Dismissed

Oriental Insurance Co. Ltd., v. Md. Nayeemuddin

Telangana HC6 Aug 2014MACMA/1667/2007

Case brief

AI extract

What is this about?

This court dismissed an implicit appeal filed by an insurance company challenging the Motor Vehicles Tribunal's award of Rs.75,000 compensation to a passenger injured in a lorry-bus collision. The court upheld the Tribunal's finding of rash and negligent driving by the lorry driver and refused to interfere with the compensation quantum or the denial of insurer liability due to failure to mark poli

What did the court decide?

Compensation of Rs.75,000 awarded to the claimant by the Tribunal is confirmed and the appeal is dismissed.

Oriental Insurance Co. Ltd., Vs Md. Nayeemuddin — 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.1667 OF 2007

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JUDGMENT:

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Dissatisfied with the order passed in O.P. No.1 of 1989 by the Chairman, LRAT-cum-Motor Vehicles Accidents claims Tribunal-cumII Additional District Judge, Ranga Reddy District at Hyderabad, the present appeal is preferred by the Insurance company under Section 173 of M.V. Act.

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

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3. The averments in the petition would disclose that on 03.10.1998 at about 3.40 p.m. while the petitioner was travelling in a APSRTC bus bearing No.AAZ-6823 to go to Gulbarga and when the said vehicle reached Komreddypally village, a lorry bearing No.ABT627, driven by its driver in a rash and negligent manner came in opposite side and dashed to right side of the bus. Due to which the right side portion of the bus was badly damaged causing multiple fractures to the right hand of the claimant who was sitting on the right side of the bus. Immediately thereafter, the claimant was shifted to Osmania General Hospital where he was operated. It is stated that he was operated upon on seven occasions and skin grafting was also made on two or three occasions, by removing the skin from both thighs. It is further stated that a steel rod was also fixed to his right arm. It is stated that the petitioner was aged about 22 years at the time of the accident, completed Intermediate and ITI at Mahaboobnagar and was earning Rs.5,000/- per month by doing fruit vending business. The averments in the petition also disclose that basing on the above incident, a case in Crime No.52 of 1988 under Section 338 IPC came to be registered against the first respondent. Since the accident took

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place due to rash and negligent driving of the driver of the vehicle, an application was filed under Section 110-A of the M.V. Act and rule 514 of the Rules against the respondents claiming compensation of Rs.96,000/-.

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4. The third respondent who is insurer of the bus filed their counter denying the averments made in the petition. It was stated that only due to rash and negligent driving of the driver of the bus in which the petitioner was going and due to contributory negligence on the part of the driver of the said bus the accident took place. The fourth respondent who is insurer of the lorry filed its counter admitting that the lorry ABT-627 was driven by its Driver in rash and negligent manner as alleged in the petition. It is further stated in the counter that the accident took place due to negligence of the drivers of both the vehicles and as such the APSRTC is also a necessary party to the proceedings. In any event it is stated that the compensation of Rs.96,000/- claimed by the petitioner is on higher side.

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

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1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry ABT-627 ?

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2. To what compensation, if any, is the petitioner entitled to and against whom?

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3. To what relief ?

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6. To substantiate his case, the claimant examined himself as P.W.1 and also P.W.2 who was travelling along with him on the date of accident and got marked Exs.A-1 to A-9. The Senior Assistant of the fourth respondent was examined as R.W.1. After considering the evidence on record, the Tribunal held that the accident took place due to the rash and negligent driving of the driver of the lorry and accordingly awarded a sum of Rs.75,000/- as compensation.

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Challenging the same, the present appeal is filed.

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7. The learned counsel for the appellant strenuously contends that the insurer is not liable to pay any compensation as the accident took place due to the negligent act of the claimant in putting his hand out of the window while travelling in the vehicle. He further submits that since the injured was travelling in the bus of Road Transport Corporation, the Road Transport Corporation should have been made as a party to the proceedings. In any event he submits that the quantum of compensation awarded to the claimant is excessive and same needs to be reconsidered.

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8. Per contra, the learned counsel for the respondent opposed the argument and contending that the finding of the Tribunal warrants no interference at this point of time. According to them the accident took place in the year 1988 and the judgment of the Tribunal came to be passed in the year 1996, 18 years later i.e., in the year 2007 an appeal was preferred to this Court. In view of the above, it is contended that it may not be proper for this Court to interfere with the findings arrived at this point of time. Even otherwise it is said that there are no merits in the petition and the same is liable to be dismissed.

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9. As stated above, the main ground urged by the learned counsel for the appellant is that the claimant alone is responsible for the accident. According to him the act of the claimant in sitting by the side of the window by protruding his hand outside the window is responsible for the injuries sustained by him. The said argument has to be rejected at the threshold itself for more than one reason. Firstly no oral evidence has been adduced by the Insurance company to prove that the injured was sitting by the side of the window by projecting his hand. Neither an eyewitness to the incident nor any person acquainted with the facts, was examined to prove that the accident took place in a manner different from what has been spoken to by

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P.W.2.

