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2024 DIGILAW 972 (AP)

Panditi Bujji, W/o Srinivasa Rao v. Aluri Narayana Rao, S/o. Asservadam

2024-08-06

SUMATHI JAGADAM

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JUDGMENT : Sumathi Jagadam, J. This appeal is preferred by the appellant/petitioner against the order dated 08.08.2007 passed by the Chairman, Motor Vehicle Accidents Claims Tribunal - cum - XI Additional District Judge, Guntur at Tenali, (hereinafter referred to as “the Tribunal”) in M.V.O.P.No.83 of 2006, awarding compensation of Rs.39,400/- to the Appellant/petitioner as against her claim of Rs.1,00,000/-. 2. For the sake of convenience and to avoid confusion, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 3. The case of the petitioner is that on 30.09.2005 at about 10.30 p.m., she boarded an auto bearing No. AP 7 TT 4320 and when the auto reached near Kuchinapudi canal in between Purlameraka – Kuchinapudi village, an auto bearing temporary registration No.AP 07 TRAC 0132, being driven by its driver in a rash and negligent manner without blowing horn, came and hit the auto in which the petitioner was travelling. As a result, the petitioner sustained multiple grievous injuries on her right leg and waist region and multiple bleeding injuries all over her body. The matter was reported to Adavuladeevi P.S. of Guntur District, and the same was registered as a case in Crime No.55 of 2005 against the driver of an auto bearing temporary registration No.AP 07 TRAC 0132. The 1st respondent is the owner, and the 2nd respondent is the insurer of the auto No. AP 07 TRAC 0132. Therefore, both the respondents are jointly and severally liable to pay compensation to the petitioner. 4. The 1st respondent was set ex parte. The 2nd respondent filed a written statement denying all the material averments made in the claim petition. It is contended that the alleged accident must have been caused by the rash and negligent acts of the driver of auto bearing No.AP 7TT 4320, there is no fault on the part of the driver of the auto bearing No.AP 7TR AC 0132, and the 1st respondent’s auto was not insured with the 2nd respondent at the time of the accident and the driver of the said auto does not have a valid and effective driving licence; therefore, the claim petition is liable to be dismissed. 5. Based on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident occurred due to rash and negligent driving of the driver of Bajaj Auto No. AP 07 TR AC 0132? 5. Based on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident occurred due to rash and negligent driving of the driver of Bajaj Auto No. AP 07 TR AC 0132? 2. To what compensation the petitioner is entitled and from whom? 3. To what relief? 6. In order to establish her claim, the petitioner examined herself as P.W.1 and got the Doctor and the Senior Assistant working at GGH examined as P.Ws.2 and 3 respectively. She marked documents as Exs.A.1 to A.5 and Exs.X1 and X2. The Assistant Manager of the 2nd respondent was examined as R.W.1. The Administrative Officer in the Office of the Deputy Transport Commission, Guntur, was examined as R.W.2. Exs.B1 to B5 were marked on behalf of the respondents. 7. The Tribunal, by an order dated 08.08.2007, allowed the claim petition by granting compensation of Rs.39,400/- with interest at 7.5% p.a. from the date of petition till the date of deposit, while dismissing the claim petition against the 2nd respondent-Insurance company. Questioning the same, the petitioner/appellant filed the present appeal seeking enhancement of compensation. 8. Learned counsel for the appellant/petitioner submitted that the petitioner had boarded the auto on 30.09.2005, and when she reached near Purlameraka – Kuchinapudi village, the 1st respondent drove the auto in a rash and negligent manner and hit the auto in which the petitioner was travelling. As a result, the petitioner sustained multiple grievous injuries. The petitioner was admitted to the Government Hospital, Repalle. Ex.A2 is the wound certificate issued by the Government hospital. P.W.2 is the doctor, who treated the petitioner, who was admitted to the hospital on 01.10.2005 and discharged on 24.10.2005. The petitioner has suffered 10% permanent disability, and it is difficult for her to lie down in a supine position. There is a lumbosacral strain. Because of the injury, secondary changes have developed in sacroiliac joints, and she has difficulty walking upstairs or bending at the waist, and she cannot attend to her regular work. The petitioner was 30 years old at the time of the accident, and she was earning Rs.100/- per day as an agricultural coolie. P.W.2, the doctor, has also opined that the petitioner suffered from 10% disability. The petitioner was 30 years old at the time of the accident, and she was earning Rs.100/- per day as an agricultural coolie. P.W.2, the doctor, has also opined that the petitioner suffered from 10% disability. Police have filed a charge sheet holding that the driver of the 1st respondent's auto was negligent, and due to rash and negligent driving of the driver of the auto, the accident occurred. