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2020 DIGILAW 428 (AP)

Uppu Eswara Rao v. P. Surya Rao And Others

2020-06-17

M.GANGA RAO

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JUDGMENT M. Ganga Rao, J. - The appellant, who is the injured claimant, filed this appeal under Section 173 of the Motor Vehicles Act, 1988, [for short, 'the MV Act'] against the order and decree, dated 02.03.2006, passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Vizianagaram, wherein and whereby the Tribunal dismissed the claim petition. 2. Heard learned counsel appearing for the appellant - claimant and learned counsel appearing for the 3rd respondent insurance company. 3. The parties in this appeal shall be referred to as they are arraigned in the Original Petition, for the sake of convenience. 4. The brief facts of the case are that the petitioner filed claim petition under Section 166 of the MV Act read with Rule 455 of Motor Vehicle Rules, 1989 and Section 54 of the amended Act, 1994, claiming compensation of Rs.1,50,000/- for the injuries sustained by him in the motor accident due to the rash and negligent driving of the Van bearing No.AP 31 V 968 by its driver. The petitioner states that he is a resident of Pydibheemavaram village of Ranasthalam Mandal. He boarded the van bearing registration No.AP 31 V 968 on 11.01.2002, to purchase diesel oil at Poosapatirega. When the van reached near Gollapeta, at that time, a quarry lorry, driven by its driver in a rash and negligent manner, came behind the van without observing the traffic and blowing horn and dashed the right side of the van due to which the 1st respondent lost control over the van and dashed against a tree situated on the left side of the road. Due to that accident, the petitioner sustained grievous injuries all over the body. Immediately, he was taken to Poosapatirega Police station and there he gave report to the police. In turn the police registered a case in crime no.3 of 2002 under Section 338 IPC against the driver of the lorry and later the petitioner was sent to Government Hospital, Vizianagaram and after taking first aid, the petitioner took treatment under Dr.K.V. Muralimohan as inpatient for 45 days. Hence, he filed the claim petition claiming compensation against respondents 1 to 3. 1st respondent - driver remained ex parte. Hence, he filed the claim petition claiming compensation against respondents 1 to 3. 1st respondent - driver remained ex parte. 2 nd respondent owner of the van and 3rd respondent insurance company with whom the van is insured filed written statements denying the accident occurred due to the rash and negligent driving of the offending van by 1st respondent in which the petitioner received injuries. The 3rd respondent insurance company has taken the specific plea that the driver of the offending van has no valid driving licence to drive the offending van and the petitioner is put to strict proof of the averments with regard to his age, income and avocation. Petitioner gave complaint to the police that the unknown quarry lorry came behind the van being driven by its driver - 1st respondent in a rash and negligent manner without blowing horn and dashed on the right side of the van due to which the 1st respondent lost control over the van and dashed against a tree. Therefore, the driver, owner and insurance company of the lorry are necessary parties to the claim petition. As such, for non joinder of the proper parties, the petition is liable to be dismissed. Based on the above pleadings, the Tribunal framed the following issues for its consideration. 1. Whether the accident occurred due to rash and negligent driving of the van bearing No.AP 31 V 968 by its driver? 2. Whether the petitioner is entitled to any compensation, if so, from which of the respondents? 3. To what relief? Before the Tribunal, the petitioner himself was examined as PW1 and got examined PWs2 and 3 on his behalf and got marked exhibits A1 to A8. On behalf of the insurance company, RW1 is examined and got marked exhibits B1 and X1. As already noted, by the judgment impugned in this appeal, the Tribunal dismissed the claim petition. Aggrieved thereby, the present appeal came to be filed. 5. Sri G. Rama Gopal, learned counsel for the appellant would contend that the Tribunal grossly erred in dismissing the claim petition. The provisions of Chapter XI of the MV Act, which deal with grant of compensation, are beneficial legislation. Aggrieved thereby, the present appeal came to be filed. 5. Sri G. Rama Gopal, learned counsel for the appellant would contend that the Tribunal grossly erred in dismissing the claim petition. The provisions of Chapter XI of the MV Act, which deal with grant of compensation, are beneficial legislation. The Tribunal ought to have converted the petition under Section 166 of the MV Act to Section 163-A of the MV Act which enables the Tribunal to grant some compensation even if the petitioner failed to prove rash and negligent driving of the driver of the offending vehicle. The Tribunal erred in dismissing the claim petition. 