Smt. P. Venkata Padma Lalitha Siva Jyothi

M.V.OP 48 of 2018

IN THE COURT CHAIRMAN (M.A.C.T.) -CUM- IX ADDL. DISTRICT JUDGE :: AT::

SIRCILLA.

PRESENT: P.V.P. LALITHA SIVA JYOTHI CHAIRMAN, (M.A.C.T)-cum-

JUDGE, FAMILY COURT,-CUM-

ADDL.DISTRICT JUDGE,

KARIMNAGAR.

FAC: IX ADJ., SIRCILLA.

Friday, this the 18th day of October, 2019

M.V. O.P. No. 48 OF 2018 Between:-

Challa Rajitha, w/o Ramulu, age: 28 yrs, Babaji, occ: Business r/o Ramaraopally village of Chandruthy mandal in Karimnagar district.

.... Petitioner

AND

1. Challa Ramulu, s/o Narsaiah, age: 32 yrs, Babaji, occ: Business and owner of Bajaj discover motor cycle Engine No. 58334, Chasis No. 38384, r/o Ramaraopally village of chandhurthy mandal in Karimnagar district.

2.Reliance General Insurance company limited, represented by its branch Manager, 3rd floor, Kyasa towers, Ambedkar road, court chowrastha, Karimnagar.

3.Edurugatla Srinivas s/o Laxmirajam, age: 20 yrs, r/o H.No. 3-7- 116/A Shanthinagar, Sircilla, Karimnagar district.

4.Eduru Chandra Shekar goud, s/o Laxmirajam goud, age: major, r/o H.No. 3-7-116/1, Shanthinagar, Sircilla, Karimnagar district. (the respondents No.3 and 4 are impleaded to the proceedings as per order in IA.NO. 175/2014, dt: 22.8.2014)

...Respondents

Petition Claim:- Under section 163-A of Motor Vehicles Act, on account of death of deceased Challa Sampath in a motor vehicle accident that occurred on 05.11.2010 at about 1800 hours at Vidyanagar, Sircilla involving the unregistered Bajaj discover motor cycle Engine No. 58334, Chasis No. 38384.

This petition is coming before me on 11-10-2019 for final hearing in the presence of Sri T.Sriramulu, Advocate for petitioner, and Sri T.Gunavanth Singh, Advocate for R2, R1, R3 and R4 remained exparte, upon perusing the material papers on record, having been heard and having stood over for consideration till this day, the Court made the following :-

:: O R D E R ::

1.The petitioners filed this petition under section 163-A of the

Motor Vehicles Act, for grant of compensation of Rs.3,00,000/- from the

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respondents for the death of Challa Sampath in a motor vehicle accident that occurred on 05.11.2010 at about 1800 hours at Vidyanagar, Sircilla involving the unregistered Bajaj Discover motor cycle Engine No. 58334, Chasis No.

38384 and first respondent is the owner, second respondent is the insurance company. The third respondent is the driver and 4th respondent is the owner of offending vehicle are impleaded as per the orders in IA 175 of 2014 dated 22.8.2014.

2.The case of the petitioner as could be seen from petition averments in brief is that the petitioner is the mother of deceased, the respondent No.1 is the father of deceased Challa Sampath, age: 7 years who died in a motor vehicle accident occurred on 5.11.2010 and on 5-6-2010 the respondent No.1 who is father of deceased took the deceased on his Un

Registered Bajaj Discover motor cycle Engine No. 58334, Chasis No. 38384 were proceeding to purchase fire crackers, the deceased sat as pillion rider, on the way at about 1800 hours when they reached Vidyanagar, Sircilla in the mean time the Hero Honda motor cycle bearing No. AP-15-AH-4321 came from opposite direction and dashed to the Bajaj discover motor cycle in which the deceased was traveling, as a result the deceased and his father fell down and received severe injuries and after the accident the deceased was shifted to Government Civil Hospital, Sircilla and from there he is again shifted to Government Civil hospital, Karimnagar, but the deceased died at 1900 hours while undergoing treatment. On receipt of the complaint, the police Sircilla registered a case in Cr.No. 357 of 2010 for the offence U/sec.

304-A and 337 IPC and the deceased was aged about 7 years old and was studying nursery at Siddartha English Medium school, Shivanagar, Sircilla and the petitioner had a strong ambition to educate the deceased and get him an educated man, educating him in a private school, so that the deceased would be become a good citizen of the country and the petitioners

M.V.OP 48 of 2018

intends to educate well for further higher studies so as enable their son to get a suitable job and to have a good position in the society by expending huge amounts for the bright future of the deceased and that he would become a doctor or an engineer and secure name and fame in the society and he would a great helpful to her at her old age, but due to the sudden and untimely death of deceased, had ruined all the hopes of the petitioner and she sustained great mental agony shock and till today she is unable to recover from mental grief, because the deceased is only male issue to her and the deceased was born to her after seven years after her marriage.

Therefore, on all counts, the petitioner is claiming a compensation of Rs.

3,00,000/- against the respondents. The 1st respondent is the rider cum owner of the vehicle in which the deceased traveled and died and the second respondent is the insured company, the said policy was subsisting by the date of accident and therefore, the respondents are jointly, severally and vicariously liable to pay the compensation to the petitioner. Hence the petition.

3.The respondent No.1, 3 and 4 remained exparte. Respondent

No.2 entered appearance and filed counter denying material averments in the petition and stated that the respondent No.1 drove the un-registered

Bajaj Discover motor cycle Engine No. 58334, Chasis No. 38384 which was involved in the accident was not having a valid and subsisting driving license at the time of accident and the vehicle was not driven according to the rules and regulations of the registration authorities. The accident was occurred due to negligence of rider of Hero Honda Motor cycle bearing no. AP-15-AH- 4321, who came in opposite direction and dashed to the motor cycle of respondent No.1 on which the deceased was traveling, hence this respondent is not entitled to pay any compensation neither in law nor on facts of the case. They further contends that as per the narration of the

M.V.OP 48 of 2018

petition and facts of police record there were two vehicles involved in the accident, there is negligence on the part of rider of Hero Honda Motor cycle

B.No. AP-15-AH-4321, therefore the rider, owner and insurance company of the Hero Honda Motor cycle B.No. AP-15-AH-4321 are necessary parties to the proceedings, if they are not impleaded as respondents, the petition is bad for non-joinder of necessary parties and liable to be dismissed. They further contends that the deceased was the son of respondent No.1 and the accident took place during the negligence of the rider of Hero Honda Motor cycle B.No. AP-15-AH-4321, hence the claim against this respondent is not maintainable. The 2nd respondent may be permitted to takeover all the defenses that are available to the insured U/sec. 170 of MV Act, to contest the case apart from those specified U/sec. 149 (2) of MV Act, and owner of vehicle does not intimate nor reported the occurrence of the accident in collusion with the petitioner, concerned police and is reserving the right to file an additional counter if necessary as and when receives any additional information about the accident and the amount of compensation claimed by the petitioner under various heads along with 18% interest per annum is highly excessive, exorbitant, imaginary and without proof of any documentary evidence and contrary to law and in case of passing award on the award amount only 6% of interest is to be awarded and seeks protection under section 147, 149 of MV Act, and Sec. 64(V) of insurance Act. For these reasons, they prayed to dismiss the petition with costs.

