Andhra Pradesh High Court - Amravati
Bajaj Allianz General Insurance ... vs Punnuru Ratnamala on 20 September, 2023
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
M.A.C.M.A.Nos.108 of 2012 and 2741 of 2013
COMMON JUDGMENT:
Questioning the legal validity of the award dated 16.08.2011 passed by the Chairman, Motor Accident Claims Tribunal-cum-III Additional District Judge, Nellore, in M.V.O.P.No.1056 of 2009, whereby the Tribunal awarded compensation of 1,14,000/- to the petitioner as against the claim of Rs.2,50,000/-, the 2nd respondent/Insurance company filed M.A.C.M.A.No.108 of 2012, while the petitioner filed M.A.C.M.A.No.2741 of 2013 for enhancement of the compensation.
2. Since both the appeals arose from out of one decree and order passed in M.V.O.P.No.1056 of 2009, they are heard together and are being disposed of by this common judgment.
3. For the sake of convenience, both the parties in the appeals will be referred to as they are arrayed in the claim petition. 2
VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013
4. The claim petitioner filed the petition under Section 166 of the Motor Vehicles Act, 1988 against the respondents claiming compensation of Rs.2,50,000/- for the injuries sustained by her in a road accident that took place on 09.08.2009.
5. Facts germane to dispose of the appeals may briefly be stated as follows:
On 09.08.2009 at about 6.45 p.m. the petitioner, her husband, who is 1st respondent, and her brother-in-law went to Baddpudi Village from Kavali in a car bearing registration No.AP 26Q 0626 to attend a marriage function of their relatives and the 1st respondent was driving the car. After attending the marriage, they were returning to Kavali in the said car and when the said car reached near Rajupalem Village at about 8.30 p.m., while taking a carve, the 1st respondent drove the car in a rash and negligent manner and dashed against the culvert, which is situated on the right side of the road, as a result, the car fell down into the culvert ditch and the 3 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 petitioner and her brother-in-law sustained injuries. The S.H.O., Ulavapadu P.S. registered a case in crime No.126 of 2009 against the 1st respondent/driver of the car for the offence punishable under Section 338 of IPC. The 1st respondent is driver-cum-owner and the 2nd respondent is insurer of the car, hence, both the respondents are jointly and severally liable to pay compensation to the petitioner.
6. The 1st respondent was set ex parte. The 2nd respondent/Insurance company filed a counter by denying the manner of accident, age, avocation and income of the petitioner. It is pleaded that the 1st respondent had not paid any premium to cover the risk of his family members, therefore, the Insurance company is not liable to pay any compensation to the petitioner.
7. Based on the above pleadings, the following issues were framed for trial by the Tribunal:
1) Whether the accident occurred due to the rash and negligent act of the driver of the car bearing registration No.AP 26Z 0656 and caused injuries to the petitioner or not? 4
VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013
2) Whether the petitioner is entitled to any compensation, if so, to what amount and from which of the respondent?
3) Whether the claimant is a 3rd party or not and the risk of the claimant is covered by the policy or not?
4) To what relief?
8. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 to 4 were examined and Exs.A.1 to A.13 were marked. On behalf of the 2nd respondent/Insurance company, R.W.1 was examined and Ex.B.1 was marked.
9. At the culmination of the enquiry, based on the material on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending car and accordingly, allowed the petition in part and granted an amount of Rs.1,14,000/- towards compensation to the petitioner with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of payment against both the respondents. Aggrieved thereby, the 2nd respondent/Insurance company filed 5 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 M.A.C.M.A.No.108 of 2012 questioning the legal validity of the order of the Tribunal, while the petitioner filed M.A.C.M.A.No.2741 of 2013 for enhancement of the compensation.
10. Heard learned counsels for both the parties and perused the record.
11. Now, the points for determination are:
1) Whether the claim petitioner is entitled for enhancement of the compensation as prayed for? and
2) Whether the order of the Tribunal needs any interference, if so, to what extent?
12. POINT Nos.1 & 2: It is the case of the petitioner that on 09.08.2009 at about 6.45 p.m. she, her husband, who is 1st respondent, and her brother-in-law went to Baddpudi Village from Kavali in a car bearing registration No.AP 26Q 0626 to attend a marriage function of their relatives and the 1st respondent was driving the car, after attending the marriage, they were returning to Kavali in the said car and when the said car reached near 6 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 Rajupalem Village at about 8.30 p.m., while taking a carve, the 1 st respondent drove the car in a rash and negligent manner and dashed against the culvert, which is situated on the right side of the road, as a result, the car fell down into the culvert ditch and she and her brother-in-law sustained injuries.
13. In order to prove the rash and negligent driving of the driver of the offending car, the petitioner relied on her self testimony as P.W.1. She clearly deposed about the manner of accident in her chief examination affidavit and the accident took place because of rash and negligent driving of the driver of the car. Nothing was elicited from her cross-examination to discredit her evidence in chief examination affidavit by the 2nd respondent/Insurance company except putting some contra suggestions which were also denied by her. Moreover, the 2nd respondent did not choose to examine at least the driver of the offending car as he is the best person to speak about the manner of accident. The petitioner also relied on Ex.A.1-first information report and Ex.A.3-charge sheet. Ex.A.1 7 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 goes to show that the police registered a case against the driver of the offending car. Ex.A.3 also goes to show that after completion of investigation, the police laid a charge sheet against the driver of the offending car. The evidence of P.W.1 coupled with Exs.A.1 and A.3 clearly reveals that the accident occurred on account of rash and negligent driving of the driver of the offending car. On appreciation of the material on record, the Tribunal also came to the same conclusion. There is no legal flaw or infirmity in the said finding given by the Tribunal.
