Telangana High Court
Syed Moinuddin vs Smt. Vijaya Lakshmi Eda on 5 December, 2024
HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. NO. 2520 of 2018
JUDGMENT:
Dissatisfied with the quantum of compensation awarded by the learned Motor Vehicle Accidents Claims Tribunal-cum- Chief Judge, City Civil Courts at Hyderabad in M.V.O.P. No.1243 0f 2012, dated 24.01.2018, the present Appeal is filed by the appellant/petitioner seeking enhancement of the compensation.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the learned Tribunal.
3. Brief facts of the case are that the petitioner filed a petition under Section 166 of Motor Vehicles Act, 1988 claiming compensation of Rs.8,00,000/- (Rupees Eight Lakhs only) for the injuries sustained by him in a motor vehicle accident that occurred on 28.02.2011. According to the petitioner, who was working as a vegetable vendor, on 28.02.2011 at about 6:00 PM, while he along with others was traveling along with his vegetables from Sanjeevapuram village, Garladinne Mandal, Anantapur district to Hyderabad market in the alleged crime vehicle bearing No.AP 29 V 4510, near Amakatadu bus stage 2 MGP,J MACMA.No.2520 of 2018 near tollgate on NH-7, the driver of the alleged crime vehicle drove the vehicle in rash and negligent manner dashed another unknown 'eicher' vehicle going ahead; as a result, the petitioner got fracture on his both legs and sustained grievous injuries. Immediately he was shifted to government hospital, Dhone in ambulance and thereafter to government general hospital, Kurnool for further treatment. The Police, Krishnagiri registered a case in First Information Report (FIR) No.8 of 2011 for the offence under Sections 337 and 338 of the Indian Penal Code, 1806 against the driver of crime vehicle bearing No. AP 29 V 4510 and after investigation charge sheet was filed.
4. According to the petitioner, he was aged about 48 years at the time of accident, used to earn Rs.15,000/- per month and due to the accident, he incurred loss of income and spent huge amounts for treatment. Hence, the petitioner claimed compensation of Rs.8,00,000/-against the respondent Nos. 1 & 2, who are the owner and insurer of crime vehicle bearing No. AP.29.V 4510 for the injuries suffered by him.
5. Before the learned tribunal, the respondent No.1, owner of the crime vehicle, remained exparte and whereas, the respondent No. 2/Insurance Company filed counter denying the averments of the claim petition and the manner in which the 3 MGP,J MACMA.No.2520 of 2018 accident occurred, including the age, avocation and income of the injured. It was further contended that the crime vehicle i.e., eicher van bearing No. AP.24.V.4510 is a goods carriage vehicle and it was carrying more than 3 passengers, who are 'unauthorized passengers' and the crime vehicle is expressly and impliedly a goods carriage, which doesn't have any permit to carry any passengers. Furthermore, the driver of the alleged crime vehicle was not having a valid driving license at the time of accident and it is in violation of condition stipulated in the insurance policy. Therefore, the insurance company assailed the liability to pay any compensation amount on the above grounds. It is further contended that the respondent No.1 alone is responsible to pay the compensation, if any, awarded by the tribunal and the amount claimed is excessive and exorbitant and prayed for dismissal of the case against them.
6. Based on the above pleadings, the Tribunal framed the following issues:
a) Whether the pleaded accident had occurred resulting in injuries to the petitioner, Syed Moinuddin, due to the rash and negligent driving of the motor vehicle (Eicher van bearing registration No. AP.29.V.4510) by it driver?
b) Whether the petitioner is entitled to any compensation and if so, at what quantum and what is the liability of the respondents?
c) To what relief?4
MGP,J MACMA.No.2520 of 2018
7. On behalf of the petitioner/claimant, he got examined himself as PW1 and also got examined PWs 2 and 3 i.e., the doctors, who treated PW1 and got marked Exs.A1 to A7. On behalf of the respondent No.2, their Assistant Manager for claims in the respondent No.2 insurance company was examined as RW1 and got marked Ex. B1 Insurance policy copy and B-2 Attested copy of RC extract.
8. The learned tribunal after considering the oral and documentary evidence on record, partly allowed the claim petition and awarded compensation of Rs.3,36,200/- with interest at 7.5% per annum from the date of the petition till the date of realization and exonerated the respondent No.2 Insurance company from the liability. Dissatisfied with the quantum of compensation, the petitioner/claimant herein filed the present Appeal seeking enhancement of the same under various heads.
9. Heard both sides and perused the entire material available on record including the grounds of Appeal.
10. The main contention of the learned counsel for appellant is that though appellant proved his case by adducing cogent evidence apart from relying on the documents under Exs. A-1 to 5 MGP,J MACMA.No.2520 of 2018 A-7, the learned Tribunal without considering the same erroneously awarded meager amount towards compensation. It is further contended that the learned Tribunal has not considered Ex.A6 i.e., disability certificate and discarded the evidence of PW-3 by observing that Ex.A-6 is not valid for medico-legal cases. Further, the learned Tribunal came to wrong conclusion that the petitioner is an unauthorized passenger, hence, does not come within the purview of any person including owner of the goods or his authorized representatives and the Tribunal has erroneously exonerated respondent No.2 Insurance Company. Hence, prayed to enhance the compensation on all heads by considering the grievous injuries sustained and disability certificate.
