Andhra Pradesh High Court - Amravati
The National Insurance Company Limited vs Posepo Sreenu And 2 Others on 20 August, 2019
Author: M.Ganga Rao
Bench: M.Ganga Rao
THE HON'BLE SRI JUSTICE M.GANGA RAO
M.A.C.M.A. No.1313 of 2008
JUDGMENT:
Heard both the counsel.
2. The National Insurance Company Limited is the appellant. This appeal is filed against the Award and Decree dated 17.01.2008 passed in O.P.No.676 of 2005 by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, East Godavari District at Rajahmundry, wherein whereby granted compensation of Rs.81,600/- (Rupees Eighty one thousand and six hundred only) along with interest at the rate of 7.5% per annum against the claim of Rs.1,50,000/- (Rupees One lakh and fifty thousand only) for the injuries sustained by the 1st respondent in the accident occurred on 22/23.12.2004.
3. The 1st respondent/claimant filed petition under Section 166 of Motor Vehicles Act stating that the 1st respondent boarded the lorry bearing No.AP-21-T-1499 along with the timber as loading and unloading coolie along with other coolies to unload the timber at Rajahmundry Government Timber Yard. When the said lorry reached near N.H.5 Road, Lalacheruvu, Forest Research Office, Rajahmundry at about 2.30 a.m., the 2nd respondent, who is the driver of the offending lorry, drove the vehicle in a rash and negligent manner with high speed and lost control over the lorry and 2 turned turtle and he received injuries in the accident and he was admitted in Government Hospital, Rajahmundry in Ortho Ward and undergone treatment as an inpatient, for a period of one month as he was operated and steel rods were inserted. On the date of accident, the claimant was aged about 22 years and he had been working as coolie and used to earn Rs.150/- per day and he was hale and healthy. The claim petition is filed seeking compensation of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) and the appellant/ insurance company filed counter, denying the averments of the claim petition mainly contending that the petitioner and others boarded the offending lorry and which is in contravention of the terms and conditions of the policy. He sustained injuries in the accident and hence the appellant insurance company could not be fastened with liability. The compensation and interest claimed is excessive. The 3rd respondent, owner of the lorry filed counter stating that there was no negligence on the part of the driver, due to mistake on the part of claimant, the accident occurred. The driver is having valid driving licence and it is insured with the appellant.
4. Based on the pleadings the Tribunal framed the following issues for its consideration:
1. Whether the accident was occurred due to rash and negligent driving of 1st respondent driver of the lorry bearing No.AP-21-T-1499 ?3
2. Whether the petitioner is entitled for claim of compensation ? If so, what amount and from which of the respondents ?
3. To what relief ?
5. The appellant filed I.A.No.1409 of 2006 under Section 170 of Motor Vehicles Act, seeking permission to raise all the defense that are available under Motor Vehicles Act and the same is permitted. During the trial, the 1st respondent/claimant in support of his contentions was examined himself as P.W.1 and stated that on 22.12.2004 he along with M.Yesubabu, Buda Kasulu and Vemagiri Yesu at the instance of respondent Nos.2 and 3 boarded the lorry as loading and unloading coolie along with other two coolies for the purpose of unloading timber at Government Timber Depot, Rajahmundry. On the intervening night of 22/23.12.2004, the driver of the offending vehicle drove the vehicle in a rash and negligent manner with high speed and lost control over the lorry, due to which the lorry turned turtle, and 1st respondent sustained injuries. The Station House Officer, Bommuru Police Station registered a case in Crime No.276 of 2004 against the driver of the said lorry under Section 338 of I.P.C. The Station House Officer after completion of investigation, filed the charge sheet against the driver of the offending lorry and Ex.A3/Motor Vehicles Inspectors Report shows that accident was not occurred due to any mechanical defects. The Tribunal based on the evidence of P.W.1 coupled with Ex.A1/FIR, rightly came to the 4 conclusion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. With regard to the quantum of compensation, the Tribunal considering the evidence of P.W.1, found that the 1st respondent was shifted to Government Hospital, Rajahmundry, admitted in Ortho Ward and underwent treatment upto 16.01.2005 as he was operated on left thigh and steel rods were inserted and for other injuries sustained. P.W.2 is the Doctor, who treated and operated on P.W.1 deposed that on 23.11.2005, P.W.1 was admitted in his ward and P.W.1 sustained fracture on left femur in the middle 1/3rd and he performed surgery and made internal fixation and nailing and