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2022 DIGILAW 842 (AP)

National Insurance Co. Ltd. v. N. B. Santhamma

2022-09-07

T.MALLIKARJUNA RAO

body2022
JUDGMENT 1. Aggrieved by the Order dtd. 5/9/2012 in M.V.O.P. No.11 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal- cum-IV Additional District Judge, Tirupati (for short 'the tribunal'), whereby the tribunal awarded compensation Rs.4,54,000.00 with subsequent interest thereon at 7.5% per annum from the date of petition till the date of realization in favour of the claimant, the 2nd Respondent - M/s. National Insurance Company Limited, represented by its Divisional Manager preferred this appeal seeking to set aside the order passed by the tribunal. 2. For convenience sake, hereinafter the parties will be referred to as they were arrayed in the O.P. 3. The petitioner filed M.V.O.P. under Sec. 166 (1) (a) of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs.10,00,000.00 with interest due to the injuries sustained by her in a motor vehicle accident that occurred on 15/12/2005 at about 4.30 AM at Puthalapattu Village of Chittoor-Tirupati main road. The case of the claimant is that on 15/12/2005 at about 3.00 AM herself and her husband and other relatives were proceeding to Kanipakam in the jeep bearing No.AP 03 V 7323 of the 1st respondent, which was insured with the 2nd Respondent, when the jeep reached Puthalapattu Village near Kanipakam cross, at 4.30 AM, the driver of the jeep drove the same in a rash and negligent manner and went extreme left side of the road margin and hit back side of the stationed lorry bearing No.ADC 4919, resulting which the petitioner sustained crush and severe bleeding injury to her left hand and also sustained other injuries all over the body. 4. The first respondent remained exparte. 5. The second respondent filed counter admitting the accident and contended that the first respondent is the owner-cum-driver of the jeep and the same was insured with the second respondent and the same is in force by the date of accident. 4. The first respondent remained exparte. 5. The second respondent filed counter admitting the accident and contended that the first respondent is the owner-cum-driver of the jeep and the same was insured with the second respondent and the same is in force by the date of accident. It is further contended that the first respondent was driving the vehicle with due care and caution and was proceeding towards chittoor and when the same reached near Kanipakam cross, opposite coming vehicles were coming without dim and dip and hence turned the jeep towards left side of the road and in the meantime the petitioner placed her left hand out side of the vehicle and the lorry which was parked on the road in a careless manner without any indication of parking signals found by the first respondent turned the jeep towards left side in order to avert the major accident and left hand of the petitioner was injured and there is a negligence on the part of the stationed lorry and also on the part of the petitioner placing her left hand outside of the vehicle. 6. Based on the pleadings, the tribunal formulated the following issues for trial. 1. Whether the petitioner sustained injuries in a motor vehicle accident that took place o 15/12/2005 at about 4.30 a.m., at Puthalapattu village on Chittoor-Tirupati main road, due to rash and negligent driving of the driver of the jeep bearing Regn. No.AP 03 V 7323 belonging to the first respondent insured with the second respondent? 2. Whether the petitioner is entitled to compensation? If so, to what amount and from whom? 3. To what relief? 7. On behalf of the petitioner, the petitioner herself got examined as P.W.1 and also got examined P.Ws.2 to 7 and got marked Exs.A.1 to A.20. On behalf of the 2nd respondent, no oral evidence was adduced, however got marked Ex.B.1 policy copy with consent. 8. If so, to what amount and from whom? 3. To what relief? 7. On behalf of the petitioner, the petitioner herself got examined as P.W.1 and also got examined P.Ws.2 to 7 and got marked Exs.A.1 to A.20. On behalf of the 2nd respondent, no oral evidence was adduced, however got marked Ex.B.1 policy copy with consent. 8. After considering the evidence on record, the tribunal has given finding that the accident occurred due to rash and negligent driving of the driver-cum-owner of the jeep bearing No.AP 03 V 7323 and awarded an amount of Rs.9,000.00 for transport expenses, Rs.60,000.00 for medicines and extra nourishment and Rs.20,000.00 each for pain and suffering and as well as for loss of amenities and discomfort to the petitioner due to the removal of left hand below elbow and also awarded Rs.15,000.00 for loss of earnings during treatment period and also granted compensation amount of Rs.3,30,000.00 towards loss of earnings due to permanent disability. In all, the tribunal granted compensation amount of Rs.4,54,000.00 against Respondents 1 and 2. 9. The petitioner has not preferred appeal or cross objection aggrieved by the compensation awarded by the learned tribunal. 10. Learned counsel for the appellant/insurer contended that the tribunal awarded exorbitant amount to the petitioner compensation and it failed to notice that there is no negligence on the part of the driver of the jeep, which was insured with the appellant insurance company and the stationed lorry was parked without any parking indications and signals and there is contributory negligence on the part of the stationed lorry which was parked without indicators and the jeep which is insured with the appellant insurance company is a private vehicle and cannot be used for hire or reward and the tribunal failed to note that the owner of the jeep violated the policy conditions and even as per the statement of the petitioner there are more than 10 passengers in the vehicle at the time of accident and the petitioner could not get sufficient place to sit comfortably and her left hand might have kept beyond the jeep and thereby touching the stationed lorry and the tribunal erred in taking the monthly income of the injured at Rs.5,000.00 per month and erred in taking disability at higher side and the tribunal erred in awarding interest @ 7.5% per annum as against the established law. 11. 