Telangana High Court
E Kousalya, Mahabubnagar Dist vs Ganti Buchaiah, Mahabubnagar Dist Anr on 16 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.Nos.1538 and 3997 of 2014
COMMON JUDGMENT:
These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.1538 of 2014 filed by the Insurance Company and M.A.C.M.A.No.3997 of 2014 filed by the claimant seeking enhancement of the compensation, are directed against the very same order and decree, dated 21.11.2013 passed in O.P.No.221 of 2011 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge (FTC) at Mahabubnagar (for short "the Tribunal").
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 against the respondents 1 and 2, claiming compensation of Rs.2,00,000/- for the injuries sustained by her in a motor vehicle accident. It is stated that on 20.02.2011 the claimant, along with her husband and niece, aged about 6 years, were proceeding on Hero Honda Splendor Motor Cycle bearing No.AP 2 GSD, J Macma_1538 and 3997_2014 22 Q 8703 and when they reached in the limits of Ramojipally Village, at Tata Magic Auto bearing No.AP 22 TV 1212 came in opposite direction, driven by its driver in a rash and negligent manner at high speed and dashed the motor cycle, due to which the claimant fell down and sustained severe injuries. Therefore, she laid a claim against the respondents 1 and 2, who are the owner and insurer of the aforesaid auto, respectively.
4. Considering the claim and the counter filed by the Insurance Company, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.1,40,000/- with interest at 7.5% per annum. Challenging the same, the present appeals came to be filed by the Insurance Company and the claimant respectively.
5. Heard both sides and perused the record.
6. The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by the respondents.
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7. Insofar as the quantum of compensation is concerned, as per the wound certificate the claimant had sustained six injuries i.e., (1) multiple fracture of right clavicle, (2) Fracture of 9th, 10th and 11th ribs right side, (3) Fracture of right pelvis, (4) Fracture of supra and infra pubic rami, (5) fracture of right lumbar 2nd and 3rd, 4th and (6) laceration on liver and though Tribunal while admitting the evidence of the doctor and the wound certificate and discharge summary awarded only Rs.60,000/- towards pain and suffering which appears to be too meager. Further considering the evidence of doctor and Exs.A3 to A5, has awarded a sum of Rs.75,000/- under the head of medical expenditure. However, a perusal of the material on record would show that the claimant paid an amount of Rs.55,000/- to the hospital and he filed Ex.A5 which is the adjusted detailed bill settlement. Except Ex.A5 no other medical bills whatsoever have been filed by the claimant. Hence, under this head, the tribunal ought to have awarded a sum of Rs.55,000/- in total instead of awarding Rs.20,000/-. Therefore, under the head of medicines and treatment the sum of Rs.75,000/- awarded by the Tribunal is reduced to 4 GSD, J Macma_1538 and 3997_2014 Rs.55,000/-. Looking into the nature and seriousness of the injuries a sum of Rs.15,000/- is awarded under the head of transport and extra nourishment instead of Rs.5,000/-. The record also reveals that the claimant has taken treatment in various hospitals as in-patient for the period from 20.02.2011 to 02.03.2011 and after discharge also she might have taken bed rest for a considerable period. The Tribunal did not award any amount under the head of loss of earnings during the period of treatment. Therefore, this Court inclined to award a sum of Rs.10,000/- under the head of loss of earnings during the period of treatment. Thus, in all the claimant is entitled to the following amount under various heads.
Sl. Name of Head Awarded by Awarded by
No. Tribunal this Court
Rs. Rs. Ps.
Ps.
1.
Pain and suffering 60,000.00 1,00,000.00
2.
Medical Expenses 75,000.00 55,000.00
3.
Extra nourishment and 5,000.00 15,000.00
transportation charges
4.
Loss of earnings during -- 10,000.00
the period of treatment
TOTAL 1,40,000.00 1,80,000.00
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8. Insofar as the liability is concerned, the contention of the learned Standing Counsel for the insurance company is that the Insurance Company is not liable to pay any compensation inasmuch as the driver of the offending vehicle was possessing only light motor vehicle license i.e., LMV (NT), but he was driving Auto (transport vehicle) at the relevant time of accident. Thus, as there was breach of terms and conditions of the insurance policy, the learned Tribunal ought not to have fastened liability on the Insurance Company. It is further contended that in the circumstances of the case, the learned Tribunal ought to have directed the Insurance Company to pay the compensation in the first instance and granted liberty to recover the same from the owner of the offending vehicle, for the breach of terms and conditions of the policy.
9. A perusal of the material on record would show that as per Ex.B4-driving licence extract, the driver of the auto was authorised to drive LMV Non-transport, but as per the registration certificate (Ex.B2), the crime vehicle is a passenger carrying commercial vehicle. Therefore, the finding of the learned Tribunal in fixing the liability jointly and severally upon 6 GSD, J Macma_1538 and 3997_2014 the insurance company is liable to be set aside. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.1 policy was very much in force. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others1, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others2, following its earlier decision in Swaran Singh (supra), reiterated that even if the driver does not possess any driving license, still the insurer is liable to pay 1 (2004) 3 SCC 297 2 2018 ACJ 2163 7 GSD, J Macma_1538 and 3997_2014 the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount.
10. Accordingly, both the appeals are hereby allowed in part. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.1,40,000/- to Rs.1,80,000/-. The enhanced amount will carry interest at 7.5% p.a. from the date of the order passed by the Tribunal till the date of realization. The finding of the learned Tribunal to the extent of fixing the liability jointly and severally upon the insurance company is hereby set aside. However, following the doctrine 'pay and recover', the Insurance Company is directed to pay the enhanced compensation amount to the claimants in the first instance and thereafter recover the same from the owner of the offending vehicle without initiating any separate proceedings. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________ JUSTICE G. SRI DEVI 16.06.2022 gkv 8 GSD, J Macma_1538 and 3997_2014