4.The 2nd respondent filed additional counter stated that according to the police records the accident occurred due to rash and negligent driving of respondent No.4, as a result of which the deceased and his father fell down and sustained injuries and on receipt of complaint registered the case

U/sec. 304-A, 337 IPC and after investigation filed charge sheet U/s. 304-A, 337 IPC, Sec. 3 r/w 181, 146 r/w 196 of MV Act, and according to police

M.V.OP 48 of 2018

record the rider/respondent No.3 is not holding the driving license at the time of alleged accident and there is no coverage of insurance as on the date of accident and reserving the right to file an additional counter if necessary as and when receives any additional information about the accident and prays to dismiss the petition.

5.On the basis of above pleadings, the following issues are settled for trial.

(1) Whether the pleaded accident took place due to the use of the Un Registered Bajaj Discover motor cycle Engine No. 58334, Chassis No. 38384 of R1 on which the deceased was traveling as pillion rider on 5.11.2010 at 1800 hrs at Vidhanagar, Sircilla?

(2) Whether the petitioner is entitled to any compensation, If so, for what amount and from which of the respondent? (3) To what relief?

ADDITIONAL ISSUE:-

Whether the petitioner is entitled to any compensation, If so, for what amount and from which of the respondent?

6.During enquiry, the petitioners got examined Pw-1 and got marked Exs. A1 to A7 and the respondent examined as RW1, and Ex.B1 is marked on behalf of the respondents.

7.On conclusion of trial, this Court heard both sides.

8. Issue No.1:-

To prove the case, the petitioner got examined the petitioner as

PW1 and got marked Ex.A1 to Ex.A7. Ex.A1 CC of FIR in Cr.No. 357 of 2010

PS Sircilla, Ex.A2 is Certified copy of inquest, Ex.A3 Certified copy of Post

Mortem examination report, Ex.A4 CC of Charge sheet, Ex.A5 Certified copy of CDF, Ex.A6 CC of Form-54, Ex.A7 is the MVI report.

9.As seen from the record, petitioner/PW-1 filed her chief affidavit in lieu of her chief examination and she reiterated the petition averments.

The evidence of PW-1 discloses that she was the mother of deceased, the

M.V.OP 48 of 2018

respondent No.1 was the father of deceased Challa Sampath, age: 7 years who died in a motor vehicle accident occurred on 5.11.2010 and on 5-6-2010 the respondent No.1 who was father of deceased took the deceased on his un-registered Bajaj Discover motor cycle Engine No. 58334, Chasis No.

38384 were proceeding to purchase fire crackers, the deceased sat as pillion rider, on the way at about 1800 hours when they reached Vidyanagar, Sircilla in the mean time the Hero Honda motor cycle bearing No. AP-15-AH-4321 came from opposite direction and dashed to the Bajaj discover motor cycle on which the deceased was traveling, as a result the deceased and his father fell down and received severe injuries and after the accident the deceased was shifted to Government Civil Hospital, Sircilla and from there he was again shifted to Government Civil hospital, Karimnagar, but the deceased died at 1900 hours while undergoing treatment. On receipt of the complaint, the police Sircilla registered a case in Cr.No. 357 of 2010 for the offence

U/sec. 304-A and 337 IPC and the deceased was aged about 7 years old and was studying nursery at Siddartha English Medium school, Shivanagar,

Sircilla and she had a strong ambition to educate the deceased and get him an educated man, educating him in a private school, so that the deceased would be become a good citizen of the country and she intends to educate well for further higher studies so as enable their son to get a suitable job and to have a good position in the society by expending huge amounts for the bright future of the deceased and that he would become a doctor or an engineer and secure name and fame in the society and he would be great helpful to her at her old age, but due to the sudden and untimely death of deceased, had ruined all her hopes and she sustained great mental agony shock and till today she is unable to recover from mental grief, because the deceased is only male issue to her and the deceased was born to her after seven years after her marriage. She further stated that the petitioner U/sec.

M.V.OP 48 of 2018

163-A of MV Act a special provision as to payment of a compensation on structure formula basis as the accident arose out of use of motor vehicle on the road, therefore, the owner and his authorized insurer are liable to pay compensation to the victims, the insurer is the first party and the insured is the second party, and the contract was not between the insurance company and the deceased, therefore, the deceased was a third party, since the vehicle was insured for third party claim, the insurance company is liable and the claim petition was filed under Sec. 163-A of MV Act and on all counts, she is claiming a compensation of Rs.3,00,000/- against the respondents.

10.As against the evidence of PW-1 coupled with Ex.A1 to Ex.A7,

RW-1 is examined and Ex.B1 is marked on behalf of the respondents.

11. The Asst., Legal Manager of Reliance General insurance Col Ltd.,

Karimnagar is examined as RW-1 and in his evidence, he stated that the accident was occurred due to negligence of rider/R3 of Hero Honda Motor cycle bearing no. AP-15-AH-4321, who came in opposite direction and dashed to the motor cycle of respondent No.1 on which the deceased was traveling, hence this respondent is not entitled to pay any compensation neither in law nor on facts of the case and as per the police record the rider/respondent

No.3 is not holding the driving license at the time of alleged accident and there is no coverage of insurance as on the date of accident and the petitioner claiming compensation from this respondent and filed case against her own husband by showing him as respondent No.1, the petition is filing

U/sec. 163-A of MV Act which is not maintainable under eye of law to file against the respondent No.1 who is not at all negligent in driving his vehicle and their company issued insurance policy in favour of respondent No.1 and the liability on deceased if any, is in compliance with express terms, conditions, limitations as to use and exceptions there on as well as with driver’s clause which is mentioned on the face of the policy, otherwise they

M.V.OP 48 of 2018

are not liable to pay any compensation to the petitioners.

12.It is the contention of the petitioner that the deceased was aged about 7 years old and was studying nursery at Siddartha English Medium school, Shivanagar, Sircilla and she had a strong ambition to educate the deceased and get him an educated man and educating him in a private school, so that the deceased would be become a good citizen of the country and she intends to educate well for further higher studies so as enable their son to get a suitable job and to have a good position in the society by expending huge amounts for the bright future of the deceased and he would become a doctor or an engineer and secure name and fame in the society and he would a great helpful to her at her old age, but due to the sudden and untimely death of deceased, had ruined all her hopes and she sustained great mental agony shock and till today she is unable to recover from mental grief.