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioner. 9. On the other hand, the 2nd respondent-Insurance Company, submits that the alleged accident was caused by the rashness and negligence of the driver of the auto bearing No. AP 7 TT 4320. The 1st respondent drove the vehicle on the wrong side, and there was no wilful rashness or negligence on the part of the driver of the auto bearing No. AP 7 TR AC 0132. 10. Now, the point for consideration is: Whether the tribunal can exonerate the insurance company from its liability for compensating the accident victim who suffered 10% disability due to the accident? If so, to what extent ? 11. The first respondent is the vehicle's owner. Ex.B2 is the extract of the D.L. of the first respondent. Ex.B3 is the temporary registration of the first respondent’s auto. Ex.B1 is the policy certificate. Ex.B5 is the extract of the temporary registration of vehicle No.AP 07 TRAC 0132. The Tribunal, without discussing EXs.B1 to B3 and Ex.B5, arrived at the conclusion that the 2nd respondent-insurance company is not liable to pay compensation to the petitioner when the policy was in subsistence from 21-10-2004 to 20-10-2005. The Tribunal, without adjudicating this aspect, has erroneously come to the said conclusion and exonerated the insurance company, which is against the principle laid down in Ramchandra Singh Vs Rajaram 2018 (8) SSC 799, wherein the issue was, whether an insurance company would be absolved of liability on the ground that the insured vehicle was being driven by a person who did not have a valid driving licence at the time of the accident, held that on a mere fact that the insured vehicle is driven by a person without a valid licence, the insurer cannot be absolved of its liability. 12. In Joby Thomas and Anr Vs. Annamma Augustine 2012 ACJ 848 , it is held as under: “6. 12. In Joby Thomas and Anr Vs. Annamma Augustine 2012 ACJ 848 , it is held as under: “6. This matter can be viewed in another angle and it has been viewed so by the Karnataka High Court in the decision reported in Virupaksha v. Sivakumar (2001 KHC 948). It was also a case where there was temporary registration for the vehicle till 30.11.1991. The vehicle was registered only on 24.1.1992. The accident took place on 12.1.1992 or in other words there was no valid registration for the vehicle on the date of accident. Whether the insurance company can raise the contention that it is not liable to pay the amount because of non registration of the vehicle on the relevant date of the accident was considered. The learned judge referred to Section 149 of the M.V. Act which deals with specific defences available to the insurance company under the Act. All the clauses had been extracted and the learned judge came to the conclusion that non registration of the vehicle is not one of the defences enumerated under Section 149 of the Act. Therefore the insurance company is not entitled to take defence of non- registration of the vehicle on the date of the accident. So viewed in both the angles viz., that as there is no breach of policy conditions and as there is no defence available to the insurance company on account of non registration, it has to be held that the insurance company is not liable to be exonerated from the liability. The finding to the contra by the tribunal is incorrect and it is liable to be set aside and I do so. 7. In the result, the appeal is allowed and the award of the tribunal directing respondents 1 and 2 to pay the amount to the insurance company is set aside and it is made clear that under the terms and conditions of the contract of insurance, the insurance company is bound to pay the amount awarded without any right for recovery from the owner or the driver.” 13. In Oriental Insurance Co. Ltd., Vs. Chimakurthi Venkata Kanaka Raju 2011 (3) ALD 531 , it is held thus: “It is for the insurance company to prove that the driver was not holding valid driving licence and that he is disqualified from obtaining any such licence. In Oriental Insurance Co. Ltd., Vs. Chimakurthi Venkata Kanaka Raju 2011 (3) ALD 531 , it is held thus: “It is for the insurance company to prove that the driver was not holding valid driving licence and that he is disqualified from obtaining any such licence. Endorsement issued by RTA is not sufficient to prove that the driver was not holding valid driving licence unless RTA officials examined. Insurance company cannot be exonerated from its liability on the said ground.” 