M/S.Cholamandalam Ms General Insurance Company Ltd. Vs Nalluri Murali Krishna

NALLURI MURALI KRISHNA, , S/O.VEERA VENKA E SWARA RAO, HINDU, ALA. 42 YEARS, AGRICULTUR A L COOLIE, R/O.TUMMALAPA L EM VILLAGE, GUDURU MANDA L , KRISHNA DISTRICT

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T A V NAGARAJU ATIVELU, S/O.BALARAJU @ BAL U , HINDU, ALA 35 YEARS, DRIV E R OF TRACTOR BEARING NO. A P 16 TA 6124, TRAILOR NO. AP 165 6526, R/O.TUMMALAPAL E M VILLAGE, GUDURU MANDA L , KRISHNA DISTRICT.

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T BLALARAJU, S/ O .SUBBARAO, HINDU, HINDU, A / A. 55 YEARS, OWNER OF T R ACTOR BEARING NO. AP 16 TA 6124, R/O.TUMMALAPA L EM VILLAGE, GUDURU MANDAL, KRISHNA DISTRICT ( AS PE R R.C. )

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GANGULA RANG A RAO, S/O.NARASIMHA RAO, H INDU, A/A 40 YEARS, OWNE R OF TRACTOR BEARING NO. A P 16 TA 6124 R/O.TUMMALAPA L EM VILLAGE, GUDURU MANDAL, KRISHNA DISTRICT (AS PE R POLICY)

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC before the High Court Memorandum of Civil Miscellaneous Appeal under Section 173 of M.V.Act, aggrieved by the judgment and decree passed in M.V.O.P.No.235 of 2013 on the file of Motor Accidents Claims Tribunal, Cum- I Additional District Judge, Krishna, Machilipatnam, dated the 11th day of February, 2022,

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IA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 131 days in filing the M.A.C.M.A. against the decree and judgment passed in M.V.O.P.No.235 of 2013 on the file of Motor Accidents Claims Tribunal, Cum- 1- Additional District Judge, Krishna, Machilipatnam, dated the 11th day of February, 2022, and pass

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IA NO: 2 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the decree and judgment dated the 11th day of February, 2022 passed in M.V.O.P.No.235 of 2013 on the file of Motor Accidents Claims Tribunal, Cum- I- Additional District Judge, Krishna, Machilipatnam, including execution proceedings, pending disposal of the main M.A.C.M.A., and pass

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Counsel for the Appellant:

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1.GUDI SRINIVASU

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Counsel for the Respondent(S):

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1.NARASIMHA RAO GUDISEVA

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The Court made the following:

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THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 410 of 2022

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JUDGMENT:-

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The Respondent No.4/ Insurance Company filed the present Appeal aggrieved by the order and decree, dated 11.02.2022 passed in M.V.O.P.No.235 of 2013 by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Krishna at Machilipatnam, whereby and whereunder the Tribunal granted compensation of Rs.2,34,000/-, as against the claim of Rs.3,00,000/-, on account of injuries sustained by the Claimant in a motor accident that occurred on 13.03.2013.

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For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal.

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The case of the Claimant is briefly as follows:

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On 13.03.2013 at about 1.30 p.m, while the Claimant was proceeding on left side of the road with a rice bag and reached near Anjaneya Swamy Temple, Tummalapalem Village and that time, the Respondent No.1 being the driver of tractor bearinag No. AP 16 TA 6124 and Trailor bearing No. AP 16 S 6526 came from his back and offered the Petitioner to board the Tractor and then the Claimant was adjusting the rice bag on the Tractor by standing on the road. At that time the Respondent No.1, without observing whether the Claimant boarded the tractor or not moved the tractor in a rash and negligent manner with high speed. As a result the Claimant fell down on the road and sustained head injuries and became unconscious and later he was shifted to

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Nagarjuna Hospital, Vijayawada for better treatment. A case in Crime No.23 of 2013 was registered as against the Respondent No.1 for the offence under Section 337 of IPC. Hence, the Claimant filed the Claim Petition seeking compensation from the Respondents.

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The Respondent No.1 remained exparte.

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Before the Tribunal, the Respondent Nos.1 and 2 filed Counter denying all material averments made in the claim petition and inter alia contended that the Respondent No.1 never asked the Claimant to board the Tractor and at the request of the Petitioner and his wife to drop them at main road, the Respondent No.1 allowed them to board the Tractor. As the Claimant was suffering from ill health and drove the Tractor in a normal speed on the left margin and the Claimant suddenly fell down from the Tractor. There was no negligence or rash driving on the part of the Respondent No.1. The Claimant sustained injuries due to his own negligence and that the Respondents Nos. 1 and 2 are not liable to pay any compensation to the Claimant.

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The Respondent No.4 filed Counter denying all material averments made in the claim petition and inter alia contended that the Respondent No.2 was the owner of the Tractor bearing No. AP 16 TA 6124 was running the Tractor by engaging his son i.e Respondent No.1 without any driving license. The Respondent No.1 obtained learner license 9 months after the date of accident. The Tractor is intended for commercial use, but not to carry passengers, as such, the Respondent No.4 cannot be liable to pay any

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compensation. The owner of the Tractor has violated the conditions of the policy. The accident was occurred due to the negligence of the Claimant, but not due to negligence of the Respondent No.1 and requested to dismiss the Claim Petition.

