Andhra Pradesh High Court - Amravati
The Oriental Insurance Co. Ltd, vs Kolluri Madan Kumar Madan, on 28 January, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar, Battu Devanand
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON'BLE SRI JUSTICE BATTU DEVANAND
M.A.C.M.A. No. 3070 of 2016
JUDGMENT:- (per Hon'ble Sri Justice C. Praveen Kumar) This appeal is preferred by the Oriental Insurance Company Ltd. challenging the order dated 22.02.2016 passed in M.V.O.P.No. 2 of 2013 by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Ongole wherein, the Tribunal awarded compensation of Rs.33,47,180/- for the injuries sustained by the claimant.
As seen from the record, originally the 1st respondent - claimant filed an application under Section 166(1)(a) of the Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.20.00 lakhs for the injuries sustained in the road accident which occurred on 15.12.2011 at about 02:00 a.m. near Kalikivai cross road on NH5 road due to rash and negligent driving by the drivers of the Bus bearing No. AP35 V 8778 and also Lorry bearing No. TN23 AJ 9599.
The facts in issue show that on the night of 14.12.2011, the claimant boarded the bus bearing No.AP35 V 8778 at Rajahmundry to go to Tirupati. When the vehicle reached Guntur, the driver of the bus shifted his duty to another driver and the vehicle started to go to Tirupati. When it reached near Kalikivai cross road on NH5 road in Prakasam District, the driver of the lorry bearing No.TN23 AJ 9599 drove the lorry with high speed and in a rash and negligent 2 CPK,J & DEV,J MACMA_3070_ 2016 manner and while overtaking the bus, hit the front portion of the bus. As a result of which, the lorry, which was loaded with granite stones, touched the right side windows of the bus and dragged it to a distance. The driver of the bus is said to have died on the spot while the claimant and some others received severe injuries. In respect of the incident a case in Crime No. 176 of 2011 of Tangutu Police Station came to be registered. Immediately, the claimant was admitted in Santhamitra Hospital, Ongole. After receiving the first aid, he was shifted to Apollo Hospital, Chennai where he was treated as in-patient and an operation was performed and his right leg was amputated up to knee. It is stated that he underwent three operations, on which he spent a sum of Rs.10,00,000/- towards medical expenditure.
Before the Tribunal, the 1st respondent therein, who is the owner of the bus, remained ex parte and no written statement was filed. The 2nd respondent - ICICI Insurance Company filed written statement showing that the bus bearing No.AP35 V 8778 was not insured with them and the driver of the bus was not having valid and effective driving licence at the time of the accident. The said insurance company filed I.A.No. 1757 of 2015 under Section 170 of the Motor Vehicles Act which was allowed. The 3rd respondent, who is the driver of the lorry, also remained ex parte. The 4th respondent, who is the owner of the lorry also remained ex parte while the 5th respondent - Oriental 3 CPK,J & DEV,J MACMA_3070_ 2016 Insurance Company Limited filed their counter before the Tribunal denying the averments in the claim petition. It is stated that the driver of the lorry did not drive the lorry in a rash and negligent manner and drove the same in accordance with the rules. It is further stated that the lorry was not insured with the 5th respondent and its driver was not having valid and effective licence.
Basing on the above pleadings, the trial Court framed the following issues:
i) Whether the petitioner has received injuries in the accident occurred due to rash and negligent driving of the bus bearing No. AP35 V 8778 by its driver and the driver of the lorry bearing No. TN23 AJ 9599 by the third respondent or there was negligence on the part of the driver of the lorry as contended by the 2nd respondent or there was negligence on the part of the driver of the bus bearing No.AP35 V 8778 in causing the accident as contended by the th 5 respondent?
ii) Whether the petitioner is entitled to compensation as prayed for and from which of the respondents?
In support of his case, the claimant examined PWs.1 to 4 and got marked Exs.A1 to A10, while the appellant herein - Oriental Insurance Company examined one B.Srinivasa Rao as RW1 and got marked Exs.B1 to B3. Apart from that Exs.X1 and X2 were also marked which is the certificate issued under Section 203 of Income Tax Act and salary certificate of the claimant respectively. Considering the entire evidence on record, the Tribunal granted compensation as referred to 4 CPK,J & DEV,J MACMA_3070_ 2016 above. Challenging the same, the present appeal came to be filed.