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10. On the other hand, P.W.2, who was travelling in the bus at the time of the accident and who was an eyewitness to the incident, clearly deposed the manner in which the accident took place. According to him at about 3.40 p.m. a lorry driven by its driver in a rash and negligent manner came from opposite side and dashed on the right side of the bus. Though P.W.2 deposed that the claimant has put his hand on the window but that by itself does not establish that he sustained injuries by putting his hand outside the window. Infact, the damage caused to the vehicle would clearly show that entire right portion of the bus was severely damaged. Therefore, the argument of the learned counsel for the appellant that the claimant alone is responsible for the injuries sustained by him cannot be accepted.

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11. In the absence of any contra evidence being let in by the respondent/insurer, I see no reason to disbelieve the evidence of P.Ws.1 and 2. Therefore, the evidence of P.Ws.1 and 2 coupled with Exs.A-1 and A-2 would prove that the accident took place due to rash and negligent driving of the driver of the bus. Once it is held that the accident was done due to rash and negligent driving of the driver of the lorry, the question of making State Road Transport Corporation as party to the proceedings would not arise. Further, there is no evidence to show that the drivers of both the vehicles were responsible for the accident. The scene of offence panchanama, which is a crucial document to establish the manner in which the accident took place, was not placed before the Court. In the absence of any contra evidence as to the manner in which the accident took place, it cannot be said that the driver of the RTC bus also responsible for the accident. Viewed from any angle, this Court is of the view that non making of Road Transport Corporation as a party to the proceedings is not fatal to the case of the claimant.

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12. A perusal of the material on record would show that at first instance the second respondent was added as a owner of the crime lorry, the third respondent as the insurer. But subsequently, the petitioner came up with I.A.No.470 of 1990 and got impleaded 5^th respondent as the owner of the crime vehicle and the 4^th respondent as its insurer. The Senior Assistant of Oriental Insurance Company who was examined as R.W.1, deposed that he verified the policy bearing No.43117/2/139/88 furnished by the petitioner from their records, which was valid upto 12.10.1988. According to him there was no such policy in their records, since the policy which was relied upon by the claimant was not issued by their company. Though he stated in his evidence that he brought the records of the year 1987-88 but the same were not produced before the Court for verification.

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13. At this stage, the learned counsel for the appellant placed on record a judgment of this Court in National Insurance Company Limited, Vijayawada v. Rangu Anjamma^[1] to show that the insurance company cannot be made liable when the insurer of the vehicle denies the issuance of the said policy. There is no dispute with regard to the said proposition of law. But in the instant case except the oral evidence of R.W.1 there is no other material to substantiate the same. When R.W.1 brought all the records pertaining to the year 1987-88 to prove his plea, nothing prevented him for getting them marked to show that such a policy was never issued by their company. As held by the Tribunal, once the policy number was given and when the respondent failed to place any cogent and reliable evidence to disprove the same, it cannot be said that the 4^th respondent is not the insurer of the crime vehicle. Hence, the finding of the Tribunal in making the 4^th and 5^th respondents in O.P. liable to pay the compensation, needs no interference.

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14. The learned counsel for the appellant further submits that the

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quantum of compensation awarded to the claimant is on a higher side and the same needs to be reduced. He mainly argued that the amount of Rs.15,000/- awarded towards medicines and medical expenses is without any basis. The evidence on record discloses that the claimant was treated in Osmania General Hospital which is Government Hospital. No objection was raised by the insurance company at the time of marking of the documents through P.W.1. Having allowed the documents to be marked, the insurer cannot be now allowed to dispute the authenticity of the document. The issue is no more res-integra in view of the judgment between Oriental Insurance Co. Ltd. v. Premlata Shukla and others^[2] wherein it is held as under :

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“A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon.”

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15. Therefore, the evidence of P.W.1 coupled with Exs.A-4 to A- 8 do establish that P.W.1 sustained a fracture to his right hand; operated upon by insertion of a steel rod and skin grafting was also done. Having regard to the facts and circumstances of the case and taking into consideration the nature of injuries sustained, the Tribunal awarded a sum of Rs.20,000/- towards pain and suffering, Rs.40,000/towards loss of earnings and also a sum of Rs.15,000/- towards medicines and medical expenses. The amount so awarded cannot be said to a bonanza or wind fall to the claimant. While awarding just compensation, the Tribunal took into consideration the nature of injuries sustained and also the period for which he was out of employment. As the order under challenge does not suffer from any infirmity the same warrants no interference.

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16. Accordingly, the M.A.C.M.A. is dismissed. There shall be no order as to costs.

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Miscellaneous petitions pending if any, in this appeal, shall

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stand dismissed.

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_____________________________ JUSTICE C. PRAVEEN KUMAR

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Dt: 06.08.2014

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