Ex.A5 is the case sheet produced by the Government Hospital, Rajahmundry. As per the evidence of P.W.2 based on the Ex.A5/case sheet, Ex.A6/X-ray and the evidence of P.W.2, the 1st respondent sustained fracture on left femur in the middle 1/3rd and he was treated as an inpatient and discharged on 16.01.2005. The petitioner underwent treatment as an inpatient from 23.12.2004 to 16.01.2005 and petitioner had undergone operation and as inter nailing was made he was bedridden for a period of one month. The 1st respondent worked as loading and unloading coolie and boarded offending lorry as coolie and he was paid Rs.150/- per day. But the Tribunal due to absence of documentary evidence in support of the evidence of P.W.1, the earnings of 1st respondent was taken as Rs.100/- per day 5 and Rs.3,000/- per month. The Tribunal granted Rs.75,000/- towards pain and suffering for the injuries and for the operation undergone. A sum of Rs.600/- towards attendant charges and for extra nourishment and a sum of Rs.3,000/- is granted, towards loss of earnings as the claimant was bed ridden for one month. The Tribunal granted Rs.3,000/- towards hospital and medical expenses against the claim of Rs.20,000/- on the ground that he underwent treatment in the Government hospital. However, he could have incurred sum amount towards medicines expenses and granted total amount of Rs.81,600/-. But the counsel for the appellant would contend that policy does not cover the risk of the coolies and hence the appellant/ insurance company is not liable to pay any claim of compensation to the claimant. As the coolies were allowed in lorry contrary to the terms and conditions of Ex.P1 policy, the Tribunal having considered the evidence of R.W.1/Assistant Branch manager of 3rd respondent insurance company came to the conclusion that as per the evidence of R.W.1 a sum of Rs.8,506/- is paid towards premium under Ex.B1 policy and the Ex.B1 policy is in force as on the date of the accident. P.W.1 admitted that at the time of accident, wood was transported and some persons were sitting in the cabin and some on the top of the cabin and as per FIR, they were going as Jattu coolies for unloading the wood at Rajahmundry Timber Depot. The Tribunal came to a conclusion that the 1st 6 respondent traveled in the lorry for loading and after loading while returning with the wood for unloading along with other coolies, the accident in question had occurred. The Ex.B1 policy covers the risk of loading and unloading Jattu coolies. Hence, the question of considering the seating capacity of the offending lorry and other permit rules as described in Exs.B2 and B3 does not arise. Hence, the contentions of the learned counsel for the appellant are untenable.
6. Learned counsel appearing for the 1st respondent would contend that the Tribunal considering the evidence of P.Ws.1 and 2, R.W.1 coupled with exhibits Exs.A1 to A3 rightly came to the conclusion that the accident occurred due to rash and negligent driving of the lorry by its driver, the 1st respondent/claimant sustained injuries and he was admitted for treatment, also operated and rods were inserted, he could not be able to work and the tribunal rightly granted compensation of Rs.81,600/- and the same could not be found fault with and there are no irregularities and illegalities in passing the award. Hence, the appeal is liable to be dismissed.
7. In the facts and circumstances of the case, considering the submissions of the learned counsel and on perusal of the record, this Court found that the contentions of the learned counsel for appellant that Ex.B1 policy does not cover the risk of the coolies and that the owner of the offending vehicle 7 allowed the coolies in contravention of the terms of Ex.B1 policy are untenable, for the reason that the Tribunal, having considered the evidence of P.W.1, R.W.1 and Ex.B1 coupled with Exs.A1 to A7 came to conclusion that the 1st respondent/claimant as a loading and unloading coolie along with other coolies, boarded the lorry for unloading the timber at the Government Timber Yard, the driver of the offending lorry had driven the vehicle in a rash and negligent manner due to which the offending vehicle, turned turtle and accident was occurred. In the accident, the 1st respondent received injuries and as per the evidence of R.W.1, the owner of the vehicle paid an amount of Rs.8,506/- towards premium, the policy covers the risk of third party i.e., loading and unloading coolies. Hence, this Court found no merits in this M.A.C.M.A. and the award does not suffer from any irregularities warranting interference of this Court.
8. Accordingly, the appeal is dismissed. There shall be no order as to costs.
Consequently, Miscellaneous Petitions, if any, pending shall stand closed.
__________________ M.GANGA RAO, J Date: 20.08.2019 sdp 8 THE HON'BLE SRI JUSTICE M.GANGA RAO M.A.C.M.A. No.1313 of 2008 Date: 20.08.2019 sdp