-1- Fair Order in M.V.O.P.No.20 of 2016
IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-CUM-
XI ADDITIONAL DISTRICT JUDGE, PILER
Present: Sri S.Srinivasa Rao,
IX Addl. District Judge, Chittoor FAC/XI Addl. District Judge, Piler.
Wednesday, the 12th (twelfth) day of April, 2023.
M.V.O.P.NO.20 of 2016
Between: Maremreddy Hariprasavud Reddy
...Petitioner/Claimant
And:
1.Srirangam Gopal
2.IFFCO-TOKIO Insurance, Rep., by its Branch Manager, Tirupathi
3.Shaik Imran Basha
... Respondents
This petition is coming on 31.03.2023, for final hearing before me, in the presence of Sri M.Chandra Kumar Reddy, Advocate for petitioner/claimant, and of Sri
D.Venkateswara Reddy, Advocate for 2nd respondent; and of Sri S.Md.Rafi Ansari,
Advocate for 3rd respondent, and the 1st respondent having remained exparte, upon perusing the material available on record, upon hearing the arguments, and having stood over for consideration till this day, this court delivered the following:
O R D E R
This is the petition filed by the petitioner under Sec.166(1)(a) Motor Vehicles
Act,1988 seeking compensation of Rs.15,00,000-00 for the injuries sustained by him in a road traffic accident.
02. The brief averments of the petition are as follows:
a) The case of the petitioner is that, the 1st respondent is the owner of the vehicle
Auto bearing No AP-03-TB-0971 driven by 3rd respondent at the time of accident against whom charge sheet is filed and it was insured with the 2nd respondent. Therefore all the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner.
b) The further case of the petitioner is that, he is a resident of
Cheruvumundarapalle of Chirnagottigaliu Mandal, Chittoor District. On 13-02-2015 the petitioner was going to Valasareddigaripalle, while so, at about 8-30 AM the driver of the
Auto bearing Registration No.AP-03-TB-0971 came from Chinnagottigallu side in a rash and negligent manner, without following the road rules and regulations dashed against -2- Fair Order in M.V.O.P.No.20 of 2016 the opposite coming T.V.S XL Two wheeler driven by the petitioner. As a result the petitioner fell down on the road and sustained fractures to his right leg Knee and Left hand Wrist and bleeding injuries all over the body. Immediately after the accident the petitioner was shifted to S.V.R.R.G.G., Hospital, Tirupathi and later he was shifted to
C.M.C. Hospital, Vellore for treatment. There he was admitted and treated as in patient from 15-02-2015 to 02-03-2015. The petitioner was undergone two major operations to his right leg and left hand by inserting steel rods with screws. Later the petitioner was admitted and treated as in patient from 02-03-2015 to 01-06-2015. The petitioner is unable to walk and work and taking treatment even now. The wound is not healed so far.
Prior to the accident, the petitioner was hale and healthy. The injuries sustained by the petitioner are permanent disability in nature. Even now, the petitioner is taking treatment for the injuries sustained by him in the accident.
c) The further case of the petitioner is that, he was undergone two major operations and spent an amount of Rs.3,00,000/- towards medical expenses and
Rs.10,000/- towards extra nourishment, Rs.1,00,000/- towards transportation and attendant charges. In spite of treatment given to the petitioner his leg was shorten and wrist hand is not properly functioning and now the petitioner is not able in walk and not able to do any work.
d) The further case of the petitioner is that, he was getting Rs.20,000/ per month by working at ISKON Rangannagari gadda and by doing cultivation, and now he is not able to walk and not able to do any work. The petitioner was contributing his entire income for the welfare of his family. Due to the said accident, the family members of the petitioner who are depending upon him and his income became helpless. Because of injuries sustained by the petitioner in the accident, he spent several sleepless nights and suffered lot of mental agony and the same has to be compensated by the respondents.
e) The further case of the petitioner is that, a criminal case was registered by the
S.H.O of Bhakarapet police station against the driver of the 1st respondent vehicle under
Sec.337 of IPC in Crime No.19 of 2015 and same was charge sheeted as C.C.No.301 of 2015 under Sections 338 IPC. Sec.134 (a)(b) r/w 187 MV Act and the same is pending
before the Additional Junior civil Judge’s Court Piler for trial.
f) The further case of the petitioner is that, the accident occurred only due to the rash and negligent driving of the driver of the 1st respondents vehicle during the course of his employment under the respondent. The respondent is vicariously liable for the act committed by its servant. The driver of the Auto bearing Registration No.AP-03-TB- 0971 was having valid license at the time of the accident and he was driving the vehicle -3- Fair Order in M.V.O.P.No.20 of 2016 of the 1st respondent. The 1st respondent insured his vehicle with 2nd respondent and the insurance policy was in force. Hence the respondents 1 to 3 are jointly and severally liable to compensate the petitioner under fault liability.
g) The further case of the petitioner is that, he has not filed any other application for grant of compensation under M.V.Act in any other court except this O.P. before this court, and he reserves his right to file separate application under Sec.141 of M.V.Act., and submitted to pass an award in favour of petitioner as against the respondents.