11. Considering the rival contentions and on perusing the material available on record, the point for determination in this appeal is as follows: Whether the tribunal erred in finding that the accident occurred due to rash and negligent driving of the driver-cum-owner of the jeep and the compensation amount awarded by the tribunal is just and reasonable? POINT: 12. As seen from the counter filed by the insurer, it has not disputed the case of the petitioner that she sustained injuries as deposed by her in her evidence as P.W.1. To prove the injuries sustained by the petitioner, she has placed Ex.A.4 - wound certificate and Ex.A.5 - permanent disability certificate and Ex.A.6 - discharge summary issued by C.M.C. hospital, Vellore. After careful appreciation of the oral evidence adduced on behalf of the petitioner and the documents relied on by the petitioner, the tribunal has come to the correct conclusion that the petitioner sustained injuries as referred in the wound certificate and permanent disability is caused to her due to the accident. Though the insurer vehemently contended that there is contributory negligence on the part of the petitioner as well as the stationed lorry, for the reasons best known to the insurance company, it has not let in any oral evidence in support of its contention. To prove the manner of the accident, the petitioner herself got examined as P.W.1. She has given her evidence regarding the manner of the accident as pleaded in the petition. According to her evidence, when the jeep reached Puthalapattu village, the driver of the jeep drove the same in a rash and negligent manner and went extreme left side of the road side margin and hit back side of the stationed lorry bearing No.ADC 4919, resulting which she sustained injuries. Her evidence is supported by the evidence of P.W.2 Ramakrishna Reddy who was one of the inmates of the jeep and so he was the best person to speak about the manner of the accident. He was subjected to cross examination at length and it is elicited in the evidence of P.W.2 that he was seated in the middle of the second seat row and P.W.1 sat beside him and the road is double road where the accident took place. He was subjected to cross examination at length and it is elicited in the evidence of P.W.2 that he was seated in the middle of the second seat row and P.W.1 sat beside him and the road is double road where the accident took place. He also stated that everything was visible to him though he was sitting in the centre of the second seat and he had seen the stationed lorry at a distance of 10 meters. He admitted that there were no parking lights indicating the lorry was stationed and the jeep was going on the left side of the road and the road margin was about 8 feet from the stationed lorry. Though the said evidence of P.W.2 is disputed in cross- examination, for reasons best known, the driver of the offending vehicle i.e. jeep did not come forward to speak about the manner of the accident. There is nothing on record to suggest as to why the driver of the offending vehicle proceeded to extreme left side of the road margin and hit back side of the stationed lorry. Though the insurer has taken a plea that while the jeep was going towards Kanipakam, some vehicles coming in opposite direction without dim and dip lights, it has not placed any oral evidence in support of the said contention. In the absence of any evidence on record, this court is of the view that the said stand taken by the respondent is remained as a plea and it is not proved. As already observed that Ex.A.2 charge sheet filed against the driver of the jeep and there is a clear recital in Ex.A.1 regarding the manner of the accident. 13. No evidence is placed by the respondent to show that the contents of the charge sheet are incorrect. In K.Rajani and others V. M.Satyanarayana Goud and others 2015 ACJ 797 2009 , erstwhile High Court of Andhra Pradesh held that: "when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false". 14. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false". 14. In Bheemla Devi V. Himachal Road Transport Corporation ,ACJ 1725 (SC) the Apex Court held that, "It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied". 15. It is settled principles that contributory negligence must be proved like any other fact. There is no definite standard for proving negligence and contributory negligence and they cannot be decided on suspicions and surmises and on opinion. Thus to prove the contributory negligence there must be cogent evidence. In the instant case there is no specific evidence to prove that the accident has taken place due to negligent act of the petitioner or due to the stationed lorry. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. Thus it is clear that contributory negligence must be proved like any other fact. Except taking certain pleas in the counter filed by the respondent - insurance company and making suggestion to P.Ws.1 and 2 in the cross examination, no material is placed to substantiate the said pleas taken by the insurance company. 16. In view of the same, this court is of the view that the respondent insurance company has not placed any oral evidence in support of the said pleas and also it is not chosen to take steps to examine the driver of the offending vehicle and the charge sheet relied on by the petitioners also ruled out the possibility of occurrence due to contributory negligence of the petitioner or the stationed lorry and the reading of the material placed before the tribunal clearly establishes that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. After careful appreciation of the evidence of P.Ws.1 and 2, the tribunal accepted the case of the petitioner regarding the manner of the accident and accepted the observations made by the investigating officer in the charge sheet making the driver of the offending vehicle responsible for the accident. There is no material placed by the appellant to show that the accident was occurred due to careless attitude of the petitioner and due to parking of the stationed lorry in the road margin. 