Andhra HC (Pre-Telangana)
Boyapati Koteswara Rao And Anr. vs Pappu Veeranna And Anr. on 18 January, 1988
Equivalent citations: AIR1989AP335, AIR 1989 ANDHRA PRADESH 335, (1988) 2 ANDH LT 412, (1988) TAC 550, (1988) ACJ 1126
JUDGMENT
1. This is an appeal preferred jointly by the owner of the vehicle as also the Insurance Company questioning an award of Rs. 37,500/- made by the Court of Additional District Judge-cum-Additional Motor Accidents Claims Tribunal, Krishna. The accident occurred on 21-4-1981 at Vijayawada and the respondent who was injured suffered a fracture on his left ankle. The respondent underwent treatment at Vijayawada and also at Madras, but he was, however, left with a permanent disability as he has to limp. On account of the said disability, the respondent who was a photographer by profession, suffered detriment and claimed damages. The respondent has a photo studio called Veeranna Studio at Vijayawada with a branch at Madras. It is stated that the studio is also engaged in producing documentary films for private and Government institutions which are exhibited in the cinema and the T. V. The respondent claimed a sum of Rs. 74,000/- as compensation and the Tribunal below awarded a sum of Rs. 37,500/- Against the said award, the owner of the bus as well as the Insurance Company have preferred this appeal jointly.
2. A preliminary objection has been raised by Sri A. V. Parthasarathy for Sri Y.B. Tata Rao contending that a single appeal by the Insurance company as well as the owner of the vehicle is not maintainable inasmuch as the defences open to each of these appellants are different. For the abovesaid purpose, reliance is placed upon a judgment of a Division Bench of the Allahabad High Court in United India F. and G.I. Co. Ltd., Kanpur v. Gulab Chandra, . The learned Judges therein held that inasmuch as Under Section 96(2) of the Motor Vehicles Act read with Section 110-D, the grounds of defence available to the Insurance company are different from the grounds available to the owner of the vehicle, the appeal is not maintainable jointly by both of them. The learned Judges have further held that if the decree does not make the owner of the vehicle to pay he cannot be treated as a person aggrieved' within the meaning of Section 110-D of the Act This preliminary objection is resisted by the learned counsel for the appellants, Sri S.V.R.S. Somayajulu.
3. I am of the view that the preliminary objection is not correct and that this appeal jointly preferred by the Insurance Company as well as by the owner of the vehicle is maintainable. The Insurance Company is only in the position of an indemnifier to the owner of the vehicle. Unless the owner of the vehicle is made liable, the insurer, being an indemnifier, cannot be made liable. I fail to see how the person primarily liable as well as he person who indemnifies him cannot be said to be 'aggrieved persons' at the same time and, if so, why they cannot join together in a single appeal. It may be that the defences open to the indemnifier are statutorily restricted from those available to the person principally liable but that does not mean that here are any conflicting or opposing interests between them. Under the Motor Vehicles Act, provision is made to recover the amount from the Insurance Company up to a particular limit and beyond that, the amount can be recovered from the owner of the vehicle. If the injured person is not able to recover any part of the amount from the insurance Company (for some good reason), he can certainly recover it from the owner of the vehicle. The alternative argument that the owner of the vehicle is not an 'aggrieved person' at all because his liability is taken over by the Insurance Company is not correct It will be anomalous to say that the person mainly liable is not an 'aggrieved person' merely because the amount is not initially recoverable from him. Even in a case where the quantum of liability of the Insurance Company exceeds the total amount claimed by the injured person the position, in my opinion, is not different. The inter se relationship of 'indemnifier' and 'indemnified' continues and there is no conflicting interest.
Further it may also be the duty of the owner of the vehicle to protect the interests of the 'indemnifier' and see that the latter is not unnecessarily mulcted with liability. Merely because the claim in the case is less than the limits applicable to the indemnifier, the owner of the vehicle need not feel absolved of his liability to safeguard the interests of the indemnifier. The mere fact that certain defences open to the owner of the vehicle are not open to the Insurance Company does not make any difference.
4. Suppose in the very case, the parties have preferred independent appeals, nothing precludes the Court from taking up the appeal preferred by the owner of the vehicle at the outset and (if the Court comes to the conclusion that (say) negligence is not made out or that the quantum is liable to be reduced) give relief in those respects to the owner of the vehicle. The Court can then take up the appeal preferred by the Insurance Company and implement the result in the owner's appeal while dealing with the other appeal preferred by the Insurance Company. The Court cannot refuse to give this benefit to the Insurance Company in the connected appeal merely because the defences open to the Insurance Company are not the same as those available to the owner of the vehicle inasmuch as when two appeals arise out of the same petition filed by the injured person, there cannot be inconsistent decrees in the same matter. In such circumstances, I do not find anything wrong in both the persons filing the same appeal. This is, however, subject to the condition that in case the appeal preferred by the owner of the vehicle is dismissed for default or on merits or for some reason, the Insurance Company cannot fall back upon the grounds mentioned by the owner of the vehicle in his appeal. But, the Insurance Company shall be confined only to the grounds available to it under the Motor Vehicles Act. I, therefore, dissent from the decision in U.I.F. and G.I. Co. Ltd., Kanpur v. Gulab Chandra (supra).
5. Coming to the merits, I am not inclined to interfere with the various items awarded by the Tribunal below. The Tribunal has awarded a sum of Rs. 10,000/- for the loss of earnings by the date of trial. This was based upon a reduction in the bill paid by the Andhra Paper Mills, Rajahmundry in respect of a documentary film which the respondent was not able to complete according to the schedule, on account of the accident So far as the future loss of earnings are concerned, though a claim was made for a sum of Rs. 20,000/-, the Court awarded only a sum of Rs. 5,000/- on the basis that the percentage of disability was said to be 10 per cent. The respondent is a person aged about 58 years and the business is run by a partnership in which sons are also partners. The Court below has awarded Rs. 7,000/- towards expenditure for transport and extra nourishment during the period of medical treatment A sum of Rs. 500-00 was awarded towards clothing, Rs. 5,000/- towards pain and suffering, Rs. 10,000-00 towards loss of amenity or loss on account of the injury. Inasmuch as the respondent had a limp and to use a stick for the purpose of walking, I am of the view that the award is not liable to be reduced further. The respondent's counsel stated that a memorandum of cross-objections had been filed into the Court on 14-10-1985, but the same is not found in the papers of the Court and it is possible that the memorandum had been returned and not re-submitted to the Court. Even so, I have considered the points mentioned in the cross-objections and do not think it a fit case for any further increase.
6. In the result, the appeal is held maintainable but is dismissed on merits. There shall be no order as to costs.