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2020 DIGILAW 291 (AP)

Shaik Ahammad Basheer [Died] v. D. Sethamarai

2020-04-24

M.SATYANARAYANA MURTHY

body2020
JUDGMENT: 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “M.V.Act”) is filed dissatisfied with the award dated 20.11.2009 passed in O.P.No.885 of 2008 by the Motor Accidents Claims Tribunal (for short “the Tribunal”), Anantapur, whereby the claim of the appellant No.1 herein was allowed in part awarding total compensation of Rs.65,000/-only against respondent No.1 while dismissing the claim against the other respondent i.e. respondent No.2 – Insurance company. 2. Appellant No.1 was the injured claimant before the Tribunal. He filed the present appeal against the award passed in O.P.No.885 of 2008. But, during the pendency of the appeal, he died and appellant No.2 was brought on record as legal heir of the deceased appellant No.1. 3. Appellant No.1/petitioner filed the claim petition under Section 163-A of the M.V.Act before the Tribunal claiming compensation of Rs.1,00,000/-together with interest and costs against both the respondents alleging that he received grievous injuries in road accident that took place on 18.08.2008 at about 09.45 a.m. near Kaluvapalli bridge on Anantapur-Kalyandurg road while he was travelling in a Maruthi Van bearing registration No.AP 03 P 2898 which will be herein after referred to as “accident vehicle” belonging to respondent No.1 and insured with respondent No.2. While the petitioner was proceeding along with others in the accident vehicle, when it reached the place of occurrence, the driver of the vehicle drove the same in rash and negligent manner, due to which the accident vehicle turned turtle and on account of such accident, the petitioner received grievous injuries besides other multiple injuries. Immediately, he was shifted to Government Hospital for treatment, and that the police personnel of Beluguppa police station registered a case in Crime No.40 of 2008 against the driver of the accident vehicle for the offence punishable under Section 337 and 338 of the Indian Penal Code (for short “I.P.C.”). The petitioner incurred an amount of Rs.50,000/-towards medical expenses for the injuries he received in the accident and that he could not regain his normal health, ultimately resulted in loss of earnings from his flower business, as such he claimed total compensation of Rs.1,00,000/-under various heads, which will be referred at appropriate stage while deciding the claim of the petitioner. 4. Respondent No.1 – owner of the vehicle, remained exparte. 5. 4. Respondent No.1 – owner of the vehicle, remained exparte. 5. Respondent No.2 filed counter denying the material allegations in the petition filed by the petitioner calling upon the petitioner to prove that he lost his earning capacity to a tune of Rs.5,000/-per month from flower business. 6. It is specifically contended that the accident vehicle originally belongs to Smt.D.Senthamarai, respondent No.1 herein, which was insured with respondent No.2, but the liability of respondent No.2 is subject to the terms and conditions, exceptions and limitations and confirmation of the compliance of Section 64VB of the Insurance Act, 1938. Initially, respondent No.2 issued policy bearing No.0G-08-1801-1801-00038401 for the period from 22.11.2007 to 21.11.2008, as there is no intimation from respondent No.1 in the capacity of insured, respondent No.2 sent a letter with a request to produce the relevant record and information with regard to the alleged incident, and respondent No.1 gave reply intimating that she sold the vehicle to K.Ravindra Naik in the month of January 2008, as such the respondent No.2 has no locus standi to be impleaded as a party to the petition and that in the absence of impleading the purchaser, the claim of appellant No.1 is not maintainable. Appellant No.1 himself admitted that he was travelling as occupant of the car bearing No.AP 02 TV 0095, which was alleged to be involved in the accident. Thus, appellant No.1 is a gratuitous passenger, who is not required to be covered under Section 147 of the M.V.Act and the policy issued by respondent No.2 does not cover such risk. Therefore, respondent No.2 cannot be saddled with any liability since accident vehicle is a private vehicle and it cannot be used for commercial purpose. Therefore, use of the vehicle for carrying passengers is in violation of rules and that the driver was not holding valid and effective driving license, thereby the insurance company is not liable to be pay any compensation to appellant No.1/petitioner. 