17. Upon considering the material on record, this court is of the view that the tribunal has correctly appreciated the evidence on record and recorded the finding that the accident occurred due to the rash and negligent driving of the offending vehicle and the said finding holds good. 18. The other contention of the insurer is that the owner of the jeep violated the policy conditions by hiring vehicle contrary to the policy conditions. The burden is on the insurance company to establish the breach of the policy conditions by the owner or driver of the vehicle. The proposition of law is no longer res integra that the person who alleged breach must prove the same. The insurance company is thus required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved from its liability and each case has to be decided on its own facts and circumstances. 19. According to the submission of the insurance company, the owner of the jeep has violated the policy conditions by hiring the vehicle contrary to the policy conditions. In support of the said contention, the insurance company has relied mainly on the evidence of P.W.1 that her husband engaged the jeep to attend the marriage of her younger sister. Simply because the husband of the petitioner engaged the jeep, it cannot be said that the jeep was hired or some amount was paid for the purpose of engaging the jeep. 20. No material is elicited from the cross-examination of P.W.2 to establish that the offending vehicle was hired. I have carefully gone through the cross-examination of P.W.1. A reading of Ex.A.1-F.I.R. also shows that the said jeep was engaged by the family members of P.W.1 to go to marriage. 20. No material is elicited from the cross-examination of P.W.2 to establish that the offending vehicle was hired. I have carefully gone through the cross-examination of P.W.1. A reading of Ex.A.1-F.I.R. also shows that the said jeep was engaged by the family members of P.W.1 to go to marriage. There is nothing in Ex.A.1 even to remotely indicate that some amount was paid for the purpose of engaging the jeep on hire or reward. Even the contents of the charge sheet also do not show that the jeep was engaged by paying some amount to the owner of the jeep. 21. Nothing was elicited in the cross-examination of P.W.1 or P.W.2 to suggest that the jeep was engaged for hire or for reward. In the absence of such evidence on record, this Court cannot presume that the jeep was engaged for hire or reward. 22. The other contention is that at the time of accident there are more than 10 passengers in the vehicle. The said contention is also raised before the tribunal. Simply because the 10 persons were travelling in the jeep, at any stretch of imagination, in the absence of clear and cogent evidence, it cannot be expected to give a finding that the accident occurred due to travelling of 10 passengers in the jeep. 23. The other contention raised is that the tribunal erred in taking monthly income of the petitioner at Rs.5,000.00 per month. Before the Tribunal, the Petitioner has adduced evidence to establish her earnings. According to her evidence she was cultivating Ac.5.00 of land and doing milk business. To establish the said fact, the petitioner got examined P.W.3 surpanch and who deposed that the petitioner owned Ac.2.00 in Pachikapallem Village and Ac.2.00 in Komaragunta Village and she is cultivating the said land and realizing the income Rs.1,00,000.00 through agricultural and milk business. To establish that the petitioner owned the said agriculture property, she relied on Ex.A.16 pattadar pass book, Ex.A.17 title deed, Ex.A.18 pattadar pass book, Ex.A.19 copy of Adangal and Ex.A.20 copy of adangal. The petitioner also got examined P.W.4 who is Ex.V.A.O. of Pachikapallam Village and P.W.6 who is V.R.O. of Komargunta Village to show that the family of the petitioner has owned Ac.3.00 of land at Komaragunta. The petitioner also got examined P.W.4 who is Ex.V.A.O. of Pachikapallam Village and P.W.6 who is V.R.O. of Komargunta Village to show that the family of the petitioner has owned Ac.3.00 of land at Komaragunta. The tribunal appreciated the said evidence and gave a finding that on perusal of Ex.A.15 to A.20 documents that the said lands stands in the name of Govinda Reddy husband of the Petitioner. The tribunal has given a finding, after appreciation of the evidence on record that the petitioner used to assist and help her husband in conducting agricultural operations and cultivating the lands. But the petitioner is a house wife and also a member of the agricultural family, basing on the same the tribunal fixed the income at Rs.5,000.00 per month. Basing on the evidence adduced, the tribunal has arrived to a conclusion regarding the earnings of the petitioner. In the absence of any material on record, this Court is not inclined to disturb the said finding given by the tribunal. After careful appreciation of Ex.A.5 disability certificate and the evidence of P.W.5, the tribunal has considered 50% permanent disability and fixed compensation amount of Rs.3,30,000.00 under the head of loss of earnings due to permanent disability. 24. Regarding the rate of interest awarded by the tribunal, the appellant has not placed any guidelines of Reserve Bank of India to show that awarding interest @ 7.5% per annum is not prevailing as on the date of accident. Thus, I do not find any reason to interfere with the rate of interest as assessed by the tribunal. 25. Resultantly, I am of the considered opinion that the appellant has not made out any case to interfere with the order of the tribunal. 26. Accordingly the appeal is dismissed and the order dtd. 5/9/2012 in M.V.O.P. No.11 of 2008 by the Tribunal is hereby confirmed the insurance company is directed to deposit the balance amount, if any, within one month before the tribunal and on deposit the tribunal is directed to release the amount strictly in accordance with its order. There shall be no order as to costs. 27. Miscellaneous petitions, if any, pending in this appeal shall stand closed.