13.Per contra, it is the contention of the respondent NO.2 that the accident was occurred due to negligence of rider/R3 of Hero Honda Motor cycle bearing no. AP-15-AH-4321, who came in opposite direction and dashed to the motor cycle of respondent No.1 on which the deceased was traveling, hence this respondent is not entitled to pay any compensation either in law or on facts of the case and as per the police record the rider/respondent No.3 is not holding the driving license at the time of alleged accident and there is no coverage of insurance as on the date of accident and the petitioner is claiming compensation from them and filed case against her own husband by showing him as respondent No.1, and the petition U/sec. 163-A of MV Act which is not maintainable in the eye of law as the respondent No.1 is not at all negligent in driving his vehicle and their company issued insurance policy in favour of respondent No.1 and the liability if any, is in compliance with express terms, conditions, and they are not liable to pay any compensation

M.V.OP 48 of 2018

to the petitioners.

14.As seen from the record, the present petition is filed U/sec. 163-A of MV Act, 1988. Therefore there is no necessity for the court to go into the neglect act. Under Sec. 163-A of the Act, even though there has been no fault on the part of the driver, the owner and insurer are liable to pay the compensation in respect of the death of the deceased as given in the structured formula in the second schedule appended to the act. Sec. 163-A of the Act covers the cases where even there is negligence on the part of the victim. The facts required to be proved are; 1. whether the accident was occurred and secondly with the motor vehicle and lastly the result and consequences i.e., injury or death of the claimant. Therefore the important factors to be considered are whether there was any motor vehicle accident that took place on 5.11.2010 at bout 1800 hours at Vidyanagar, Sircilla involving the unregistered Bajaj Discover motor cycle Engine No. 58334,

Chasis No. 38384 and whether the deceased/Challa Sampath was died on account of the said road traffic accident.

15.When the evidence of PW-1 and the documents relied on by the petitioner i.e., Ex.A1 CC of FIR, Ex.A4 CC of charge sheet, Ex.A2 CC of inquest, Ex.A3 CC of PME report. Ex.A7 CC of MVI report discloses that complaint was lodged and FIR was issued and the police after investigation had filed charge sheet against the respondent NO.3 for the offences punishable U/sec. 304-A, 337 IPC and Sec. 3 r/w 181 of MV Act. The only contention of the respondent No.2 is that the 3rd respondent without holding the driving license drove the offending motor cycle Bearing No.AP-15-AH- 4321 and caused the pleaded accident. The evidence of RW-1 discloses that as per the police record, the pleaded accident occurred due to the rash and negligent driving of the 3rd respondent.

16.In fatal accident cases, the measure of damage is the pecuniary

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loss suffered by and is likely to be suffered by each dependant as a result of death of the deceased. Basically only three facts need to be established by the claimants for assessing the compensation in the case of death;

1. age of the deceased.

2. Income of the deceased

3. The number of dependants.

17.The issues to be determined to arrive at the loss of dependency are;

1.Additions/deductions to be made for arriving at the income.

2.The deduction to be made towards the personal living expenses of the deceased.

3.The multiplier to be applied with reference to the age of the deceased.

18.It is an admitted fact that offending unregistered Bajaj Discover

Motor cycle Engine No. 58334, chasis No. 38384 was involved in the pleaded accident and it was driven by the first respondent on the date of accident and insured with second respondent. Admittedly the said vehicle was insured with second respondent company and it belongs to the first respondent.

19.The learned counsel for the respondent submits that their insurance company is not liable to pay any compensation to the petitioner as

PW-1/mother of the deceased herself stated that when her husband/R1 was proceeding on his motor bike along with her son, another bike came opposite to the bike of her husband and dashed to their bike resulting in an accident.

Nothing is elicited in her cross examination that there is no negligence on the part of the R1. She stated that she filed the case against rider of the other bike and the criminal case is pending and denied that the deceased is not third party to the second respondent company and R2 is not liable for her claim. The evidence of RW-1 discloses that Ex.B1 policy is a package policy

M.V.OP 48 of 2018

and he denied that deceased boy was a third party and therefore their company is liable to pay the compensation.

20. As seen from the record, the death of the deceased Challa

Sampath in the pleaded accident was not denied by the respondents. The documents relied on by the petitioners especially Ex.A4 charge sheet clearly reveals the involvement of the offending vehicle in the accident. Ex.A1 is the

FIR, Ex.A3 is the PME, Ex.A2 is the inquest report and Ex.A6 is the Form-54 and Ex.A7 is the MVI report which clearly reveals that the motor cycle bearing No. AP-15-AH-4321 was involved in the accident. In the documents relied on by the petitioner, the age of the deceased Challa Sampath was mentioned as 7 years old. Except denial, no proof is relied on by the respondents that the deceased Challa Sampath was not aged about 7 years old. Mother is the claimant.

21.The evidence of PW-1, Exs. A1 to A7 coupled with the evidence of

RW1 and Ex.B1 clearly and categorically established that the accident happened due to rash and negligent driving of the 3rd respondent. The police after investigation found that the accident happened due to the negligence of the 3rd respondent. Except making averments in the counter and in the chief affidavit of RW-1, there is no evidence on record that R1 is not holding driving license and there is no coverage of the insurance to Bajaj Discover motor cycle involved in the accident and since the accident happened due to the negligence of the third respondents who is the rider of the crime motor cycle, their company is not liable to pay the compensation to the petitioner.

Admittedly Ex.B1 copy of insurance policy in respect of unregistered Baja motor cycle involved in the accident was in force by the date of accident.

22.The learned counsel for the respondent No.2 relied on a citation reported in 2012 (1) T.A.C 234 (S.C.) Supreme court of India, New Delhi between National Insurance company Ltd., vs Sinitha and others.

M.V.OP 48 of 2018

The facts of the case are not similar to the present case on hand.

23.Another citation reported in 2009 (3) T.A.C. 13 (S.C.) Supreme

Court of India, New Delhi between Ningamma and another Vs. United India

Insurance Co. ltd., wherein it was held that, “ Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs.40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor.” 24.Another citation reported in Order in appeal 3126 of 2002

Girishbai Soni and other Vs. United India Insurance co. Ltd., dated 18.03.2004 of Supreme Court of India, “If a person invokes provisions of Section 163-A, the annual income of

Rs. 40,000/- per annual shall be treated as a cap. In our opinion, the proceedings under section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof.” 25.Another citation reported in Judgment in 2008 (1) GLR 225 dt:

26.7.2007 of Gujarat High Court, “on a plain reading of the above Section, it is very clear that it provides for special provision as to the payment of compensation on a structured- formula basis. The legislative intent behind the page 1348 enactment of the said Section was to provide for the making of an award consisting of a predetermined sum, without insisting on a long-drawn-out trial or without proof of negligence in causing the accident. The said Section is subject to the

Second Schedule appended thereto and provides for the grant of immediate relief to a section of the people whose annual income is not more than Rs.

