MVOP No.36 of 2020 1 XVI ADJC/NDG
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL – CUM –
THE XVI ADDITIONAL DISTRICT AND SESSIONS JUDGE’S
COURT :: NANDIGAMA
PRESENT: Sri. V. Srinivasa Rao, Chairman, Motor Accidents Claims Tribunal -cum- XVI Additional District and Sessions Judge, Nandigama. Friday, this the 19th day of April, 2024
MVOP No.36 of 2020
Between
Ganapaneni Yeswanth, S/o Suresh, Hindu, Employye, Aged 25 years, Door No.2-57/2-7, Sivalayam Street, Paritala Village, Kanchikacherla Mandal, Krishna
....Petitioner
District. -and-
1) Kethavarapu Kumar, S/o Yesuratnam, Hindu, Aged 32 years, Owner cum Driver of the Vehicle AP 39 AF 9215, Door No.2-144, Kotikalapadu Village, Ibrahiimpatnam Mandal, Krishna District.
2) Bajaj Allianz General Insurance Company Limited, Rep by its Branch Manager, Branch Office, D.No.40-1-10, Upstairs, Kusalava Hyundai Show
....Respondents
room, 2nd Floor, M.G Road, Labbipet, Vijayawada.
The petition coming on 03.04.2024for final hearing before me in the presence of Sri K. Krishna Rao, Advocate for the petitioner, Sri. P. Paul, Advocate for the Respondent No.1 and Smt. B. Eswari, Advocate for Respondent No.2 having heard, upon perusing the material papers on record and having stood over for consideration to this date, this Tribunal passed the following:
O R D E R
An injured in a motor vehicle accident filed this petition under
Section 166 of The Motor Vehicles Act, 1988, seeking for a compensation of Rs.4,00,000/- [Rupees Three Lakhs only] with 24% interest per annum and costs and such other reliefs.
2. In brief, the claim petitioners’ case as alleged in the claim petition is as follows:
a) In the claim petition stated that The petitioner is resident of
Paritala of Kanchikacherla Mandal and he is working as Supervisor in SEPL
Company. On 07.07.2019 at about 6.00 am the petitioner being the rider of the motor cycle bearing No.AP 16 EZ 3451, while proceeding from
Hyderaband to Vijayawada on the way the near Mulapadu out skirts,
Ibrahimpatnam Mandal, Krishna District. The 1st respondent being the rider
MVOP No.36 of 2020 2 XVI ADJC/NDG of the motor cycle bearing No.AP 39 AF 9215 came from opposite direction in a rash and negligent manner and lost his control and dashed the motor cycle of the petitioner. As a result, the petitioner fell on the ground and received injuries, then the petitioner was shifted to Andhra Hospital,
Vijayawada.
b) Concerning the accident, the petitioner gave report to Police, basing on that registered a case in Crime No.384/2019 U/Sec.338 of IPC against the 1st respondent.
3. At the time of the accident, the petitioner was hale and healthy. He was working as Supervisor in SEPL Company and earing Rs.18,000/- per month. The petitioner is a B.Tech graduate and working as employee. Due to the injuries, the petitioner is unable to attend the duty. After the accident, the petitioner was shifted to Andhra Hospital, Vijayawada, he was treated for grade III foot plate avulsion of ACL tibia attachment knee, as in patient for 15 days. He incurred an amount of Rs.1,75,000/- towards medical expenses. Due to the accident, the family of the petitioner is suffering a lot. The Doctor advised the petitioner to take bed rest for six months. At the hospital and during the rest time, the petitioner spent an amount of Rs.5,000/- per month.
4.The petitioner's family is depending upon the earnings of the petitioner. As a result of the accident, the petitioner lost his present and future earnings. The petitioner also sustained loss of salary for three months. The 1st respondent is a driver and the 2nd respondent is the insurer to the offending vehicle, so that the respondents are liable to pay compensation to the petitioner.
Under this circumstances, this claim is made.
5. The 1st respondent filed counter denied the petition averments and contended that at the time of the accident, the 1st respondent has valid license, where as the offending vehicle bearing No.AP 39 AF 9215 has valid insurance, so that the 1st respondent is not liable to pay compensation and the 2nd respondent is liable to pay the entire compensation.
6.The 2nd respondent filed counter denied the date, time and place of the accident. He further contended that the date of accident is
MVOP No.36 of 2020 3 XVI ADJC/NDG 07.07.2019, where as report was presented on 17.07.2019 hence there is a delay in presenting report.
