R1 and R1 being the owner of the offending vehicle is vicariously liable to pay compensation. R1 insured his vehicle with 2nd respondent company under valid policy vide Ex.B1. So, both R1 and R2 are jointly and severally liable to pay compensation along with interest accrued thereon.

This issue is answered accordingly.

27.ADDITIONAL ISSUE:-

In view of finding on issue No.2, the death of the deceased Kumaraswamy was normal course of illness. This issue is answered accordingly.

28.ISSUE NO.4 :-

In the result, this petition is allowed partly by awarding total compensation of

Rs.15,000/- (Rupees Fifteen Thousand Only) against the claim of Rs.1,00,000/- along with interest at the rate of 7.5% per annum from the date of petition to till the date of realization with proportionate costs. R1 and R2 are jointly and severally liable to pay 6 compensation and they are directed to deposit the said amount into the court within one month from the date of this award. After deposit of such amount, the claimant is permitted to withdraw entire award amount at once. The rest of the claim of the claimant is hereby dismissed. The advocate fee is fixed at Rs.500/- (Rupees Five

Hundred Only).

Dictated to the Junior Assistant, typed by him, corrected and pronounced by me in the open

court, this the 12th day of September, 2013.

III ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,

NELLORE.

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner: For Respondent:

PW1: M. Sunitha; RW1: D. Siva Reddy.

Documents Marked

For Petitioner:

Ex.A1: Attested xerox copy of FIR in Crime No.96/2005 of Kavali Rural P.S.; Ex.A2: Attested Xerox copy of Wound Certificate.

For Respondent:

Ex.B1:Certified true copy of insurance policy and its particulars issued by 2nd respondent company.

III M.A.C.T./III A.D.J.