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40,000/-” “The Division Bench has held that the award made by the tribunal showed that the Tribunal had assessed annual income of the victim to be beyond Rs. 40,000/- p.a., inspite of that the award was made under section 163-A of the Act. Therefore, the Tribunal had committed serious error. There is no disagreement with the ratio laid down by the Division Bench of this

Court. Obviously when the finding is that the claimant’s income is more than

Rs. 40,000/- p.a., the case has to be decided in finding is that the claimant’s income is more than Rs. 40,000/- p.a., the case has to be decided in accordance with the provisions of Section 166 of the Act and no award can be made under section 163-A of the Act.” 26.The learned counsel for the petitioner relied on a citations reported in 2018 (5) ALD 135 (SC) between Shivaji and another Vs. Divisional

Manager, United India insurance co. Ltd. And others wherein it was held that, “It was held that in a proceeding under Section 1633-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.” 27.Another citation reported in Supreme Court of India, New Delhi

Claims Civil appeal No. 3126 of 2002, between Deepal Girsh Bhai Soni and others Vs Untied India Insurance co. Ltd., Baroda where in it was held that, “In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. Al other claims are required to be determined in terms of chapter XII of the Act.” 28.Another citation reported in Supreme Court of India, New Delhi

Claims Civil appeal No. 9694 of 2013 between Untied India Insurance co.

Ltd., Vs. Sunil Kumar and another, wherein it was held that, “Section 163-A is on the principle of no fault and, therefore, the

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question as to who is at fault is immaterial and foreign to an enquiry under

Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is statutory obligation.” 29.Another citation reported in 2014 ACJ 1720 in the High court of

Andhra Pradesh at Hyderabad between United India Insurance Col Ltd vs.

Katikala Indira and others, wherein it was held that , “In the instant case, facts on record disclose that the deceased died in a motor accident involving a TATA SUMO vehicle insured by the appellant- respondent No.2 and the claim is made under section 163-A of the Act. Once it is proved that the accident occurred on account of the use of motor vehicle, the claimants are entitled to claim compensation and the usual defences available to the insurance company under section 149 (2) of the Motor

Vehicle act are not available. In view of the same, I do not see any error in the decision arrived at by the Claims Tribunal in holding the insurance company (appellant) also liable to pay compensation determined by the claims Tribunal.” 30.The present petition is filed under Section 163-A of MV Act.

Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance

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company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Once it is established that death occurred during the course of user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shell be liable to pay the compensation and it is a statutory obligation.

31.Sec. 163-A of the Act covers the cases where even there is negligence on the part of the victim. The facts required to be proved are; 1.

whether the accident was occurred and secondly with the motor vehicle and lastly the result and consequences i.e., injury or death of the claimant. The petitioner through the evidence of Pws 1 and Exs. A1 to A7 established that there was motor vehicle accident that took place on 5.11.2010 at bout 1800 hours at Vidyanagar, Sircilla involving the unregistered Bajaj Discover motor cycle Engine No. 58334, Chasis No. 38384 driven by the first respondent and other vehicle and the deceased Challa Sampath was died on account of the said road traffic accident involving the crime vehicle driven by the 3rd respondent and owned by 4th respondent and as such respondents No. 1 to 4 are jointly and severally liable to pay the compensation to the petitioner.

Accordingly this issue NO.1 is answered in favour of the petitioner.

32.Issue No.2 and Additional Issue:-

It is settled law that the liability of insurer is a statutory one. The liability of insurer to satisfy the decree in favour of a third party is also statutory one. It is for the insurer to proceed against the insured for recovery of the amount in the event if there has been violation of any conditions of the policy. Ex.B1 is the CC of insurance policy of unregistered Bajaj discover motor cycle Engine No. 58334, chasis No.38384 and the same was valid from 00.00 hrs on 18.09.2010 to 17.09.2011 on 23.59 hrs. The pleaded accident occurred on 05.11.2010. Therefore, Ex.B1 policy was in force by the date of

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accident.

33.The petitioner is claiming compensation of Rs. 3,00,000/-. Here in the present case, the petitioners are the parents of the deceased Challa

Sampath. According to the petitioner, the deceased was aged about 7 years old and was studying nursery at Siddartha English Medium school,

Shivanagar, Sircilla and she had a strong ambition to educate the deceased and get him an educated man, educating him in a private school, so that the deceased would be become a good citizen of the country and she intends to educate well for further higher studies so as enable their son to get a suitable job and to have a good position in the society by expending huge amounts for the bright future of the deceased and that he would become a doctor or an engineer and secure name and fame in the society and he would a great helpful to her at her old age, but due to the sudden and untimely death of deceased, had ruined all her hopes and she sustained great mental agony shock and till today she is unable to recover from mental grief.

34.In a citation reported in Lata Wadhwa Vs. State of Bihar (2001) (8) SCC 197 wherein the Hon’ble Supreme Court held that “in case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child’s life time, but this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. In case of a bright and healthy boy, his performance in 6th school, ‘it would’ for authority to arrive the compensation amount which may be different from another sickly, unhealthy, rickely child and bad student.

But in the present case, there is no evidence on record to show that the deceased Challa Sampath was a brilliant and healthy boy.

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35.In another citation reported in Manju Devi Vs. Musafir Paswan VII (2005) SLT 257 – It was an appeal arising out of claim due to death of a 13 years old boy in a motor vehicle accident that had occurred on 2-7-1998. The matter was decided by the Hon’ble Supreme Court on 31-3-2003. The tribunal had awarded a lumpsum amount of Rs. 90,000/- which had been upheld by the Hon’ble High Court. The Hon’ble Supreme Court increased the award to Rs. 2,25,000/- applying the notional income of non-earning person (Rs.15,000/- as specified in the 2nd schedule of MV Act and adopting the multiplier of 15.) In these circumstances the law can be taken as generally well settled that the pecuniary damages in cases of death of children have to be computed with reference to the notional income specified in 2nd schedule appended to the Motor Vehicle Act.

36.The second schedule to the Motor Vehicle Act prescribes Notional income of non-earning persons and in the present case it is to be assumed as

Rs. 15,000/- per annum. Therefore 1/3rd of the income has to be deducted towards the personal and living expenses of the deceased and the net income of the deceased is to be taken at Rs.10,000/- per annum. For assessment of pecuniary damages on account of the death of children upto the age of 10 years, the loss of estate shall be calculated, capitalizing the multiplichand by applying the multiplier of “10”. Therefore the petitioner is awarded an amount of Rs 1,00,000/- by applying the notional income of the non-earning person i.e., Rs.15,000/- per annum as specified in the 2nd schedule in the Motor Vehicle Act and adopting the multiplier of 10 i.e., 10,000/- x 10 = Rs.1,00,000/-. The petitioners can also awarded an amount of Rs. 50,000/- under conventional heads towards loss of love and affection, funeral expenses i.e., in total Rs. 1,00,000/- + 50,000/- = Rs.1,50,000/- .