11. Per contra, the learned standing counsel for Insurance company has contended that the learned Tribunal has adequately granted just and reasonable compensation and exonerated the Insurance company from the liability to pay compensation, therefore, the same needs no interference by this court.
12. Now the point for consideration is that:
Whether appellant/petitioner is entitled for enhancement of compensation amount in addition to the compensation 6 MGP,J MACMA.No.2520 of 2018 amount granted vide impugned Order and Decree by the learned Tribunal?
13. This Court perused the entire oral and documentary evidence filed by both sides. The petitioner as PW-1 has reiterated the contents of the claim petition and also relied upon the documents under Exs.A1 to A7 in order to prove the injuries and disabilities and also got examined PWs 2 and 3. PW2, who is the proprietor and Director of Bhagwan Devi Hospital, in his evidence stated that the petitioner was admitted in his hospital on 01.03.2011 with compound fracture of both bones of right and left leg fibula fracture and he was operated on 02.03.2011 and the fractures were fixed using metal implants. He was discharged on 14.03.2011 with an advice for physiotherapy and medications as the injuries were grievous in nature. He was also advised to undergo further operations for removal of implant.
14. PW3, who is Orthopedic Surgeon in Osmania General Hospital has issued Ex.A6, disability certificate as a member of medical board and assessed the disability as 90% and permanent in nature. However, in the cross-examination he stated that he has not treated the petitioner. He also admitted that disability assessed by him is for both lower limbs and not for whole body and Ex.A6 is not valid for medico-legal cases. The learned Tribunal considering the evidence of PW-3 that Ex. 7
MGP,J MACMA.No.2520 of 2018 A6 is not valid for medico-legal cases has discarded the percentage of disability suffered as per the disability certificate i.e.,Ex.A6. However, granted Rs.70,000/- as compensation towards injuries.
15. It is pertinent to state that the disability certificate issued by PW3, orthopedic surgeon, who is also a member of medical board and competent to assess the disability and filed before the learned Tribunal under Motor Vehicles Act, 1988, though mentioned that the said disability certificate is not for medico- legal cases but the learned Tribunal has assessed the disability based on the evidence of PW-3. The learned Tribunal has erroneously discarded Ex.A6 disability certificate only on the ground that it is not valid for medico-legal cases. Hence, this court is of the considered opinion that the disability assessed by PW3 can be taken into consideration. However, PW3 has categorically stated that the disability assessed by him is for both lower limbs and not for whole body and as per Ex.A2, wound certificate, the petitioner sustained laceration in right and left leg, on forehead, pelvis and right hip fracture of both leg bones on right side. Therefore, this court is of the opinion that the disability of the petitioner can be taken into consideration @ 50% for the grievous injuries suffered by the petitioner. 8
MGP,J MACMA.No.2520 of 2018
16. The learned Tribunal fixed income of the petitioner as Rs.4,000/- per month as there is no proof to show that the petitioner is a vegetable vendor and was earning Rs.15,000/- per month, which in view of this court does not seems to be reasonable. The learned counsel for the appellant relied upon a decision in Syed Sadiq etc v. Divisional Manager, United India Insurance Company 1, wherein the Honourable Supreme Court observed that due to rise in prices of agricultural products, it is reasonably capable that vegetable vendor can earn Rs.6,500/- per month as income. By considering the principle laid down in the above said decision, this court is of the opinion that it is reasonable to take monthly income of the petitioner as Rs.6,500/- per month and as he has undergone treatment and might not have attended for any work. The bed ridden period arrived by the Tribunal i.e., three months is appearing to be in proper perspective. Hence an amount of Rs.19,500/- (Rs. 6,500/- x 3 months) is being awarded towards loss of earnings.
17. Since the income of the claimant is fixed at Rs.6,500/- per month, the quantum of compensation under the head 'permanent disability' comes to Rs.4,68,000/- (Rs.6,500/- x 12 1 AIR 2014 Supreme Court 1052 9 MGP,J MACMA.No.2520 of 2018 x 50% x 13). Thus, the claimant is entitled for Rs.5,07,000/- under the head 'permanent disability'.
18. The learned Tribunal failed to award any amount under the head "attendant charges". The claimant alleged to have sustained grievous injuries, as such, he may not be able to attend his day to day activities during the course of his bedridden period. Thus, this Court is inclined to award Rs.5,000/- towards attendant charges.