7. The petitioner, 1st respondent colluded together and presented report to get wrongful gain to the petitioner. Initially the FIR was registered against one K. John Babu, subsequently, the name of one K. Kumar show as R1/accused, which creates doubt that whether the accident had taken place and the offending vehicle involved in the accident. There is a negligence on the part of the petitioner, so that the owner and insurer of the vehicle bearing no. AP 16 EZ 3451 has to be implanted. The driver of
AP 39 AF 9215 has no valid driving license at the time of accident. The petitioners filed for excess compensation and interest. The petitioner claimed that his monthly salary was Rs.18,000/- per month, but to prove the same mo documents filed. Under these circumstances this claim petition is not maintainable and the petitioner is not entitled for compensation.
8. On these rival contentions settled the following issues for trial;
1) Whether the petitioner received injuries in a road accident on 07.07.2019 at about 6.00 hours, near Mulapadu outskirts, Krishna district, due to rash and negligent driving of the vehicle bearing No.AP 39 AF 9215 ?
2) Whether the petitioner is entitled to receive an amount of Rs.4,00,000/- with interest @ 24% p.a towards compensation, if so from whom?
3) To what relief?
9.During the course of trial, the claimant testified as PWs.1 and 2 andgot marked Exs.A1 to A13 . On behalf of respondent, RWs.1 to 3 are examined and got Ex.B1, Ex.X1 and Ex.X2 are marked.
10. The learned Counsel on both sides submitted arguments reiterating the petition and counter contentions.
ISSUE No.1:
11. As seen from the record, the petitioner prove the accident had taken place on 07.07.2019 at 6.00 pm examined himself as PW.1 by filing chief examination affidavit of PW.1 by reiterating the petition averments in the chief affidavit mentioned the manner, place, date of the occurrence of the accident and shifting him to Andhra Hospital, Vijayawada. He
MVOP No.36 of 2020 4 XVI ADJC/NDG underwent surgery, spent an amount in the hospital and also towards attending charges.
12. Dr. B. Sunil examined as PW.2. He stated in his chief examination that the petitioner was admitted in Andhra Hospital on 07.07.2019 at 9.00 pm and discharged on 13.07.2019. During that period, a surgery was conducted on 10.07.2019. He also issued Exs.A2 for receipt of injury and
Exs.A9, A11 and A13 are showing the treatment taken by the petitioner and spending the amount.
13. In the cross examination, PW.1 admitted that he presented a report after 9 days of the occurrence of the offence. As per the FIR the name of the accused was one K. John Babu. PW.1 and 2 were cross examined, but there is no suggestion to PW.1 that no accident caused to the petitioner by the offending vehicle and the petitioner did not receive any injuries. However, the PW.1 was suggested that the offending vehicle did not involve in the accident, but it does not mean that the petitioner did not receive injuries.
14. The Senior Executive-Legal in the 2nd respondent company, examined as RW.1. He reiterated the counter contentions of the 2nd respondent by stating the no driving license to the petitioner and the 1st respondent vehicle had no insurance. RW.1 stated in the cross examination that after the accident the insurance company used to get the investigation report, but the said report was not filed before this court.
In this case they did not issue any notice to the driver and owner to show that they violated the conditions of the policy. On the date of accident, the insurance was in force. The 1st respondent is one K. John Babu @ Kumar.
15. As seen from Ex.A1/FIR, the report of the petitioner is that on 07.07.2019 at about 6.00 pm, while the petitioner was proceeding from
Hyderabad to Vijayawada, on the way at the outskirts of Ibrahimpatnam village, the 1st respondent being the rider of the motor cycle bearing No.AP 39 AF 9215 dashed the motor cycle of the petitioner, as a result, he received injuries. In Ex.A3/MVI report at Column No.3 the date, time and place of offence was mentioned, whereas in column No.16 (a) and (b) the owner and driver is one K. Kumar son of K. Yesu Ratnam. In column
No.18(a) the injured is the petitioner. In Ex.A4 a charge sheet shows that the occurrence of the accident and receipt of injuries to the petitioner by the accused.
MVOP No.36 of 2020 5 XVI ADJC/NDG
16. On perusal of the oral evidence of PWs.1, 2, RW.1 and Exs.A1 to A3 and A4 that on that date the accident had taken place and the petitioner received injuries.
