Allowed

Anantagiri Narender (being minor) v. D.Lingaiah

Telangana HC20 Aug 2014MACMA/1651/2007

Case brief

AI extract

What is this about?

The Single Judge allowed an appeal under Section 173 of the Motor Vehicles Act, 1988. Relying on Supreme Court precedents, the court held that the insurance company cannot evade liability based on a charge sheet under Section 182 and must pay compensation first before recovering from the owner. The compensation quantum was enhanced from Rs. 59,000 to Rs. 1,00,000 to cover medical expenses, pain an

What did the court decide?

Compensation enhanced from Rs. 59,000/- to Rs. 1,00,000/- payable by the insurance company at 6% p.a. interest; recovery from vehicle owner directed post-payment.

Anantagiri Narender (being minor) Vs D.Lingaiah — Motor Accident Claims | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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M.A.C.M.A. No.1651 of 2007

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JUDGMENT:

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Challenging the judgment and award passed in M.V.O.P.No.1237 of 2004 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District and Sessions Judge, Warangal, the claimant preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the act”).

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For the sake of convenience, the parties will hereinafter be referred to as arrayed in M.V.O.P.

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The facts in issue are as under:

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The claimant, who is a minor aged about 9 years at the time of the accident, represented by his father filed a petition under Section 166 of the Act claiming compensation of Rs.1,50,000/- for the injuries sustained by him in a road accident that occurred on 09.03.2004. It is stated that on that day the claimant along with his father and relatives boarded an auto bearing No. AP 36 V 8493 at Pedda Korpole and were proceeding towards Nekkonda. It is further stated that at about 10.30 a.m. the auto driver drove the same in a rash and negligent manner and dashed a cycle. As a result of which the vehicle turned turtle and the claimant and others sustained injuries. Immediately after the accident the claimant was shifted to Satya Hospital, Warangal. The averments in the petition further disclose that after discharge from the hospital he was advised to take bed rest for a period of six months. It was further stated in the petition that the father of the claimant spent an amount of Rs.20,000/- towards medicines and because of the injury the claimant could not appear for the examination, leading to a loss in an academic year. It is further stated that due to injuries his future is also affected as he is not be in a position to lift heavy weights with right

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hand. Since the accident took place due to rash and negligent driving by the driver of the first respondent and as the vehicle was insured with the second respondent and the third respondent is the local branch office, a petition came to be filed making all the respondents jointly and severally liable to pay compensation.

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The first and second respondent remained ex parte while the third respondent filed their counter denying the manner in which the accident took place and putting the petitioner to strict proof of the allegations made in the petition. It is specifically contended that the auto was overloaded at the time of the accident as such the insurance company is not liable to pay any compensation. In any event it was stated that the claim made is excessive and exorbitant.

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

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1) Whether the accident occurred on 09.03.2004 due to rash and negligent driving of vehicle bearing No. AP 36 V 8493 (aut) driven by its driver, as per Section 166 of M.V.Act?

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2) Whether the petitioner is entitled to compensation? If so, to what amount and from whom?

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3) To what result?

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In support of his claim, the father of the claimant examined himself as PW.1 and the doctors who treated the claimant as PWs.2 and 3. He also got marked Exs.A1 to A9 and Ex.X1 in support of his plea. No oral evidence has been adduced on behalf of the respondent insurance company but Ex.B1 was marked.

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After analyzing the evidence available on record the Tribunal held that the driver of the auto was responsible for the accident and accordingly awarded an amount of Rs.59,000/- as compensation to be paid by the owner of the vehicle alone. Challenging the same the present appeal is filed by the claimant.

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The finding of the Tribunal with regard to the manner in which

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the accident took place has become final as the same is not challenged either by the owner or insurer of the vehicle.

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The point that arises for consideration is whether the insurance company is liable to pay compensation and whether the compensation awarded by the Tribunal is just and reasonable.

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The only ground on which the Tribunal exonerated the insurance company from paying the compensation is that a charge sheet came to be filed against the driver of the auto for an offence punishable under Section 182 of the Motor Vehicles Act. Since a charge sheet came to be filed against the driver of the crime vehicle under Section 182 of the Act, meaning thereby that the driver was not having a valid driving licence, the Tribunal exonerated the insurance company from paying any compensation. Merely because the police have filed charge sheet even for an offence punishable under Section 182 of the Act it does not the prosecution was able to establish that the driver of the crime vehicle had no valid driving licence to drive the vehicle at the time of the accident. However, the insurance company did not lead any evidence to show that the driver of the auto was not having any valid licence to drive the vehicle. In fact, no such issue was also framed while deciding the O.P.

