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2019 DIGILAW 400 (TS)

P. Jayapal Reddy v. Balusupati Amarnadh

2019-10-29

T.AMARNATH GOUD

body2019
JUDGMENT : 1. This appeal is filed challenging the Order and Decree dated 04.02.2013 passed in M.V.O.P.No.664 of 2009 by the Motor Accidents Claims Tribunal (Special Sessions Judge for Trial of Cases Under S.C/S.T (POA) Act-cum-Additional District Judge) at Khammam (for short, the Tribunal). 2. For the sake of convenience, the parties are referred to as they are arrayed in MVOP.No.664 of 2009. 3. The brief facts of the case are that on 09.10.2008, the petitioner, along with his son, was going towards Marlapadu on cycle, and when he reached near Sai Baba Temple of Marlapadu, the driver of proclainer bearing No.AP24N 4352 drove the same in a rash and negligent manner and dashed the cycle. In the said accident, the petitioner fell in proclainer tub and sustained injuries to his forehead and the blade of the proclainer cut the right leg of the petitioner. During the treatment, the right leg of the petitioner was amputated. He filed aforesaid MVOP against respondent Nos.1 to 3, driver, owner and insurer of the proclainer, respectively, seeking compensation of Rs. 10,00,00/- for the injuries sustained by him in the said accident. 4. Before the Tribunal, respondent No.1 remained ex parte. Respondent No.2 filed counter denying the allegations in the OP and contended that respondent No.3 is the insurer, and if any compensation amount is to be paid, it is liable to pay the same. Respondent No.3 filed counter stating that there is no insurance for the proclainer, as the cheque issued by respondent No.2 towards policy premium was bounced and the policy was cancelled and sought to dismiss the OP. 5. The Tribunal, basing on the pleadings, framed the following issues: (i) "Whether the accident had occurred due to rash and negligent driving by driver of JCB Proclainer/Dumper bearing No.AP24N 4352? (ii) Whether the petitioner is entitled for compensation? If so, to what amount from which of the respondents? (iii) To what relief?" 6. Insofar as issue No.1 is concerned, basing on the evidence of P.W.1, and the contents of the complaint and charge sheet, the Tribunal held that the accident occurred due to the negligent driving of the driver of the proclainer. Insofar as issue No.2 is concerned, the Tribunal taking into consideration the amputation of right leg of the petitioner, awarded a total compensation of Rs. 6,97,200/- by considering Ex.A.5-salary certificate of the petitioner, with interest @ 7% per annum. Insofar as issue No.2 is concerned, the Tribunal taking into consideration the amputation of right leg of the petitioner, awarded a total compensation of Rs. 6,97,200/- by considering Ex.A.5-salary certificate of the petitioner, with interest @ 7% per annum. However, with regard to the question of fixation of liability for payment of compensation amount, the Tribunal, relying upon a judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Seema Malhotra 2001 ACJ 638 , held that respondent No.3 is not liable to pay compensation, by dismissing claim against it, and fixed the joint liability on respondent Nos.1 and 2 to pay the compensation amount. Challenging the said order, respondent No.2-the owner of proclainer, filed the present appeal. 7. Sri C.M.Prakash, learned counsel for the appellant/respondent No.2 in MVOP, submits that on 06.03.2007 i.e., much prior to the accident that occurred on 09.10.2008, the appellant entered into an agreement of sale with Guduru Bal Reddy for sale of crime vehicle; subsequently, Guduru Bal Reddy entered into a Partnership Agreement on 27.08.2007 for half share in crime vehicle with one Athili Venkatachalam, who is none other the father of driver of crime vehicle; thereafter, said Bal Reddy issued Ex.B.1-cheque dated 15.03.2008, in favour of respondent No.3 towards policy premium and the same was subsequently bounced; and the appellant, in pursuance of earlier agreement of sale dated 06.03.2007, also entered into an agreement on 28.06.2008 with Athili Venkatachalam for sale of crime vehicle. He further submits that though the appellant filed a petition along with sale deed dated 06.03.2007, through which he sold the crime vehicle to Guduru Bal Reddy, to show that he was not the owner of the crime vehicle on the date of accident, the Tribunal did not accept the same. The sum and substance of the argument of the learned counsel for the appellant is that as the appellant sold the crime vehicle to Guduru Bal Reddy and Athili Venkatachalam much prior to the accident, he cannot be said to be the owner of the crime vehicle as on the date of accident and hence, the appellant is not liable to pay compensation and seeks to set aside the order of the Tribunal. 8. 8. Sri G.V.K.Mehar Kumar, learned counsel for respondent No.1/petitioner in MVOP, and Sri A.Ramakrsihna Reddy, learned counsel for respondent No.3/respondent No.3 in MVOP, submit that the Tribunal passed a well reasoned order by taking into consideration the evidence adduced before it and there are no grounds to interfere with the same and seeks to dismiss the appeal. 