03. The 2 nd Respondent filed written statement by denying the petition averments. The case of the 2 nd respondent in brief as follows :
(a) The 2nd respondent states that, the address of its company for service of notice is IFFCO TOKIO General insurance Company Limited, represented by its Manager, having office at Road No.31, above Con Agra Foods Lane opposite DBR Diagnostics,
Sarojanidevi Road, Secunderabad - 500 003.
(b) The 2nd respondent states that, the petition is not maintainable either in law or on facts and the same is liable to be dismissed in limini.
(c) Further it states that, its company does not admit the averments made in the petition except those that are specifically admitted by this respondent to be true and correct and put the petitioner in strict proof of the rest of the allegations.
d) Further it states that, its company does not admit that the averments made in column No.3, 4 and 6 of the petition with regard to age, occupation and monthly income of the petitioner injured and that the petitioner did not file any document to show the agricultural holding owned and possessed by the petitioner and getting Rs.20,000/- per month so also by doing private employment at ISKON Rangannagarigadda. In the absence of its company can say that the petitioner is only casual worker or daily wage earner @ Rs.70/- per day. However the petitioner is put to strict proof of the same with an authentic documentary evidence with regard to the age, occupation and monthly income.
e) Further it states that, its company does not admit that the nature of injuries alleged to have been sustained by the petitioner, period of treatment, the expenditure incurred thereon and disability sustained by him, due to injuries received by him in the said accident. Its company reliably learnt that the injuries received by the petitioner are healed and now the petitioner is attending to his regular duties as he was attending to prior to the date of accident. However the petitioner is put to strict proof of the same.
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f) Further it states that, in a claim for compensation arising out of Motor vehicles the onus rests upon the petitioner to prove that there was an accident which resulted injuries on him and that it was only due to the rash and negligent driving by the driver of
Auto bearing Reg.No.AP-03-TB-0971. Many of the allegations leveled in this behalf in the petition are contrary to the true facts and misleading and coined for the purpose of this petition. Its company reliably learnt that there was no rashness or negligent driving on the part of the driver of the Auto bearing Reg.No.AP-03-TB-0971. The accident in question was happened only due to rash and negligent riding on the part of the petitioner who was riding the TVS Moped without having Driving License to drive the same and responsible for the accident. Since the accident was due to rash and negligent riding on the part of the petitioner who was riding the TVS Moped the respondents are not liable to pay any compensation to the petitioner. However the petitioner is put to strict proof of the same.
g) Further it states that, it company does not admit the person who was driving the
Auto bearing Reg.No.AP-03-TB-0971 is in possession of valid and subsisting driving license to drive the transport vehicle i.e., passengers carrying Auto which was involved in the said accident. However the petitioner is put to strict proof of the same.
h) Further it states that, it does not admit that the petitioner who was riding the
TVS Moped at the material time of the accident is in possession of valid and subsisting driving license to drive the vehicle of that kind involved in the accident. However the petitioner is put to strict proof of the same..
i) Further it states that, the petition is bad for non-joinder of the necessary parties i.e., owner was and insurer of the TVS Moped which also involved in the said accident.
j) Further it states that, it has insured with Auto bearing Reg.No.AP-03-TB-0971 owned by 1st respondent under commercial vehicle policy and the same was in force from 28-04-2014 to 27-04-2015. The liability of the respondent if any is strictly governed by the terms and conditions of the policy issued by it.
k) Further it states that, the driver by name S.Imran Basha is not having any driving license for that reason only the SHO, Bakarapeta Police Station filed charge sheet under Section 338 IPC, Section 134 (a) (b) R/w 187 of M.V.Act. Section 3 R/w 181 of
M.V.Act in Cr.No.19 of 2015. Thus the 1st respondent had violated terms and conditions of the policy by handing over the vehicle to a person who had no driving license to drive the same. The respondent is not labile to pay compensation to the petitioner or to honour the contract of insurance.