7. It is further contended that the appellant No.1/petitioner did not sustain any disability much less permanent disability which reduced the earning capacity of the petitioner. Therefore, the claim of appellant No.1/petitioner is excessive and that the accident was not occurred due to rash and negligent act of driver of the accident vehicle, prayed to dismiss the petition before the Tribunal. 8. Based on the above pleadings, the Tribunal framed the following issues. Therefore, the claim of appellant No.1/petitioner is excessive and that the accident was not occurred due to rash and negligent act of driver of the accident vehicle, prayed to dismiss the petition before the Tribunal. 8. Based on the above pleadings, the Tribunal framed the following issues. (1) Whether the accident occurred on 18.08.2008 at about 9.45 a.m., near Kaluvapalli Bridge, on Anantapur-Kalyandurg road, due to rash and negligent driving of the Maruthi van bearing No.AP 03 P 2898 by its driver, turtled the van and caused injuries to the petitioner? (2) Whether the petitioner is entitled to compensation? If so, to what amount and from which respondent? (3) To what relief? 9. During enquiry, on behalf of the petitioner, P.W.1 was examined, marked Exs.A.1 to A.5 and also marked Ex.X.1 – X-ray by consent. Respondent No.2 examined its Senior Executive (Legal), Hyderabad as R.W.1 and marked Exs.B.1 to B.3 on its behalf. 10. Upon hearing argument of both the counsel, the Tribunal recorded a finding that the accident was occurred due to rash and negligent driving of the driver of the accident vehicle, resulting injuries to the petitioner. The Tribunal also recorded a finding that the appellant No.1/petitioner failed to establish that the injuries sustained by him created any permanent disability, more particularly functional disability, thereby denied compensation under the head of loss of earnings while awarding compensation of Rs.65,000/-under other heads i.e. medical expenses, pain and suffering etc. holding that respondent No.1 insured alone is liable to pay compensation while exempting respondent No.2 from payment of compensation on the ground that appellant No.1/petitioner failed to establish that he was travelling as fare paid passenger in the accident vehicle and that he is gratuitous passenger, thereby respondent No.2 is not liable to pay any compensation. 11. Aggrieved by the award of the Tribunal, the present appeal is filed mainly contending that the compensation of Rs.65,000/-awarded by the Tribunal as against the claim of Rs.1,00,000/-is meager and that the Tribunal failed to consider the disability sustained by appellant No.1/petitioner while deciding the compensation; at the same time, the Tribunal did not appreciate the evidence on record with regard to the contention of respondent No.2 that the petitioner is a gratuitous passenger and committed an error in exempting respondent No.2 from payment of compensation. 12. 12. During hearing, Sri Narasimhulu Parise, learned counsel for the appellants, would contend that appellant No.1 was earning Rs.5,000/-per month, but on account of accident, he lost his future earning capacity since the injuries sustained by him created permanent disability, which reduced the earning capacity of appellant No.1, thereby the Tribunal miserably failed to appreciate the evidence in proper perspective while assessing the compensation under the head of loss of future earnings. He further contended that the suggestion put to P.W.1 that the petitioner was not travelling as a fare paid passenger was denied and respondent No.2 did not adduce any evidence to substantiate its claim that appellant No.1 was travelling at the time of accident as gratuitous passenger in the accident vehicle so as to claim exemption from payment of compensation, but the Tribunal on erroneous appreciation committed grave error in exempting respondent No.2 from payment of compensation. Even otherwise, when the vehicle was insured with the insurance company, the liability of the insurance company is a statutory in nature under the provisions of the M.V.Act, thereby exempting respondent No.2 from payment of compensation while holding that respondent No.1 alone is liable to pay compensation is an error apparent on the face of the record and requested to award compensation as claimed by appellant No.1 together with interest and costs. 13. Sri P.Rajasekhar, learned counsel for respondent No.2, supported the award passed by the Tribunal in toto since the insurance company is exonerated from the liability to pay compensation. 