6. Learned standing counsel appearing for the 3rd respondent insurance company supported the order impugned. 7. I have perused the order impugned. 8. Dealing with issue no.1, the Tribunal took into consideration the evidence of PW1 and exhibit A1 - true copy of FIR in crime no.3 of 2002 of Poosapatirega Police Station and exhibit A3 - MVI report and exhibit A4 true copy of letter addressed to Addl.S.P Vizianagaram in crime No.3 of 2002. In exhibit A4 letter it is stated that FIR no.3 of 2002 is registered against unknown lorry driver under Sections 338 and 337 IPC basing on the report given by PW1 - petitioner and police investigated the case and inspite of their best efforts by deputing men in and around places, they could not trace the crime vehicle and accused driver and hence, sought permission to refer the case as 'undetectable'. Exhibit A6 is the refer notice sent to the petitioner. As per the complaint of the petitioner, accident occurred due to the negligent driving of the driver of the lorry but not 1st respondent - driver of the van. The petitioner filed the present petition under section 166 of the MV Act wherein the claimant has to prove the rash and negligent driving on the part of the driver of the vehicle against which the claim is laid. But PW1 in his pleadings as well as cross examination stated that he gave complaint against the driver of the lorry. It is the burden of the petitioner to establish that the 1st respondent driver of the van was rash and negligent in driving the van and thereby caused injuries to the petitioner. But PW1 in his pleadings as well as cross examination stated that he gave complaint against the driver of the lorry. It is the burden of the petitioner to establish that the 1st respondent driver of the van was rash and negligent in driving the van and thereby caused injuries to the petitioner. The Tribunal considering the evidence of PW1 and exhibits A1, A4, A6 came to the conclusion that the petitioner miserably failed to prove the rashness and negligence on the part of the 1st respondent. Hence, answered issue no.1 against the petitioner. 9. Dealing with issue no.2 with regard to grant of compensation, the Tribunal, having considered the claim made for Rs.1,50,000/- out of which an amount of Rs.1,20,000/- is claimed for loss of earnings due to the permanent disability, Rs.10,000/- is claimed for pain and suffering and Rs.20,000/- spent for treatment as he filed exhibit A8 case sheet maintained by Sai Vamsi Nursing Home, Vizianagaram, observed that in view of its finding on issue no.1 that the petitioner failed to establish rash and negligent driving on the part of the 1st respondent - driver of the offending van, the petitioner is not entitled for any compensation and dismissed the petition. This Court also on consideration of the evidence of PW1 along with documentary evidence exhibits A1, A4 and A6 found that the whole case of the petitioner is that the unknown quarry lorry came behind the van in which the petitioner is travelling unauthorisedly in a rash and negligent manner dashed against the back side of the van due to which the driver could not control the vehicle thereby he dashed against a tree situated on the left side of the road. As a result of the accident, he sustained injuries. Inspite of the best efforts, the police could not trace driver of the quarry lorry, who is responsible for the accident. Because of non tracing of the driver of the lorry, who is responsible for the accident, the driver of the van in which the petitioner is travelling as unauthorised passenger as he is boarded the van to go to Poosapatirega to purchase diesel oil could not be made responsible for the accident. Because of non tracing of the driver of the lorry, who is responsible for the accident, the driver of the van in which the petitioner is travelling as unauthorised passenger as he is boarded the van to go to Poosapatirega to purchase diesel oil could not be made responsible for the accident. The contention of the appellant counsel is that the claim for the compensation towards injuries sustained by the petitioner in the accident ought to have been considered by the Tribunal by converting the petition from Section 166 to Section 163-A of the M.V Act. The said contention of the learned counsel for the appellant do not merit consideration for the reason that the accident was caused by the unknown vehicle and the petitioner has travelled in the van as an unauthorised passenger. The order impugned does not suffer from any illegality or irregularity warranting interference of this Court. The appeal is devoid of merit and is liable to be dismissed. 10. Accordingly, the appeal is dismissed. There shall be no order as to costs. Miscellaneous Petitions pending, if any, in this Appeal shall stand closed.