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2023 DIGILAW 1135 (AP)

Chodavarapu Satyavathi v. M. Raghava

2023-07-27

V.GOPALA KRISHNA RAO

body2023
JUDGMENT: 1. The appellant is claim petitioner and the respondents are respondents in M.V.O.P.No.118 of 2009 on the file of the Motor Accident Claims Tribunal-cum-II Additional District Judge (Fast Track Court), Parvathipuram. 2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition. 3. The claim petitioner filed the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident which took place on 26.05.2008. 4. The brief averments in the petition filed by the petitioner are as follows: On 26.05.2008 at about 10.30 a.m. the petitioner, her husband and relatives were travelling in an auto bearing registration No.AP 35YYT/R 3495 from Kothavalasa to Chinaborabanda and when they reached near Gajarayunivalasa village, an unknown person was crossing the road by carrying a paddy bundle, at that time, the driver of the auto drove the auto in a rash and negligent manner at high speed and without blowing horn and dashed against the said person and thereby, the auto fell on the left side of the road, resultantly, the petitioner sustained grievous injuries. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the offending auto, hence, all the respondents are jointly and severally liable to pay compensation to the petitioner. 5. Respondent Nos.1 & 2 were set ex parte. The 3 rd respondent/Insurance company filed a written statement by denying the manner of the accident. It is pleaded that the auto in question was plying on the road without permit and the auto was overloaded with more passengers than the sitting capacity and thereby, the 2nd respondent committed breach of terms and conditions of the policy, as such, this respondent is not liable to indemnify the 2nd respondent. 6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal: 1) Whether the accident occurred due to rash and negligent driving of the auto bearing No.AP 35 YYT/R 3495 by its driver 1st respondent resulting which, the petitioner sustained both simple and grievous injuries? 2) Whether the petitioner is entitled to any compensation? If so, at what quantum and what is the liability of the respondents? 3) To what relief? 7. 2) Whether the petitioner is entitled to any compensation? If so, at what quantum and what is the liability of the respondents? 3) To what relief? 7. During the course of enquiry, on behalf of the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.8 and Exs.X.1 and X.2 were marked. On behalf of the 3 rd respondent, R.Ws.1 & 2 were examined and Exs.B.1 to B.6 were marked. 8. At the culmination of the enquiry, after considering the evidence on record and on appreciation of the same, the Tribunal came to the conclusion that the accident took place not only due to rash and negligent driving of the driver of the offending auto but also due to contributory negligence of the petitioner and accordingly, allowed the petition in part and granted a sum of Rs.64,250/- with proportionate costs and interest at 6% p.a. from the date of petition till the date of payment by respondent Nos.1 and 2, while dismissing the claim petition against the 3rd respondent. Being aggrieved by the impugned award, the petitioner preferred the present appeal. 9. Heard the learned counsels for both the parties and perused the record. 10. Learned counsel for the appellant/petitioner would contend that the Tribunal erred in holding that there was 50% contributory negligence on the part of the petitioner and the 3rd respondent/Insurance company cannot escape from the liability of payment of compensation and it has to pay third party risks. 11. Now, the point for determination is: Whether the order of the Tribunal needs any interference and to what extent? 12. POINT: The Tribunal, on appreciation of the entire evidence on record, came to the conclusion that the accident took place not only due to rash and negligent driving of the driver of the offending auto but also due to contributory negligence on the part of the petitioner, since the petitioner travelled in the overloaded auto in which seven persons were travelling at the time of accident. No appeal is filed by respondent Nos.1 & 2 against the said finding. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. Coming to the compensation, on considering the evidence of P.W.2 and Ex.A.2-wound certificate that the petitioner sustained two grievous injuries, the Tribunal granted an amount of Rs.30,000/- for two grievous injuries @ Rs.15,000/- for each grievous injury. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. Coming to the compensation, on considering the evidence of P.W.2 and Ex.A.2-wound certificate that the petitioner sustained two grievous injuries, the Tribunal granted an amount of Rs.30,000/- for two grievous injuries @ Rs.15,000/- for each grievous injury. On considering Ex.A.5-bunch of medical bills and Ex.A.7-bunch of medical prescriptions, the Tribunal granted an amount of Rs.20,500/- towards medical expenses. Since it is established that the petitioner took treatment as an inpatient in Sri Sai Super Specialty Hospital, Vizianagaram, for ten days under P.W.2, the Tribunal granted Rs.3,000/- towards travelling expenses, attendant charges and extra nourishment. Considering the evidence of P.W.2, Ex.A.2-wound certificate, Ex.A.6-disability certificate and Ex.A.8- latest x-ray, the Tribunal came to the conclusion that the petitioner suffered 40% functional, partial and permanent disability and granted Rs.75,000/- towards 40% functional, partial and permanent disability. By giving cogent reasons, the Tribunal came to the conclusion that the petitioner is entitled to a total compensation of Rs.1,28,500/-. The compensation awarded under the above heads, in my opinion, is just and reasonable. Therefore, there is no need to interfere with the quantum of compensation awarded by the Tribunal under the above heads. 