Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 368 (TS)

D. Rajanna S/o Bajanna v. S. Nagesh S/o Gangaram

2020-03-11

K.LAKSHMAN

body2020
JUDGMENT : Feeling aggrieved by the judgment and decree dated 27.07.2006 in O.P. No.927 of 2002 passed by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge (Fast Track Court), Nizamabad (for short ‘the Tribunal’), the appellant - claimant preferred the present appeal. 2. Vide the aforesaid award, the Tribunal has awarded an amount of Rs.2,01,000/- (Rupees two lakhs and one thousand only) as compensation with proportionate costs and interest at 7.5% per annum thereon from the date of petition till the date of realization. The Tribunal exonerated the liability on respondent No.2 - Insurer, and only directed respondent No.1 - Insured to pay the same. 3. The appellant - claimant filed the claim petition before the Tribunal under Section 166 (1) (a) of the Motor Vehicles Act, 1988, seeking an amount of Rs.3,00,000/- towards compensation against respondent Nos.1 and 2, owner and insurer of the crime vehicle. 4. Heard Mr. K.M. Mahender Reddy, learned counsel for the appellant and Ms. I. Maamu Vani, learned counsel for respondent No.1. Despite service of notice on respondent No.1 - Insured, none appears. 5. It is the specific contention of the learned counsel for the appellant that, on 18.12.2001 at about 8.30 p.m. the appellant was proceeding towards Velmal village on Scooter bearing registration No. AP 25G 4516 as pillion rider driven by respondent No.1. When they reached near Makloor bus stand, respondent No.1 drove the scooter in a rash and negligent manner at high speed and dashed the electric pole. Due to the same, the appellant sustained fracture injuries and other injuries. 6. The Tribunal on consideration of entire evidence, both oral and documentary, gave a finding that the accident had occurred due to rash and negligent driving of respondent No.1 and, therefore, the appellant has to recover the amount from him only. The Tribunal has also awarded an amount of Rs.2,01,000/- towards compensation. The claim petition was dismissed against respondent No.2 - Insurer. 7. Aggrieved by the said judgment, the appellant preferred the present appeal. 8. It is contended by the learned counsel for the appellant that the Tribunal erred in exonerating the liability on respondent No.2. According to him, the enquiry before the Tribunal is summary in nature and, therefore, strict provisions of evidence or CPC have no application. It is also contended that the claim cannot be rejected on technical grounds. 9. 8. It is contended by the learned counsel for the appellant that the Tribunal erred in exonerating the liability on respondent No.2. According to him, the enquiry before the Tribunal is summary in nature and, therefore, strict provisions of evidence or CPC have no application. It is also contended that the claim cannot be rejected on technical grounds. 9. Supporting the award, the learned counsel for respondent No.2 - Insurer would submit that respondent No.1, rider of the scooter himself was responsible for causing the accident and, therefore, the Insurer is not liable to pay any compensation. It is also contended by the learned counsel for respondent No.2 that claim under Section 163- A of the Motor Vehicles Act, 1988 (for short ‘the Act’) has to be made as per the Structural Formula arrived at in the Schedule - II of the Act and, therefore, as per the Schedule, income of the injured/deceased had to be below Rs.40,000/- for making a claim under Section 163-A of the Act. Whereas, in the present case, the appellant was earning an amount of Rs.10,000/- per month and, therefore, the claim under Section 163-A of the Act was not sustainable. 10. It is also further contended by the learned counsel for respondent No.2 that even under Section 163-A of the Act though negligence or fault of the owner of the vehicle need not be proved, a claim by the legal representatives of the person/injured responsible for the accident was not maintainable. According to the learned counsel for the Insurer, the Tribunal having considered all the said aspects exonerated respondent No.2 from its liability to pay compensation. Thus, there is no error in arriving at the said conclusion that warrants interference by this Court in the present appeal. 11. In support of the above submissions, the learned counsel for respondent No.2 - Insurer relied on the decision of the Apex Court in Oriental Insurance Co. Ltd. v. Jhuma Saha, (2007) 9 SCC 263 for the proposition that if additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle, Section 147 (b) of the Act which in no uncertain terms covers a risk of a third party only would be attracted. In another decision of the Apex Court in National Insurance Co. In another decision of the Apex Court in National Insurance Co. Ltd., v. Ashalata Bhowmik, (2018) 9 SCC 801 the deceased himself was the owner-cum-driver of the offending vehicle. He was not a third party within the meaning of Motor Vehicles Act. The accident had occurred due to negligence of the deceased. Therefore, the Apex Court categorically held that the deceased was the victim of his own action of rash and negligent driving within the meaning of the M.V. Act and cannot maintain a claim on the basis of his own fault or negligence. It further held that the claimant cannot argue that even when he himself may have caused the accident on account of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company to pay for the same. Therefore, the claimant could not have maintained the claim petition filed under Section 166 of the Motor Vehicles Act. 12. The learned counsel for respondent No.2 also relied upon the decision in Dhanraj v. New India Assurance Co. Ltd., (2004) 8 SCC 553 wherein the Apex Court held that when premium paid covers ‘own damages’ the same would not cover liability towards personal injury to the insured, but covers damage to the vehicle. In New India Assurance Company Limited v. Prabha Devi, (2013) 14 SCC 719 the Apex Court held that statutory liability of insurer under the Act is only for indemnifying insured against third party or in respect of damages to property, but cannot be extended to insured. 