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2024 DIGILAW 37 (AP)

Kondraju Francies v. Gopalam Lokabhi Ramaiah

2024-01-05

B.V.L.N.CHAKRAVARTHI

body2024
JUDGMENT 1. Heard Sri B.Parameswara Rao, learned counsel for appellants/claimants and Sri T.Sri Charan, learned counsel for 1st respondent and Sri G.Srinivasu, learned counsel for the 2nd respondent/Insurance Company. 2. The appeal is directed by the claimant against the judgment and decree dated 20.07.2010 passed in M.V.O.P.No.135/2009 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl.District Judge, Guntur. 3. For the sake of convenience, the parties are arrayed as parties before the learned Tribunal. 4. The appellant/claimant is the injured in the motor accident. He filed claim petition U/s.163-A of Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the personal injuries sustained by him in motor vehicle accident. 5. The case of the claimant is that on 29.04.2008 at about 10.30 p.m. he along with Dasari Charles Bobby (deceased) boarded an auto bearing No. AP 07Y 2169 (offending vehicle) to go to Guntur; they reached a place near Crane Nut Powder Company at Potturu village; the driver of auto drove the vehicle in a rash and negligent manner, dashed dead buffaloes; as a result, the auto turned turtle, the claimant sustained grievous injuries; the claimant was admitted in Government General Hospital, Guntur, and later to Guntur Dental Hospital, and operations were conducted; due to accident, the claimant is unable to open mouth completely and feeling difficult to swallow the food; Taluk Police, Guntur, registered a case in Cr.No.101/2008 for the offence punishable U/secs.337, 338 and 304-A of Indian Penal Code against the driver of the auto; police investigated the same and laid police report (charge sheet) against the driver of the auto; the claimant was aged 45 years, working as Junior Assistant in District Institute of Educational Training (DIET), Boyapalem, Guntur, and earning Rs.12,000/- per month; he suffered permanent disability on account of injuries sustained in the accident; he spent Rs.1,00,000/- towards medical treatment. Hence, the claimant filed the claim petition. 6. The 1st respondent/owner of the offending vehicle remained exparte before the learned Tribunal. 7. Hence, the claimant filed the claim petition. 6. The 1st respondent/owner of the offending vehicle remained exparte before the learned Tribunal. 7. The 2nd respondent/insurer of the vehicle i.e., Insurance Company filed written statement and additional written statement; contending that the driver of the vehicle has no valid and effective driving licence at the time of accident; the offending vehicle is a goods vehicle; the deceased is an unauthorised passenger boarded the goods vehicle; the 1st respondent thereby violated the terms and conditions of the insurance policy; the insurer is not liable to indemnify the insured. 8. Basing on the above pleadings of both parties, the learned Tribunal framed the following issues for trial: 1. Whether the accident took place due to rash and negligent driving of the driver of the 1st respondent? 2. Whether the petitioner is entitled for compensation? If so, what amount and form which of the respondents? 3. To what relief? 9. Before the learned Tribunal, three witnesses were examined by the claimant as P.Ws-1 to 3 and nine documents were marked as Exs.A-1 to A-6 and Exs.X-1 to X-3 respectively. One witness was examined by the 2nd respondent as R.W-1 and two documents were marked as Exs.B-1 and B-2 respectively. 10. The learned Tribunal considering the evidence placed by the claimant through P.Ws-1 to 3, copy of FIR and police report (charge sheet) vide Exs.A-1 and A-2, held that the accident was occurred due to rash and negligent driving of the auto by the driver of the offending vehicle. This finding is not challenged by the owner of the offending vehicle or by the insurer of the vehicle i.e., Insurance Company. 11. The claimant filed the appeal contending that the learned Tribunal failed to award just compensation for the personal injuries sustained by him in the motor vehicle accident, and also on the ground that the learned Tribunal failed to direct the Insurance Company to indemnify the owner of the offending vehicle. 12. The learned counsel for the appellant would submit that in view of the judgment of the Hon'ble Apex Court in the case of 1) National Insurance Company limited Vs. Swaran Singh and others, 2004 ACJ 1 . 2) Manuara Khatun and others Vs. Rajesh Kumar Singh and others, 2017 (4) SCC 796 . 3) Anu Bhanvara etc., Vs. Iffco Tokyo General Insurance Company Limited, 2019 (5) ALD SC 287. Swaran Singh and others, 2004 ACJ 1 . 2) Manuara Khatun and others Vs. Rajesh Kumar Singh and others, 2017 (4) SCC 796 . 