INJURIES:
17. PW.2 is the medical officer treated and conducted surgery to the petitioner stated that the petitioner was admitted in the hospital on 07.07.2019 at 9.15 pm and discharged on 13.07.2019. A surgery was conducted to the petitioner on 10.07.2019 to the injury of grade III foot plate avulsion of ACL tibia attachment knee for the treatment and surgery he issued Ex.A2/wound certificate, A9/Discharge summary, A10/medical bills, A11/medical prescriptions, A12 and A13/medical certificates. In the cross-examination a suggestion was made to PW.2 that he did not conduct surgery, as the petitioner did not receive injuries and Exs.A9 to A13 were obtained by the petitioner to get compensation only.
18.As seen from Ex.A2 is the wound certificate of the petitioner shows that there are external and internal injuries. The external injury is mild abrasion over both hands & left knee. The injury is grievous in nature.
Ex.A9 is the discharge summary of the petitioner from Andhra Hospital,
Bhavanipuram, Vijayawada, shows that the petitioner was admitted in the hospital on 07.07.2019 at 9.19 pm, whereas he was discharged on 13.07.2019 at 3.52 pm for the injury mentioned in Ex.A2. A surgery was also conducted. Ex.A11 is the bill of the petitioner for his treatment as an inpatient from 07.07.2019 to 13.07.2019 in Andhra Hospital,
Bhavanipuram for an amount of Rs.1,17,707/-. Exs.A11 is the medical bills and prescriptions dated 13.07.2019.
19.EX.A13 is the medical certificate of Dr.K. Sridhar dated 17.08.2019 stating the surgery to the petitioner and he was advised to take rest from 15.08.2019 to 15.09.2019. The oral evidence of PWs.1 and 2 coupled with Exs.A2, A9 to A12 shows that the petitioner met with an accident on 07.07.2019, he was admitted in Andhra Hospital on the same day and discharged on 13.07.2019 after conducting surgery. While discharging the petitioner he was advised to take rest for a period of one month.
20. It is the evidence of petitioner that the petitioner while proceeding from Hyderabad to Vijayawada, the motor cycle bearing No.AP 39 AF 9215
MVOP No.36 of 2020 6 XVI ADJC/NDG driven by the 1st respondent dashed the motor cycle of the petitioner, as a result, he received injuries and admitted in Andhra Hospital, Vijayawada.
The petitioner averred in petition and adduced the evidence that the 1st respondent has driving license and the offending vehicle bearing No.AP 39
AF 9215 has valid insurance at the time of accident.
21. RW.1 evidence is that the 1st respondent has no driving license and his name initially mentioned in Ex.A1/FIR as K. John Banu, whereas in
Ex.A4/charge sheet, the name of the 1st respondent is K. Kumar son of
Yesu Ratnam in Ex.A3/MVI report at column No.16(a) and (b) the owner and driver of the crime vehicle is K. Kumar and Yesu Ratnam.The 2nd respondent examined as RW.1 did not file investigation report, for which a suggestion was made to him that the investigation report is in favour of the petitioner, so that it was not filed, for which he denied.
22. The 2nd respondent examined RWs.2 and 3. RW.2 is the Senior
Assistant, RTO Office, Vijayawada, stated in his evidence that the office verified the records and found that K. Kumar had no driving license. RW.2 deposed in his cross examination that he received office summons on verifying the same he would not find the driving license number. The offence did not verify the record in the name of K.John Babu. A suggestion was made to him that their office did not verify the record in on-line and if there is any variation in any one letter in the name or surname, they could not get their details of the said person.
23. The 1st respondent examined as RW.3, he received summons to depose evidence. He stated in his chief examination that he had Yamaha
FZ vehicle bearing No.AP 39 AF 9215 and he has no driving license at the time of the accident. He stated in his cross examination that he is also called as K. John Babu @ Kumar. On the date of accident, the insurance policy was on in force. The claim was also registered against him.
Suggestion was made to RW.3 that since the insurance was in force, R2 is liable to pay compensation and thereafter it has to recover from him, but he denied.