Thus, totally the petitioner is entitled for compensation of Rs.1,50,000/- which is fair, just and reasonable compensation. R1 being the driver and R2

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being the insurer of the unregistered Bajaj discover motor cycle involved in the accident, R3 being the driver and R4 being the owner of the offending motor cycle B.No. AP-15-AH-4321 are jointly and severally liable for the claim of the petitioner. Accordingly this issue No.2 and additional issue is answered.

37.Issue No.3:-

In view of the above finding Issue No.1 and 2 and additional issue, the petition has to allowed in part. Accordingly the issue No.3 is answered.

In the result, the petition is allowed in part by awarding compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only), to the petitioner with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of deposit and respondent No.1 to 4 are jointly and severally liable to pay the compensation to the petitioner. The petitioner is entitled to compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only), with proportionate costs and interest. The respondent No.2/Reliance

General Insurance Co. Ltd., is directed to deposit the said amount within 60 days from the date of this order. In default, the amount carries interest @ 12% per annum after expiry of 60 days and the petitioner is permitted to withdraw the entire amount soon after deposit. The advocate fee is fixed at

Rs.2,500/- (Rupees two thousand and five hundred only).

Typed to my dictation by personal assistant, corrected and pronounced by me in the open Court, on this 18 th day of October, 2019.

Chairman, (M.A.C.T)- cum-

Judge, Family Court-cum-

Addl. District Judge, Karimnagar. FAC: IX ADJ., SIRCILLA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER: FOR THE RESPONDNETS:-

P.W.1 : Challa Rajitha RW1 : N.Aruna Kumar

M.V.OP 48 of 2018

EXHIBITS MARKED

FOR THE PETITIONER:-

Ex.A.1CC of FIR in Cr.No. 357 of 2010 of Sircilla PS Ex.A.2 : CC of inquest report Ex.A.3 : CC of PME Ex.A.4 : CC of charge sheet Ex.A.5 : CC of CDF Ex.A.6 : CC of Form-54. Ex.A.7 :CC of MVI REPORT.

FOR THE RESPONDENTS:-

Ex.B1 :Attested copy of insurance policy in respect of unregistered Bajaj discover motor cycle Engine No. 58334, chasis No.38384.

Chairman, (M.A.C.T)- cum-

Judge, Family Court-cum-

Addl. District Judge, Karimnagar. FAC: IX ADJ., SIRCILLA.

..

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M.V.OP 09 of 2017

IN THE COURT CHAIRMAN (M.A.C.T.) - CUM - IX ADDITIONAL DISTRICT

JUDGE (FTC), SIRCILLA.

PRESENT: P.V.P. LALITHA SIVA JYOTHI, CHAIRMAN, (M.A.C.T)-cum-

JUDGE, FAMILY COURT,-CUM-

ADDL.DISTRICT JUDGE,

KARIMNAGAR.

FAC: IX Addl. District Judge, SIRCILLA.

Friday, this the 27th day of September, 2019

M.V. O.P. No. 9 OF 2017

Between:- Rudra Lavan Kumar s/o Bhumaiah, now age: 22 yrs,occ: Student, r/o Achampalli village of Gangadhara mandal of Karimnagar district. (During pendency of case the petitioner is declared as a major as per the Orders passed in IA.NO. 133 of 2017, dt: 24.10.2017).

.... Petitioner.

AND

1.Mohd. Layaq Ali s/o mahaboob Ali, age: 32 yrs, occ: driver of lorry b.No. AP-16-T-1715, r/o Imli street, Peddapally town and mandal of Karimnagar district.

2.Abdul Raheem s/o Abdul Kareem, age: 36 yrs, occ: owner of lorry B.No. AP-16-T-1715, r/o Subashnagar locality of Peddapally town and mandal in Karimnagar district.

3.ICICI Lombord General Insurance company Limited, Represented by its branch Manager, Karimnagar branch door No. 3-1-177, 1st floor Penchala Complex, Opp Court building complex, Karimnagar.

...Respondents.

Petition Claim:- Under section 166(1)(a) of Motor Vehicle Act, on account of injuries sustained by the petitioner in a motor vehicle accident that occurred on 09.05.2008 at about 1930 Hours, at the outskirts of Nagula Mallyal village, involving the Lorry bearing No. AP-16- T-1715.

This petition is coming before me on20.09.2019for final hearing in the presence of Sri D.Thirupathi, Advocate for petitioner, and Sri T.Gunavanth Singh, Advocate for R3, R1 and R2 remained exparte,upon perusing the material papers on record, having been heard and having stood over for consideration till this day, the Court made the following :-

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M.V.OP 09 of 2017

:: O R D E R ::

The petitioner filed this petition under section 166 (1)(a)

Motor Vehicles Act, for grant of compensation of Rs.1,50,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 09.05.2008 at about 1930 Hours, at the outskirts of Nagula Mallyal village, involving the Lorry bearing No. AP-16-T-1715 driven by R1, owned by R2 and insured with R3.

2.The case of the petitioner as could be seen from the petition averments in brief is that the petitioner was aged about 16 years and he was a student and that on the date of accident i.e., on 09.05.2008 the petitioner and his elder brother Rudra Raju were going to Achampelli on

Hero Honda Passion motor cycle B.No. AP-28-BC-1485 from Karimnagar, the petitioner was the pillion rider and his brother was rider of the motor cycle and on the way at about 1930 hours when they reached at the outskirts of Nagula Mallyal village, the lorry bearing No. AP-16-T-1715 being driven by the first respondent in a rash and negligent manner with high speed proceeding towards Karimnagar dashed to the motor cycle, as a result the petitioner and his brother fell down from the motor cycle, as a result the petitioner received fracture injures to his left shoulder, right femure, left eye and right foot besides other bleeding injuries all over body and on receipt of complaint, the police Karimnagar Rural registered a case in Cr.No. 136 of 2008 U/sec. 338 IPC against the first respondent and immediately after the accident he was shifted to Shiravarma hospital,

Karimnagar on his admission he underwent different types of prescribed medical tests and was conservatively treated as inpatient from 09-05- 2008 to 17-05-2008, he was discharged with an advice to have bed rest and follow up treatment for 06 months and after his discharge the

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M.V.OP 09 of 2017

petitioner took treatment as an out patient for 06 months by visiting the hospital as per the advice of the doctors and he incurred Rs. 70,000/- and odd for his treatment, transportation and extra nourishment etc., and after accident he did not attend his school while taking bed rest and continuing treatment as an outpatient, due to which he lost one academic year and due to fracture left shoulder he is unable to lift any weights, due to fracture of right leg he is unable to walk properly unable to participate any sports at his student stage and became disabled person and he received great mental shock and suffered with mental shock and agony and therefore, the petitioner is claiming compensation of Rs. 1,50,000/- against the respondents. The respondent No.1 caused the accident with rash and negligent driving of crime vehicle and is under the employment of respondent No.2 and is validly insured with respondent No.3 and therefore, the respondents No.1 to 3 are jointly and severally liable to pay compensation to the petitioner. Hence this petition.