14. As stated supra, the accident occurred not only due to rash and negligent driving of the driver of the offending auto but also due to contributory negligence on the part of the petitioner. The Tribunal fixed 50% contributory negligence on the part of the driver of the offending auto and 50% contributory negligence on the part of the petitioner and accordingly, directed respondent Nos.1 & 2 to pay 50% of total compensation of Rs.1,28,500/- i.e., Rs.64,250/- to the petitioner. 15. It is admitted by the standing counsel for the 3rd respondent/Insurance company that the offending auto was insured with the 3rd respondent/Insurance company and the policy was also in force as on the date of accident and the policy is a comprehensive policy. 16. The material on record reveals that by the date of accident, the vehicle in question was not at all registered, the vehicle did not possess permit at the relevant time, and the 2nd respondent had obtained temporary registration certificate under Ex.B.3 and permanent registration certificate under Exs.B.2 and B.4 and permit under Ex.B.5 after the occurrence of the accident. 16. The material on record reveals that by the date of accident, the vehicle in question was not at all registered, the vehicle did not possess permit at the relevant time, and the 2nd respondent had obtained temporary registration certificate under Ex.B.3 and permanent registration certificate under Exs.B.2 and B.4 and permit under Ex.B.5 after the occurrence of the accident. It clearly goes to show that after purchasing the new vehicle from the dealer, temporary registration certificate was given and later permanent registration certificate was given. However, on verification of the temporary registration certificate only, the 3rd respondent issued the policy in the name of the 2nd respondent with regard to the offending vehicle. From the above, it is evident that by the date of accident, the offending auto had no permit to ply on the road and the 2nd respondent violated the conditions of the policy. The Tribunal held in para 19 of its order that the auto in question is validly insured with the 3rd respondent/Insurance company in the name of the 2nd respondent/owner. The same is not challenged by the respondents. 17. However, in the facts and circumstances of the case, this Court is of the view that it is just and proper to fix 75% contributory negligence on the driver of the offending auto and 25% contributory negligence on the petitioner. Thus, the petitioner is entitled for a sum of Rs.96,375/- towards compensation from respondent Nos.1 & 2. 18. The principle laid down in Swaran Singh case referred supra is that even in case of absence, fake or invalid licence or disqualification of the driver for driving, the Insurance company is liable to satisfy the award in favour of 3rd party at the first instance and later recover the award amount from the owner of offending vehicle, even when the Insurance company could able to establish breach of terms of policy on the part of the owner of the offending vehicle. As stated supra, the offending auto is insured with the 3rd respondent and the policy is in force. 19. For the foregoing discussion, the 3rd respondent/Insurance Company is liable to pay the compensation of Rs.96,375/- with interest thereon to the petitioner in the first instance and later recover the same from the 2nd respondent/owner of the offending auto, by filing an execution petition and without filing any independent suit. 20. 19. For the foregoing discussion, the 3rd respondent/Insurance Company is liable to pay the compensation of Rs.96,375/- with interest thereon to the petitioner in the first instance and later recover the same from the 2nd respondent/owner of the offending auto, by filing an execution petition and without filing any independent suit. 20. In the result, the appeal is allowed in part by enhancing the compensation of Rs.64,250/- awarded by the Tribunal to Rs.96,375/- payable by respondent Nos.1 & 2. The 3rd respondent/Insurance Company is directed to deposit the compensation amount of Rs.96,375/- with costs and interest before the Tribunal in the first instance within two months from the date of this judgment and later recover the same from the 2nd respondent/owner of the offending auto by filing an execution petition and without filing any independent suit. The order passed by the Tribunal with regard to the liability is modified to the extent indicated above. The order of the Tribunal in all other respects shall remain intact. Miscellaneous petitions, if any, pending in this appeal shall stand closed.