24. As seen from Ex.B1=Ex.A6 that the vehicle Yamaha FZ F5 Engine
No.G3L5E0048822 stands in the name of K. Kumar and insurance policy was valid from 12.04.2019 to 11.04.2020 with policy No.0G-20-1802-1829- 00000629. Ex.A5 is the vehicle RC stands in the name of K. Kumar son of
Yesu Ratnam with engine No.G3L5E0048822 registration dated
MVOP No.36 of 2020 7 XVI ADJC/NDG 15.04.2019. The oral evidence of PW.1, RWs.1 and 3 coupled with Exs.A5 and A6 that the vehicle bearing No.AP 39 AF 9215 has valid insurance at the time of accident and it has basic 3rd party liability and personal accident cover for owner and driver. Further, the evidence of RW.1, 2 and 3 clearly shows that R1 has no driving license at the time of accident.
25. As seen from the record, the petitioner has driving license and the motor cycle has insurance at the time of the accident, but the 2nd respondent denied in the counter. RW.1 though stated in his counter, but not produced any oral or documentary evidence that the petitioner has no driving license and the vehicle bearing No.AP 16 EZ 3451 has no insurance. As seen from Ex.A7 that the petitioner has driving license to drive light motor vehicle non-transport motor cycle with gear with validity from 20.4.2012 to 19.04.2032. Ex.A8 is the policy to the vehicle stands in the name of T. Venkateswara Rao to motor cycle bearing No.AP/NEW 3742.
The learned 2nd respondent counsel submitted arguments reiterating the counter contentions stating that R1 has no driving license. However, the respondent No.2 contended that the petitioner vehicle has no driving license and vehicle has no policy but not produce any contra evidence.
ISSUE No.2:
26. It is deposed by PW.1 that in the accident, he sustained grievous injuries shown in Ex.A2. Ex.A2 is wound certificate issued by the Andhra
Hospital, Vijayawada shows that he was admitted in the hospital on 07.07.2019 as inpatient with IP No.19659.
27. The contention of the 2nd respondent is that 1st respondent violated the terms and conditions of the policy, but he is not produced any contra evidence to show the same. However, the 2nd respondent has contended in the written statement, but there is no material to rely on the contentions.
28. At this stage, this Court relied on the decision reported in 2023
ACJ 631 Ram Murti and others Vs. Punjab State Electricity Board
wherein his Lordship held that;
“the provisions of Section 140 which formed a part
of Chapter X of the Motor Vehicles Act, 1988 were
omitted by Act 32 of 2019. Simultaneously,
Chapter XI was substituted of which section 164
provides for payment of compensation in the case
MVOP No.36 of 2020 8 XVI ADJC/NDG
of death, the amount is Rs.5,00,000/- and in the
case of grievous hurt, the amount is
Rs.2,50,000/-.”
29. In the instant case in hand, the claimant received injuries, but no physical disability certificate is filed. So, considering the decision of his lordship in Ram Murthy and others stated supra, this court inclined to grant compensation to the injuries sustained by the claimant.
30.Speaking more particularly about the nature of injury suffered by PW1, there is evidence of P.W1, Ex.A2 shows that the petitioner received grievous injuries. The 2nd respondent not disputed about the said grievous injuries, not cross examined on that lines and no contra evidence adduced. On considering the evidence of PW1, Ex.A2/wound certificate,
Exs.A12 and A13/medical reports an amount of Rs.1,00,000/- is awarded towards compensation for the receipt of grievous injury.
31. As per the evidence of PW.1/claimant incurred Rs.1,17,707/- towards his treatment as inpatient. The 2nd respondent contended that hospital certificates, discharge summary obtained for the purpose of this petition, to disprove the said certificates, no evidence adduced, as such, the contention of R2 is negatived. While cross-examining PW.1, the 2nd respondent not elicited anything in his favour. Ex.A2 clearly indicates that
PW.1 was treated in Andhra Hospital, Vijayawada.
32. As seen from the evidence of PW.1, the petitioner received injuries in the accident caused by the 1st respondent being the driver auto bearing
No. AP 39 AF 9215. PW.2 is the doctor treated the petitioner as inpatient in
Andhra Hospital, Vijayawada from 07.07.2019 to 13.07.2019 and issued
Exs.A2, A9 to A13. In Ex.A2, the opinion of PW.2 to the petitioner is that grievous injury. Ex.A2 reveals that Grade III foot plate Avulsiion of ACL
Tibial attachment left knee. Ex.A 10 is the medical bills for Rs.1,17,707/- issued by Andhra Hospital, (Vijayawada) Private Limited, Vijayawada.
