Allowed

K. Krishnaiah v. Santosh Mukin Bupnoor

Telangana HC14 Nov 2012CMA/3546/2002

Case brief

AI extract

What is this about?

This court enhanced the compensation awarded to a claimant in a motor vehicle accident case. Ruling that the insurer cannot escape liability despite the claim against the owner being dismissed, the court fixed the quantum based on medical evidence and age, holding both the owner and insurer jointly liable.

What did the court decide?

A total compensation of Rs.25,000 with interest at 6% per annum is awarded, and the third and fourth respondents are held jointly and severally liable.

K. Krishnaiah Vs Santosh Mukin Bupnoor — Motor Accident Claims | Telangana HC (2012)

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HONOURABLE SRI JUSTICE B.N.RAO NALLA

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C.M.A. No.3546 OF 2002

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Dated: - 08-2010

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Between: K.Krishnaiah. And: Santosh Mukin Bupnor and others.

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…Appellant.

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…Respondents.

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HONOURABLE SRI JUSTICE B.N.RAO NALLA

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C.M.A. No.3546 OF 2002

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JUDGMENT:

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This C.M.A. is filed by the claimant aggrieved by the award passed by the learned Chairman, Motor Vehicle Accidents Claims Tribunal-cum-District Judge, Ranga Reddy District at L.B.Nagar on 10-11-1999 in O.P.No.531 of 1996.

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2. The facts leading to the filing of this appeal can be summarized as follows:

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On 13-5-1996 at about 3.00 a.m., the claimant was travelling by D.C.M. Van bearing No. ABT 4018 to Balanagar with vegetables and when it reached Patancheru, a lorry bearing No. MH 04/P-7514 came from opposite direction at high speed in a rash and negligent manner driven by its driver and dashed against the D.C.M. Van, resultantly, the claimant received grievous injuries on his chest, abdomen and all over his body. He was treated at Gandhi Hospital, Secunderabad. Police, Patancheru registered a case in Crime No.113 of 1996 for the offences punishable under Sections

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304-A, 337 and 338 IPC. Hence, the claimant filed claim petition before the Tribunal seeking compensation of Rs.50,000/- against the owner and the insurer of the lorry and the owner and the insurer of D.C.M. Van.

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3. Respondents 1 and 3 remained exparte and they did not choose to contest the case.

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4. The 2^nd respondent filed counter denying the averments of the petition. It is contended that the compensation claimed by the petitioner is highly excessive and exorbitant.

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5. The 4^th respondent filed counter denying the averments of the petition. It is stated that the claimant is to put strict proof of his age, occupation and income. Further, it is stated that the compensation claimed by the claimant is highly excessive and exorbitant.

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6. The following points were framed for trial before the Tribunal for consideration:

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i. Whether the petitioner injured in the accident occurred on 13-5-1996 at about 0300 hours near Sharada ITI, Patancheru, due to composite negligence of drivers of lorry bearing No.MH-04/P/7514 and DCM van bearing No.ABT-4018?

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ii. Whether the petitioner suffered any permanent disability in the accident?

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iii. Whether the lorry bearing No.MH-04/P/7514 is insured with the 2^nd respondent and the van bearing No.ABT-4018 is insured with the 4^th respondent?

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iv. Whether the petitioner is entitled to any compensation? If so, to what amount and against whom?

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v. To what relief?

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7. During the course of trial, P.W.1 was examined and Exs.A.1 to A.4 were marked on behalf of the claimant and Ex.B.1 was marked on behalf of the fourth respondent.

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8. Heard the learned counsel on either side and perused the

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material available on record.

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9. The Tribunal after taking into consideration the material brought on record and also relying on the decision reported in Mallawwa (Smt) and others v. Oriental Insurance Company Ltd and others^[1] gave a finding that Respondent No.4, the insurer of R.3-owner of D.C.M. Van is not liable to pay compensation since the accident occurred due to rash and negligent driving of the driver of the DCM Van; that the 3^rd respondent being the owner thereof is liable to pay the compensation and that since there is no negligence on the part of the driver of the lorry, respondents 1 and 2 are not liable to pay any compensation.

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10. Learned standing counsel for the fourth respondent-insurance company is present and informed the court that the only question so far as insurance company is concerned inter alia is that the appeal against the third respondent - owner has been dismissed for default and no steps have been taken to set-aside the dismissal order and, therefore, the appeal against the fourth respondents - insurance company has got to be dismissed.

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11. Since no appeal is filed by the fourth respondent-insurance company, it is prevented from taking new pleas in this appeal.

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12. It is the case of the appellant-claimant that the dismissal of matter at the appellate stage against the owner of the accident vehicle does not necessarily absolve the insurer from its liability and he relied on the decision reported in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma and others ,^[2] wherein it was held as under:

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“ If the Claims Tribunal records a finding that the accident had taken place due to the rash or negligent driving of the driver of the motor vehicle and if such finding is not challenged either by the insurance company or by the owner of the motor vehicle, the question that arises in appeal filed against the orders of the Tribunal by the claimants is only with regard to the determination of just, fair and reasonable quantum of compensation and therefore, there cannot be any bar to decide the quantum of compensation against

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the Insurance Company even in the absence of owner of the vehicle to the extent of the statutory liability of the Insurance. But the quantum of compensation cannot be decided over and above the statutory liability of the Insurance Company in the absence of the owners, but the question of the statutory liability of the Insurance Company survives for consideration at the appellate stage.”

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13. So far as the enhancement of the quantum of compensation is concerned, it is the case of the claimant that he sustained injuries on chest and abdomen and head and he took treatment at about 20 to 22 days at Gandhi Hospital, Secunderabad. Ex.A.2 is the attested copy of the wound certificate. Ex.A.3 is the attested copy of the opinion given by the Superintendent, Gandhi Hospital. Ex.A3 indicates that the claimant suffered grievous injuries. Ex.A.4 is the bunch of medical bills. The claimant was aged about 50 years by the date of the accident and he is stated to be an Agriculturist. Under these circumstances, this court is of the view that the lower Tribunal ought to have granted Rs.10,000/- towards pain and suffering instead of Rs.7,500/-, Rs.5,000/- towards medical expenses instead of Rs.2,500/- and Rs.10,000/- towards loss of earnings instead of Rs.5,000/-. So far as the contention of the fourth respondent–insurance company that the claimant is not covered under insurance policy is concerned, under the new Act, insurance policy covering third party risk is not required to exclude gratuitous passengers in any type of vehicle.

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14. Since the rash and negligent driving of the DCM Van by its driver is established and in view of the decision reported in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma and others (supra 2), the third respondent - owner and the fourth respondent-insurer of DCM Van are jointly and severally liable to pay the compensation.

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15. In the circumstances, it is to be held that the appellant-claimant is entitled to claim a total compensation of Rs.25,000/- (Rupees Twenty Five Thousand) only with interest at 6% per annum so far as the enhanced

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compensation amount is concerned in view of the decision reported in Sarala Varma v. Delhi Transport Corporation of India .^[3] 16. With the above modification, the appeal is disposed of.

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________________ B.N.RAO NALLA,J 05-08-2010 Stp/Dvsp

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HONOURABLE SRI JUSTICE B.N.RAO NALLA

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C.M.A. No.3546 OF 2002

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Dated 05-08-2010

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