13. With the above said contentions, the learned counsel for respondent No.2 prayed to dismiss the appeal. 14. On perusal of entire evidence, including Ex.B1 - policy, it is not in dispute that the owner of the offending vehicle did not pay premium to cover the risk of owner-cum-driver to the Insurance Company and Insurer did not collect the same. According to the appellant, the Insurer did not collect the same in accordance with the said India Motor Tariff and Circular dated 02.06.1986. But, the claimant cannot raise the said contentions in any application filed under Section 166 of the Motor Vehicles Act, 1988. If at all, the claimant is having any grievance, he has to approach appropriate forum, but not under the provisions of M.V. Act. But, the claimant cannot raise the said contentions in any application filed under Section 166 of the Motor Vehicles Act, 1988. If at all, the claimant is having any grievance, he has to approach appropriate forum, but not under the provisions of M.V. Act. Therefore, the said contention of the claimant cannot be accepted. It is relevant to note that the claimant filed the application under Section 166 of the M.V. Act and, therefore, the burden lies on him to prove that the Insurer is liable to pay compensation. But, the claimant failed to discharge the said burden with convincing evidence. 15. On perusal of the entire record, it is not in dispute that the accident had occurred due to own negligence of respondent No.1 who was driving the scooter belongs to the appellant and lost control over it and dashed an electric pole. There is no third party involved in the accident. The accident had occurred due to own fault of respondent No.1 himself. Therefore, in the case on hand, the appellant is not a third party as per the provisions of the Act. Thus, the appellant - claimant cannot take shelter under the Act by invoking the provisions there-under. 16. As discussed supra, on perusal of the insurance policy, the appellant did not collect any premium from the deceased to cover the risk to the driver-owner and the deceased did not pay any premium under Ex.B1 to cover risk to the driver-owner. RW.1 evidence is also very specific on the same. The appellant did not elicit anything contra from cross-examination of RW.1. 17. In view of the aforesaid discussion, the Tribunal has rightly held the finding that Ex.B1 does not cover risk to the driver-owner of the vehicle involved in the accident and that respondent No.2 is not liable to pay compensation to the appellant and accordingly, the same is confirmed. 18. So far as the quantum of compensation is concerned, The tribunal has awarded an amount of Rs.10,000/- towards two grievous injuries and Rs.1,000/- for one simple injuries, but the same are very meager. As per the medical record, the claimant sustained the injuries viz., (i) fracture of left orbit eye ball (ii) injury on left lip and chin and (iii) injury to left molar teeth. As per the medical record, the claimant sustained the injuries viz., (i) fracture of left orbit eye ball (ii) injury on left lip and chin and (iii) injury to left molar teeth. As per the evidence of PW.2, the doctor who treated the claimant, injury No.1 is a grievous in nature, while injury Nos.2 and 3 are simple in nature. In view of the same, a sum of Rs.25,000/- is awarded towards fracture injury, while an amount of Rs.5,000/- each for two simple injuries. 19. The Tribunal has awarded an amount of Rs.1,00,000/- towards medical expenses. In view of the nature of injuries sustained by the claimant and the treatment he had undergone, the said amount is reasonable and, therefore, the same is maintained and so also the amount of Rs.50,000/- towards pain and suffering. An amount of Rs.10,000/- towards attendant charges @ Rs.2,000/- per month for five months. 20. The Tribunal has awarded an amount of Rs.15,000/- towards loss of earnings. It is the specific contention of the claimant that prior to the accident, he used to earn an amount of Rs.11,000/- per month by doing agricultural work and milk vending. But, keeping in view the principle held in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236 wherein the Hon’ble Apex Court had considered the monthly earning capacity of a cooli at Rs.4,500/-, the monthly earning capacity of the claimant can be considered as Rs.4,500/-. In the said circumstances, an amount of Rs.22,500/- is awarded towards loss of temporary earnings. The Tribunal has awarded an amount of Rs.25,000/- towards transportation and extra nourishment. The said amount is just and reasonable, the same is maintained. An amount of Rs.1,000/- is awarded towards damages to clothes. Thus, in all, the petitioner is entitled to Rs.2,43,500/- towards compensation under the following heads: (i) Grievous Injury Rs.25,000.00 (ii) Simple Injuries 2 in number Rs.10,000.00 (iii) Medical Expenses Rs.1,00,000.00 (iv) Pain and suffering Rs.50,000.00 (v) Extra nourishment & Transport charges Rs.25,000.00 (vi) Attendant charges Rs. 10,000.00 (vii) Loss of temporary earnings Rs. 22,500.00 (viii) Damages to clothes Rs.1,000.00 Total Rs.2,43,500-00 21. In the result, the appeal filed by the Appellant is allowed in part. 10,000.00 (vii) Loss of temporary earnings Rs. 22,500.00 (viii) Damages to clothes Rs.1,000.00 Total Rs.2,43,500-00 21. In the result, the appeal filed by the Appellant is allowed in part. Accordingly, the judgment and decree dated 27.07.2006 passed in O.P. No.927 of 2002 passed by the Tribunal are modified enhancing the compensation to Rs.2,43,500/- (Rupees two lakhs forty three thousand and five hundred only) from Rs.2,01,000/-(Rupees two lakhs and one thousand only) with interest at the rate of 7.5% per annum from the date of petition till realization against respondent No.1 alone. The appeal against respondent No.2 is dismissed and the finding given by the Tribunal dismissing the claim petition against it is hereby confirmed. Respondent No.1 is directed to deposit the above said amount with interest and costs after deducting the amount, if any, deposited earlier within one month from the date of receipt of certified copy of this judgment and, thereafter, the appellant is permitted to withdraw the same. There shall be no order as to costs. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.