JUDGMENT: Respondent No.6 M/s Oriental Insurance Company Limited is the present appellant. Aggrieved by the order and decree, dated 11-01-2001, in M.V.O.P. No.627 of 1996 passed by the learned Chairman, Motor Accidents Claims Tribunal cum II Additional District Judge, East Godavari District at Rajahmundry (for short the Tribunal), mulcting liability to pay a sum of Rs.1,30,800/- to the petitioner, who is respondent No.1 herein, as compensation for the injuries sustained by him, preferred the instant appeal. 2. The appellant herein is respondent No.6 in the aforesaid M.V.O.P. before the Tribunal, while respondent No.1 is petitioner and respondent Nos.2 to 4, who are driver, owner and insurer of lorry bearing registration No.ATK 8689 are respondent Nos.1 to 3 and respondent Nos.5 and 6, who are driver and owner of Ambassador Car bearing registration No.ADM 5049, are arrayed as respondent Nos.4 and 5, respectively. 3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in MVOP before the Tribunal. 4. The petitioner laid the claim for Rs.1,50,000/- under Section 166 of Motor Vehicles Act, 1988 ( for short the Act) read with Rule 455 of Andhra Pradesh Motor Vehicles Rules, 1989 against the driver, owner and insurer of Ambassador Car in which he was travelling at the time of accident and also the driver, owner and insurer of the lorry, which, according to the petitioner, was also involved in the said accident. i) On 21-09-1994, the petitioner, who was then working as an Excise Constable, along with his mother and Geddam Satyanarayana was travelling in Ambassador Car belonging to respondent No.5 bearing registration No.ADM 5049 from Narendrapuram to Rajahmundry driven by respondent No.4 and insured with respondent No.6 - appellant. When their car reached Kadiapu Lanka, lorry bearing registration No.ATK 8689 belonging to respondent No.2 and insured with respondent No.3 came in opposite direction driven at high speed and in a rash and negligent manner driven by the respondent No.1 and hit their car, due to which, the petitioner sustained injuries. He was immediately shifted to Swatantra Hospital, Rajahmundry by Sub-Inspector of Police, Kadiam Police Station. The petitioner claims that accident occurred solely due to rash and negligent driving of the first respondent. He claims that he was dynamic and young champion, but, due to the accident and injuries he sustained, he suffered permanent disability, as he became crippled and unable to move out of bed. The petitioner claims that accident occurred solely due to rash and negligent driving of the first respondent. He claims that he was dynamic and young champion, but, due to the accident and injuries he sustained, he suffered permanent disability, as he became crippled and unable to move out of bed. He, therefore, sought a sum of Rs.1,50,000/- by quantifying the amounts under various heads. ii) He claims that he was still undergoing treatment on the date of filing claim petition. Despite making a definite averment in paragraph No.(ii) of column No.26 that the accident had occurred solely due to rash and negligent driving of respondent No.1, but in paragraph No.(vii), he got mentioned that respondents Nos.4 to 6 are also jointly and severally liable to pay compensation to him along with respondent Nos.1 to 3. 5. The Tribunal recorded finding that the petitioner has not pressed the claim against respondent No.2 and, therefore, dismissed the claim against respondent No.2. 6. Respondent Nos.1 and 4 were set ex parte by the Tribunal, whereas respondent Nos.3, 5 and 6 have contested the claim by filing counters. i) Respondent No.3, in its counter, while denying the allegations mentioned therein, contended that it is a case of collision between two vehicles and the claim of Rs.1,50,000/- is exorbitant and excessive and thereby sought to dismiss the petition with costs. ii) Respondent No.6, filed its counter, whereas respondent No.5 filed a memo adopting the counter of respondent No.6. Respondent No.6, in its counter, contended that respondent Nos.4 to 6 were only added by the petitioner by way of abundant caution and that there was no negligence on the part of respondent No.4 and the accident had occurred only due to rash and negligent act of respondent No.1 and also contended that the claim of Rs.1,50,000/- made against them is exorbitant and excessive and sought to dismiss the claim with costs. 7. The Tribunal framed three issues, which read thus: 1. Whether the accident was due to rash and negligent driving either by R-1 ie., driver of lorry ATK 8689 or by R-4 driver of car AIM 5049? 2. Whether the petitioner is entitled to any compensation? If so, to what relief? 3. To what relief? 8. During inquiry before the Tribunal, the petitioner alone examined himself as PW.1 and exhibited Exs.A-1 to A-7 to substantiate his claim. 2. Whether the petitioner is entitled to any compensation? If so, to what relief? 3. To what relief? 8. During inquiry before the Tribunal, the petitioner alone examined himself as PW.1 and exhibited Exs.A-1 to A-7 to substantiate his claim. On behalf of contesting respondents, none was examined and no documents were filed. 