14. In the written statement filed by the 2nd respondent, a stand was taken that the 1st respondent was not responsible for the said accident, and the insurance company has failed to establish the same through their evidence. It is a well-settled principle of law that if the driver of the vehicle was not holding an effective and valid driving license at the time of the accident, the insurance company must pay compensation to the claimant as the claimant is the victim of the happening, who must suffer the pain and mental agony throughout her life. 15. Thus, the Tribunal miserably failed to consider the above aspect and exonerated the 2nd respondent from paying compensation. The insurance company is liable to pay compensation to the accident victims even if the driving licence of the offending vehicle driver is expired and was not renewed, as an expired licence would not make him an unskilled driver. By virtue of the accident, the petitioner suffered 10% disability, and she has difficulty in lying down in a supine position. Because of the injuries sustained in the accident, she developed secondary changes in sacroiliac joints and difficulty in lying down, and she is not able to attend to her daily duties. Hence, it is a fit case to enhance compensation, as the accident has hampered the petitioner’s activities and due to the said impact, the petitioner has lost her earning capacity. The purpose of awarding compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident. 16. In Mallikarjun Vs. Hence, it is a fit case to enhance compensation, as the accident has hampered the petitioner’s activities and due to the said impact, the petitioner has lost her earning capacity. The purpose of awarding compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident. 16. In Mallikarjun Vs. Divisional Manager, National Insurance Company Limited (2014) 14 SCC 396 , the Hon’ble Apex Court held as under: “Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick.” 17. In the aforesaid judgment, the Apex Court has considered the case of the children suffering from disability on account of motor vehicle accident and concluded paying compensation basing on the percentage of disability. The case in hand is that the claimant was 30 years old at the time of accident and working as a coolie and because of the injury, she cannot attend the work prior to the accident which was her only source of income. As the balance of consideration is in favour of the claimant, this Court by taking the disability factor of 10% into consideration feels it appropriate to fix compensation of Rs.3 lakhs to the claimant keeping in view her future. 18. In R.D. Hattangadi vs. Pest Control (India) (P) Ltd. (1995) 1 SCC 551 , the Hon’ble Apex Court held as under: “While fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit up to the date of trial: (iii) other material loss. So far nonpecuniary damages are concerned, they made include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” 19. The appellant/petitioner is 30 years old, and she is a daily wage coolie as on the date of the accident. The right of a road accident victim to claim compensation is a statutory one. The petitioner is the victim of an unforeseen situation. The victim has suffered owing to the wrongdoing of the others. An accident ruins the entire family of the victim. A person suffering bodily injuries requires money for his/her survival/medical treatment. Statutory compensation paid to the victim of an accident may, thus, bring to a large number of families the only ray of light. The Court noted that the appellant sustained multiple grievous injuries and was hospitalized for twenty-four days cumulatively. Further, as per the doctor, there was 10% permanent disability despite the treatment given. Thus, it is held that, as the appellant has sustained lumbosacral strain and it is difficult for her to lie down in a supine position, the whole-body disability will be at 10%, and proposed to enhance the compensation for pain and suffering due to surgeries undergone, for loss of future amenities and income during laid up period of twelve months. 20. Therefore, the monthly income of the petitioner is taken as Rs.100/- per day, which comes to Rs.3,000/- per month. The loss of earnings comes to Rs.61,200/- (Rs.3,000/- x 12 x multiplier ‘17’ as per Sarla Verma case x disability 10%). 20. Therefore, the monthly income of the petitioner is taken as Rs.100/- per day, which comes to Rs.3,000/- per month. The loss of earnings comes to Rs.61,200/- (Rs.3,000/- x 12 x multiplier ‘17’ as per Sarla Verma case x disability 10%). In addition, the petitioner is entitled to Rs.3,00,000/- towards permanent disability, Rs.2,00,000/- towards pain and suffering and Rs.2,00,000/- towards the loss of amenities of life. The total compensation to which the petitioner is entitled is Rs.7,61,200/-. 21. Accordingly, the appeal is allowed to enhance the compensation from Rs.39,400/- awarded by the Tribunal to Rs.7,61,200/-. The 2nd respondent/Insurance company is directed to deposit the entire compensation amount, with costs and interest as awarded by the Tribunal, before the Tribunal within two months from the date of this judgment. On such deposit, claimant is permitted to withdraw their respective compensation with accrued interest by filing the proper application. The claimant shall pay the requisite court fee for the amount awarded over and above the compensation claimed. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.