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l) Further it states that, its company specifically denies that the petitioner was underwent two Major Operations at CMC Hospital, Vellore by spending Rs.3,00,000/- towards medical expenses and Rs.1,00,000/- towards transportation and attendant charges and Rs.10,000/- towards extra nourishment and the above said facts has to be proved by the petitioner by an authentic documentary evidence.
m) Further it states that, the amount of Rs.15,00,000/- claimed by the petitioner under various head in the column No.25 of the petition is highly excessive, exorbitant and without proportion to the loss sustained by the petitioner.
n) Further it states that, its company craves leave of this Hon'ble Tribunal to file
additional written statement when necessitated. Since the respondent is not able to file
detailed written statement due to paucity of information and its company carve leave of this Hon’ble Tribunal to depend the proceedings under sections 147, 149 and 170 of
M.V.Act. and submitted to dismiss the petition with costs.
04. The 3 rd Respondent filed written statement by denying the petition averments. The case of the 3 rd respondent in brief as follows :
a) The case of the 3rd respondent is that, the petitioner's petition is not maintainable either in law or on facts and the same is liable to be dismissed in lumini.
The petitioner is put to strict proof of each and every allegation made in the petition.
b) The further case of the 3rd respondent is that, he does not admit any of the allegations made in the petition except those that are specifically admitted herein.
c) The further case of the 3rd respondent is that, he does not admit in 4th para of the columns 3, 4 and 6 of petition as to age, occupation and monthly income of petitioner and no record was filed by the petitioner herein supporting the same. He does not admit that the injuries sustained by the petitioner was the direct result of alleged accident and it may be of other reasons.
d) The further case of the 3rd respondent is that, at the time of accident, he driven the crime vehicle slowly, carefully by following transit rules and regulations. With negligent driving of petitioner of his TVS XL Motor Cycle only, said accident took place.
There is no negligent act on part of driver of crime vehicle i.e., 3rd respondent. To evade the clutches of law, the petitioner/injured got filed the police case against 3rd respondent only, it was the petitioner who is liable for accident to take place. The 3rd respondent being innocent not aware of these things, was indulged in these type of cases at no wrong of him in committing the alleged accident which resulted in injuries of petitioner. The 3rd -6- Fair Order in M.V.O.P.No.20 of 2016 respondent does not admit the injuries sustained by the petitioner by virtue of alleged accident and also does not admit the petitioner's admission and alleged treatment in
C.M.C., Hospital, Vellore and SVRRGG., Hospital, Tirupati and not admitting the alleged expenses incurred by the petitioner as result of alleged accident. The 3rd respondent does not admit that the petitioner was inpatient for alleged long period as result of accident. The allegations that 3rd respondent lost control over crime Vehicle and hit the petitioner's TVS XL motor cycle and not taken care and caution while driving the crime vehicle which resulted in accident and caused multiple injuries to petitioner as alleged are not true and correct and are coined for the purpose of filing this petition only.
The further allegation that 3rd respondent not followed rules and regulations of road and caused accident is not true and correct. The 3rd respondent does not admit that the petitioner was hale and healthy prior to accident. The 3rd respondent does not admit that the petitioner was forced to take rest and bore sleepless nights and pain and suffering as result of accident. The 3rd respondent does not admit the alleged expenses shown in petition as if incurred by petitioner. As the petitioner not yet filed driving license to drive his motor cycle and its registration validity and its insurer was not added as a party to the petition on ground of contributory negligence in committing alleged accident and as such, the petitioner not entitled to claim compensation as alleged any more. As such the petition is bad for non-joinder of necessary parties i.e., the insurer of Motor Cycle driven by the petitioner at the time of accident. As such the petition is liable for dismissal for non-joinder of necessary parties.
e) The further case of the 3rd respondent is that, he has got valid driving license at the time of accident and the insurance policy regarding crime vehicle was also in force, further he never driven the crime vehicle rashly and negligently, but accident occurred only due to rash and negligent driving of petitioner's over his TVS XL motor cycle without proper license and responsible for alleged accident, as such, 3rd respondent was not liable to pay any compensation as prayed in the petition. The 3rd respondent discharging his duties under control of 1st respondent while in course of employment, as 1st respondent being owner of crime vehicle, and the crime vehicle holding the valid insurance, assured by 2nd respondent at the time of accident. The owner of the crime vehicle never violated the terms and conditions of the policy and 2nd respondent is solely responsible for claim amount by virtue of contract of insurance validly existing at the time of accident in between the owner of crime vehicle and 2nd respondent. This respondent is having valid driving license at the time of accident. The amount claimed by the petitioner in the petition is excessive, exorbitant and not proportionate to loss to be occurred by injuries sustained by petitioner. The petitioner gave false complaint with all -7- Fair Order in M.V.O.P.No.20 of 2016 created versions to suit his case and falsely implicated the 3rd respondent in committal of alleged accident. The petitioner was the wrongdoer who caused the alleged accident, but not 3rd respondent
f) The further case of the 3rd respondent is that, reserves his right to file additional counter when necessitated and submitted to dismiss the petitioner’s petition with costs.
