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2011 DIGILAW 87 (AP)

G. Venkat Swamy Goud v. B. Ashok Reddy

2011-02-03

GHULAM MOHAMMED

body2011
Judgment : This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment dated 20.04.2005 passed by the Motor Accidents Claims Tribunal-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, in O.P.No.240 of 2003, whereby the claim petition filed by the appellant/claimant seeking compensation of Rs.3,00,000/-for the injuries received by him was allowed in part by awarding a compensation of Rs.1,15,346/- with proportionate costs and interest at 9% p.a., from the date of the claim petition till realization. In this appeal, the claimant seeks enhancement of the compensation awarded by the Tribunal. 2. Brief facts of the case are that on 31.08.2002, when he along with others were proceeding towards Kollapur from Peddakothapalli in a jeep bearing No.AP 22B 1623, which is owned by the first respondent and insured with the second respondent, and when the jeep reached the outskirts of Kalwakole village on Hyderabad-Kollapur road, the jeep driver drove it in a rash and negligent manner and unable to control the speed, he dashed the stationed tractor bearing No.AP 22 8469, which was alighting on the right side of the road, on account of which, the claimant received fracture injury to the right hand and also fracture to the right knee and head injury and multiple injuries all over his body. Then, he was shifted to Gowri Gopal Appollo Hospital, Kurnool for treatment and subsequently, he was shifted to NIMS for treatment as the injury sustained by him is grievous in nature. In NIMS, his right hand was operated by erecting steel rod, which has to be removed subsequently. According to him, he spent Rs.1,00,000/- towards treatment and medical expenses. By the time of the accident, he was stated to be working as tailor since 15 years by establishing a shop “Raja Tailors” at Kollapur and was earning Rs.5,000/- per month and due to the injury to his right hand, he is not able to pursue his tailoring profession in future and as such he sustained permanent disability. Therefore, he filed the claim petition before the Tribunal for a compensation of Rs.3,00,000/-. 3. Therefore, he filed the claim petition before the Tribunal for a compensation of Rs.3,00,000/-. 3. To prove his claim, the claimant examined P.Ws.1 and 2 and marked Exs.A-1 to A-14 i.e., F.I.R., statement, charge sheet, intimation, MLC issued by NIMS, discharge card, outpatient medical record, bunch of medical bills, bunch of doctor prescriptions, OP registration card, blood group report, x-ray films, certificate issued by Grampanchayat and disability certificate. The insurance company examined no witness, however, marked Exs.B-1 insurance policy. 4. The Tribunal, after considering the facts and circumstances of the case, the evidence on record and the decided case law, held that the accident occurred due to the rash and negligent driving of the driver of the jeep and due to the accident, the claimant received grievous injuries and therefore, he is entitled for compensation. The Tribunal awarded Rs.54,846/- towards medical bills, Rs.500/-towards attendant charges, Rs.2,000/- towards transportation, Rs.3,000/- towards extra nourishment, Rs.5,000/- as he was immobilized for sometime, Rs.10,000/- towards prolonged treatment, Rs.5,000/- towards loss of earnings for three months and Rs.35,000/- towards medical treatment. In all, the Tribunal awarded Rs.1,15,346/- with proportionate costs and interest at 9% p.a., from the date of the claim petition till the date of realization. 5. The learned counsel for the second respondent - insurance company contended that the present insurance policy is Act policy which covers the driver only and not the claimant, who is a passenger travelled in the insured vehicle, and therefore, the insurance company is not liable to pay compensation. In support of his contention, he relied upon the judgment of this Court in Branch Manager, United India Insurance Co. Ltd. vs. Kondakotla Saroja ( 2009 ACJ 1127 ), wherein insurance company was held to be not liable. This Court in the said decision observed as under: “Exh. A5 is the copy of insurance cover note which clearly shows that policy is only an Act policy. The columns ‘additional risks is any covered’ and ‘special conditions’, if any, are kept blank. It is thus clear that no extra premium has been paid to cover the passengers who travelled in the jeep. A5 is the copy of insurance cover note which clearly shows that policy is only an Act policy. The columns ‘additional risks is any covered’ and ‘special conditions’, if any, are kept blank. It is thus clear that no extra premium has been paid to cover the passengers who travelled in the jeep. ….Once the insurance company under cover note, Exh.A5, has not undertaken the liability by collecting extra premium for the passengers who traveled in the insured vehicle, it cannot be held liable to pay the compensation and it is only the respondent-owner of the vehicle who is liable to satisfy the decree and pay the compensation amount. In view of the same, the C.M.A. is allowed and the judgment and decree passed by the lower court that the insurance company is jointly and severally liable to pay the compensation is set aside. The insurance company is at liberty to recover the amount deposited by it from the owner of the vehicle.” 