The grounds of appeal show that the job particulars of the petitioner were not properly furnished, as such, the Tribunal, ought to have taken the notional income in calculating the loss of dependency instead of taking his income at Rs.20,000/- per month. It is further urged that the Tribunal erred in holding that there is no negligence on the part of the driver of the bus and unless and until both the vehicles have equally contributed negligence, the accident would not have occurred. Therefore pleads that the Tribunal ought to have taken contributory negligence, at least to the extent of 50%, on the part of the driver of the bus. It is further urged in the grounds that the Tribunal having granted the amount towards disability, further granted a sum of Rs.75,000/- towards three grievous injuries which is illegal.
The same are opposed by the learned counsel for the respondents.
Insofar as the liability of 3rd respondent - ICICI Lombard General Insurance Company Limited is concerned, except taking the plea that there was contributory negligence on the part of the driver of the bus, no evidence has been adduced to that effect, as such, no liability can be fastened on them.
5 CPK,J & DEV,J MACMA_3070_ 2016 Coming to the first issue namely as to whether there was any contributory negligence and whether the accident took place due to rash and negligent driving of the driver of the bus or the driver of the lorry, it is to be noted that the evidence of PW2 would show that on the date of the incident while the claimant was proceeding in the bus and when it reached Kalikivai cross road, the lorry, which was driven by its driver in a rash and negligent manner, loaded with granite stones, touched right side portion of the window of the bus and dragged it to a distance causing instantaneous death of the driver of the bus and injuries to the persons sitting close to the window.
In respect of the incident, a case in Crime No. 176 of 2011 was registered for the offences punishable under Sections 337 and 304-A IPC of Singarayakonda Police Station. Ex.A1 is the copy of the F.I.R. and Ex.A2 is the charge sheet filed in respect of the said crime. The said case was taken on file in C.C.No.294 of 2014. The evidence of PW1 and the contents of Exs.A1 and A2 would show that the accident took place due to rash and negligent driving of the driver of the bus. Though an argument is advanced stating that the driver of the bus was also responsible for the accident, but as observed earlier, no material has been placed in support of the same. It would be apt to refer to the cross-examination of PW1 which is as under:
6 CPK,J & DEV,J MACMA_3070_ 2016 "The Bus and the lorry were proceeding in the same direction. The bus is moving at high speed. The crime lorry is loaded with granite stones. I have not observed the speed of the lorry. It is not true to suggest that the said lorry is proceeding in normal speed and after the incident, I witnessed the accident. It is not true to suggest that the accident was occurred while the bus driver is trying to overtake the lorry. I cannot say how many vehicles passed after cross our bus. It is not true to suggest that as the accident was occurred due to negligent driving of the bus driver, the driver of the bus died at the first instance. It is true that I was traveling by sitting behind the driver of the bus. I did not observe how many granite stones were carrying in the said lorry. It is not true that there is no negligence on the driver of the lorry. I sustained one injury apart amputation. It is not true to suggest that my claim is excessive and exorbitant. My company paid Rs.1,10,000/- to me after the accident. It is not true to suggest that I can attend office work without any inconvenience. It is not true to suggest that the driver of the lorry is not having valid and effective driving license at the time of accident. It is not true to suggest that the lorry is not having valid permit and I am deposing false for the purpose of compensation."
A reading of the cross-examination of PW1 shows that except making suggestions nothing useful has been elicited from him to say that the driver of the bus was also responsible for the accident.