9. The Tribunal observing that nothing is brought out in the cross-examination of PW.1 by the learned counsel for respondent No.3, to disbelieve that the accident did not occur due to negligent act of respondent No.1 and basing on Exs.A-1 and A-3, which reflect that crime was registered against respondent No.1 by the police concerned and charge sheet was filed showing him as an accused in the accident case, held the issue in favour of the petitioner, answering, that due to negligent driving of respondent No.1, the accident had occurred. 10. On issue No.2, while answering the contention of respondent No.3 that since the petitioner not pressed the claim against respondent No.2, owner of the lorry - insured, no contractual obligation between the petitioner and respondent No.3 exists and when the claim is not pressed against owner of the offending vehicle, as per section - 147 of the Act, the insurer cannot be mulcted with any liability and that that the Tribunal has to see whether all the parties are added for arriving at the correct conclusion and to adjudicate the dispute between the parties and observing that since petitioner added all the parties concerned to the dispute and the choice is left to him to proceed against any one of the respondents, as the acts of respondents arise out of vicarious liability, rejected the said contentions. Even further contention of respondent No.3 that there was no valid policy for the offending vehicle issued in favour of respondent No.2 was also discarded observing that respondent No.2 paid the premium under the insurance policy which was in force at the time of accident. Even further contention of respondent No.3 that there was no valid policy for the offending vehicle issued in favour of respondent No.2 was also discarded observing that respondent No.2 paid the premium under the insurance policy which was in force at the time of accident. i) By examining the nature of injuries sustained by the petitioner and basing on evidence of PW.1 and the description of injuries contained in Ex.A-2, certified copy of wound certificate; C.T. scanning reports under Ex.A-5; bunch of medical prescriptions and medical bills under Ex.A-6 and bunch of X-rays showing fracture of his skull under Ex.A-7 and taking the salary of PW.1 at Rs.2,400/- per month, granted Rs.15,000/- for each grievous injury and since PW.1 sustained three grievous injuries, a sum of Rs.45,000/- was awarded; Rs.4,800/- towards loss of temporary earnings for two months @ Rs.2,400/- per month; Rs.5,000/- towards pain and suffering; Rs.40,000/- towards medical expenses as per Ex.A6; Rs.3,000/- towards attendant charges; Rs.15,000/- for partial disability and Rs.3,000/- for good nourishment and also for three simple injuries, a sum of Rs.5,000/- per injury making it to Rs.15,000/- were granted. Thus, the Tribunal awarded a total sum of Rs.1,30,800/- with 12% interest per annum thereon against respondent Nos.1 and 3 to 6 jointly and severally while dismissing the claim against respondent No.2. 11. Aggrieved by the aforesaid order and decree fastening liability on respondent No.6, despite tendering a definite finding that the accident had occurred only due to rash and negligent driving of respondent No.1, the instant appeal is preferred, contending that the Tribunal ought to have accepted the specific pleading to the effect that respondent Nos.4 to 6 are only added as pro-forma parties by way of abundant caution and ought to have dismissed the claim against respondent Nos.4 to 6 by awarding costs. The next ground is that, the Tribunal having taken cognizance of statement of PW.1 about rash and negligent driving of respondent No.1 and having observed that there was absolutely no contra evidence adduced by respondent No.3 and having answered issue No.1 in favour of petitioner, ought to have held that respondent Nos.1 to 3 alone are liable for payment of compensation and ought to have held that the appellant Insurance Company is not liable to pay any compensation. The further ground is that the Tribunal having observed that respondent No.3 had not disputed that there was no valid policy for the offending vehicle issued in favour of respondent No.2, ought to have made respondent Nos.1 to 3 liable for payment of compensation. Still, further ground agitated by the appellant is that, in the connected claim petitions i.e., O.P. Nos.406 of 1995, 445 of 1995, 143 of 1995 and 657 of 1996, the Tribunal was pleased to dismiss the claim against the appellant herein by fastening liability only against respondent Nos.1 to 3 and, as such, in the instant case also, the Tribunal ought to have fastened liability only against respondent Nos.1 to 3 instead of directing respondent Nos.1 and 3 to 6 jointly and severally liable to pay compensation of Rs.1,30,800/- with proportionate costs. The appellant, therefore, sought to dismiss the claim against it by allowing the appeal. 12. Heard Sri S. Agasthya Sharma, learned counsel for the appellant. No representation for respondent Nos.1 and 3, though, Sri K. Satyanarayana Murthy and Sri K.V. Bhanu Prasad made their appearance, respectively. None appears for respondent No.4. Appeal against respondent Nos.2, 5 and 6 was dismissed for default, by order dated 07-11-2003. 