Allowed

Ahmad , Mohamad v. v.Sreenivasulu

Telangana HC27 Feb 2013CMA/122/2004

Case brief

AI extract

What is this about?

In a motor accident appeal, the High Court allowed the appeal, setting aside the Tribunal's dismissal of the claim petition. The Court held that the owner of goods travelling in a goods vehicle is covered under the insurance policy. Minor discrepancies in the claimant's name and age were not sufficient to reject the claim, as no specific denial was challenged in cross-examination. The Tribunal's a

What did the court decide?

The Civil Miscellaneous Appeal was allowed; the Tribunal's award of Rs. 1,38,728/- with 7.5% interest was confirmed; respondents are jointly and severally liable.

Ahmad , Mohamad Vs v.Sreenivasulu — Motor Accident Claims | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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C.M.A.No.122 of 2004

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JUDGMENT:

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This appeal has been preferred by the claimant, being aggrieved by the award dated 19.08.2003 passed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool in M.V.O.P.No.417 of 2001.

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The brief facts of the case are as follows:

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On 05.08.2000, at about 11.30 p.m. a mini lorry bearing registration No.AP 13T 9508 while proceeding from Kurnool to Hyderabad being driven by its driver by name V. Hanumanthappa dashed against a tractor on National Highway No.7 near a Bridge at Lingareddygudem Village. As a result of which, Y. Srinivas, S/o Rama Swamy, resident of Atmakur, M.A.Khaleel, resident of Kurnool and Ahmad, resident of Kurnool, who were travelling in the mini lorry, sustained injuries. Basing on a complaint dated 06.08.2000 lodged by one S. Chandraiah, S/o Sivaiah of Srinivas Colony, Shadnagar, and the Police, Shadnagar P.S. registered a case in Crime No.248 of 2000 for the offence punishable under Section 337 I.P.C. The Investigating Officer recorded the statements of the injured and others and shifted the injured to Osmania Hospital, Hyderabad. Subsequently, the driver of the offending vehicle was arrested and charge sheet was laid by the police.

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The claimant filed the aforesaid M.V.O.P. against the respondent Nos.1 and 2, who are owner and insurer of the mini lorry respectively, claiming compensation of 5,00,000/-.

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The 1^st respondent remained ex parte. The 2^nd respondentInsurance Company filed a detailed written statement denying all the material averments made by the claimant in the claim petition and contending that the accident did not occur due to the negligence of the

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driver of the offending vehicle, that the accident occurred only due to the rash and negligence driving on the part of the driver of the tractor, that the driver, insurer and owner of the tractor are necessary parties to the claim petition, that the claim petition is liable to be dismissed for non-joinder of necessary parties, and that the claimant is an unauthorized passenger in the mini lorry.

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Basing on the above pleadings, the Tribunal framed the following issues for trial:

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(1) Whether the accident occurred due to rash or negligent driving of the driver of mini lorry bearing No.AP 13T 9508?

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(2) Whether the petitioner is entitled for compensation and if so to what amount and from which of the respondents?

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(3) To what relief?

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To substantiate the case of the claimant, P.Ws.1 and 2 were examined and Exs.A.1 to A.7 were marked. On behalf of the 2^nd respondent-Insurance Company, R.W.1 was examined and Ex.B.1copy of insurance policy was marked before the Tribunal.

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By award dated 19.08.2003, the Tribunal dismissed the claim petition holding that there are discrepancies in the name and age of the claimant mentioned in the claim petition and the documents filed by him. Being aggrieved by the same, the claimant filed the present appeal.

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Heard both sides.