One of the arguments advanced before this Court is that the drivers of both the vehicles are not having valid and effective licence at the time of the accident. Though RW1 was examined to speak about the same, but his evidence is not of any help to prove that the drivers of both the vehicles were not having any licence. In fact, no effort has been made from any quarters nor any suggestions were given to 7 CPK,J & DEV,J MACMA_3070_ 2016 any of the witnesses to establish the same. In fact, this issue came up for consideration before this Court in United India Insurance Company Ltd., Nizamabad v. Toorupu Vijaya and Others1 and also in Vemireddy Bhaskar Reddy v. Boddu Narendra Kumar and Others2 wherein it has been held that the Insurance Company is precluded from raising bald pleas of driver not having valid and effective driving licence at the time of the accident without any material proof. Therefore, the finding of the trial Court that the accident took place due to rash and negligent driving of the driver of the lorry, which is insured with the appellant, and that the drivers of both the vehicles are not having licence and that there is no evidence about the drivers of the vehicles, cannot be found fault with.
Coming to the quantum of compensation, the evidence of the claimant, who was examined as PW1, is that on 15.12.2011 at 02:00 a.m. the accident took place and the claimant sustained three fracture injuries. He became disabled, lost his earning capacity apart from incurring huge expenditure towards medical expenses. He further pleads that he was getting Rs.90,000/- per month and due to the accident his right leg was amputated and the disability was assessed at 70%. As seen from the evidence of PW4 and the contents of Ex.A9 - salary certificate, the Tribunal held that the claimant was getting Rs.90,000/- per month, but no 1 2003(5) ALD 640 2 1997(1) ALD 420 8 CPK,J & DEV,J MACMA_3070_ 2016 evidence with regard to his educational qualifications and the nature of work that he was doing, has been placed on record. Therefore, the trial Court fixed the income of the claimant at Rs.20,000/- per month taking into consideration the evidence of PW2. This finding of the trial Court is not challenged by the claimant. Having regard to the facts in issue and taking into consideration the evidence of PWs.2, 4 and Ex.A2, it can be said that the trial Court was right in fixing the income of the petitioner as Rs.20,000/- p.m. Coming to the aspect of expenditure that is incurred by the claimant, the evidence of PW3, the Doctor, who treated the claimant would show that the accident occurred on 15.12.2011. He placed on record Ex.A6 - medical bills issued by Apollo Hospitals, Chennai coupled with discharge summary issued by the said hospital to prove the same.
The evidence of PW3 coupled with Ex.A3 - wound certificate issued by Apollo Medical Hospitals, Chennai would show that the disability was assessed at 70% as his right leg was also amputated. Having regard to above circumstances, it is to be seen as to whether the quantum of compensation granted by the Tribunal is just and proper. Taking the income of the claimant at Rs.20,000/- p.m. and the age of the claimant being 30 years at the time of the accident, which is not disputed, and adopting multiplier 16, the Tribunal came to the conclusion that the claimant is entitled to Rs.26,88,000/- as compensation towards his disability at 9 CPK,J & DEV,J MACMA_3070_ 2016 70%. Further the medical expenditure incurred by him as per Ex.A6 is about Rs.5,69,180/-. The grounds of appeal show that Rs.75,000/- was awarded towards three grievous injuries. Therefore, we feel that granting Rs.75,000/- towards three grievous injuries may not be proper. However, the Tribunal erred in not awarding any amount towards mental agony, transportation charges, extra nourishment and attendant charges. As seen from the record, the accident took place on 15.12.2011 near Kalikivai Cross Road on NH5 road in Prakasam District, and he was initially admitted in hospital in Ongole, and thereafter, he was shifted to Apollo Hospital, Chennai where he took treatment as in-patient for ten days where his leg was amputated. Thereafter he was bedridden for a considerable period of time, during which time, he must have had an attendant to take care of him. The record also shows that the petitioner can walk properly only with the help of crunches and he is not in a position to work in the same manner as he was doing earlier.
Having regard to the above circumstances, Rs.75,000/- awarded by the Tribunal towards three grievous injuries is directed to be adjusted towards the above four counts.
With the above modification, the appeal is disposed of confirming the quantum of compensation ordered in M.V.O.P.No. 2 of 2013 passed by the Motor Accidents Claims 10 CPK,J & DEV,J MACMA_3070_ 2016 Tribunal-cum-I Additional District Judge, Ongole. No order as to costs.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
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C. PRAVEEN KUMAR, J
28.01.2020
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bcj BATTU DEVANAND, J