3) Anu Bhanvara etc., Vs. Iffco Tokyo General Insurance Company Limited, 2019 (5) ALD SC 287. The learned Tribunal ought to have directed the Insurance Company to pay the compensation firstly and can recover the same later from the insured i.e., owner of the offending vehicle. 13. He would also submit that the learned Tribunal failed to award just compensation, though the claimant suffered partial permanent disability, and the learned Tribunal ought to have ordered some compensation under the head loss of amenities. 14. The learned counsel for the 2nd respondent/Insurance Company would submit that the learned Tribunal rightly exonerated the Insurance Company from liability to indemnify the owner of the offending vehicle as the injured is an unauthorised passenger travelling in the goods vehicle at the time of accident. 15. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the learned Tribunal failed to award just compensation? 2. Whether the pay and recovery principle be applied to the case on hand? 3. To what relief? 16. POINT No.1: It is pertinent to note down that the claimant filed the claim petition U/s.163-A of Motor Vehicles Act 1988 but the learned Tribunal considered the claim petition U/s.166 of Motor Vehicles Act, 1988. It is an admitted fact that in impugned the motor accident, the petitioner/claimant suffered injuries as mentioned in Ex.A-3 copy of wound certificate. The evidence of P.W-2 would establish that the claimant sustained fracture of left mandibular parasymphisis and fracture of two upper incisor tooth. The claimant was operated on 09.06.2008 and discharged on 14.06.2008. The wound certificate issued by P.W-2 was marked as Ex.X-1, and X-ray was marked as Ex.X-2. 17. The evidence of P.W-3 Professor of Orthopaedics, Government General Hospital, Guntur, would establish that the claimant was admitted in hospital on 30.04.2008 with fracture medial epicondyl of the left humerus along with other injuries. The debriment of the wound was done in the form of conservative management. The patient was discharged from the hospital on 17.05.2008. The case sheet was marked as Ex.X-3. Therefore, the evidence of both doctors would disclose that the claimant suffered fracture of left mandibular parasymphisis and also lost two upper incisor tooth. The debriment of the wound was done in the form of conservative management. The patient was discharged from the hospital on 17.05.2008. The case sheet was marked as Ex.X-3. Therefore, the evidence of both doctors would disclose that the claimant suffered fracture of left mandibular parasymphisis and also lost two upper incisor tooth. On functional disability, P.W-2 deposed that due to the fracture suffered by the claimant, there is some limitation in masticatory efficiency, and restricted mouth opening, and claimant may suffer pain in the lower jaw during eating and assessed the disability at 20-25% with respect to the mouth and jaw and it is a partial permanent disability. 18. Now the question is whether the petitioner/claimant suffered loss of income/earning capacity on account of the above partial permanent disability? 19. Admittedly, the claimant is working as Junior Assistant in Government Department i.e., District Institute of Educational Training (DIET), Boyapalem, Guntur. It is not his case that on account of disability, his salary was reduced or denied promotion. In that view of the factual matter, and in view of the principles laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343 , this Court is of the considered opinion that the claimant is not entitled to any compensation towards loss of income during the period of treatment or loss of future income on account of permanent disability. 20. The evidence of P.W-2 coupled with the evidence of the claimant would establish that he will feel inconvenience, while eating, as opening of mouth is restricted. Therefore, the petitioner/claimant has to suffer with this inconvenience while taking food, for remaining life. Hence, compensation can be awarded to him under the head loss of amenities on account of permanent disability. 21. In that view of the matter, a sum of Rs.1,00,000/- is awarded to him under the head loss of amenities, in addition to the amount of Rs.65,000/- awarded by the learned Tribunal under the heads pain and suffering, medical expenses, incidental expenses and physical disability. Therefore, Rs.10,000/- already awarded by the learned Tribunal towards disability has to deducted from the quantum of compensation. Therefore, in all, the claimant is entitled to a compensation of Rs.55,000 + 1,00,000 = Rs.1,55,000/-. 22. The claimant is entitled to interest on the compensation amount of Rs.1,55,000/- as per section 171 of M.V.Act, 1988. Therefore, Rs.10,000/- already awarded by the learned Tribunal towards disability has to deducted from the quantum of compensation. Therefore, in all, the claimant is entitled to a compensation of Rs.55,000 + 1,00,000 = Rs.1,55,000/-. 