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2008 DIGILAW 1003 (AP)

Irfan Khan v. Md. Javeed

2008-11-21

G.BHAVANI PRASAD

body2008
JUDGMENT :- The claimant in OP No.1446 of 1995 on the file of the Motor Accidents Claims Tribunal-cum 11 Additional Chief Judge, City Civil Court, Hyderabad filed this appeal against the award dated 9.8.1999. 2. The claimant filed the claim petition for a compensation of Rs.3,00,000/contending that when he was going as a pillion rider on motor cycle No: ADL 1651 on 23.1.1995 at about 2.15 p.m., lorry No. APJ 2605 was going ahead. Near Saibaba Transport Office at Mancherial, the lorry driver suddenly applied brakes and though the motor cyclist tried his best to control the vehicle, the motor cycle dashed against the rear tyres of the lorry and fell down. The claimant sustained grievous injuries, for which he was treated initially at Mancherial and later at NIMS, Hyderabad. His damaged testicle was removed and Mancherial police registered Crime No.9 of 1995. The claimant was earning Rs.2,000/per month and a daily batta of Rs.l 0/- from Brothers Vegetable Company, Monda Market, Secunderabad and due to the fracture of left ankle, grievous injury to the spinal cord and removal of one testicle, he became permanently disabled, though he spent Rs.50,000/- for treatment. Respondents 1 and 2 are the owner and insurer of the lorry; while respondents 3 and 4 are the owner and insurer of the motor cycle, and all of them are liable to compensate the claimant. 3. While the owners of the vehicles remained ex parte, the insurers denied the happening of the accident as narrated by the claimant. They claimed that the vehicle drivers did not have valid driving licences and put the claimant to strict proof of all his allegations. 4. The Tribunal framed issues on the responsibility for the accident, the liability of 11 the different respondents to pay compensation and the quantum of compensation to which the claimant is entitled. The Tribunal examined PWs. 1 to 3 and RW1 and marked Exs.A1 to A 13 and Bland B2 during the course of enquiry. 5. The Tribunal rendered the impugned award noting that no complaint was given by the claimant or any other person to the police about the accident. The Tribunal also noted that PWs. l and 2 gave registration number of the lorry as APK 2605, whereas it was mentioned as APJ 2605 in the claim petition. 5. The Tribunal rendered the impugned award noting that no complaint was given by the claimant or any other person to the police about the accident. The Tribunal also noted that PWs. l and 2 gave registration number of the lorry as APK 2605, whereas it was mentioned as APJ 2605 in the claim petition. Contrary to the claim petition, PW2 stated that the lorry overtook them and was suddenly swerved to the left dashing against the motor cycle. The Tribunal also referred to EX.A1 first infom1ation report and EX.A2 charge-sheet showing the rash and negligent driving to be by PW2, the motor cyclist, who was prosecuted by the police. Therefore, the Tribunal concluded that the lorry driver cannot be found fault with and the motor cyclist himself contributed to the accident. Consequently, it held respondents I and 2 to be not liable to pay the compensation. The Tribunal further noted that PW2 claimed that he purchased the motor cycle prior to the accident and hence, it held that the 3rd respondent cannot be made liable being not the owner of the motor cycle. The Tribunal also concluded that there was no privity of contract between PW2 and the 4th respondent and even otherwise the claimant being a pillion rider cannot make any claim against the insurer under the Act policy. Consequently, the Tribunal held the claimant to be not entitled to any compensation against any of the respondents and dismissed the petition without costs. 6. The claimant preferred the present appeal contending that a pillion rider also is entitled to compensation and even otherwise, the responsibility of respondents 1 and 2 could not have been denied in the light of the positive evidence of PWs.1 and 2. The distinction between civil and criminal proceedings was not kept in view and respondents I and 2 would, in any view, be liable at least to the extent of the contributory negligence on the part of the lorry driver. There was no evidence before the Tribunal about PW2 being the owner of the motor cycle and the insurance policy for the motor cycle was subsisting. The Tribunal did not assess the impact of the injuries and the compensation to which the claimant is entitled and hence, the claimant desired the impugned award to be reversed. 7. There was no evidence before the Tribunal about PW2 being the owner of the motor cycle and the insurance policy for the motor cycle was subsisting. The Tribunal did not assess the impact of the injuries and the compensation to which the claimant is entitled and hence, the claimant desired the impugned award to be reversed. 7. Sri P. V Sanjeeva Rao, learned Counsel for the appellant, Sri R.K. Suri, learned Counsel for the 2nd respondent and Sri P. Suresh, learned Counsel for the 4th respondent are heard. 8. Sri P. V Sanjeeva Rao relied on various precedents commencing from National Insurance Company Limited v. Islavath Chinnamma, 2006 (4) ALD 268 = 2006 (I) An. WR 553 (AP), wherein it was held that the contents of first information report cannot be treated as conclusive proof and the relevance of such first information report in the claim petitions filed under the Motor Vehicles Act is virtually limited to see whether the accident and the death or injuries have taken place and not to affix or apportion the liability in causing the accident. Without examining the person who gave the first information report or the official who prepared it, the contents of the first information report cannot be treated as conclusive proof. 9. In APSRTC v. K. Andalu, 2007 (I) ALD 505 = 2007 (I) ALT 636 , it was held that there may be cases, where the facts pleaded and proved by the parties may fit into a claim under Section 163-A read with Schedule II to the Motor Vehicles Act as well as one under Section 166 of the said Act. 10. In Balraj v. Venkat Reddy and others (CMA No.3768 of 2002 decided on 24.1.2007), this Court held that any document produced by any party to the /is is necessarily required to be proved in the manner provided under the Evidence Act and in the absence of any such evidence, it would not be possible for the Court to assess the extent of injury to come to a just and proper conclusion. 