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Basing on the pleadings, the Tribunal framed the following issues for

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trial:

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“1. Whether the Petitioner sustained injuries due to rash and negligent driving of respondent No.1 tractor driver?

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2. Whether respondent No.1 is not having valid and effective driving license to drive tractor and trailor combination?

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3. Whether the petitioner is entitled to compensation as prayed for, if so to what extent and from which of the respondents?

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4. To what relief?”

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On behalf of the Claimant, P.Ws.1 and 2 were examined and Exs.A1 to A9 were marked. On behalf of the Respondent No.4, the Respondents No. 1 to 3 are examined and marked Exs.B1 to B7 and Exs. X1 and X5.

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After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal allowed in-part the claim petition against Respondents No. 1, 2 and 4, awarding compensation of Rs.2,34,000/- with interest at 9.5% per annum from the date of filing of the Claim Petition till the date of realization and Respondents are jointly and severally liable to pay the said amount within one month from the date of the Award.

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Aggrieved by the said award, the Insurance Company/ Respondent No.4 preferred this Appeal contending that the Tribunal ought to have seen that the deceased sat on the mudguard/ wooden plank erected on the engine of Tractor at the time of accident and holding rice bag with one hand. Therefore, the Claimant is an unauthorized passenger and also other grounds. Therefore, requested to allow the Appeal.

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On the other hand, learned counsel for the Respondent No.1/ Claimant herein has supported the impugned award and prayed to dismiss the Appeal.

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Now the point for consideration is:

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Whether the order of the Tribunal needs any interference?

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POINT:

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Perused the record.

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The sole Claimant/ injured got himself examined himself as PW-1, who deposed with regard to nature of the accident and stated that on 13.03.2013 at about 1.30 p.m, while the Claimant was proceeding on left side of the road with a rice bag and reached near Anjaneya Swamy Temple, Tummalapalem Village and that time, the Respondent No.1 being the driver of tractor bearinag No. AP 16 TA 6124 and Trailor bearing No. AP 16 S 6526 came from his back and offered the Petitioner to board the Tractor and then the Claimant was adjusting the rice bag on the Tractor by standing on the road. At that time the Respondent No.1, without observing whether the Claimant boarded the tractor or not moved the tractor in a rash and negligent manner with high speed. As a

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result the Claimant fell down on the road, sustained head injuries, and became unconscious and later he was shifted to Nagarjuna Hospital, Vijayawada for better treatment. Apart from the same, he got marked Ex.A1 to A9.

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During the course of arguments, learned counsel for the Appellant vehemently argued that the deceased sat on the mudguard/ wooden plank erected on the engine of Tractor at the time of accident and was holding rice bag with one hand. Therefore, the Claimant is an unauthorized passenger and that the Insurance Company is not liable to pay any compensation. Though, the Insurance Company raised an objection before the Tribunal stating that the contents of the report in FIR i.e Ex.A1 are totally contrary to the evidence of PW-1, the Tribunal relying upon the decision of Hon’ble Apex Court dated 01.10.2021 in “ National Insurance Company Ltd., v. Chamundeswari¹ ” has observed that if the evidence before the Tribunal runs contrary to the contents of the FIR, the evidence which is recorded before the Tribunal has to be given weightage then the contents in the FIR and accordingly answered the issue No.1 holding that the Claimant sustained injuries due to rash and negligent driving of the Respondent No.1.

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Coming to the quantum, as per evidence of PW-1, he sustained head injury and in support of his contention, he got marked Ex.A2 to Ex.A8. He also got examined PW-2, who is a Medical Superintendent-cum- Orthopedician who categorically deposed that the claimant was admitted in their hospital on

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1 2021 Supreme (SC) 533

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13.03.2013 with following injuries viz., (i) severe diffuse cerelbral edema, (ii) left frontal and temporal contusions, (iii) left parietal and occipital, (iv) small intracranial and hemorrhage and he underwent treatment in ICU for two weeks from the date of admission and the Claimant underwent treatment constructively and there are hemorrhage contusions on left fronto temporal regions with mild perilesional Edema Ventricular compression and he was treated till 03.03.2013.

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Further, he categorically stated that Ex.A5 and Ex.A6 are the X-Ray and lab Reports of the Claimant issued by their hospital. Ex.A4 is the Cash Bill for a sum of Rs. 84,031/-, which is final bill of the hospital paid by the Claimant and Ex.X1 is the case sheet of the Claimant. The Claimant suffered severe head injuries and assessed 50% of the disability as per Ex.A7 issued by Dr. Dharmapuri Siva Kumar, Neuro Surgeon, who treated the Petitioner and identified his signature on Ex.A7 Certificate.

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The Tribunal considering the evidence of PW-2 has awarded an amount of Rs. 84,000/- under the head of Medical Expenses by duly relying upon the Ex.A2 to A7 and Ex.X1 case sheet. Further, the Tribunal awarded compensation under conventional heads viz., Pain and sufferance is Rs.50,000/-; Transportation charges is Rs. 15,000/-; Extra nourishment is Rs.10,000/-; Loss of earnings is Rs. 10,000/-; damages to clothing and articles is Rs. 5,000/-; nervous shock is Rs.10,000/- and disability due to head injury is Rs. 50,000/-. Overall, the Tribunal awarded compensation to a tune of

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Rs.2,34,000/-, which in the opinion of this Court neither excessive nor arbitrary

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and needs no interference.

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