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2022 DIGILAW 181 (TS)

Seesam Naga Laxmi v. Shaik Hussain Mohammed

2022-03-10

G.SRI DEVI

body2022
JUDGMENT : G. SRI DEVI, J. 1. This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 13.07.2010 passed in M.A.T.O.P. No. 999 of 2004 on the file of the Motor Accidents Claims Tribunal (II Additional District Judge) (FTC), Khammam (for short the Tribunal). 2. For the sake of convenience, the parties hereinafter referred to as arrayed before the Tribunal. 3. The brief facts of the case are that on 23.03.2004 at about 2.00 P.M. the claimant went to medical shop to purchase some medicines and while she was returning to her house, meanwhile one Auto bearing No. AP-20-V-5648 driven by its driver in a rash and negligent manner at high speed and dashed the claimant, due to which she fell down and sustained head injury and also injuries all over the body. Basing on a complaint, a case in Crime No. 20 of 2004 has been registered against the driver of the Auto. It is also stated that immediately after the accident, the claimant was shifted to Government Hospital, Dammapeta and from there shifted to Dr. Shashi Super Specialty Hospital, Khammam, where the claimant underwent surgery and the parents of the claimant spent Rs. 60,000/- towards medical and other expenses. The claimant filed aforesaid O.P. against respondent Nos. 1 and 2, owner and insurer of aforesaid Auto, respectively, claiming compensation of Rs. 1,50,000/- for the injuries sustained by her. 4. Before the Tribunal, respondent No. 1 remained ex-parte and the 2nd respondent filed counter denying the averments of the claim petition and also contended that the accident was occurred only due to the gross negligence on the part of the claim petitioner. It is further contended that the driver of the auto was not having valid driving licence at the time of accident, thereby the 1st respondent has violated the terms and conditions of the policy, as such, the 2nd respondent is not liable to pay the compensation. It is also contended that the amount claimed is excessive and prayed to dismiss the claim petition. 5. Basing on the above pleadings, the following issues are framed before the Tribunal: (1) Whether the accident took place due to rash and negligent driving of the driver of the accident vehicle, bearing No. AP-20-V-5684? (2) Whether the petitioner is entitled to claim any compensation? If so, to what amount and from which of the respondents? 5. Basing on the above pleadings, the following issues are framed before the Tribunal: (1) Whether the accident took place due to rash and negligent driving of the driver of the accident vehicle, bearing No. AP-20-V-5684? (2) Whether the petitioner is entitled to claim any compensation? If so, to what amount and from which of the respondents? (3) To what relief? 6. During trial, the father and natural guardian of the minor claimant was examined as PW-1 and the doctor, who treated the minor claimant, was examined as PW-2 and Exs.A1 to A6 were marked. On behalf of the respondents, RWs. 1 and 2 were examined and Exs.B1 to B3 were marked. 7. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the Auto bearing No. AP-20-V-5684 and awarded total compensation of Rs. 72,840/- with interest @ 7.5% per annum payable the 1st respondent only while dismissing the claim against the 2nd respondent-Insurance company as there is breach of policy conditions. Dissatisfied with the quantum of compensation and also exonerating the 2nd respondent from its liability, the claimant filed the present appeal, seeking enhancement of the same. 8. Heard both sides and perused the record. 9. A perusal of the impugned judgment would show that the Tribunal has framed Issue No. 1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, to which the Tribunal after considering the evidence of PW-1 coupled with the documentary evidence, has categorically observed that the accident has occurred due to the rash and negligent driving of the driver of the Auto bearing No. AP-20-V-5684 and has answered in favour of the claimants and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of Auto bearing No. AP-20-V-5684. 10. Insofar as the quantum of compensation is concerned, a perusal of the material on record would show that as per Ex.A.3-wound certificate the claimant had sustained injury on the left side frontal compound depressed fracture with underlying hemorrhagic contusion. 10. Insofar as the quantum of compensation is concerned, a perusal of the material on record would show that as per Ex.A.3-wound certificate the claimant had sustained injury on the left side frontal compound depressed fracture with underlying hemorrhagic contusion. PW-2, the doctor, who treated the claimant, has stated that the claimant was admitted in their Hospital on 23.03.2004 with history of Road Traffic Accident and she was diagnosed by CT Scan left side frontal region compound depressed fracture with under lying hemorrhagic contusion. Admittedly, the claimant was admitted in the hospital on 23.03.2004 and she was discharged on 12.04.2004. During the above period surgery was conducted by PW-2. PW-2 also stated that after discharge also the claimant came up for follow up treatment till 30.03.2009 as outpatient. 11. In so far as the injuries are concerned, though the Tribunal has considered the evidence on record and came to the conclusion that the claimant was aged about 8 years and she sustained head injury, she has undergone prolonged treatment for the head injury sustained by her, but awarded only a sum of Rs. 25,000/- towards pain and suffering, which appears to be meager. In the facts and circumstances of the case, this Court feels that claimant is entitled to the following amount under various heads: S. No. Name of Head Awarded by Tribunal Awarded by this Court 1. Pain and Suffering Rs. 25,000.00 Rs. 50,000.00 2. Medical Bills Rs. 42,840.00 Rs. 42,840.00 3. For grievous head injury -- Rs. 25,000.00 4. Transport, conveyance, extra nourishment and other expenses Rs. 5,000.00 Rs. 15,000.00 5. For future treatment -- Rs. 10,000.00 TOTAL Rs. 72,840.00 Rs. 1,42,840.00 12. Coming to the aspect of liability of payment of compensation, admittedly, as seen from Ex.B2, the driver of the Auto was having Driving Licence authorized to drive L.M.V. non-transport. Admittedly, the crime vehicle is a transport vehicle and RW-2, who is the Senior Assistant working in R.T.O. Office, Sathupally, deposed that as per Ex.B2, the driver of the Auto was not entitled to drive the passenger auto, therefore, there is a breach of terms and conditions of the Insurance Policy as rightly held by the Tribunal. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.1 policy was very much in force. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.1 policy was very much in force. In case of third party risks, as per the decision in National Insurance Company Ltd. vs. Swaran Singh and Others, (2004) 3 SCC 297 the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of “pay and recover” examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in the case of Shamanna vs. The Divisional Manager, Oriental Insurance Company Limited and Others, 2018 ACJ 2163 following its earlier decision in Swaran Singh (supra), reiterated that “even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount.” In view of the above, the Insurance Company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle. 13. Accordingly, the M.A.C.M.A. is partly allowed by enhancing the compensation amount awarded by the Tribunal from Rs. 72,840.00 to Rs. 1,42,840.00. The enhanced amount shall carry interest @ 7.5% per annum from the date of passing of the order i.e. from 13.07.2010 till the date of realisation. However, following the doctrine ‘pay and recover’ the 2nd respondent-Insurance Company is directed to pay the compensation amount to the appellant-claimant, at the first instance and thereafter recover the same from the owner of the offending vehicle i.e. the 1st respondent without initiating any separate proceedings. There shall be no order as to costs. 14. Miscellaneous Petitions, if any pending in this appeal, shall stand closed.