Andhra Pradesh High Court - Amravati
The New India Assurance Co Ltd vs Kunchakarla Suresh 2 Ors on 24 February, 2020
Author: Battu Devanand
Bench: Battu Devanand
HONOURABLE SRI JUSTICE BATTU DEVANAND
M.A.C.M.A.No.542 of 2017
J U D G M E N T:
This Appeal was filed by the Appellant-New India Assurance Company Limited under Section 173 of the Motor Vehicles Act, challenging the decree and judgment, dated 21.10.2016 passed by the Motor Accidents Claims Tribunal- cum-I Additional District Judge, Guntur in M.O.V.O.P.No.447 of 2012. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the Appeal.
2) The facts, in nutshell, giving rise to this appeal are that the petitioner is resident of Sanjeeva Nagar, 1st Line, Guntur, Guntur District and he was aged about 11 years and he was studying VI class in Z.P. High School, Ponnur. On 10.11.2011, the petitioner and his friend were walking on the left side of the road margin and at about 8-30 p.m., when they reached near G.B.C. Road, near Sri Bhavannarayana Swamy Temple, the driver of the Road Roller bearing No.A.P.13 9758 drove the same with high speed, without blowing horn, without observing traffic rules came in a rash and negligent manner and hit the petitioner. As a result, the petitioner sustained one crush injury to left leg, crush injury to left hand and fracture injury to left calcaneum and other multiple injuries all over the body. The petitioner was shifted to Government General Hospital, Guntur and in the said hospital he underwent plastic surgery to his left 2 DEV,J MACMA No.542 of 2017 leg and left hand and fracture to left calcaneum and amputation of medial 3 toes in the said hospital. The petitioner took treatment during 10.11.2011 to 06.01.2012 as in-patient. After discharging from the hospital, the petitioner is taking follow up treatment. The petitioner filed claim petition under Section 166 of the Motor Vehicles Act and Rules 445 and 476 of A.P.M.V. Rules seeking compensation of Rs.3,00,000/- for the injuries sustained by him in the said accident.
3) A case in Crime No.133 of 2011 under Section 337 of Indian Penal Code was registered against the driver of the Road Roller bearing No.A.P.13 9758 by the Ponnur Town Police Station basing on the statement recorded by the Government General Hospital Out-Post Police. The petitioner further averred that the 1st respondent is the owner, the 2nd respondent is the insurer and the 3rd respondent is the driver of the offending Road Roller, so, all the respondents are jointly and severally liable to pay the compensation of Rs.3,00,000/- to the petitioner.
4) The 1st respondent filed counter denying all the averments made in the petition and contending that the offending Road Roller never involved in any accident and the said Road Roller is insured with the 2nd respondent and as such, the 2nd respondent is liable to pay compensation, if any, to the petitioner. 3
DEV,J MACMA No.542 of 2017
5) The 2nd respondent filed counter denying all the averments made in the petition and contending that there is no negligence on the part of the driver of the offending Road Roller (3rd respondent) and the compensation claimed by the petitioner is highly excessive and that the petitioner has not received any grievous injuries and he received only simple injuries and at the time of accident, the petitioner and another boy were crossing the G.B.C. Road and they did not observe the moving of the Road Roller and that the driver of the 1st respondent was not having valid licence and as such, the 2nd respondent is not liable to pay any compensation to the petitioner.
6) The 3rd respondent, who was the driver of the offending Road Roller, was remained set exparte.
7) During the course of trial, father of the petitioner was examined as PW.1 and PWs.2 and 3 were also examined on behalf of the petitioner and Exs.A.1 to A.4 were marked. On behalf of the 2nd respondent, R.Ws.1 and 2 were examined and Exs.B.1 to B.8 were marked. Ex.X.1 was marked through PW.3. Exs.X.2 and X.3 were marked through R.W.2.
8) The Tribunal after hearing rival contentions and upon perusing the oral and documentary evidence available on record held that the accident in dispute occurred only due to the rash and negligent driving of the offending Road Roller by its driver 4 DEV,J MACMA No.542 of 2017 and in the said accident the petitioner sustained grievous injuries. The Tribunal awarded compensation of Rs.2,60,000/- with subsequent interest at the rate of 7.5% per annum from the date of filing of the petition till date of deposit of the said amount by holding that the respondent Nos.1 to 3 are jointly and severally liable to pay the same to the petitioner.
9) Aggrieved by the decree and judgment of the Tribunal, the 2nd respondent-Insurance Company filed the present appeal.
10) Heard, Sri G. Hari Gopal, representing Sri Kota Subba Rao, learned counsel for the appellant and Sri N. Srihari, learned counsel for the 1st respondent.
11) Learned counsel for the 2nd respondent-Insurance Company submits that the Tribunal failed to see that the driver of the vehicle involved in the accident was not holding any valid driving licence. He further contended that the Tribunal failed to see that the driver of the vehicle remained exparte and there was no rebuttal evidence as against the evidence of RW.1 and RW.2 and the documents marked i.e., Exs.B.1 to B.8 and Exs.X.2 and X.3. He further contended that the judgment of the Tribunal is liable to be set aside, as the Tribunal failed to consider that the duty of the owner is to hand over the vehicle to the person who was having effective driving licence and under Section 149 of the Motor Accidents Act when there is no liability, the Insurance 5 DEV,J MACMA No.542 of 2017 Company should be exonerated. Finally, he contended that the Tribunal atleast ought to have followed the guidelines of the Hon'ble Supreme Court of India in "Nanjappan" to safeguard the interest of the Insurance Company.