9. In the above backdrop, the main issue involved in the present appeal itself is with regard to the ownership of the crime vehicle. Hence, it is to be seen that whether the appellant was the owner of the crime vehicle as on the date of accident or not. 10. Along with the appeal, the appellant filed I.A.No.6 of 2016 (MACMAMP.No.15881/2016) seeking to receive certain documents to show that he was not the owner of the crime vehicle as on the date of accident and the same was ordered on 14.06.2019, in pursuance of which, the documents were taken on record. Thereafter, he filed I.A.No.1 of 2019 seeking to implead Guduru Bal Reddy and Athili Venkatachalam as respondent Nos.4 and 5 in the appeal and the same was ordered on 16.10.2019, in pursuance of which, said persons are arrayed as respondent Nos.4 and 5 in the appeal. 11. In the petition to receive documents, the appellant filed (i) cheque issued by Guduru Bal Reddy, (ii) charge sheet in Crime No.48/2008, (iii) letter dated 11.04.2016 issued by YLNS Coop. Urban Bank Limited, (iv) sale deed dated 06.03.2007, (v) agreement of sale dated 27.08.2007 for half share in the proclainer and (vi) agreement dated 28.06.2008. A perusal of agreement of sale dated 06.03.2007, it appears that the appellant sold the crime vehicle in favour of Guduru Bal Reddy (respondent No.5) on 06.03.2007 for a valid sale consideration. The contents of said sale agreement indicate that the possession of the crime vehicle was delivered to respondent No.5 and that respondent No.5 agreed to bear all the responsibilities arising from the vehicle. 12. A perusal of agreement of sale dated 27.08.2007 for half share in the proclainer executed by respondent No.5 in favour of Athili Venkatachalam (respondent No.6), it appears that as it is not possible for respondent No.5 to run the proclainer individually, he sold half share to respondent No.6 in the proclainer. 12. A perusal of agreement of sale dated 27.08.2007 for half share in the proclainer executed by respondent No.5 in favour of Athili Venkatachalam (respondent No.6), it appears that as it is not possible for respondent No.5 to run the proclainer individually, he sold half share to respondent No.6 in the proclainer. As per the contents of said agreement of sale, respondent Nos.5 and 6 agreed to repay the finance amount equally, but the possession of the proclainer was exclusively delivered to respondent No.6 on that day. 13. A perusal of agreement of sale dated 28.06.2008 executed by the appellant in favour of respondent No.6, it appears that due to financial constraints, the appellant sold the proclainer to respondent No.6. The contents of the said agreement disclose that from 28.06.2008 onwards, the appellant has no liability with regard to repairs, accident and cases, if any, in respect of the said proclainer. 14. From the contents of the above documents, prima facie it appears that the appellant entered into aforesaid agreements with respondent Nos.5 and 6 for sale of crime vehicle, much before the date of accident. After purchase, respondent No.5 issued Ex.B.1-cheque dated 15.03.2008, in favour of respondent No.3 towards policy premium and the same was bounced. As per the contents of agreement of sale dated 28.06.2008, the crime vehicle was in possession of respondent No.6, but not with the appellant. Apart from the same, in the charge sheet in Crime No.48 of 2008, at Sl.No.7, the name of respondent No.6 was shown as the owner of the crime vehicle. When respondent No.6 was shown as the owner of the crime vehicle in the charge sheet, the Tribunal ought to have framed an issue in that regard and decide the same. Moreover, the Tribunal did not give opportunity to the appellant to put forth his case to show that he was not the owner of the crime vehicle, as such, it had no occasion to deal with all these issues. In the circumstances, this Court is of the opinion that the Tribunal committed an error in refusing to receive the documents. Moreover, the Tribunal did not give opportunity to the appellant to put forth his case to show that he was not the owner of the crime vehicle, as such, it had no occasion to deal with all these issues. In the circumstances, this Court is of the opinion that the Tribunal committed an error in refusing to receive the documents. Whether the said agreements were acted upon or not and whether the name of the subsequent purchaser was reflecting in the records of the Transport Authority by the date of accident are all disputed questions of fact and the same, in the opinion of this Court, are to be decided by the Tribunal. In that view of the matter, prima facie, this Court is of the opinion that the matter needs to be remanded to the Tribunal for fresh trial. 15. In the result, the Motor Accident Civil Miscellaneous Appeal is allowed; the Order and Decree dated 04.02.2013 passed in M.V.O.P.No.664 of 2009 by the Tribunal is set aside; and the Tribunal is directed to dispose of the matter, as expeditiously as possible, by taking into consideration the above material and by impleading respondent Nos.5 and 6, without being influenced by any of the observations made in this judgment. Miscellaneous petitions pending, if any, shall stand closed. No costs.