05. On the other hand in spite of receipt of notice on this application 1st respondent remained set exparte.
06. Basing on the above pleadings, the following issues have been settled for trial.
1. Whether the accident occurred due to rash and negligent driving of Auto bearing No.AP-03-TB-0971 by the 3 rd respondent or not?
2. Whether the petitioner is entitled for any compensation? If so, to what is the quantum and from whom?
3. To what relief?
07. In order to prove the case of petitioner, the petitioner himself examined as
PW.1 and got marked Ex.P1 to P8 and got examined PW.2. On the other hand 1 st respondent having remained exparte, 2 nd respondent examined RWs.1 and 2 got
marked Ex.R1. No evidence adduced on behalf of 3 rd respondent either or
documentary.
08. Heard the arguments on both sides.
09. During the course of evidence the petitioner as PW.1, in his evidence affidavit he reiterated the averments of the petition and marked Ex.P1 to P8. Ex.P1 is the C.C. of
F.I.R., in Cr.No.19/2015, Ex.P2 is the C.C. of Charge Sheet, Ex.P3 is the Wound
Certificate, Ex.P4 is the Discharge summary issue by C.M.C., Hospital, Vellore, Ex.P5 is the C.C. of Discharge summary issued by SVRRGG., Hospital, Tirupathi, Ex.P6 is the bunch of medical bills (85 in Nos), Ex.P7 is the C.C. of Accident Information Report,
Ex.P8 is the Disability certificate issued by Civil Surgeon, Professor of Radiotherapy,
SVMC/SVRRGG., Hospital, Tirupathi.
10. In the cross examination of PW.1 by the 2nd respondent, it is elicited that, he was not having driving license to drive motor cycle on the date of accident, it is further elicited that, he did not file any documentary proof with regard to income of the petitioner that, he was earning Rs.20,000/- per month by working in ISKON department free catering services
11. In the evidence of PW.2, he deposed that he is working as Assistant professor in orthopedic SVRRGG., Hospital, Tirupathi since 2012, the disability of the petitioner -8- Fair Order in M.V.O.P.No.20 of 2016 was issued by The Civil Surgeon Specialist, Superintendent SVRRGG., Hospital,
Tirupathi dated 26.07.2017 he further deposed that as per the certificate the disability is permanent in nature and it is of 53.5%, he further deposed as per his personal examination the petitioner cannot sit cross legged and claimed stairs normally, he cannot walk long distance, it is difficult to him to lift weights, further he had loss of sensations in right foot as a sequal of the intial injury which is permanent disability, in the cross examination of PW.2 it is elicited that C.M.C., Hospital, Vellore is a big hospital in South
India and it is having good orthopedic surgeons. It is further elicited that the disability certificate of the petitioner was issued pertaining to right lower limb and left upper limb.
12. On the other hand the 2nd respondent company has examined its Assistant
Legal Manger as RW.1 and got marked Ex.R1 i.e., Certified True copy of insurance policy and also examined RW.2 the ASI of Bhakarapeta PS.
13. In the evidence of RW.1 he reiterated the contents of written statement of R2.
In the cross examination of RW.1 it is elicited that, by the date of accident the policy under Ex.R1 was in force, he has no personal knowledge whether R3 is having valid driving license or not.
14. In the evidence of RW.2 he deposed that, he is working as ASI of Bhakarapet
PS since July, 2022, during the cross examination it is elicited that, the accused under
Ex.P2 not produced any driving license, but their department not made any enquiry either in RTA’s office or any concerned office to ascertain whether the accused is having driving license or not.
15. Whereas the 1st respondent having remained exparte since beginning itself.
16. Issue No.1 and 2:
1.Whether the accident occurred due to rash and negligent driving of Auto bearing No.AP-03-TB-0971 by the 3 rd respondent or not?
2.Whether the petitioner is entitled for any compensation? If so, to what is the quantum and from whom?
17. Since these two issues are interrelated in nature, this court has taken up issues together for just and proper adjudication of the matter.
18. As seen from the record the specific contention of the petitioner is that, 13-02- 2015 the petitioner was going to Valasareddigaripalle, while so, at about 8-30 AM the driver of the Auto bearing Registration No.AP-03-TB-0971 came from Chinnagottigallu side in a rash and negligent manner, without following the road rules and regulations dashed against the opposite coming T.V.S XL Two wheeler driven by the petitioner. As a -9- Fair Order in M.V.O.P.No.20 of 2016 result the petitioner fell down on the road and sustained fractures to his right leg Knee and Left hand Wrist and bleeding injuries all over the body. Immediately after the accident the petitioner was shifted to S.V.R.R.G.G., Hospital, Tirupathi and later he was shifted to C.M.C. Hospital, Vellore for treatment, his specific contention is due to rash and negligent driving of the driver of the 1st respondent only the accident was caused.
