Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 228 (AP)

New Assurance Company Ltd. v. P. Subbarayudu

2020-03-11

J.UMA DEVI

body2020
JUDGMENT: 1. The award, dated 25.03.2008, passed in O.P.No.156 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Madanapalle (for short “the Tribunal”) is assailed by the New India Assurance Company Limited, with whom the offending Ashok Leyland lorry bearing No.KA-07-A9991 is insured, whereunder it has been directed to pay compensation of Rs.75,000/- to the claimant together with interest and costs. 2. The grounds urged by the appellant-insurance company to challenge the award impugned are precisely stated as under: 3. The first and foremost contention raised by the insurance company to claim that the award impugned is against to law is that the claim petition under Section 163A of the M.V.Act cannot be filed by a person who himself caused the accident. The accident in question has taken place due to the negligent driving of the offending lorry by the claimant. 4. The second contention of the insurance company is that it has not been noticed by the court below that the claimant filed the petition under Section 166 of M.V.Act, in such circumstances, the same may not have been converted into Sec.163A of M.V.Act. The conversion of the petition under Section 163A of M.V.Act by the Tribunal on its own accord is totally unjustified. 5. The third contention of the insurance company is that even if the risk of the claimant is covered under the policy, an application for compensation is to be made under Workmen’s Compensation Act. 6. Apart from the aforementioned contentions, yet another contention is raised in ground No.4 as regard to the awarding of Rs.25,000/-under the head of “medical expenditure” and Rs.25,000/-under the head of “pain and suffering”. The insurance company’s contention is that the amount awarded under the heads of “pain and suffering” and “medical expenditure” is on higher side. 7. The 1st respondent herein is the claimant in O.P.No.156 of 2007 and he laid the claim for compensation against the appellant-insurance company and the owner of the lorry bearing No.KA-07-A9991. His case as narrated in the claim statement is that while he was proceeding in the lorry bearing No.KA-07-A9991 as its driver it was hit to a lorry bearing No.KA25-1657 which was stationed and as the result of it, he sustained grievous injuries to his left knee and to waist. Immediately after the accident, he was taken to District Hospital, Koppal for treatment. 8. Immediately after the accident, he was taken to District Hospital, Koppal for treatment. 8. To prove his case, the claimant examined himself as PW 1 and examined Dr.M.Sanjeevarayudu as PW 2. The trial court after close scrutiny of evidence of PW 1 and the documents produced by him thought that granting of compensation of Rs.75,000/-is fair and reasonable and accordingly passed the award in his favour by allowing his claim partly though he laid the claim for compensation of Rs.1,50,000/-as against the appellant-insurance company and the insured of the lorry bearing No.KA-07-A9991. 9. In the claim statement it is nowhere pleaded or asserted by the claimant that due to the negligent driving of the lorry bearing No.KA-07-A9991, the said lorry was hit to the lorry bearing No.KA25-1657 which was stationed and thus, he sustained grievous injuries to his left knee. 10. His case is that he is the driver of the offending lorry Ashok Leyland lorry (10 wheeler) bearing No.KA-07-A9991 and the said lorry is insured with the appellant herein and that the policy obtained for the said lorry by the 2nd respondent herein was in force by the date of the accident. Since there is no assertion as regard to the negligence, if any, on the part of the claimant, the court below having thought it appropriate to recast the issue “whether the accident occurred due to rash and negligent driving of offending Ashok Leyland lorry (10 wheeler) bearing No.KA-07-A9991 involved resulting in injuries to the petitioner P.Subbarayudu?”, as follows: “Whether the offending vehicle was involved in the accident as contemplated under section 163-A of Motor Vehicles Act?” 11. The Court below before taking steps for recasting of issue No.1 had gone through the contents of the claim petition filed by the claimant where it was not pleaded or asserted that due to negligent driving of the lorry bearing No.KA-07-A9991 the accident took place. I find no perversity or illegality in so far as recasting of the issue No.1 made by the court below, as the claimant appears to have pleaded as regard to involvement of lorry bearing No.KA25-1657 in the accident. The conversion of the petition under Section 163A of M.V.Act had not been made by the court below without any basis and that the decision taken by the trial court to recast the issue was not done on its own accord. 