14. Considering rival contentions and perusing the material on record, the sole point that arises for consideration is: 15. Whether the compensation awarded by the Tribunal under the heads of medical expenses, extra nourishment, transportation, pain and suffering and other expenses is just and reasonable? If so, whether respondent No.2 is liable to pay the amount awarded by the Tribunal, being the insurer by its statutory liability? POINT: 16. The Tribunal already recorded a finding that the accident was occurred due to rash and negligent driving of the driver of the accident vehicle, and appellant No.1/petitioner sustained injuries in the said accident. Therefore, in the absence of cross objections by the insurance company, this Court cannot disturb the findings recorded by the Tribunal with regard to cause of accident and injuries sustained by appellant No.1. Therefore, in the absence of cross objections by the insurance company, this Court cannot disturb the findings recorded by the Tribunal with regard to cause of accident and injuries sustained by appellant No.1. Therefore, finding on issue No.1 cannot be interfered with by this Court while exercising power under Section 173 of the M.V.Act in the absence of any cross objections or independent appeal. 17. The main contention of the learned counsel for the appellants is that the amount awarded by the Tribunal i.e. Rs.65,000/-under various heads is illegal, in fact the contention of appellant No.1/petitioner from the beginning is that the petitioner was carrying flower business, earning Rs.5,000/-per month, sustained two fracture injuries and on account of injuries, the earning capacity of the petitioner was reduced to minimum extent, thereby he claimed compensation under the head of loss of future earning capacity. The petitioner claimed compensation under the head of partial disability, mental agony pain and suffering, but the Tribunal awarded Rs.25,000/-for two grievous injuries of fractures, Rs.20,000/-for medical expenses, extra nourishment, transportation and other expenses and Rs.20,000/-for pain and suffering, in total Tribunal awarded Rs.65,000/-. 18. Permanent disability means, “A disability which would not allow the injured to engage any gainful activity” and in “Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 ”, the Apex Court explained the role of Tribunal in assessing the just and reasonable compensation in case of injury claims and held as follows: “Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still liable to engage in some gainful activity.” “Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.” 19. From the guidelines laid down by the Apex Count, it is the duty of the Tribunal to decide the impact of disability on the earning capacity of the injured. 20. Here, in the present case, the petitioner was claiming that he is a flower vendor, sustained two fracture injuries vide Ex.A.5 and Ex.A.2 also disclosed the injuries sustained by the petitioner. But no doctor was examined to assess the physical disability of the petitioner/appellant No.1. If the physical disability is assessed, the Tribunal has to examine whether such physical disability reduces the future earning capacity to any extent to treat the same as functional disability, which entitles the petitioner to claim compensation under the head of loss of future earning capacity. But for one reason or the other, appellant No.1 failed to examine any doctor or produce any certificate issued by the District Medical Board to substantiate his claim that he sustained permanent partial disability, which reduces his earning capacity to treat the same functional disability. Therefore, in the absence of any evidence on record, rejection of compensation by the Tribunal under the head of loss of future earning capacity cannot be faulted. Hence, I find that the Tribunal rightly denied the compensation to the petitioner under the head of loss of future earning capacity. 21. The Tribunal awarded compensation of Rs.20,000/-for medical expenses, extra nourishment, transportation and other expenses, Rs.20,000/-for pain and suffering and Rs.25,000/-for two grievous injuries. 22. Hence, I find that the Tribunal rightly denied the compensation to the petitioner under the head of loss of future earning capacity. 21. The Tribunal awarded compensation of Rs.20,000/-for medical expenses, extra nourishment, transportation and other expenses, Rs.20,000/-for pain and suffering and Rs.25,000/-for two grievous injuries. 