12) On the other hand, Sri N. Srihari, learned counsel for the 1st respondent argued that the findings of the Tribunal is in accordance with the law and as such, no interference is required by this Hon'ble Court.
13) On perusing the oral and documentary evidence available on record and upon hearing the rival contentions of the counsel, it appears that there is no dispute with regard to finding of the Tribunal about the occurrence of the accident and in the absence of any rebuttal evidence, it has to be accepted the finding of the Tribunal that the accident occurred only due to the rash and negligent driving of the offending Road Roller by its driver and in the said accident, the petitioner sustained grievous injuries.
14) The Tribunal in the light of the evidence of the PW.3, Doctor, who treated the petitioner and as per Ex.A.4 disability certificate issued by the District Medical Board, Guntur, which is competent authority for determining the disability of the petitioner, came to a conclusion that the petitioner sustained 50% disability. Though, the petitioner was not having any 6 DEV,J MACMA No.542 of 2017 income as on the date of the accident, as he was aged 11 years and was a student of VI class, however, for determining the quantum of compensation for the permanent disability sustained by him, his notional income is taken at Rs.20,000/- per annum and by applying multiplier "18", the Tribunal awarded an amount of Rs.1,80,000/-. The Tribunal also awarded an amount of Rs.30,000/- towards medical expenses, transport charges, extra nourishment, etc., and Rs.50,000/- towards compensation for pain and suffering. The Tribunal awarded Rs.2,60,000/- as a total compensation to the petitioner and held that all the respondents are jointly and severally liable to pay the compensation to the petitioner.
15) In view of the nature of the injuries sustained by the petitioner and considering his age and he has to live the entire life with 50% permanent disability, this Court holds that the compensation awarded by the Tribunal under various heads is reasonable and in accordance with law.
16) The only issue to be examined in the present appeal is whether the driver of the offending Road Roller was holding a valid driving licence or not?
17) To substantiate their contention, the 2nd respondent- Insurance Company has examined R.W.2, who is the Junior Assistant in RTO Office, Guntur and marked Ex.X.3. The R.W.2 7 DEV,J MACMA No.542 of 2017 deposed that they searched their records to find out whether any licence was issued to 3rd respondent in their office and as per their records no driving licence was issued in the name of the 3rd respondent. In the cross examination he deposed that they searched only the records of the Office of RTO, Guntur and the said person can obtain driving licence from any RTO Office in India. It is to be noted that the 3rd respondent, who is the driver of the offending vehicle remained exparte and the 2nd respondent has not taken any steps for examining the 3rd respondent in order to establish their contention that the respondent No.3 was not holding driving licence.
18) In my considered view, the Tribunal rightly observed that the evidence of RW.2 is in no way helpful to the 2nd respondent for establishing that the 3rd respondent was not holding valid driving licence for driving the offending Road Roller. The evidence of R.W.2 and Ex.X.3 i.e., problem details issued by RTA, Guntur, discloses that they searched only their office records to find out whether the 3rd respondent obtained driving licence from their office or not.
19) Before dealing with the contentions of the parties on this aspect, it is appropriate to consider the relevant provision of Motor Vehicles Act, 1988.
20) Section 9 of the Motor Vehicles Act, 1988 deals with the grant of driving licence stated as follows: 8
DEV,J MACMA No.542 of 2017 (1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority have jurisdiction in the area-
(i) in which he ordinarily resides or carries on business, or
(ii) in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situated, for the issue to him of a driving licence.
(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.
(3) ..........
(4) ..........
(5) ..........
(6) ..........
(7) When any application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his competence to drive, the licensing authority shall issue the applicant a driving licence unless the applicant is for the time being disqualified for holding or obtaining a driving licence:
Provided that a licensing authority may issue a driving licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if the licensing authority is satisfied that there is good and sufficient reason for the applicant's inability to apply to the appropriate licensing authority:
Provided further that the licensing authority shall not issue a new driving licence to the applicant, if he had previously held a driving licence, unless it is satisfied that there is good and sufficient reason for his inability to obtain a duplicate copy of his former licence.9
DEV,J MACMA No.542 of 2017
21) The above provision of law provides that the 3rd respondent can obtain driving licence from any RTO Office, having jurisdiction in which he ordinarily resides or carries on business or where he is receiving or has received instruction in driving a motor vehicle is situated. So, the evidence of R.W.2 that the 3rd respondent was not holding any valid licence for driving Road Roller as per the particulars available in the office of the RTO, Guntur, is in no way helpful to the 2nd respondent to establish that the 3rd respondent was not holding valid driving licence for driving the offending Road Roller. In the light of the oral and documentary evidence available on record, it can be safely conclude that the 2nd respondent-Insurance company failed to adduce any substantial evidence to establish that the 3rd respondent i.e., the driver of the offending vehicle was not holding a valid driving licence.
22) The Tribunal had discussed the matter in a correct perspective and this Court does not find any basis to interfere with the same.
23) In the result, the appeal is accordingly dismissed confirming the decree and judgment of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Guntur, dated 21.10.2016 passed in M.O.V.O.P.No.447 of 2012. There shall be no order as to costs.10
DEV,J MACMA No.542 of 2017 As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.
_________________________ BATTU DEVANAND, J Date: 24.02.2020 PGR