His further contention is immediately after the accident Bhakarapet police registered a crime under F.I.R.No.19/2015 of Bhakarapet PS against the driver of the offending vehicle i.e., vehicle of 1st respondent and charge sheet is also laid agaisnt 3rd respondent.
In order to substantiate his contention petitioner himself examined as PW.1, apart from that he got marked C.C. of F.I.R. as Ex.P1, C.C. of charge sheet as Ex.P2. In the evidence of PW.1 he categorically deposed that due to the rash and negligent driving of driver of the offending vehicle of 1st respondent only the accident was caused. So far as cross examination of PW.1 is concerned nothing is elicited to discard his evidence with regard Ex.P1 and Ex.P2. On the other hand except denying the case of the petitioner and stating that there is no fault on the part of the driver of the offending vehicle of 1st respondent, no material is placed before this court by respondents 2 and 3, to establish that there is no fault on the part of the driver of the offending vehicle of 1st respondent in the said accident. The recitals of Ex.P1 and P2 are clearly disclosing that Bhakarapet police has registered a crime against the 3rd respondent who is the driver of the offending vehicle of 1st respondent with regard to said accident, stating that as result of rash and negligent driving of the driver of offending vehicle of 1st respondent accident was occurred.
19. In a decision reported in 2001 ACJ 901 in between Gowripala Manemma vs
Andhra Pradesh State Road Transport Corporation and another the Hon’ble High
Court had held that the driver of the crime vehicle is best witness to speak about the accident.
20. In the present case admittedly the 1st respondent is the owner of the offending vehicle, and admittedly 1st respondent remained exparte, he did not enter in to the witness box. Admittedly the police also registered the case against the driver of the offending vehicle of 1st respondent, the driver of the offending vehicle i.e., 3rd respondent filed his written statement, but he did not come forward to depose his own evidence, the 2ndrespondent did not choose to examine the driver of the offending vehicle, because the 1st respondent is owner of the offending vehicle he remained exparte there is no explanation from the 2ndrespondent in this aspect, so under these circumstances in view of the evidence of PW.1, Ex.P1 and Ex.P2 this court is of the consider view that the petitioner has proved that the accident dated 13.02.2015 occurred due to rash and -10- Fair Order in M.V.O.P.No.20 of 2016 negligent driving of the driver of the offending vehicle bearing Reg.No.AP-03-TB-0971 i.e., driver of the 1st respondent vehicle i.e., 3rd respondent and the petitioner sustained injuries in the said accident.
21. The further contention of the petitioner is that the offending vehicle was duly insured with the 2nd respondent, the insurance policy i.e., Ex.R1 is in force as on the date of the accident, so respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioner.
22. On the other hand the 2nd respondent is admitting that the offending vehicle is duly insured with 2nd respondent, and insurance policy Ex.R1 is in force as on the date of accident i.e., 13.12.2015, the only contention of the 2nd respondent is that there is no fault on the part of the driver of the offending vehicle i.e., 3rd respondent at the time of the accident, and only due to the fault on the part of the petitioner the accident was caused, but the 2nd respondent failed to establish the same, moreover petitioner is able to establish that due to the rash and negligent driving of the driver of the offending vehicle i.e., 3rd respondent only accident was caused, admittedly the 1st respondent is owner of the offending vehicle, but he remained exparte, so under these circumstances this court is of consider view that the respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioner.
23. The further contention of the 2ndrespondent is that, the petitioner failed to add the owner and insurance company of the two wheeler, so the petitioner is not entitled for compensation from the 2ndrespondent, admittedly as per the evidence of the petitioner as
PW.1 he did not add the owner and insurance company of the two wheeler involved in this case as the parties to the proceedings.
24. In the decision reported in 2002 (6) ALD 137 (DB) in between New India
Insurance company Ltd., Divisional Officer, Madras vs Mallareddy and others the
Hon’ble High Court has held that “when there is a collision of two vehicle the owner
of vehicle whose driver is at fault and its insurance company are liable to pay the compensation”.
25. In the present case it is already observed by this court, that at the fault of the 3rdrespondent who is the driver of 1st respondent vehicle auto only the accident was caused, so the owner and insurance company of the two wheeler are not necessary parties to the proceedings. Accordingly this court is of the considered view that, non adding of the owner and insurance company of the two wheeler is not fatal to the case of the petitioner and for that reason it cannot be said that 2nd respondent is not liable to pay compensation to the petitioner.