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As far as the name of the claimant is concerned, it is mentioned in the charge sheet as “Mohammed Hussain @ Ahmed Basha, S/o Tailor Yakub Miyan, age 45 years, Occupation: Carpenter, R/o Budavarapeta, Kurnool”. Similarly, the names of other injured are mentioned in the charge sheet as “Y.Srinivas, S/o Ramaswamy, age 34 years, Occupation:Inspector-Central Excise, Ganganpahad Range, Shamshabad, RR District and Khaleel, S/o Yusuf, age 20 years,

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Occupation:Private servant, R/o H.No.44-16-30, Sardarnagar, Kurnool”. In Ex.A.3 - Medico Legal Record with Casualty O.P.No.45354 and M.L.C.No.15238 issued by the Medical Officer, Dr. Arun Srivastav of Osmania General Hospital, Hyderabad, the name of the claimant is mentioned as “Mohammed Hussain, age 45 years, R/o Budhavarapeta” as mentioned in the charge sheet. In Ex.A.4 – certified copy of judgment dated 07.02.2002 in S.T.C.No.121 of 2001 on the file of the Judicial Magistrate of First Class at Shadnagar, the name of the claimant is not mentioned. In Ex.A.5 – Disability certificate, the name of the claimant is mentioned as “Mohammed Hussain, S/o Tailor Yakub Miyan, age 45 years”. In Ex.A.6 – Medical bills, the name of the claimant is mentioned as “Mr. Mohammed”. In Ex.A.7 – Discharge Card, the name of the claimant is simply shown as “Mohammed, age 45 years” and no other particulars are given. Whereas, the particulars of the claimant are mentioned in the claim petition as “Ahamad @ Mohamad, S/o Tailor Yaqubmiah, aged about 28 years, Muslim, Carpenter, Budhavara peta, Kurnool”.

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The claimant was examined as P.W.1. In the chief-affidavit filed by him, his age is shown as 30 years. It has to be seen that the thumb impression of the claimant was obtained on the claim petition. So, it is clear that the claimant is an illiterate and probably he had no occasion to verify his age mentioned in the claim petition.

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The Tribunal framed only two issues. No issue was framed as to whether there is any discrepancy in the name and age of the claimant as shown in the cause title of the claim petition and the documents filed by him. In fact, since no such plea was taken by the 2^nd respondent, there was no occasion for framing an issue on that aspect. When a plea is not in dispute or denied by other side, there is no need to lead any evidence on such particular plea. It is a fact that

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the claimant’s age is mentioned as 28 years in the claim petition. It appears that the age mentioned in the charge sheet, discharge summary and medico legal record appears to be correct age of the claimant. There was no need for the police or the concerned doctor to mention incorrect age of the claimant. Therefore, the age of the claimant ought to have been taken as 45 years. Probably, with an idea to get more compensation or due to greediness, the claimant’s age seems to have been shown as 28 years in the claim petition, but that should not be a ground to reject his entire claim. The Tribunal ought to have taken into consideration the age of the claimant as 45 years for calculating his earnings.

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There is another aspect in this case. P.W.1 was crossexamined by the 2^nd respondent, but no suggestion was given to him that he is not the injured person or that there is some discrepancy in his name or age mentioned in the claim petition and in the documents filed by him. Similarly, no such suggestion was given to P.W.2 –doctor who issued Ex.A.5-disability certificate to the claimant. On behalf of the 2^nd respondent, R.W.1 was examined. It is not the case of R.W.1 that there is discrepancy in the name and age of the claimant in the claim petition and the documents filed by him. In the absence of which, the Tribunal ought to have ascertained the correct name and age of the claimant when he was in the witness box. It has to be seen that not only the claim petition but also a report filed by the police officer under Sub-Section 6 of Section 158 Cr.P.C. have to be treated as claim petition and compensation has to be awarded. Even in the absence of a claim petition, it is the duty of the Tribunal to ascertain as to what just and reasonable compensation to be paid to the claimant. In such circumstances, denying the claim of the claimant basing on some minor discrepancies in his name and age appears to be not correct.

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Moreover, it has to be seen that the report was given to the police by a third party. Probably, he might not be knowing the full

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particulars of the claimant. Therefore, the name of the claimant is simply shown as “Ahmad, R/o Kurnool. But in the police record and the charge sheet, the claimant’s name is shown as “Mohammed Hussain @ Ahmed Basha, S/o Tailor Yakub Miyan, age 45 years, R/o Budavarapeta, Kurnool” and the same address was mentioned in Ex.A.3-medico legal record as “Mohammed Hussain, age 45 years, R/o Budhavarapeta”. Therefore, there cannot be any doubt to say that the claimant sustained injuries in the accident.