22. When the petition is filed under Section 163-A of the M.V.Act, the Tribunal normally bound by the structured formula under Section 163-A of the M.V.Act for awarding compensation. According to the structured formula under second schedule, which was omitted by Act 32 of 2019 came into force with effect from 09.08.2019, but by the date of accident, the second schedule under Section 163-A of the M.V.Act was in force. Therefore, the Tribunal supposed to assess the compensation in terms of the structured formula under Section 163-A of the M.V.Act. According to the second schedule, the compensation payable under the head of pain and suffering for grievous injury is Rs.15,000/-, as such appellant No.1/petitioner is entitled for compensation of Rs.30,000/-i.e. Rs.15,000/-to each grievous injury. But the Tribunal awarded Rs.20,000/-under the head of pain and suffering. Hence, the compensation awarded by the Tribunal under the head of pain and suffering is enhanced to Rs.30,000/-from Rs.20,000/-. 23. The Tribunal also awarded Rs.25,000/-for two grievous injuries i.e. fractures without specifying the nature of the claim. When the petitioner did not sustain any injury, which resulted in functional disability, awarding compensation under the head of loss of future earnings does not arise. However, there is no appeal or cross objections questioning the compensation awarded by the Tribunal for two grievous injuries. Therefore, this Court while exercising power under Section 173 of the M.V.Act, cannot modify such unchallenged finding of the Tribunal. 24. As the Tribunal awarded compensation under different heads, which is inclusive of compensation for grievous injuries, which is not contemplated in second schedule under Section 163-A of the M.V.Act, but the total compensation awarded by the Tribunal is only Rs.65,000/-, which I find just and reasonable in the circumstances of the case. Therefore, this Court need not disturb the finding recorded by the Tribunal regarding quantum of compensation for the simple reason that the compensation under the head “Pain and Suffering” prescribed in the schedule is higher than the amount awarded by the Tribunal. Therefore, this Court need not disturb the finding recorded by the Tribunal regarding quantum of compensation for the simple reason that the compensation under the head “Pain and Suffering” prescribed in the schedule is higher than the amount awarded by the Tribunal. Hence, having considered the facts and circumstances of the case, I find it appropriate to affirm the finding regarding quantum of compensation awarded by the Tribunal. 25. One of the major grounds raised before the Tribunal and before this Court is that the accident vehicle was transferred to K.Ravindra Naik in the year 2008 itself i.e. prior to occurrence of the accident. But, as seen from the material on record the vehicle was registered with transport department in the name of respondent No.1 alone and when the ownership of the vehicle was transferred, the original owner has to follow the procedure prescribed under Section 50 of the M.V.Act, which deals with transfer of ownership. Unless a person is registered as owner of a vehicle and possession is delivered, he cannot be declared as owner of vehicle (Vide: Rayudu Appa Rao v. Rayudu Chantibabu, 2007 (4) ALT 533 ). 26. In the present case, the accident vehicle is still in the name of respondent No.1 though allegedly transferred to K.Ravindra Naik. In the absence of any transfer of ownership by following the procedure prescribed under Section 50 of the M.V.Act., respondent No.1 is deemed to be the owner of the vehicle. Even otherwise, when the vehicle is allegedly transferred, the liability under the policy is deemed to have been transferred. According to Section 157 of the M.V.Act, where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. Explanation thereto clarified that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. 27. Explanation thereto clarified that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. 27. A similar question came up for consideration before the High Court of Andhra Pradesh at Hyderabad in “New India Assurance Company Limited, Represented by its Divisional Manager, Rajahmundry v. Petlu Nagaratnam, 2009 (3) ALT 423 ”. In the said case, while considering the liability of insurance company when transfer of insured vehicle involved in accident, the Court held that in respect of third party risks, certificate of insurance together with policy of insurance shall be deemed to have been transferred in favour of transferee under Section 157 (1) of the Act. Even if transferee fails to apply to insurer to make necessary changes in policy as regards transfer, insurer liable to pay compensation to claimants when deceased died in accident due to rash and negligent driving of driver of insured vehicle when it owned by transferee. Non-impleadment of original owner of vehicle (transferor) as party to claim petition does not absolve insurer from payment of compensation. Order of Claims Tribunal holding the insurer liable to pay compensation to claimants was upheld by the High Court while observing that the insurer is not precluded to proceed against original owner of vehicle. 