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26. As seen from the record the specific contention of the petitioner is that he is aged about 31 years at the time of the accident and he was hale and healthy. In the evidence of petitioner as PW.1 it is stated, his age is 34 years at the time of his deposition i.e., on 08.11.2019, he got marked Discharge summary issued by C.M.C., Hospital,
Vellore as Ex.P4, Discharge summary issued by SVRRGG., Hospital, Tirupathi as Ex.P5,
Accident Information Report as Ex.P7 and Disability Certificate as Ex.P8, in the recitals of Ex.P4 discharge summary the age of the petitioner is noted as 31 years, in the recitals of Ex.P5 Discharge summary issued by the SVRRGG., Hospital, Tirupathi age of the petitioner is noted as 29 years, in the recital of Ex.P7 accident information report the age of the petitioner is noted as 31 years, in the recitals of the Ex.P8 disability certificate the age of the petitioner is noted as 38 years which was issued on 26.07.2017, on the other hand except denying the case of the petitioner with regard his age nothing material is placed by the respondents 2 and 3 to show what is age of the petitioner at the time of the accident, so under these circumstances in view of Ex.P4 and Ex.P7 which are relevant to the period of year of accident, this court is of view that it can be held age of the petitioner
as 31 years at the time of the accident.
27. As seen from the record the petitioner pleaded that he was working at ISKON,
Rangannagari gadda and also by doing cultivation he was earning more than Rs.20,000/- per month, but no piece of document is filed before this court to show that the petitioner was working at ISKON, Rangannagari Gadda and doing cultivation, and he was earning
Rs.20,000/- per month, however taking the age and health condition of the petitioner in to consideration this court is of the considered view that the income of the petitioner can be fixed at Rs.10,000/- per month.
28. The learned counsel for the 2nd respondent insurance company submitted that 3rd respondent is not having valid driving license at the time of the accident, for that reason the 2nd respondent is not liable to pay any compensation to the petitioner , in order to substantiate the same the 2nd respondent examined Rws.1 and 2, so far as evidence of
RW.1 is concerned he is the Asst. Manager Legal in 2nd respondent company, as such he is well acquaintance with the facts of this case and his plea is the 3rd respondent is not having any valid driving license, further the 1st respondent who is the owner of the vehicle knowing handover the vehicle to the 3rd respondent who is not having driving license and it is violation of the policy condition, so the insurance company 2nd respondent is not liable to pay any compensation to the petitioner, but during the course of cross examination of RW.1 he categorically stated that he have no personal knowledge to say whether 3rd respondent is having valid driving license or not at the time of the accident.
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29. So for evidence of RW.2 is concerned who is ASI of Bhakarapeta P.S. which registered the crime against the 3rd respondent in respect of the said accident and as per the their charge sheet the driver of the crime vehicle have no driving license, but in his cross examination it is stated that, as driver failed to produce any driving license at the time of registration of crime, accordingly their police added Sec.3 r/w 181 of M.V.Act., but he do not know whether the driver is having valid driving license or not and their police do not made any enquiry either in the RTA’s office or in any concerned office to ascertain whether the accused is having valid driving license or not, further the 2nd respondent did not choose to examine the 3rd respondent who is the driver of the offending vehicle at the time of the accident, so under these circumstances basing on the evidence of Rws.1 and 2 it cannot be said the 2nd respondent is able to establish that the 3rd respondent is not having valid driving license at the time of the accident.
30. The learned counsel for the 2nd respondent relied upon decisions reported in 2013 (2) ALT 362 between Badavath Janna Bai vs Afsari Begum and others wherein it was observed by the Lordship that, allegations in charge sheet made by the police in a criminal case filed in respect of accident that the driver of vehicle involved in the accident had no valid driving license on the date of accident cannot be accepted as true unless insurance company which made the said allegation prove the same by other corroborative and admissible evidence, it is further observed by the Lordship that, unless insurance company proves that owner of vehicle deliberately allowed a person who had no valid driving license to drive the vehicle involved in the accident it cannot be held that it is not liable to indemnify the owner of the vehicle to pay compensation.
31. The learned counsel for the 2 nd respondent further relied upon decision
reported in 2009 (3) ALD 136 Supreme Court between United Insurance Company
Ltd., vs Rakesh Kumar Arora and others.
32. I have carefully gone through case law submitted by the learned counsel for the 2nd respondent, but the facts and circumstances reported in the said decision and the facts and circumstances of the case on the hand are entirely different, so the case law submitted by learned counsel for 2nd respondent are not applicable to the facts of the case on hand, moreover the 2nd respondent is failed to establish that the 1st respondent deliberately violated the conditions of the policy and 3rd respondent not having valid driving license at the time of the accident.