Ex.A11 is the bunch of medical bills issued by Andhra Hospital, (Vijayawada) Private Limited, Vijayawada. Ex.A12 and Ex.A13 are the medical certificates issued by PW.2 for his injury and also gave advice to take bed rest for two months. With the oral evidence of PW.1 and 2 and document evidence under Exs.A2, A10 to 12, the petitioner was treated for the injury, for which he spent an amount of Rs.1,17,707/- is rounded of to Rs.1,17,700/-.
MVOP No.36 of 2020 9 XVI ADJC/NDG
33. From the place of accident, as per the evidence of PW.1, he was shifted to Andhra Hospital, Vijayawada. Hence, he must have incurred transport expenses which is assessed to Rs.10,000/-.
34. PW.1 stated that at the time of accident, PW1 was hale and healthy and working as Supervisor in SEPL Company and earing
Rs.18,000/- per month. Due to the accident, he lost his income and he is unable to attend daily work and his family was in starvation. In the said circumstances, more or less the claimant during that period, lost his income and suffered with pain. Due to the injuries, the petitioner was unable to attend any work. For the sudden accident, the petitioner was suffered with severe mental agony, depressed, he also sustained injury and he is not in a position to attend his duty. The result of the accident also have a impact on future earnings.
35. As already discussed above, the claimant was treated as an inpatient for about 6 days and doctor advised to take rest for 2 months, during the said period, an amount of Rs.10,000/- is awarded towards attending charges.
36. PW.1 not adduced evidence on the lines of the disability to him. He did not speak about its disability, either temporary or permanent suffered by him. The claimant did not produce any disability certificate.
Thus, it is recorded that there is no physical disability for him, because of the injuries sustained in the accident. However, looking at the grievousness of the injuries, he suffered, the Surgeries he underwent, the treatment he took and the length of time, for which he was unable to attend his normal duties, one can certainly assess the kind of pain and sufferings, he experiences. The claimant suffered mental agony for the injury received by him. The claimant is unable to move, as a result he would not take sufficient nutrition food and also he lost his happiness in enjoying food whatever he likes. Therefore, towards pain and sufferings,
Rs.1,50,000/-, is granted to the claimant. Further, sum of Rs.15,000/- is awarded under the head of extra-nourishment.
37. This tribunal is having power to grant just and reasonable compensation to which the claimants are entitled as the Principle laid down in the decision of their Lordships in Ramala V/s. National Insurance
Company Limited in 2019 ACJ 559 (S.C.)
MVOP No.36 of 2020 10 XVI ADJC/NDG
38. Thus, the claimant petitioner is entitled in all for compensation under the following Heads:
HEAD COMPENSATION
Towards Grievous Injuries Rs.1,00,000/-
Towards Medical expensesRs.1,17,700/-
Towards TransportRs.10,000/-
Towards attending chargesRs.10,000/-
Towards pain and sufferingRs.1,50,000/-
Towards Extra nourishment Rs.15,000/-
TOTAL Rs.4,02,700/-
This is found to be just and reasonable compensation.
39. As per the evidence of PW.1, the 1st respondent is driver com owner of the offending vehicle bearing No.AP 39 AF 9215. ExA6 is the insurance policy issued by 2nd respondent covering the offending vehicle.
A perusal of it, shows that policy covers the period from 12.04.2019 to 1.04.2024. The accident occurred on 07.07.2019. Thus, the insurance policy was in force at relevant time. Further more, there is no contra evidence of the 2nd respondent on the aspect of vehicle, as such the 2nd respondent contention is negatived.
The learned petitioner counsel submitted in decision 2018 ACJ 690 in Pappu and others Vs. Vindo Kumar Lamba and another wherein their lordship Hon'ble Sri Justice Dipak Misra, Sri Justice A.M. Khanwilkar and Sri. Justice D.Y. Chandra Chud held at para No.11, 12, 14 and 15
11. The question is whether the fact that the offending vehicle bearing No.DIL 5955 was duly insured by respondent No 2 insurance company would per se make the insurance company liable? This court in the case of National Insurance Co. Ltd, 2004 ACJ 1 (SC), has noticed the defences available to the insurance company under section 149 (2) (a) (it) of the Motor Velncles Act. 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised per son or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the of fending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present
MVOP No.36 of 2020 11 XVI ADJC/NDG case, the respondent No. I owner of the offending vehicle merely raised a vague plea in the written statement that the offending offending vehicle No. DII 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides. the respondent No 1 did not enter the witness-box or examine any witness in support of this plea. The respondent No. 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No. I owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift requiring the respondent No.2 insurance company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending truck was not enough for the respondent No. I to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and pr ed by the owner of the offending vehicle.