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Coming to the aspect of liability, the learned counsel for the 2^nd respondent-Insurance Company submits that since the claimant was an unauthorised passenger, he is not entitled to any compensation.

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On the other hand, the learned counsel for the claimant submits that the claimant travelled in the offending vehicle as owner of the goods and after the amendment to the Motor Vehicles Act, 1988 (for short ‘the Act’), the Insurance Company is liable to pay the compensation to the owner of the goods.

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The main submission of the learned counsel for the 2^nd respondent-Insurance Company is that since the claimant was an unauthorized passenger, the Insurance Company is not liable to pay the compensation. The claimant in his claim petition specifically averred that he boarded the mini lorry bearing No.AP 13 T 9508 with wooden furniture to deliver the same at Hyderabad and sat in the cabin of the said mini lorry.

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The 2^nd respondent-Insurance Company filed written statement. Though there is a general denial, but there is no specific denial of the said fact. However, by way of amendment the Insurance Company made a specific plea that the claimant is an, un-authorized passenger and therefore, it is not liable to pay compensation.

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The claimant was examined as P.W.1. In his evidence, the claimant specifically deposed that he was travelling in the mini lorry with wooden furniture to handover it to its buyer at Hyderabad. Though he was cross examined, but no specific suggestion was given to P.W.1 that he was not travelling in the capacity of owner of the goods. When there is such specific suggestion, there is nothing to disbelieve the evidence of P.W.1. Therefore, it has to be held that the claimant was travelling as owner of the goods.

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The learned counsel for the claimant has referred to Section 147(1)(b)(i) of the Motor Vehicles Act, 1988, which reads as follows:

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147: Requirements of policies and limits of liability: (1) In order to comply with the requirements of this chapter, a policy of Insurance must be a policy which-

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(b) (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.”

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Thus, there is a statutory liability that the policy should cover any liability, which may be incurred by the owner in respect of death or bodily injured to any person including the owner of the goods or his authorized representative carried in the vehicle. Interpreting the said provision, this Court in Oriental Insurance Co., Ltd., Cuddapah vs. Yarava Lakshmi Dev i^[1] observed that after 14.11.1994, subsequent amendment of Section 147 (1) (b) (i) of the Act, even the owner of the goods travelling in a goods vehicle is considered as third party covered under the policy. Thus, categories 2 and 3 passengers are covered by the dicta in New India Assurance Company Limited vs. Asha Ran i^[2] . In this case, the accident occurred on 05.08.2000 and even though the claimant is the passenger travelling in the goods vehicle as owner of the goods, he is covered under the policy as per Section 147 (1) (b) (i) of the Act.

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It is further argued that the claimant has not produced any receipt to show that he was travelling as owner of the goods. When the claimant was in the witness box, the counsel for Insurance Company did not cross examine P.W.1 on that aspect, it is not left open to the Insurance Company now to put forward the argument that the claimant failed to produce the receipt showing that he was travelling as the owner of the goods.

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In the above circumstances, I do not see any reason to accept the contention of the insurance company.

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As far as the amounts awarded by the Tribunal towards compensation for pain and suffering and other heads is concerned, it appears that there is no need to disturb the same. Accordingly, the amount awarded by the Tribunal is hereby confirmed.

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In the result, the Civil Miscellaneous Appeal is allowed, awarding a total compensation of Rs.1,38,728/- with 7 ½ % interest per annum from the date of the claim petition till the date of realization. The respondents 1 and 2 are jointly & severally liable to pay the same. No costs.

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In consequence, miscellaneous petitions pending, if any, shall stand closed. ,

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_________________________ B.CHANDRA KUMAR,J

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27^th February, 2013 SRP/CBS/GHN

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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C.M.A.No.122 OF 2004

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27^th February, 2013