33. On the other hand learned counsel for the petitioner relied upon the following decisions:- -13- Fair Order in M.V.O.P.No.20 of 2016
34. The learned counsel for the petitioner relied upon decision rendered by the
Hon’ble Supreme Court of India in a Civil Appeal No.5123/2019 between Parmindar
Singh Appellant vs New India Assurance Company Limited respondents, wherein it was observed by the Lordship in Para No.7 and 7.1
Para No.7 : On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the respondent insurance company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceeding, including this court
Para No.7.1 This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to he pay the victim, and then recover the amount from the owner of the offending vehicle.
35. On the other hand the learned counsel for the petitioner further submitted that, the 2nd respondent is liable to pay the compensation to the petitioner for the injuries sustained in the said accident and the 2nd respondent can recover the same from the respondents 1 and 3. He relied upon decision rendered by the Hon’ble Supreme Court of
India in Civil Appeal No.6902/2021 between Kuruvan Ansari @ Kuruvan Ali and
another Appellants vs Sham Kishore Murmu and other respondents, wherein it was held by the Lordship the entire compensation shall be paid to the appellant by the 2nd respondent insurance company and we kept it open to the insurance company to recover the same from the 1st respondent owner of motor cycle by initiating appropriate proceedings as the motor cycle was driven by the driver who was not possessing valid driving license on the date of the accident.
36. QUANTUM OF COMPENSATION
In a claim for compensation basing on injuries sustained in a motor accident the compensation can be awarded under the following heads.
1. Pain and suffering
2. Nerves shock
3. Medical expenses
4. Actual loss of income
5. Loss of income due to permanent disability -14- Fair Order in M.V.O.P.No.20 of 2016
1. PAIN AND SUFFERING:
As seen from the record the petitioner claimed that immediately after the accident he was taken to the SVRRGG., Hospital, Tirupath, there from he was shifted to C.M.C.,
Hospital, Vellore, he further pleaded he has sustained multiple fracture to his right leg knee and left hand wrist and some other injuries, in the evidence of petitioner as PW.1 he categorically deposed that the injuries he sustained in the accident and also the treatment he obtained he got marked the wound certificate as Ex.P2, as per the recitals of Ex.P2 wound certificate the petitioner has sustained two grievous injuries and fracture injuries, the further contention of the petitioner is that he underwent two surgeries for the injuries he sustained and he got treatment as inpatient at C.M.C., Hospital, Vellore from 15.02.2015 to 02.03.2015 and he got marked Ex.P4 the Discharge summary issued by
C.M.C., Hospital, Vellore, as per the recitals of Ex.P4 the petitioner admitted in the hospital on 15.02.2015 and he was discharged from the hospital on 02.03.2015 and further he was undergone two surgeries, thus the petitioner who sustained two grievous fracture injuries is entitled to Rs.30,000/- compensation for each fracture injury he sustained and Rs.30,000/- for each surgery he underwent, thus the petitioner is entitled for Rs.1,20,000/- under the head of pain and suffering.
2. NERVES SHOCK:
As seen from the record the petitioner met with accident on 13.02.2015 at 8:30
AM and initially he was shifted to the SVRRGG., Hospital, Tirupathi, and there from he was shifted to C.M.C., Hospital, Vellore for better treatment, thus taking into consideration of hospitalization period and also nature of injuries sustained by the petitioner this court is of consider opinion that the petitioner is entitled to Rs.10,000/- under the head of nerves shock.
3. MEDICAL EXPENSES:
As seen from the record petitioner has claimed that he has incurred Rs.3,00,000/- towards medical expenses as in patient and continued the treatment for three months, further even now as outpatient he is spending amount of Rs.3,000/- per month towards medicines and other expenses, but he got marked the bunch of medical bills as Ex.P6 as per the Ex.P6 the total amount under the medical bills is Rs.1,89,663/- only. Hence, the petitioner is entitled to Rs.1,89,663/- towards medical expenses.
-15- Fair Order in M.V.O.P.No.20 of 2016
4. ACTUAL LOSS OF INCOME:
As seen from the record the petitioner met with the accident on 13.02.2015. The petitioner claimed that he was working at ISKON at Rangannagari gadda and doing cultivation and earning Rs.20,000/- per month. Except the oral testimony of PW.1, there is no documentary evidence to show nature of work and monthly income. Absolutely there is no recorded evidence for the income of the petitioner, considering the age and health condition of the petitioner this court is opined the monthly income of the petitioner as Rs.10,000/- per month. Further as seen from the record the petitioner met with accident on 13.02.2015 and he was hospitalized as inpatient from 15.02.2015 to 01.06.2015, so in view of the injuries and in view of the treatment etc., actual loss of income to the petitioner at least for a period three months can be believed. Hence, under the head of actual loss of income an amount of Rs.30,000/- can be awarded to the petitioner as compensation.