12. In the present case, the Tribunal has accepted the claim of the appellants. It has. however, absolved the respondent No.2 insurance company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time.
14. The next question is, whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount with liberty to recover the same from the owner of the vehicle respondent No. 1" This issue has been answered in the case of National Insurance Co. Ltd., 2004 ACJ 1 (SC). In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal. it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this court held that even if insurer succeeds in establishing its defence, the Tribunal or the court can direct the insurance company to pay the award amount to the claimants) and. in turn,
MVOP No.36 of 2020 12 XVI ADJC/NDG recover the same from the owner thus of the vehicle. The three-
Judge Bench. after analysing the earlier decisions on the point,
held that there was no reason to deviate from the said well settled principle. In para 99, the court then observed thus:
“(99) We may, however, hasten to add that the Tribunal and the court must. however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of cash case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub- section (2) of section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle as the case may be, in execution of the same award having regard to the provisions of sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Claims Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequentage or for one reason or the other, the insurer was not given op- portunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of vehicle is detected or comes to the knowledge of the insurer at a later stage”
Further, in para 102, the court observed "(102) The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under section 163-A or section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of section 149 (2) (a) (in) of the said Act.
(iii) the breach of policy conditions, disqualification driver or invalid driving licence of the driver, as contain ed in sub-section (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for
MVOP No.36 of 2020 13 XVI ADJC/NDG avoiding liability by the insurer. Mere absence, fake or invalid driving licence or dis. qualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the bur- den of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose' and the concept of "fundamental breach to allow defences available to the insurer under section 149 (2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise) fulfils the requirements of law or not will have to be determined in each case.
XXX XXXX XXX
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149 (2) read with sub-section (7), as interpreted by this court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under
MVOP No.36 of 2020 14 XVI ADJC/NDG the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under section 174 of the as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of section 168 of the Act, the insured tails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub- section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.
In another decision of the Hon'ble High Court of Delhi in 2009 ACJ
287 in National Insurance Co. Ltd. Vs Pushpa Rana and others
wherein their lordship Mr.Justice Kailash Gambhir held at para No. 8,9,12 and 13
8. I do not agree with the contention of the counsel for the appellant that as the Tribunal has adopted the criteria of Sarla Dixit's case (supra), in which the benefit for the future prospect is taken into consideration, therefore, the overtime allowance should not have been considered while giving the benefit towards the future prospects. Future prospects and advancement in career cannot be equated with the overtime allowance. Moreover, the claimants have proved on record that the deceased was earning a sum of Rs.2,500 per month towards the overtime allowance. The contention of the counsel for the appellant on this score is, therefore, rejected.
9. I also do not find force in the contention of counsel for the appellant that the Tribunal has wrongly applied the multiplier of 18. The deceased was 26 years of age at the time of occurrence of the accident and he was survived by his widow and two minor children besides his mother. The Tribunal has observed in the impugned award that the deceased was survived by widow of a very young age besides two minor children, therefore, taking in view the
MVOP No.36 of 2020 15 XVI ADJC/NDG age of the deceased as 26 years, the appropriate multiplier of 18 as laid down in the Second Schedule to the Motor Vehicles Act has been applied by the Tribunal. Therefore, I do not find, any infirmity in the impugned order with regard to the multiplier of 18. The Supreme Court has taken a view in catena of judgments that the multiplier as laid down in the Second Schedule to Motor Vehicles Act. 1988 can be deviated only under exceptional circumstances otherwise normally the same acts as a safe guide. The Supreme Court in United India Insurance Co. Ltd. v. Patricia Jean Mahajan. 2002 ACJ 1441 (SC), has held as under:
"(10) It thus makes it clear that it is for the Tribunal to arrive at an amount of compensation, which it may consider to be just in the facts and circumstances of the case. This court, however, has been of the view that structured formula as provided under the Second Schedule would be a safe guide to calculate the amount of just compensation. Deviation though permissible, may only be resorted to for some special reasons to do so….”
12. I also do not find any force in the argument of the counsel for the appellant that since the deceased was in private job. therefore, future prospects should not have been taken into consideration. The Apex Court has not made any distinction be- tween private or government employees in this regard.
13. The last contention of the appellant insurance company is that the respondents- claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased produced: (i) certified copy of the criminal record of criminal case in F.I.R. No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of charge- sheet under sections 279/304 - A , Indian Penal Code against the driver: (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged, and
(iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil
MVOP No.36 of 2020 16 XVI ADJC/NDG suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this con- tention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver.