11. 11. In CMA No.2272 of 2002 between P. Chandrakanth and others v. The Manager, APSRTC decided on 14.2.2007, this Court remitted the matter back to the Tribunal so as to give an opportunity to the claimant to prove his claim by adducing appropriate evidence, as the claimant failed to produce medical evidence and the evidence of expenditure in the first instance. 12. In Haseena Sulthana v. National Thermal Power Corporation Limited, 2007 (1) ALD 1 = 2006 (6) ALT 504 , it was held that even if the deceased or injured victim himself is responsible for the accident, a claim can be made under Section 140 or Section 163-A of the Motor Vehicles Act. 13. In Shamshuddin v. Atta Anaruddin, 2006 (5) ALD 50 = 2006 (6) ALT 147 , it was held that the negligence of a person cannot be judged merely on the ground that he was charge-sheeted and that unless there is evidence to show that the accident occurred due to the negligence of the person charge-sheeted, merely on the strength of the averments made in the charge-sheet, it cannot be said that the accident occurred due to his rash and negligent driving of the motor vehicle. 14. In P. Naguru v. S. Krishnama Raju, I (1999) ACC 129, it was pointed out that the owner of the lorry will not be absolved of his vicarious liability for the acts committed by the driver acting under his authority to drive the vehicle. 15. In Shahazadi Bee v. Managing Director, A PSRTC, 2003 (5) ALD 127 = 2003 (6) ALT 678 (DB), it was pointed out that under Section I63-A of the Motor Vehicles Act, any rash and negligent driving of the vehicle need not be proved by the claimants after amendment by Act 54 of 1994 and it is sufficient if they prove that the accident had taken place while the vehicle is being used on the road. 16. In A. Vijaya v. Vegurla Rajaiah, 2005 (4) ALD 725 = 2005 (4) ALT 487 (DB), also, it was pointed out that the Tribunals are expected to award just and proper compensation and the discretion given to the Tribunals in awarding compensation has to be exercised judiciously and not arbitrarily. It was also observed that what is just and proper compensation depends upon the facts of each case. 17. It was also observed that what is just and proper compensation depends upon the facts of each case. 17. The decision in Rikhi Ram v. Smt. Sukhrania, AIR 2003 SC 1446 , is also relied on to contend that whenever a vehicle, which is covered by an insurance policy, is transferred to a transferee, the liability of the insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. 18. The learned Counsel for the appellant, while conceding that the oral and documentary evidence produced by the claimant before the Tribunal was not such as would enable the Tribunal to come to any conclusions in his favour positively without any doubt, desired that an opportunity be given to him to produce additional evidence before the Tribunal, by remitting the matter back to the Tribunal. The learned Counsel for the insurers vehemently opposed the request. 19. It is seen from the admitted facts that the claimant suffered very serious injuries like fracture of left ankle, grievous injury to the spinal cord, etc., and that he had to suffer removal of testicle due to the consequences of the accident. He was admittedly a pillion rider on the motor cycle and there was absolutely no contribution by him by his conduct to the happening of the accident. The blame can be on either driver or both and the Motor Vehicles Act, being a beneficial legislation, should be so construed and implemented as to make the benefits of the legislation reach the persons to whom it was intended to reach. It is seen from the impugned award that the Tribunal heavily relied on EX.A1 first information report and EX.A2 charge-sheet in presuming the lorry driver to be innocent of any fault and PW2 alone to be guilty of rashness and negligence. The result of the prosecution under EX.A2 is not known and notwithstanding the discrepancies between the claim petition and the evidence of PWs.1 and 2 about the manner of the accident, the happening of the accident involving the lorry and motor cycle in question itself, is not, in dispute. The result of the prosecution under EX.A2 is not known and notwithstanding the discrepancies between the claim petition and the evidence of PWs.1 and 2 about the manner of the accident, the happening of the accident involving the lorry and motor cycle in question itself, is not, in dispute. Similarly, so far as the ownership of the motor cycle is concerned, it is not clear as to whether the ownership was transferred in favour of PW2 as presumed by the Tribunal and the absence of privity of contract between PW2 and the 4th respondent was also a matter of presumption by the Tribunal as a consequence of its assumption of PW2 being the owner of the motor cycle. On all these aspects, the claimant now desires to have an opportunity to produce additional evidence before the Tribunal and with reference to the various precedents cited by the learned Counsel for the appellant, the claimant may be entitled to just and adequate compensation from one or all the respondents, if he is able to prove the relevant factors. Therefore, it is considered in the interests of justice to remit the matter back to the Tribunal without expressing any opinion on the merits of any of the rival contentions of the parties on the questions in controversy between them. 20. Therefore, the award, dated 9.8.1999 in or No.1446 of 1995 on the file of the Motor Accidents Claims Tribunal cum-II Additional Chief Judge, City Civil Court, Hyderabad is set aside and the matter is remitted back to the Tribunal for fresh detem1ination on merits in accordance with law after giving a reasonable opportunity to both the parties to adduce such further evidence they may desire to produce, uninfluenced by the observations in the impugned award or this judgment. The appeal is ordered accordingly without costs.