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The issue as to whether the insurance company is liable to pay any compensation, where the terms and conditions of policy are violated came up for consideration before the Apex Court in NATIONAL INSURANCE COMPANY LIMITED V. SWARAN SINGH

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AND OTHERS^[1] . In the said case, the Apex Court held as follows :

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10. Coming to the contention of the learned counsel for respondent Nos.1 to 5 that even in the absence of any liability on the insurance company, the responsibility is still on the latter to pay the amount to the claimants and recover the same from respondent No.6, in Swaran Singh (supra) a three Judge Bench of the Apex

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Court has dealt with this aspect with reference to the case law holding the field on this issue. The Supreme court made reference to its various earlier judgments including those in British India General Insurance Co., Ltd., v. Captain Itbar Singh and others (1960) 1 SCR 168), BIG Insurance Co., Ltd., v. Captain Itbar Singh and others (AIR 1959 SC 1331), Skandia Insurance Company Ltd., v. Kokilaben Chandevadan and others (1987) 2 SCC 654), Sohan Lal Passi v. P.Sesh Reddy and others (1996) 5 SCC 21), Kashiram Yadav and another v. Oriental Fire and General Insurance Co., Ltd., and others (1989) 4 SCC 128) and held that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or the driver thereof has been holding the field for a long time.”

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In this connection, it may be relevant to extract paragraph 104 which is as under :

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“We may, however, hasten to add that the Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause(a) of sub-section(2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given opportunity to defend at all. Such a course of action may also be resorted when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to

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the knowledge of the insurer at a later stage.”

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In paragraph 81 of the Judgment in Swaran Singh’s case the Supreme Court observed as under :

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“The right to avoid liability in terms of sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been, accepted having regard to the facts and circumstances of the case; the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.” (Emphasis added)

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The Apex Court in Kusum Lata v. Satbi r^[2] observed as under

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“In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-Judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others^[3] . ”

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The apex Court in S. IYYAPAN v. UNITED INDIA

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INSURANCE CO.LTD AND ANOTHER^[4] held that the insurer cannot disown its liability on the ground that the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement was obtained to drive commercial vehicle. The apex Court in the above mentioned case has categorically held that it is a statutory right of a third party to recover the amount of compensation so awarded from the insurer and further held that it is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any

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terms and conditions of the insurance policy. The judgment of the apex Court referred to above dealt with a similar situation where the offending vehicle was Mahindra Maxi Car and the driver of the said vehicle was not having any endorsement in the licence to drive such vehicle. In such a situation, the Apex Court held that insurer cannot get rid of their liability. The Court directed the insurance company to pay the amount to the claimants and recover the same from the owner of the vehicle.

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The heading “Insurance of Motor Vehicles against Third-Party Risks” given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of the 1939 Act) itself shows the intention of the legislature to make third-party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons traveling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third-party insurance is in force.

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From a reading of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer’s right is safeguarded but in any event the insurer was liable to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount under Section 147 of the Act.

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In view of the judgments referred above, the finding of the Tribunal in exonerating the insurance company from indemnifying the owner is liable to be set aside.

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In order to decide the quantum of compensation to be awarded, the evidence of PWs.2 and 3 assumes importance. PW.2 in his

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evidence deposed that on 09.03.2004 the claimant, aged about 9 years came to the hospital with compound comminuted fracture of right humerus. After performing necessary investigations, operation was conducted by fixing with ‘K’ wire thereafter plaster of paris was applied. The claimant was discharged from the hospital with an advice to take bed rest for at least six months. Exs.A2, A4, A5 and A8 are the documents said to have been issued by the hospital where the said surgery was done and PW.2 spoke about the issuance and contents of those documents. The evidence of PW.2 further discloses that the claimant must have spent a sum of Rs.10,000/- to Rs.15,000/towards medical expenses and that a further amount of Rs.5,000/- is needed for removal of the implants. Though PW.2 was cross examined nothing useful was elicited to discredit his testimony.

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PW.3, who is an Orthopedic Surgeon in M.G.M.Hospital, Warangal and was a member of Regional Medical Board, deposed that on examination of the claimant he assessed the disability sustained by PW.1 at 20% due to post traumatic stiffness of right limb which is permanent. However, he admits that Ex.A5 certificate was not issued for judicial purpose.