3.The respondent No.1 and 2 remained exparte and respondent

No.3 entered appearance and filed counter denying the material averments in the petition and stating that they are not aware of the criminal proceedings against the R1 and this respondent seeks protection

U/sec. 147, 149, 170 of MV Act and Section 64 of insurance Act and may be permitted to file additional and amended counter as and when necessary in the subsequent stages of the cases. The petitioner is rider of

Hero Honda Passion motor cycle B.No. AP-28-BC-1485 and respondent

No.1 is the driver of lorry B.No. AP-16-T-1715 were not holding valid and effective driving license on the date of accident and the accident might have occurred due to the negligence of the rider of the Hero Honda passion motor cycle B.No. AP-28-BC-1485 and the amount of compensation claimed under different heads and disclosed in Col. No.25

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M.V.OP 09 of 2017

(1) & (2) in the petition is highly excessive, exorbitant and out of all proportions and that there is no nexus between the injuries and the amount claimed. For these reasons, they prayed to dismiss the petition with costs.

4.On the basis of above pleadings, the following issues are settled for trial:

(1) Whether the pleaded accident took place due to rash and negligent driving of the offending vehicle i.e., Lorry bearing No. AP-16-T-1715 by its driver?

(2) Whether the petitioner is entitled for any compensation. If so, to what amount and from which of the respondent ?

(3)To what relief?

5. During trial, the petitioner himself got examined as Pw-1 and medical officer was examined as PW-2 and got marked Exs. A1 to A5 and

RW-1 to 3 were examined and Ex.B1 to Ex.B7 and Ex.X1 were marked on behalf of the respondents.

6. On conclusion of trial, this Court heard both sides.

7. Issue No.1 :- To prove the case, the petitioner got examined his father as PW1, and medical officer as PW-2 and got marked Ex.A1 to

Ex.A5.

8.As seen from the record, the present petition is filed by the minor petitioner represented by his father as guardian and during the pendency of the petition, the minor petitioner was declared as major as per orders in

I.A. No.134/2017 dated 24.10.2017.

9.PW-1/father of petitioner filed his chief affidavit in lieu of his chief examination and he reiterated the petition averments and stated that petitioner is aged about 16 years and he was a student and that on the date of accident i.e., on 09.05.2008 the petitioner and his elder brother Rudra Raju were going to Achampelli on Hero Honda Passion

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M.V.OP 09 of 2017

motor cycle B.No. AP-28-BC-1485 from Karimnagar, the petitioner was the pillion rider and his brother was rider of the motor cycle and on the way at about 1930 hours when they reached at the outskirts of Nagula Mallyal village, the lorry bearing No. AP-16-T-1715 being driven by the first respondent in a rash and negligent manner with high speed proceeding towards Karimnagar dashed to the motor cycle, as a result the petitioner and his brother fell down from the motor cycle, as a result the petitioner received fracture injures to his left shoulder, right femur, left eye and right foot besides other bleeding injuries all over body and on receipt of complaint, the police Karimnagar Rural registered a case in Cr.No. 136 of 2008 U/sec. 338 IPC against the first respondent and immediately after the accident he was shifted to Shivarama hospital, Karimnagar on his admission he underwent different types of prescribed medical tests and was conservatively treated as inpatient from 09-05-2008 to 17-05-2008, he was discharged with an advice to have bed rest and follow up treatment for 06 months and after his discharge the petitioner took treatment as an out patient for 06 months by visiting the hospital as per the advice of the doctors and he incurred Rs. 70,000/- and odd for his treatment, transportation and extra nourishment etc., and after accident he did not attend his school while taking bed rest and continuing treatment as an outpatient, due to which he lost one academic year and due to fracture left shoulder he is unable to lift any weights, due to fracture of right leg he is unable to walk properly unable to participate any sports at his student stage and became disabled person and he received great mental shock and suffered with mental shock and agony and therefore, the petitioner is claiming compensation of Rs. 1,50,000/- against the respondents No.1 to 3.

10.The evidence of PW-2 discloses that the petitioner was

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M.V.OP 09 of 2017

admitted in their hospital on 09.05.2008 and he sustained the injuries i.e.,

1. closed right femur fracture right side, 2. left clavic fracture, 3. Multiple soft tissue injuries all over body and he was discharged on 17.5.2008 and he was operated for right femur fracture with placing of implant and the implant is to be removed, and another surgery is required and the petitioner will incur Rs. 30,000/- and their hospital issued bill for treatment charges for Rs. 20,000/- and other medical bills filed pertaining to the treatment of petitioner and the petitioner suffered permanent disability of 20 percent. But as seen from the record, no disability certificate was filed to show that the petitioner/injured sustained any disability due to the injures received by him in the pleaded accident.

11.The documentary evidence relied upon by the petitioners are

Ex.A1 to Ex.A5. Ex.A1 is the CC of FIR in Cr.No. 136 of 2008 PS Karimnagar

Rural, Ex.A2 is CC of charge sheet in Cr.No. 136 of 2008 PS Karimnagar

Rural, Ex.A3 CC of medical certificate, Ex.A4 is CC of form No. 54, Ex.A5 is bunch of medical bills receipts and treatment bills (18) in number.

12.As against the evidence of PW-1 and 2 coupled with Ex.A1 to

Ex.A5, RW-1 to RW-3 were examined and Ex.B1 to Ex.B7 and Ex.X1 are marked on behalf of the respondents. Ex.B1 is the insurance policy, Ex.B2 is extract copy of DL of R1, Ex.B3 is xerox copy of policy copy for policy

No. 3003/A/52901500/00/000, Ex.B4 is xerox copy of notice to R1 along with postal receipt, Ex.B5 is xerox copy of returned postal cover, Ex.B6 is xerox copy of notice to R2 along with postal receipt, Ex.B7 is xerox copy of acknowledgment of R2. Ex.X1 is the extract of the driving license of R1.

13.The evidence of RW-1 discloses that he is working as Record assistant in the office of Deputy Transport Commissioner, Thimmapur,

Karimnagar and he brought DL extract of Md. Layak Ali s/o Mahaboob Ali and the first respondent is having license to drive the auto rickshaw

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M.V.OP 09 of 2017

transport from 23.8.1988 to 25.9.1998 and R1 is not competent to drive heavy motor vehicle. Ex.B2 is the Driving License extract issued by their office.

14.The evidence of RW-2 discloses that he is working as Manager -Legal in ICICI Lombard General insurance co. Ltd.,Karimnagar and he is the investigator to collect the criminal case papers and medical records and to file report after investigation and they observed that in the petition the cover note number mentioned as 52901500 valid from 19.11.2007 to 18.11.2008, but whereas after obtaining policy copy from branch system, it is revealed that the policy not covering alleged crime vehicle, the owner name vehicle number and validity were not tallying, and they searched for the policy basing on the alleged crime vehicle and R2 obtained Ex.B1 policy valid from 21.11.2008 to 20.11.2009 and according to the same, there is no coverage of policy on the date of accident i.e., on 09.05.2008.