12. The conversion of the petition under Section 163A of M.V.Act had not been made by the court below without any basis and that the decision taken by the trial court to recast the issue was not done on its own accord. 12. As recasting of issue No.1 and the conversion of the petition under Section 163A of M.V.Act is based on the assertions made in the claim statement, it cannot be said that the conversion is made illegally. 13. Coming to the other ground raised by the appellant-insurance company as regard to the maintainability of the claim petition under Section 163A of M.V.Act is concerned, when the question of this nature arose before the erstwhile High Court of Andhra Pradesh in Kore Laxmi and ors. v United India Insurance Company Limited and ors., 2003 (6) ALT 230 this court observed as under: “It is suffice to state that the general rule of proving rash and negligent driving to claim compensation under Motor Vehicle Act was diluted by introduction of this Section. This being welfare legislation is intended to provide financial assistance, to the dependants of the person involved in a road accident and incurred inability or suffered death. Hence, we have no hesitation to hold that the dependants of the deceased person are having option either to approach the Commissioner under Workmen’s Compensation Act, since the person died during the course of his employment or under Section 163-A of the Motor Vehicles Act. Since the provisions of the Motor Vehicles Act are more beneficial, the claimants rightly approached the Tribunal under Motor Vehicles Tribunal.” 14. Having regard to the above, there cannot be any hesitation for this court to hold that the claimant is having the option to approach the Commissioner under the Workmen’s Compensation Act or the Tribunal established under Motor Vehicles Act, as he met with an accident during course of his employment under the 2nd respondent herein. 15. Coming to the other grounds urged by the appellant-insurance company which are relating to quantum of compensation, it is evident from the material on record that in the accident, dated 22.10.2006, the claimant received a deep cut injury over his left knee. Receiving of such injury is crystal clear from the contents of Ex.A2 wound certificate. 15. Coming to the other grounds urged by the appellant-insurance company which are relating to quantum of compensation, it is evident from the material on record that in the accident, dated 22.10.2006, the claimant received a deep cut injury over his left knee. Receiving of such injury is crystal clear from the contents of Ex.A2 wound certificate. The truthfulness or genuineness of Ex.A2 cannot be doubted and that no evidence whatsoever is adduced by the appellant-insurance company to disprove Ex.A2 wound certificate. It is evident from the material on record that the claimant sustained fracture injury to the left knee. Even though it was pleaded by the claimant that he became incapable of attending to the work of driving and attained disability of 10% and established by examining PW 2- Dr.M.Sanjeevarayudu, who issued Ex.A9 disability certificate on 06.05.2007, the court below did not take the said evidence into consideration, as no evidence was given by PW 2 who issued Ex.A9 disability certificate with reference to X-rays. Due to non-production of X-rays, the evidence given by PW 2 as regard to disability attained by the claimant was not taken to consideration by the court below. 16. The court below looking into the nature of the injuries received by the claimant to left knee which is fractured and also another injury said to be received by him which is also found to be grievous in nature, awarded compensation of Rs.25,000/- in respect of two grievous injuries, another Rs.25,000/- under the head of “pain and suffering” and Rs.25,000/-towards medical expenditure, extra nourishment, transportation charges and other incidental expenditure. 17. The trial court on close scrutiny of Ex.A2 wound certificate issued by the District Hospital, Koppal and other material available in case record appears to have granted compensation of Rs.75,000/- to the claimant in total, but declined to grant compensation under the head of “future loss of earning” as no disability certificate issued by the Medical Board was placed before it, even though PW 2 was examined, as he failed to give evidence with reference to X-rays. 18. I have noticed no perversity in the award impugned and in my view it needs no intervention. 19. 18. I have noticed no perversity in the award impugned and in my view it needs no intervention. 19. In view of the above, the appeal filed by the insurance company as against the award, dated 25.03.2008, passed in O.P.No.156 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Madanapalle fails and is hereby dismissed accordingly. No order as to costs. 20. Pending miscellaneous applications, if any, shall stand closed in consequence.