28. Even if the principle laid down in the above judgment is applied to the present facts of the case, respondent No.1 is the registered owner of the vehicle and no transfer is effected by following the procedure prescribed under Section 50 of the Act, as alleged by respondent No.2. Except a mere allegation in the counter filed by respondent No.2, no material is produced before the Tribunal to conclude that the vehicle was transferred in favour of K.Ravindra Naik. In the evidence of P.W.1, no suggestion was put to him that respondent No.1 was not the owner of the vehicle. In the absence of any suggestion, the claim of the petitioner that respondent No.1, the owner of the vehicle is deemed to have been accepted. On the other hand, examination-in-chief of R.W.1, there was no whisper that the vehicle was transferred; thereby the insurance company is not liable to pay compensation. In the absence of any suggestion, the claim of the petitioner that respondent No.1, the owner of the vehicle is deemed to have been accepted. On the other hand, examination-in-chief of R.W.1, there was no whisper that the vehicle was transferred; thereby the insurance company is not liable to pay compensation. In the absence of any evidence regarding transfer of ownership of the vehicle, it is difficult to uphold the contention of respondent No.2 to exonerate respondent No.2 from its liability to pay compensation based on mere assertion in the counter. Therefore, there is no substance in the contention raised by respondent No.2 to claim exemption on the ground that the vehicle was transferred. 29. The major contention of respondent No.2 is that the insured – appellant No.1 was travelling as fare paid passenger, thereby insurance company cannot be saddled with any liability to pay compensation since the policy is a package policy. The Tribunal upheld the contention of respondent No.2 and exonerated respondent No.2 from its liability to pay compensation. The same is now challenged before this Court and at this stage; it is relevant to advert to the evidence of P.W.1 and R.W.1. 30. The examination-in-chief of P.W.1, there was no whisper about the payment of fare for travelling in the vehicle or travelling as gratuitous passenger. But surprisingly in the cross-examination, learned counsel for respondent No.2 put a suggestion as follows: “It is not true that myself and others were travelling in the offending vehicle at the time of accident by paying cash.” 31. Appellant No.1 admitted directly that he was travelling as gratuitous passenger i.e. without payment of any amount. 32. Therefore, it is clear from the material that the petitioner/appellant No.1 was travelling as a gratuitous passenger at the time of accident. Even then, the insurance company cannot claim exemption from payment of compensation in view of the law declared by the Apex Court in “National Insurance Company Limited v. Swaran Singh, (2004) 3 SCC 297 ”. In the said judgment, the Apex Court held that the Insurance company has to pay the compensation awarded to the claimant, thereafter, recover the same from the owner of the vehicle in question. The same principle was reiterated by the Apex Court in “Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited, AIR 2018 SC 3726 .” 33. In the said judgment, the Apex Court held that the Insurance company has to pay the compensation awarded to the claimant, thereafter, recover the same from the owner of the vehicle in question. The same principle was reiterated by the Apex Court in “Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited, AIR 2018 SC 3726 .” 33. In view of my foregoing discussion, appellants are entitled to claim compensation of Rs.65,000/-as awarded by the Tribunal. The Tribunal awarded compensation of Rs.25,000/-for two grievous injuries without specifying the nature of claim. However, it was not challenged. Therefore, the compensation awarded by the Tribunal cannot be disturbed. 34. In the result, the appeal is allowed in part affirming the compensation of Rs.65,000/-(Rupees Sixty five thousand only) awarded by the Tribunal. Insofar as direction in the impugned award directing the appellant/claimant to recover the compensation from the owner of the vehicle is set aside and respondent No.2 – insurance company shall pay the compensation to the appellant/claimant along with the accrued interest and recover the same from the owner of the vehicle since the liability of the insurance company is statutory in nature. No costs. 35. The miscellaneous petitions pending, if any, shall also stand closed.