They also tried to get policy copy basing on the vehicle number and the validity period which is shown in the petition in OP 274 of 2010 and in

Form-54, but the policy is not traced out and they also sent notice to the respondent No.1 and 2 to produce the policy copy and driving license of

R1 and served on R2 and no reply was given to the served copy. They also obtained extract of driving license of R1 basing the copy available in police record Ex.B3 as per DL extract the driver R1 holding driving license to drive auto rikshaw transport till 25.9.1998 and R1 is not authorized to drive the crime vehicle i.e., Lorry and he was not having any type of driving license as on the date of accident and it is violation of motor vehicle Act. Hence it is clear that the policy particulars which is given by the petitioner in main OP and the policy validity which are shown in the police record in Form-54 is not genuine one and hence it is a very clear that there is no coverage of policy to the crime vehicle and hence their

8

M.V.OP 09 of 2017

company is not liable to pay any compensation and the driver/R1 is not holding any type of driving license as on the date of accident.

15.The evidence of RW-3 discloses that he is working as Senior

Assistant in the office of MVI Unit office at Peddapalli for the last three years and as per summons he produced DL copy of R1 the same was issued on 23.8.1988 and it was issued from Karimnagar office and there was no office of MVI at Peddapally by 23.8.1988 and subsequently R1 obtained endorsement for Heavy license from 29.1.1999 and valid upto 10.1.2002 and again his DL was renewed on 21.10.2008 and valid up 28.10.2011 and as per their records the DL was not renewed between 10.1.2002 to 28.10.2008. Ex.X1 is the DL extract of R1.

16.The contention of the petitioner is that the pleaded accident occurred only due to the rash and negligent driving of R1 and the petitioner and his brother Rudra Raju were going on their motor cycle and the pleaded accident occurred at Nagulamalla Village and he sustained grievious injuries. The petitioner is claiming an amount of Rs.50,000/- towards transportation, extra nourishment and purchase of medicines and for payment of doctor fee and Rs. 1,00,000/- towards compensation for pain and suffering and mental agony i.e., in total an amount of Rs.

1,50,000/- towards compensation. The learned counsel for the petitioner submits that in the connected MVOP 8 of 2017 in respect of the pleaded accident an amount of Rs.81,000/- and odd was awarded towards compensation.

17.Per contra, it is the contention of the respondents that the petitioner failed to prove that the injured was a student and was aged about 16 years and was hale and healthy and lost one academic year due to injuries sustained by him and that he is unable to lift any weights and unable to walk properly due to fracture of right leg and unable to

9

M.V.OP 09 of 2017

participate in sports and became disabled person.

18.Ex.A1 FIR and Ex.A2 charge sheet clearly discloses that the pleaded accident occurred due to rash and negligent driving on the part of the first respondent/driver. Admittedly the respondent No.1 & 2 are remained exparte. The insurer had filed an application U/sec. 170 of MV

Act and had obtained permission to take all available defenses to the insurer in the absence of insure and driver of the vehicle. But no evidence produced by R3 to show that the pleaded accident was not occurred due to rash and negligent driving on the part of the first respondent/driver of the offending lorry.

19.The 3rd respondent got examined the Record Asst. in DTO office as RW-1. RW-1 in his cross examination he stated that original license was issued to R1 by Unit office Peddapalli. The evidence of RW-3 discloses that as per summons, he produced DL copy of R1 the same was issued on 23.8.1988 and it was issued from Karimnagar office and there is no office of MVI at Peddapally by 23.8.1988. He further stated that subsequently R1 obtained endorsement for Heavy license from 29.1.1999 and valid upto 10.1.2002 and again his DL was renewed on 21.10.2008 and valid up 28.10.2011 and as per their records the DL was not renewed between 10.1.2002 to 28.10.2008. Ex.X1 is the DL extract of R1. In the cross examination, he stated that he did not brought the manual record and R1 was not disqualified for renewal of license.

20.The legal officer of respondent No.3 company is examined as

RW-2 and in his cross examination, he stated that Ex.B1 does not cover the date of accident and Ex.B3 was filed basing on the cover note wrongly mentioned in the original petition. He admitted that the cover note number subsequently amended in the petition. He denied that R1 obtained the driving license to drive the crime vehicle and stated that R1

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M.V.OP 09 of 2017

was not charged for not having driving license in the charge sheet. He further stated that Ex.B3 does not pertains to the crime vehicle.

21.The learned counsel for the third respondent submits that as per the evidence of RW-1 to 3, there is no existing valid and subsisting driving license to first respondent to drive the offending lorry by the date of accident and the policy was not in force as on the date of the accident and as such they are not liable to pay any compensation to the petitioner.

To that effect, they relied on citation reported in 2005 ACJ 8 between

Divisional Manager, National Insurance co. Ltd., Vs. Pramila Kar

and others, wherein it was observed that, “Law is also well settled by the Apex Court in the case of new India

Assurance Co. ltd. V.Kamla, 2001 ACJ 843 (SC), where - “to repeat, the effect of the above provisions is this : when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured,“

This being the position and in this case as there is nothing to indicate that the insurer had taken a specific stand regarding the disqualification of the driver to hold the license and there is no evidence to that effect even, I am of the view that the Tribunal is justified in fastening the liability with the insurance company.” 22.Another citation reported in 2004 ACJ 1 between National

Insurance Co. Ltd., Vs. Swaran Singh and others wherein it was

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M.V.OP 09 of 2017

held that; (2004) 3 SCC 297; 2004(2) ALD 36 SC ; a three judge bench of Hon’ble Apex Court held as under:

“If a person has been give a license for a particular type of vehicle as specified therein, he cannot said to have no reasons for driving another type of vehicle which is of the same category but of different type. As per example when a person granted a license for driving a light motor vehicle, he can drive a car or jeep and it is not necessary when he must have driving license for car and jeep separately.” 23.As seen from the record, as per orders in IA 524 of 2013, the cover note number 52901500 was changed to cover note number 52910500 and the counsel for petitioner filed xerox copy of cover note relating to 5910500 and it was issued by third respondent company on the date of issuance of policy is on 19.11.2007 and is valid till 18.11.2008 in which the number of the crime vehicle is mentioned and it also shows the respondent No.2 as its owner.

24.The petitioner though filed a xerox copy, and the facts and circumstances of the case clearly establishes that the offending lorry was insured with third respondent and the policy was in force and the petitioner who sustained injury is a third party to the contract between the insurer and insured and as such the policy was in force by the date of the accident i.e., 09.05.2008.

25.By relying upon the decision of Swaran Singh case, since there is no valid and subsisting driving license to R1 and insurance policy in respect of the offending vehicle was existing, the respondent No.1 to 3 are liable to pay the compensation to the petitioner who is the third party.

However, by applying principle that pay and recovery is applicable to the present case on hand for the reason that the petitioner is a third party and

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M.V.OP 09 of 2017

insurance policy is in force as on the date of the accident.