19. The learned Tribunal has awarded Rs.1,34,211/- under the head of medical bills and Rs.10,000/- for loss of amenities, Rs.10,000/- for pain and suffering and Rs.10,000/- for transportation and extra nourishment, which are reasonable. Hence, this court is not inclined to interfere with the amounts awarded by the learned Tribunal under the above heads. Thus, in all, the claimant is entitled for the compensation under various heads, as follows:
Sl.No. Name of the head Compensation
entitled by the
claimant
1. Pain and sufferance 10,000/-
2. Transportation, Extra nourishment 10,000/-
and attendant charges
3. Medical & hospital expenses 1,34,211/-
10
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MACMA.No.2520 of 2018
4. Loss of earnings 19,500/-
5. Loss of amenities 10,000/-
6. Permanent disability 5,07,000/-
7. Attendant Charges 5,000/-
Total 6,95,711/-
20. Now coming to the aspect of exonerating the liability of respondent No.2-Insurance Company by the learned Tribunal, it is the specific case of the respondent No.2-Insurance Company that the crime vehicle i.e., Eicher van bearing No. AP.24.V.4510 is a goods carriage vehicle, which was carrying more than 3 passengers, who are 'unauthorized passengers' and the crime vehicle is expressly and impliedly a goods carriage, which doesn't have any permit to carry any passengers and thereby contended that there is clear violation of terms and conditions of the policy. In this regard learned counsel for the insurance company relied upon a decision in National Insurance Company Limited v. Cholleti Bharatamma and others 2, wherein the Honourable Supreme Court observed that passengers traveling in goods carriage whether gratuitous or otherwise, are not covered. The learned counsel further relied upon a decision of this court in New Indian Assurance Company Limited, Ongole v. Sandepudi Mariyamma and 2 (2008) 1 Supreme Court Cases 423 11 MGP,J MACMA.No.2520 of 2018 others 3, wherein it was observed that carrying of passengers in a goods vehicle is not permissible. Further, in Ramkhiladi and another v. United India Insurance Company and another 4, the Honourable Supreme Court that the parties shall be governed by the terms and conditions of the contract of insurance.
21. The learned Tribunal by relied on the decision in Guntur District Milk Producers Mutually Aided Cooperative Union Limited v. Billa Kalyani and others 5, wherein it was observed that insurance company is not liable and owner of the vehicle alone is liable when the driver allowed several passengers to travel in milk tanker after paying fare or gratuitously in violation of specific rules and regulations. In Parmajit Kaur and others v. Resham Singh and others 6 it was observed that goods carrying vehicle cannot be used for carrying passengers and if there is any such violation the insurance company is not liable to pay compensation. The learned Tribunal has also relied upon a decision in Bajaj Allianz General Insurance Company Limited v. B. Hanumantha Reddy and another 7, wherein it was held that traveling of passengers in goods vehicle 3 2003 (3) ALT 188 (S.B.) 4 (2020) 2 Supreme Court Cases 550 5 2014 ACJ 2453 6 2016 ACJ 1286 7 2013 ACJ 2407 12 MGP,J MACMA.No.2520 of 2018 is prohibited as per Section 147 of the Motor Vehicle Act. The principle of "pay and recover" as statutorily recognized in Sections 149(4) and Section 149(5) of the Act, is not applicable to the cases of gratuitous passengers traveling in a goods carriage vehicle. In National Insurance Co. ltd. Vs. Baljit Kour and other 8, a three Judge Bench of the Supreme Court has taken a view that although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, after the amendment of 1994 in the Motor Vehicles Act, yet it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers. The Court went on to hold that in such cases instead of the insurer, the owner of the vehicle shall be liable for the decree. The Court further clarified that the said legal position would have prospective effect. The legal position that emerges is that in the case of liability in respect of a passenger traveling in a goods vehicle, which is not required to be covered under section 147 of the Act, the Insurance Company cannot be asked to satisfy the award and then recover the same from the owner. In view of the aforesaid legal position, once it is shown that deceased/injured 8 2004(2) SCC 1 13 MGP,J MACMA.No.2520 of 2018 was traveling as unauthorized passenger in the offending vehicle, his risk was not covered under the terms of policy of insurance. Thus, the direction for pay and recover cannot be passed against the appellant-Insurance Company.
22. In view of the above discussion, it is amply clear that since the claimant has traveled in the goods carriage vehicle along with the goods, the learned Tribunal has rightly exonerated the respondent No. 2 - Insurance Company from the liability as there is violation of terms and conditions of the policy.
23. In the result, the Appeal is partly allowed by enhancing the compensation from Rs.3,26,200/- to Rs.6,90,711/- which shall carry interest at 7.5% per annum from the date of filing of the petition till the date of realization payable by the respondents jointly and severally. The respondent No.1 i.e., the owner of the vehicle alone is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment. The respondent No.2- Insurance Company is exonerated from the liability. However, on such deposit, the appellant is entitled to withdraw the same without depositing any security. There shall be no order as to costs. 14
MGP,J MACMA.No.2520 of 2018 Miscellaneous petitions, if any, pending shall stand closed.
__________________________________ JUSTICE M.G. PRIYADARSINI Date: 05.12.2024 AS