13. The learned counsel for the appellant submits that the Tribunal recorded definite finding on issue No.1 on appreciation of evidence of PW.1 supported by documentary evidence through Exs.A-1 and A-3 that only due to rash and negligent driving of respondent No.1, driver of lorry, the accident has occurred, but strangely, mulcted joint liability on respondent Nos.4 to 6 also, who are driver, owner and insurer of the Ambassador car in which the petitioner was traveling along with respondent No.1 and 3. Since the conclusion arrived at by the Tribunal runs contra with the finding recorded on issue No.1, the order and decree of the Tribunal cannot be sustained so far as appellant - respondent No.6 is concerned. It is also the submission that even in the claim petition the petitioner has mentioned in definite terms that the accident had occurred solely due to rash and negligent driving of respondent No.1. Thus, the very same plea was asserted by the petitioner, as PW.1, in his chief examination, still, the Tribunal mulcted liability on respondent No.6, which, thus, reflects that the Tribunal committed a grave error failing to appreciate the evidence in proper perspective. 14. Thus, the very same plea was asserted by the petitioner, as PW.1, in his chief examination, still, the Tribunal mulcted liability on respondent No.6, which, thus, reflects that the Tribunal committed a grave error failing to appreciate the evidence in proper perspective. 14. Perused the order under challenge, pleadings and evidence of PW.1 and documentary evidence through Exs.A-1 to A-7. 15. On perusal of pleadings, evidence of PW.1 and the finding recorded by the Tribunal on issue No.1, I find that there is sufficient force in the submission made by the learned counsel for appellant. In the claim petition in paragraph (ii) of column No.26, the petitioner having narrated the manner in which the accident has occurred, as regards rash and negligent act of which of the drivers the accident occurred, specifically mentions thus: The accident occurred solely due to rash and negligent driving of the first respondent. Thus, a definite plea has been put forth by the petitioner that due to rash and negligent driving of respondent No.1, who was driver of the lorry, the accident has occurred. Even, PW.1, in chief examination, asserts that due to rash and negligent driving of the lorry by the respondent No.1 bearing registration No.ATK 8689, the accident occurred, resulting injuries to him and others. When a suggestion was made by the learned counsel for respondent No.3 that the accident occurred due to negligent act of Ambassador Cars driver, who is respondent No.4, he bluntly denied the said suggestion. When a question was put to him in his cross-examination by the learned counsel for respondent No.6, he makes a specific admission stating that the accident has occurred due to negligent act of respondent No.1 but not of respondent No.4. These admissions made by PW.1, both in his pleading and in his evidence, would thus clinchingly establish that only due to rash and negligent driving of respondent No.1, who was driver of lorry, the accident has occurred. This apart, Ex.A-1, certified copy of first information report, shows that crime was registered against respondent No.1 for his negligent act. Even the certified copy of charge sheet marked as Ex.A-4 reflects that it was laid against respondent No.1, levelling the offences punishable under Sections 338 and 338 IPC in Crime No.108 of 1994 of Kadiam Police Station before the II Additional Judicial First Class Magistrate, Rajahmundry, which was registered as C.C. No.369 of 1994. Even the certified copy of charge sheet marked as Ex.A-4 reflects that it was laid against respondent No.1, levelling the offences punishable under Sections 338 and 338 IPC in Crime No.108 of 1994 of Kadiam Police Station before the II Additional Judicial First Class Magistrate, Rajahmundry, which was registered as C.C. No.369 of 1994. The Tribunal basing on the evidence of PW.1 and the probabilities derived from Exs.A-1 and A-3 reflecting that the crime was registered against respondent No.1 for his negligent driving for the offences punishable under Sections 338 and 337 IPC, recorded a definite finding thus: 9. No contra evidence was adduced by R-3 and thereby taking into consideration of the oral evidence of P.W-1 with that of Exs.A-1 andA-3 the F.I.R. and the charge sheet filed against R-1, it is clear that the accident occurred due to rash and negligent act of R-1 and accordingly, I answered the first issue in favour of the petitioner and against the respondents. The Tribunal having recorded a definite finding that the accident has occurred only due to rash and negligent driving of respondent No.1, somehow, mulcted liability on respondent No.6 also, who is the present appellant. When the Tribunal did not find that the accident has occurred due to rash and negligent act of respondent No.4 also, certainly, the Tribunal ought not to have made respondent Nos.4 to 6 liable when determining the compensation based on fault liability. Therefore, the finding recorded by the Tribunal on issue No.2 that respondent No.6 is also jointly and severally liable to pay compensation of Rs.1,30,800/- to the petitioner suffers from perversity, necessitating the indulgence of this Court to interfere with the finding that was recorded by the Tribunal. Therefore, the order and decree under challenge are liable to be set aside so far as respondent No.6 is concerned. 16. In the result, appeal is allowed, setting aside the order and decree, dated 11-01-2001, in M.V.O.P. No.627 of 1996 passed by the Tribunal to the extent of fastening liability on respondent No.6. There shall be no order as to costs. 17. As a sequel thereto, miscellaneous applications, if any, pending in the appeal, stand disposed of.