22. The claimant is entitled to interest on the compensation amount of Rs.1,55,000/- as per section 171 of M.V.Act, 1988. The learned Tribunal awarded interest at 8% p.a. from the date of petition, till the date of deposit. Considering the date of accident, prevailing rate of interest, and in view of the Apex Court judgement in National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC), this Court is of the considered opinion that the claimant is entitled for a reasonable interest at the rate of 7.5% p.a., from the date of petition, till the date of deposit. Accordingly, this point is answered. 23. POINT No.2: The learned Tribunal held that the crime vehicle is a goods vehicle, and the injured was seating in the body of the goods vehicle, as mid-way passenger; and therefore, he is a gratuitous passenger travelling in the offending vehicle at the time of accident. Hence, the Tribunal held that Insurance Company is not liable to indemnify the owner of the offending vehicle, as Ex.B-1 insurance policy do not cover the gratuitous passengers. 24. The contention of the learned counsel for the appellant is that the learned Tribunal ought to have applied pay and recovery principle in view of the judgment of Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh and others. 25. The facts and circumstances of the case would disclose that the offending vehicle is a goods vehicle and Ex.B-1 policy do not cover the risk of the passengers travelling in the goods vehicle. Hon'ble Apex Court in the case of Manuara Khatun and others Vs. Rajesh Kumar Singh and others in similar circumstances, held that in view of the benevolent object of the Act, the Insurance Company be directed to pay the compensation first and recover later from the other respondents. 26. The Hon'ble Supreme Court in the case of Shivaraj Vs. Hon'ble Apex Court in the case of Manuara Khatun and others Vs. Rajesh Kumar Singh and others in similar circumstances, held that in view of the benevolent object of the Act, the Insurance Company be directed to pay the compensation first and recover later from the other respondents. 26. The Hon'ble Supreme Court in the case of Shivaraj Vs. Rajendran and another, AIR 2018 SC 4252 , in para 10 held as under: 'At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1).' 27. The Hon'ble Apex Court in above case held that the High Court ought to have directed the Insurance Company to pay compensation amount to the claimant, with liberty to recover the same from the owner of the vehicle. 28. In the light of foregoing discussion, the Insurance Company shall first pay the compensation amount and can recover the same later from the owner of the offending vehicle. Accordingly, this point is answered. 29. POINT No.3: To what relief? In the light of finding on points No.1 and 2, the appeal is liable to be allowed partly, by modifying the judgment and decree passed by the learned Tribunal dated 20.07.2010. 30. In the result, the appeal is partly allowed, by modifying the judgment and decree dated 20.07.2010 passed in M.V.O.P.No.135/2009 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl. In the light of finding on points No.1 and 2, the appeal is liable to be allowed partly, by modifying the judgment and decree passed by the learned Tribunal dated 20.07.2010. 30. In the result, the appeal is partly allowed, by modifying the judgment and decree dated 20.07.2010 passed in M.V.O.P.No.135/2009 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl. District Judge, Guntur, holding that the appellant/claimant is entitled to a compensation of Rs.1,55,000/-(Rupees One Lakh and Fifty Five Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.55,000/- against the 1st respondent/insured, awarded by the learned Tribunal. There shall be no order as to costs. 31. The 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.1,55,000/- (Rupees One Lakh and Fifty Five Thousand only), along with accrued interest thereon, within eight (08) weeks from the date of judgment, and can recover the same later from the 1st respondent/insured, in the same proceedings, by filing necessary application as per law. In the event of the 2nd respondent/Insurance Company had already deposited some amount, the said amount be excluded, and the balance amount shall be deposited within eight (08) weeks from the date of judgment. 32. On such deposit, the Appellant/claimant is entitled to an amount of Rs.1,55,000/- (Rupees One Lakh and Fifty Five Thousand only), and he is permitted to withdraw the said amount along with accrued interest thereon. As a sequel, miscellaneous applications pending, if any, shall stand closed.