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2023 DIGILAW 1144 (AP)

N. Bala Kulaya Swamy v. A. Naga Prasad

2023-07-28

V.GOPALA KRISHNA RAO

body2023
JUDGMENT : 1. The appellant is claimant and the respondents are respondents in M.V.O.P.No.387 of 2012 on the file of the Chairman, Motor Accident Claims Tribunal-cum-VI Addl. District Judge, Kadapa. Aggrieved against the dismissal of the claim petition against the 2nd respondent/Insurance company and awarding of meager compensation, the appellant preferred the instant appeal. 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 against the respondents claiming compensation of Rs.3,00,000/- for the injuries sustained by him in a motor vehicle accident that took place on 14.04.2011. 4. The brief averments in the petition filed by the petitioner are as follows: On 14.04.2011 the petitioner along with his mother and others was proceeding to Edamadaka village from Peddavangali village in an auto bearing registration No.AP 21V 9810 and when the auto reached near Peddavangali village, another auto bearing registration No.AP 21TT 1955 being driven by its driver in a rash and negligent manner came in opposite direction and dashed against the auto in which the petitioner was travelling, as a result, the said auto turned turtle and the petitioner sustained grievous injuries. The 1st respondent is owner and the 2nd respondent is the insurer of the auto bearing registration No.AP 21TT 1955. The 3rd respondent is owner of auto bearing registration No.AP 21V 9810 and he was added as a formal party. Therefore, all the respondents are jointly and severally liable to pay the compensation to the petitioner. 5. Respondent Nos.1 & 3 were set ex parte. The 2nd respondent filed a written statement by denying the manner of accident. It is pleaded that the accident occurred due to collision of two vehicles and due to negligence of the drivers of both the autos, and the claim of the petitioner is highly excessive and exorbitant. 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 is due to rash and negligent driving of the driver of auto bearing No.AP 21TT 1955 resulting injuries to the petitioner on 14.4.2011? 2) Whether the petitioner is entitled for compensation, if so, what amount and payable by whom? 3) To what relief? 7. 2) Whether the petitioner is entitled for compensation, if so, what amount and payable by whom? 3) To what relief? 7. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 and Exs.X.1 and X.2 were marked. On behalf of the 2nd respondent, R.Ws.1 and 2 were examined and Exs.B.1 to B.3 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 occurred due to rash and negligent driving of the drivers of both the autos and accordingly, allowed the petition in part and granted an amount of Rs.1,16,000/- towards compensation to the petitioner with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of payment by respondent Nos.1 & 3 equally, and dismissed the claim petition against the 2nd respondent. Aggrieved against the said order, the petitioner preferred the present appeal. 9. Heard learned counsels for both the parties and perused the record. 10. Learned counsel for the appellant/petitioner would contend that the Tribunal erred in exonerating the 2nd respondent from its liability of payment of compensation on the ground that the driver of the 1st respondent was not having driving licence, and the Tribunal erred in awarding meager compensation. 11. Now, the points for determination are: 1) Whether the petitioner is entitled for enhancement of compensation as prayed for? and 2) Whether the order of the Tribunal needs any interference, if so, to what extent? 12. POINTS 1 & 2: A perusal of Ex.A.3-certified copy of charge sheet clearly proves that the accident occurred due to rash and negligent driving of the drivers of both the autos. On considering the material on record, the Tribunal also came to the same conclusion. No appeal is filed by the respondents against the said finding. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. As per Ex.A.2-wound certificate, the petitioner sustained one grievous injury and three simple injuries. P.W.2-doctor deposed in his evidence that the petitioner was suffering with 20% disability due to old fracture right femur, malunited stiff knee joint right side and he issued Ex.A.4-disability certificate. Therefore, there is no need to interfere with the said finding given by the Tribunal. 