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Apart from the evidence of PWs.2 and 3, Ex.A2 wound certificate, Ex.A4 discharge card and Ex.A5 prescription amply establish the nature of injuries sustained by the claimant and also the expenditure incurred at the time of the treatment.

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In order to award compensation in case of personal injuries the Apex Court in Raj Kumar Vs. Ajay Kumar and anothe r^[5] held as under:

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5. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages)

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(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment;

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(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages)

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(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

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(v) Loss of amenities (and/or loss of prospects of marriage).

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(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of nonpecuniary damages - items (iv), (v) and (vi) – involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b).

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In the light of the principles laid down in the aforementioned case, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to

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award adequate compensation not only for the physical injury and treatment but also for the loss of earning, inability to lead a normal life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident.

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As stated above, the accident took place on 09.03.2004 while the claimant along with his father and relatives were proceeding in an auto towards Nekkonda from Pedda Korpole, the auto was driven by its driver in a rash and negligent manner and dashed to a cycle. As a result of which, the auto was turned turtle and the inmates of the auto including the claimant sustained injuries. Immediately after the accident the claimant was brought to a private hospital at Warangal. Having regard to the said fact, the Tribunal awarded a sum of Rs.500/towards transport charges, but the tribunal did not consider the issue of the visits which the claimant was supposed to make for regular check up after discharge from the hospital. Under the above circumstances, the said amount of Rs.500/- awarded towards transport charges appears to be on lower side and the same is enhanced to Rs.1,500/-.

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The Tribunal awarded a sum of Rs.1,000/- towards attendant charges and Rs.2,500/- towards extra nourishment. Since the claimant was in-patient in Satya Hospital, Warangal, for a period of one week, I am of the view that the said amount appears to be just and reasonable. A reading of the impugned order would show that no amount was awarded towards medical expenses, though the petitioner tried to establish the expenditure of Rs.10,000/- to Rs.15,000/- incurred through the evidence of PW.2 and Exs.A4, A5 and A8. It is true that the medical bills are not produced to show the actual expenditure but that by itself cannot be a ground to deny the expenditure incurred by the claimant in the hospital in view of the evidence of PWs.2 and 3. Definitely the claimant must have incurred some expenditure in getting himself treated for a period of seven days at Satya Hospital, Warangal and also for some time thereafter. Under those circumstances, I deem

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it appropriate to award a sum of Rs.10,000/- towards medical expenses.

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Since the evidence of PW.1 does not disclose that the claimant was an earning member in the family and was assisting him in his agriculture, the Tribunal did not award any amount towards loss of earnings during the period of treatment and also due to disability, but however awarded a sum of Rs.20,000/- towards pain and suffering. The said amount awarded under the above count appears to be just and reasonable warrants no interference. Apart from that the Tribunal also awarded a sum of Rs.35,000/- towards disability sustained by the claimant. The said amount also warrants no interference, but the Tribunal did not take into consideration the loss of an academic year due to hospitalisation for a period of seven days and also taking bed rest for a period of six months after discharge from the hospital. The evidence of PW.1 clearly established that because of injury the claimant could not attend his school regularly leading to loss in an academic year. According to him the said loss of one year would definitely affect the future of the claimant.

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The evidence of PW.2 which has been relied upon by the Tribunal amply established that the claimant will not be in a position to lift any weight with his right hand. That being the position and having regard to the fact that the claimant was aged about 9 years at the time of the accident, the future of the claimant needs to be protected. One does not know as to what he would be in future. The said injury will definitely put the claimant to a disadvantageous position in securing employment. Hence, I deem it appropriate to enhance the amount of Rs.35,000/- awarded by the tribunal to Rs.65,000/- towards loss of amenities in life and loss of academic year.

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Accordingly, the appeal is allowed by enhancing the compensation from Rs.59,000/- to Rs.1,00,000/-. The enhanced amount will carry an interest of 6% p.a. from the date of petition till the

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date of realization. The Insurance company is liable to pay the compensation first and then recover the same from the owner of the vehicle.

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There shall be no order as to costs. Miscellaneous petitions pending in this appeal, if any shall stand closed.

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_________________________ JUSTICE C. PRAVEEN KUMAR

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20.08.2014. gkv

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[1] (2003) 3 SCC 297 [2] (2011)3 SCC 646 [3] (2004) 3 SCC 297 [4] (2013) 7 SCC 62

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[5] MACD 2011 (SC) 33

Anantagiri Narender (being minor) v. D.Lingaiah

Case brief

What is this about?

What did the court decide?

Anantagiri Narender (being minor) v. D.Lingaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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