14. In order to prove the injuries sustained by her, the petitioner relied on Ex.A.2-would certificate. According to the petitioner, she underwent two operations on her right leg and steel plates were inserted to her right leg knee portion in Vijaya Health Center, Chennai. On account of the fractures, she could not attend any work for six months as she was bed-ridden and she has to undergo further surgery for removal of implants. The petitioner also got examined the doctor, who treated her, as P.W.3. As per the 8 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 evidence of P.W.3, the petitioner sustained fracture of proximal tibia right side and an operation was conducted on the petitioner on 12.08.2009 and she was discharged on 28.08.2009. Ex.A.4-bunch of medical bills supports the same. Ex.A.5 is the final bill issued by Vijaya Health Centre, Chennai, in favour of the petitioner. Ex.A.14 is the discharge summary issued by Vijaya Health Centre, Chennai, which proves that the petitioner took treatment in the hospital for 18 days. On appreciation of the oral and documentary evidence, the Tribunal awarded an amount of Rs.1,000/- towards transport charges, Rs.65,000/- towards medical expenses, Rs.8,000/- towards extra nourishment, Rs.5,000/- towards attendant charges, Rs.20,000/- for one fracture, Rs.5,000/- towards pain and suffering, Rs.5,000/- towards mental agony and Rs.5,000/- for removal of implants. By giving cogent reasons, the Tribunal came to the conclusion that the petitioner is entitled to a total compensation of Rs.1,14,000/-, which is, in my opinion, is just and reasonable. 9
VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 Therefore, there is no need to interfere with the said finding given by the Tribunal in awarding the quantum of compensation.
15. It is not in dispute that the offending car of the 1st respondent was insured with the 2nd respondent/Insurance company under Ex.B.1 policy and the policy was also in force as on the date of accident. It is not the case of the 2nd respondent that the driver of the offending car was not holding driving licence at the time of accident.
16. Coming to the liability, after considering the judgments relied on by the learned counsel for both the parties, the Tribunal in its order held that Ex.B.1 policy is a private car package policy and it covers the risk of the petitioner as she is not travelling for hire or reward, therefore, the 2nd respondent is liable to pay the compensation.
17. Learned counsel for the 2nd respondent/Insurance company would contend that the petitioner is not the third party and her risk 10 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 was not covered by the policy and the 1st respondent did not pay any extra premium to cover the risk of his family members as per Ex.B.1 policy, therefore, the Insurance company is not liable to pay any compensation to the petitioner.
18. Learned counsel for the 2nd respondent/Insurance company placed reliance on the decisions of the Hon'ble Supreme Court in Gottumukkala Appala Narasimha Raju Vs. National Insurance Company Ltd.1 and Dhanraj Vs. New India Assurance Co.Ltd.2 and also a judgment of the Division Bench of the Composite High Court of Andhra Pradesh at Hyderabad in Jayavarapu Rajamma Vs. Jayavarapu Laxminarayana3.
19. On the other hand, learned counsel for the petitioner would contend that the petitioner has not travelled for hire or reward in the 1 AIR 2007 SC 2907 2 (2004) 8 SCC 553, 3 2007 © ALD 306 (DB) 11 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 offending car and Ex.B.1 policy is a comprehensive/package policy, therefore, the policy covers the risk of the petitioner.
20. Learned counsel for the petitioner relied on a decision of the Hon'ble Apex Court in Manuara Khatun Vs. Rajesh Kr.Singh 4 which is subsequent to the decisions relied on by the learned counsel for the 2nd respondent/Insurance company referred supra. Another reliance has been placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Balakrishnan5 wherein it is held thus:
"In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a comprehensive/package policy, the liability would be fastened on the insurer. As far as other 4 (2017) AAC 989 5 (2012) 4 ACC 700 12 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed."
21. A perusal of Ex.B.1 policy categorically reveals that it is a private car package policy, and on considering the material on record, it is apparent that the petitioner did not travel in the offending car for hire or reward. Admittedly, learned counsel for the 2 nd respondent/ Insurance company fairly represented before this Court that the policy is a comprehensive policy and the owner's risk is covered in Ex.B.1 policy. For the foregoing reasons, I am of the view that the Tribunal rightly fastened the liability on both the respondents, hence, there is no need to interfere with the said finding given by the Tribunal.
22. For the foregoing discussion, I do not find any illegality or irregularity in the impugned order of the Tribunal and it is perfectly sustainable under law and the appeals are devoid of merits, therefore, they are liable to be dismissed. 13
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23. Accordingly, both the appeals are dismissed, while confirming the decree and order dated 16.08.2011 passed by the Chairman, Motor Accident Claims Tribunal-cum-III Additional District Judge, Nellore, in M.V.O.P.No.1056 of 2009. No order as to costs in both the appeals.
Miscellaneous petitions, if any, pending in the appeals shall stand closed.
______________________________ V.GOPALA KRISHNA RAO,J th 20 September, 2023 cbs i 14 VGKR,J MACMA.No.108 of 2012& MACMA No.2741 of 2013 HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO M.A.C.M.A.No.108 of 2012 and 2741 of 2013 20th September, 2023 cbs