40. According to the 2nd respondent, the rider of the offending vehicle has no valid driving license at the time of accident. The insurance policy under Ex.A6 is in force, liability shall be shouldered by Respondent
No.1 and 2 jointly and severally. Therefore, the compensation amount awarded to the claimant shall be paid by R1 and R2 jointly and severally.
41. The decision submitted by the learned petitioner counsel is fit to this case on hand as the 1st respondent has no driving license at the time of the accident and the 2nd respondent being insurer is ordered to pay compensation to the petitioner at first, subsequently, it has to recover from the respondent No.1.
Hence, this issue is answered in favour of the claimant against the respondents.
ISSUE No.3:
42. IN THE RESULT, this petition is allowed by granting Rs.4,02,700/- [Rupees Four Lakhs Two Thousand Seven Hundred only] as compensation to the petitioner with costs, directing the respondents 1 and 2 jointly and severally to pay compensation along with 7.5 % interest per annum from the date of presentation of this petition till the date of realization over the compensation granted above. R2 is directed to deposit the entire amount
before the Hon’ble Court with in the one month from the date of the order.
It is recorded that the payments, if any made, by the respondents earlier shall be given due credit and only the balance remained due shall be deposited within one month from the date of this order.
The petitioner is directed to open Savings Bank account in any of the Nationalized Banks near his residence or any place convenient to him, if he does not have one already. All the payments made under this award shall invariably be remitted to the above Savings Bank account.
The claimant is directed to pay deficit court fee within a period of one month form the date of Judgment. If claimant failed to pay court fee to the compensation awarded, the claim of claimant will restrict only to the extent of payment of court fee.
MVOP No.36 of 2020 17 XVI ADJC/NDG
The petitioner is permitted to withdraw his entire amount of compensation awarded along with interest.
The advocate fee is fixed at Rs.2,000/- (Rupees two thousand only).
Decree shall be prepared and copy of this order shall be issued to the claimants only on verifying the deficit court fee, if any.
Dictated on my type to dictation to the Typist, corrected and pronounced
by me in open Tribunal, this the 19th day of April, 2024.
Sd/- V. Srinivasarao,
CHAIRMAN,
Motor Accidents Claims Tribunal -cum- XVI Additional District and
Sessions Judge, Nandigama.
APPENDIX OF EVIDENCE
Witnesses examined
For Petitioners: For Respondents:
PW.1 : Ganapaneni YeswanthRW.1 :Srinivasarao,
PW.2 : Dr. M. Suneel, MS, MchRW.2 :Ch. Joga Rao, Sr. Asst, RTA
Kethavarapu Kumar @ John RW.3 : Babu
Documents marked
For Petitioners:
EX.A1: Attested copy of the FIR in Cr.No.384/2019 of Ibrahimpatnam PS. EX.A2: Attested copy of wound certificate.
EX.A3: Attested copy of MVI report Dt.25.07.2019 EX.A4: Attested copy of the Charge Sheet dt.04.09.2022 : Copy of the C Book of the 1st respondents vehicle No.AP 39 AF EX.A5 9215 : Copy of policy of the 2nd respondent (marked as subject to EX.A6 objection)
EX.A7: Copy of the DL of the petitioner (marked as subject to objection) : Copy of the policy of the vehicle No. AP 16 EZ 3451 (marked as EX.A8 subject to objection)
EX.A9: Discharge Summary.
EX.A10 : Total bill for Rs.1,17,707 issued by Andhra Hospital dt.13.07.2019
EX.A11 : Bunch of medical bills
MVOP No.36 of 2020 18 XVI ADJC/NDG
Ex.A12 : Medical certificate issued by Andhra Hosptial, dt.13.07.2019
Ex.A12 : Medical certificate issued by Andhra Hosptial, dt17.08.2019
Documents marked For Respondents: Ex.B1 : Bazaj Allianz General Insurance Company Policy No.OG-20-1826- 00000629
Ex.X1 : Authorization letter issued by RTO, Vijayawada, dt.31.05.2023
Ex.X2 : Certificate issued by the RTO, Vijayawada.
Sd/- V. Srinivasarao,
CHAIRMAN,
Motor Accidents Claims Tribunal -cum- XVI Additional District and
Sessions Judge, Nandigama.