6. The learned counsel for the appellant/claimant submitted that the present insurance policy is not Act policy, but a comprehensive policy which is not restricted to cover the driver only but it covers the claimant also being a passenger travelled in the jeep and therefore, the insurance company is liable to pay the compensation. He further stated that at the first instance the insurance company cannot deny to pay compensation, even if it is not liable. In support of his submission, he relied on the decision of this Court inNew India Assurance Company Limited vs. Korukonda Appa Rao ( 2010 (2) ALT 229 ) wherein, this Court, after applying the ratio laid down by the Supreme Court in National Insurance Co. Ltd. vs. Surat Singh (2008 (2) An.W.R. 531 (Del.),held as under: “Therefore, applying the ratio laid down in Baljit Kaur’s case which is relied upon by the learned counsel appearing for the appellant/Insurance company, the insurance company is directed to first satisfy the above mentioned awards and thereafter recover the amounts from the owner of the vehicle without filing a separate suit.” 7. The learned counsel for the appellant/claimant further stated that due to the injuries received in the accident, especially that his right hand was operated, the claimant is unable to continue his profession as tailor and lost his monthly income of Rs.5,000/-, which he used to earn as a tailor before the accident. The learned counsel for the appellant/claimant further stated that due to the injuries received in the accident, especially that his right hand was operated, the claimant is unable to continue his profession as tailor and lost his monthly income of Rs.5,000/-, which he used to earn as a tailor before the accident. However, the Tribunal failed to award any amount for permanent disability. 8. As far as the liability of the insurance company, the Supreme Court, inNational Insurance Co. Ltd. vs. Challa Bharathamma (2004 ACJ 2094)held as under: “The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, i.e., the insured. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, i.e., the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.” and in Pramod Kumar Agrawal vs. Mushtari Begum ( 2004 ACJ 1903 )held as under: “Therefore, while upholding the judgment of the High Court we direct in terms of what has been stated in BaljitKaur’s case, 2004 ACJ 428 (SC), that the insurer shall pay the quantum of compensation fixed by the Claims Tribunal, about which there was no dispute raised, to the respondents-claimants within 3 months from today. For the purpose of recovering the same from the owner the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle, i.e., appellant No.1 shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached as a part of the security. If necessity arises the executing court shall take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i.e., appellant No.1 shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (the appellant No.1).” 9. As regards the question whether the insurance policy is Act policy or not, I have perused the record, in particular, the insurance policy, as rightly contended by the learned counsel for the appellant/claimant, it is not an Act policy restricting its coverage to the driver only, but it is a comprehensive policy, whereunder a sum of Rs.4,774/- was paid towardspremium. As regards the question whether the insurance policy is Act policy or not, I have perused the record, in particular, the insurance policy, as rightly contended by the learned counsel for the appellant/claimant, it is not an Act policy restricting its coverage to the driver only, but it is a comprehensive policy, whereunder a sum of Rs.4,774/- was paid towardspremium. In view of this, it can safely be said that the insurance company is liable to pay compensation. 10. As regards the question whether the Tribunal erred in not awarding compensation for permanent disability, since a perusal of Ex.A-14 disability certificate issued by the Civil Surgeon Specialist, Ortho Paedics, District Hospital, Mahabubnagar, and approved by the District Medical Board, Mahabubnagar, shows that the claimant suffered 40% disability, I am of the opinion that the Tribunal ought to have awarded compensation for permanent disability. 11. Considering the circumstances of the case, since the claimant was tailor at the time of the accident, his income, at least, can be taken at Rs.3,000/- per month. Since the claimant is unable to continue his profession as tailor in future due to the injuries received by him in the accident and as evident from Ex.A-14 disability certificate he suffered 40% disability, permanent disability can be taken at 40%. Accordingly 40% of his income comes to Rs.1,200/- per month and per annum, it comes to Rs.14,400/- (1200 x 12). Since the claimant was aged 35 years at the time of the accident, the appropriate multiplier, as per the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009 (6) SCALE 129), would be ‘16’. Accordingly, compensation for permanent disability is arrived at Rs.2,30,400/- (14400 X 16), to which the claimant is entitled to, apart from the compensation already awarded by the Tribunal. In all, the claimant is entitled to compensation of Rs.3,45,746/- (230400 + 115346). However, since the total compensation claimed by the claimant before the Tribunal in his claim petition is Rs.3,00,000/-, the compensation to which the claimant is entitled to is restricted to Rs.3,00,000/-. 12. Accordingly, the M.A.C.M.A. is allowed enhancing the compensation awarded by the Tribunal from Rs.1,15,346/- to Rs.3,00,000/-, which shall carry interest at 7% per annum from the date of the claim petition till realization.