13. As per Ex.A.2-wound certificate, the petitioner sustained one grievous injury and three simple injuries. P.W.2-doctor deposed in his evidence that the petitioner was suffering with 20% disability due to old fracture right femur, malunited stiff knee joint right side and he issued Ex.A.4-disability certificate. In order to prove that he spent Rs.27,656/- towards medical expenses, the petitioner filed a bunch of medical bills under Ex.A.5 before the Tribunal. By giving cogent reasons, the Tribunal awarded Rs.24,000/- towards pain and suffering, Rs.5,000/- towards transportation, Rs.5,000/- towards assistance during the period of treatment, Rs.5,000/- towards extra nourishment, Rs.27,000/- towards medical expenses and Rs.50,000/- towards disability. In total, the Tribunal awarded Rs.1,16,000/- towards compensation to the petitioner. The compensation awarded under the above heads, in my view, 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, on considering Ex.A.3-charge sheet, the Tribunal came to the conclusion that the accident occurred because of rash and negligent driving of drivers of both the autos belonging to respondent Nos.1 and 3 and accordingly, directed respondent Nos.1 and 3 to pay the compensation to the petitioner equally. 15. Ex.A.1-certified copy of first information report goes to show that the case was registered against the driver of the 3rd respondent’s auto bearing No.AP 21V 9810 in which the petitioner was travelling along with others at the time of accident. In the complaint, it is clearly mentioned that the petitioner and others were coming in the auto belongs to one Siva and the auto was not having head lights and the auto number is AP 21V 9810 i.e., 3rd respondent’s auto. It is further recited in the said complaint that when their auto was crossing Peddavangali village, another auto of the 1st respondent bearing No.AP 21TT 1955 came in opposite direction with glowing of head lights and the auto of the 3rd respondent dashed the auto of the 1st respondent. After investigation, the police laid a charge sheet under Ex.A.3 against the drivers of both the autos. The evidence of P.W.1 clearly goes to show that the accident occurred mainly due to rash and negligent driving of the driver of the auto of the 1st respondent bearing No.AP 21TT 1955. After investigation, the police laid a charge sheet under Ex.A.3 against the drivers of both the autos. The evidence of P.W.1 clearly goes to show that the accident occurred mainly due to rash and negligent driving of the driver of the auto of the 1st respondent bearing No.AP 21TT 1955. The evidence of P.W.1 further goes to show that they were coming in the auto belongs to one Siva and the said auto was not having head lights. As seen from the evidence of P.W.1, it is clear that there is some negligence on the part of the petitioner to opt the auto, which was not having head lights, to travel. Therefore, 25% negligence is fixed on the petitioner and 75% negligence is fixed on the 1st respondent/owner of the auto bearing No.AP 21TT 1955. Thus, out of total compensation of Rs.1,16,000/-, the 1st respondent being owner of auto bearing No.AP 21TT 1955 is liable to pay Rs.87,000/- and the 3rd respondent being owner of auto bearing No.AP 21V 9810 is liable to pay Rs.29,000/- to the petitioner. 16. By giving cogent reasons, in its order the Tribunal held that the driver of the 1st respondent did not possess any driving licence and thereby, the 1st respondent violated the terms of the policy by allowing his driver to drive his auto. There is no legal flaw or infirmity in the said finding given by the Tribunal. 17. The principle laid down in the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, 2004 (2) ALD (SC) 36 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. It is not in dispute that the 1st respondent is owner and the 2nd respondent is insurer of auto bearing No.AP 21TT 1955 under a valid policy and the policy was also in force as on the date of accident. 18. It is not in dispute that the 1st respondent is owner and the 2nd respondent is insurer of auto bearing No.AP 21TT 1955 under a valid policy and the policy was also in force as on the date of accident. 18. For the foregoing discussion, the 2nd respondent/Insurance Company is liable to pay its share of compensation of Rs.87,000/- to the petitioner in the first instance and later recover the same from the 1st respondent/owner of the auto bearing No.AP 21TT 1955, by filing an execution petition and without filing any independent suit. 19. In the result, the appeal is allowed in part. The 2nd respondent/Insurance Company is directed to deposit Rs.87,000/- 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 1st respondent/owner of auto bearing No.AP 21TT 1955 by filing an execution petition and without filing any independent suit. The 3rd respondent is directed to pay the remaining compensation of Rs.29,000/- with costs and interest to the petitioner. The order of 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. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.