5. LOSS OF INCOME DUE TO PERMANENT DISABILITY:
(a) As seen from the record the petitioner is claiming that he is suffering with 53.5% of disability and the disability is permanent in nature, he got marked Ex.P8 disability certificate, apart from that he examined doctor as PW.2 who identified the disability certificate Ex.P8. In the evidence of PW.2 he deposed about the disability of the petitioner as 53.5% during cross examination of PW.2 nothing is elicited to discard his evidence with regard Ex.P8, however it is elicited to the effect that he have not treated the petitioner for the injuries he sustained, but it is categorically stated by PW.2 that he has examined the patient and Ex.P8 was issued by Civil Surgeon Specialist,
Superintendent SVRRGG., Hospital, Tirupathi.
(b) In the decision reported in 2007 ACJ 491 in between Syed Salem vs Abdul
Sukur and another wherein it was held by the Lordship that evidence of doctor with regard to his certification of disability has to be accepted though he has not treated the claimant.
(c) In the citation reported in 2009 (6) SC cases 121 in between Sarala Verma and others vs Delhi Transport Corporation the Hon’ble Apex court has held that 16 can be taken as multiplier for the persons is age group of 31 to 35. the loss of income due to disability of the petitioner is Rs.10000x12x16x53.5/100=1027200. For the reasons stated above, under the head of loss of income due to disability an amount of Rs.10,27,200/- is awarded to the petitioner.
37. In view of the discussion made above, the total award to the petitioner under various heads is concluded as follows:- -16- Fair Order in M.V.O.P.No.20 of 2016 38.Calculation for Compensation
Sl.No. Description Amount of
compensation
1. Pain and suffering Rs.1,20,000-00
2. Nerves Shock Rs.10,000-00
3. Medical expenses Rs.1,89,663-00
4. Actual loss of income Rs.30,000
5. Loss of income due to permanent disability Rs.10,27,200-00
Total:- Rs.13,76,863-00
39. Thus, petitioner is entitled for compensation amount of Rs.13,76,863/-
(Rupees Thirteen lakh seventy six thousand eight hundred and sixty three only)
together with interest at 7.5% per annum from the date of petition till the date of realization or deposit, the respondents 1 to 3 are liable to pay the compensation amount to the petitioner jointly and severally. Hence, this court holds issues No.1 and 2 in favour of the petitioner against the respondents 1 to 3.
40. Issue No.3: In the result, this petition is allowed in part with proportionate costs by granting the following reliefs:
a)The compensation is awarded in favour of petitioner Rs.13,76,863-00(Rupees Thirteen lakh seventy six thousand eight hundred and sixty three only)with interest at 7.5 % p.a. from the date of petition till the date of deposit or realization against the respondents 1 to 3 jointly and severally.
b)The petitioner is permitted to withdraw a sum of Rs.7,76,863/- (Rupees Seven lakh seventy six thousand eight hundred and sixty three only) with accrued interest and costs and the remaining balance amount of Rs.6,00,000/- (Rupees Six lakh only) shall be kept in fixed deposit in any Nationalized Bank for a period of two years.
c)The respondents 1 to 3 are jointly and severally liable to pay the compensation
d)Time for payment of compensation is two months.
e)Rest of the claim of the petitioner is dismissed without costs
f)The decree follows after verification by the office as to the payment of court fee and exemption if any, sought at the time of filing of the petition and clearance of court fee dues if any
g)Advocate fees is fixed at Rs.5,000/-
Dictated to the Typist, typed by him, corrected and pronounced by me in open
court on 12 th day of April, 2023.
Sd/- S.Srinivasa Rao
IX Addl. District Judge, Chittoor FAC/XI Addl. District Judge, Piler -17- Fair Order in M.V.O.P.No.20 of 2016
Appendix of evidence
Witnesses examined on behalf of
Petitioner: Respondents : PW.1 : M.Hariprasad Reddy RW.1 : G.Chandra Sekhar
PW.2 : Dr. D.Obulapathi RW.2 : P.Maheswara Reddy
Exhibits marked on behalf of
Petitioner:
Ex.P1 : C.C. of F.I.R., in Cr.No.19/2015
Ex.P2 : C.C. of Charge Sheet
Ex.P3 : C.C. of Wound Certificate
Ex.P4 : C.C. of Discharge summary issued by C.M.C., Hospital, Vellore
Ex.P5 : C.C. of Discharge summary issued by SVRRGG., Hospital, Tirupathi
Ex.P6 : Bunch of medical bills (85 in Nos)
Ex.P7 : C.C. of Accident Information Report
Ex.P8 : Disability certificate issued by Civil Surgeon, Professor of Radiotherapy, SVMC/SVRRGG., Hospital, Tirupathi
Respondents:
Ex.R1 : Certified true copy of insurance policy id/- S.S.R.
IX ADJ,CTR
FAC/XI ADJ, PILER