26.It is an admitted fact that offending lorry bearing No. AP-16-T- 1715 was involved in the pleaded accident and it was driven by the first respondent on the date of accident, second respondent is the owner and the same was insured with third respondent and as such R1 to R3 are jointly and severally liable to pay the compensation to the petitioners.

Accordingly this issue NO.1 is answered in favour of the petitioners.

27.Issue No.2 :-The evidence of PW-1 discloses that he incurred an amount of Rs. 70,000/- and odd for the treatment and extra nourishment and transportation. Whereas in the petition he claimed only Rs.50,000/- towards transportation to hospital, extra nourishment and medical expenses including doctor fee. In support of the same he relied on Ex.A5.

On perusal of the Ex.A3 medical certificate which discloses that he received injury over face near to left eye and swelling over right thigh and left shoulder region. The evidence of medical officer discloses that the petitioner was admitted in their hospital on 09.5.2008 and he was operated right femur fracture and was discharged on 17.5.2008 and their hospital issued treatment bill for Rs.20,000/- and further stated that the medical bill filed by the petitioner pertains to the treatment. He further stated that implants are to be removed for which another surgery is required and the petitioner will incur Rs.30,000/-. Ex.A5 is the bunch of medical bills.

28. The evidence of PW-1 & 2 coupled with Ex.A3 & Ex.A5 discloses that the petitioner sustained injuries in the pleaded accident. The evidence of

P.W.2 discloses that the petitioner sustained the following injuries:

(1) Closed right femur fracture right side. (2)Left clavicle fracture. (3)Multiple soft tissue injuries all over body.

Having taken note of the above said injuries of the petitioner, I am of the

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M.V.OP 09 of 2017

opinion that the petitioner is entitled for compensation of Rs.60,000/- under the head of pain and suffering. The petitioner can be awarded an amount of Rs.20,000/- towards treatment, medicines, transportation and extra nourishment under the head of medical expenses.

29.The petitioner in his evidence stated that he was aged about 16 years old. There is no evidence on record that the petitioner sustained any physical disability due to the injuries sustained by him in the pleaded accident.

30.Future medical expenses:- The evidence of PW-2 discloses that the petitioner requires an amount of Rs. 30,000/- for removal of implants and another surgery is required in future for the petitioner. He stated that the petitioner suffered permanent disability of 20% but no disability certificate filed by the petitioner to show the same. Having taken note of the injuries sustained by the petitioner and by considering his age the petitioner can be awarded an amount of Rs.20,000/- towards future medical expenses.

31. Loss of future amenities:- On account of the petitioner’s age being 16 years old and as per the evidence of P.W.1 and 2 and having taken note of the injuries sustained by the petitioner, the petitioner can be awarded an amount of Rs.20,000/- towards future amenities.

32.Details of compensation to be awarded are:

1. Pain and suffering = 50,000/-

2. Medical expenses & = 20,000/- Travelling, conveyance, food and nourishment and other incidental charges

3. Future medical expenses. = 20,000/-

4. Future amenities = 20,000/- Total = 1,10,000/-

In all petitioner is awarded compensation of Rs.1,10,000/- with interest 7.5% p.a.

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M.V.OP 09 of 2017

33.The learned counsel for the petitioner though filed a xerox copy cover note No.52910500 and it was issued by third respondent company in respect of offending lorry bearing No.AP-16-T-1715, and the facts and circumstances of the case clearly establishes that the offending lorry was insured with third respondent and the policy was in force from 00.00 hours date 19.11.2007 to midnight of 18.11.2008. The pleaded accident occurred on 09.05.2008 and the petitioner who sustained injury is a third party to the contract between the insurer and insured. The first respondent is the driver and the second respondent is the owner and third respondent is the insurance company.

34.The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory. It is for the insurer to proceed against the insured for recovery of the amount in the event, if there has been violation of any condition of the insurance policy. Admittedly the respondent No.1 has no valid driving license as on the date of accident. Under the circumstances, the principle that pay and recovery is applicable to the present case on hand for the reason, the petitioner is a third party and insurance policy was in force by the date of accident. Hence, the insurer/third respondent is directed to pay the awarded amount to the petitioner and then recover the same from the insured as per law.

35.For the reasons set forth in the presiding paragraphs, I am of the considered opinion that the respondents No.1 to 3 are jointly and severally liable to pay the compensation of Rs.1,10,000/- to the petitioner. Accordingly the issue No. 2 is answered.

36. Issue No.3 :- In view of the above finding Issue No.1 and 2, the petition has to allowed in part. Accordingly the issue No.3 is answered.

In the result, the petition is allowed in part by awarding

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M.V.OP 09 of 2017

compensation of Rs.1,10,000/- (Rupees One Lakh Ten Thousand only) to the petitioner with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of deposit and respondents No.1 to 3 are jointly and severally liable to pay the compensation to the petitioner.

The respondent No.3/ICICI LOMBORD General Insurance company is directed to deposit the said amount at first in the court within two months from the date of this order and then recover the same from the respondents No.1 and 2. In default, the amount carries interest @ 12% per annum after expiry of 60 days. On such deposit, the petitioner is entitled for with drawl of entire amount with accrued interest and costs thereon. Advocate fee is fixed @ Rs.2,500/- (Rupees Two Thousand Five

Hundred only).

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in the open Court, on this the 27th day of September,

2019.

Chairman, (M.A.C.T)- cum-

Judge, Family Court-cum-

Addl. District Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER: FOR THE RESPONDENTS:

PW.1 : Rudra Bhumaiah. RW.1: B.Rama Murthi. PW.2 : Dr.V.Chandra Shekar.RW.2: K.Madhava Reddy. RW.3: P.Anand.

EXHIBITS MARKED

FOR THE PETITIONER:

Ex.A1 :C.C. of FIR in Crime No.136/2008 of P.S., Karimnagar Rural. Ex.A2 :C.C. of Charge Sheet. Ex.A3 :C.C. of Medical Certificate. Ex.A4: C.C. of form No.54. Ex.A5:Bunch of Medical Bills-receipts and treatment bills (18) in no.

Ex.X1 is the driving license extract of R1.

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M.V.OP 09 of 2017

FOR THE RESPONDENTS:

Ex.B1 : is is the Insurance Policy. Ex.B2 :DL extract issued by Transport Department. Ex.B3 :XeroxcopyofPolicycopyforPolicy No.3003/A/52901500/00/000. Ex.B4: Xerox copy of Notice to R1 along with postal receipt. Ex.B5:Xerox copy of Returned postal cover. Ex.B6:Xerox copy of Notice to R2 along with postal receipt. Ex.B7:Xerox copy of acknowledgment of R2. (Ex.B3 to Ex.B7 original documents filed in MVOP No.274/2010 re-numbered as MVOP No.8/2017).

Chairman, (M.A.C.T)- cum-

Judge, Family Court-cum-

Addl. District Judge, Karimnagar. ..