Dismissed

E. Vikaranth Kumar v. Chairman and Managing Director

Telangana HC12 Dec 2014MACMA/801/2007

Case brief

AI extract

What is this about?

The High Court dismissed appeals filed by injured car occupants seeking compensation from the RTC against the Motor Accidents Claims Tribunal's award dismissing their claims. The Court held the insurance policy was 'Act' type which does not cover car occupants, and stated there was no evidence to impute fault to the bus driver.

What did the court decide?

Both appeals dismissed. No order as to costs. Proceedings in miscellaneous petitions closed.

E. Vikaranth Kumar Vs Chairman and Managing Director — Motor Accident Claims | Telangana HC (2014)

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.Nos.774 & 801 of 2007 COMMON JUDGMENT :

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The appellants in both the appeals are the claimants (injured) who filed these appeals aggrieved by the order/award dated 22.02.2007 in M.V.O.P.No.1322 of 2003 and M.V.O.P. No.1387 of 2003 respectively on the file of Motor Accidents Claims Tribunal–cum-XXI Additional Chief Judge, Nampally, Hyderabad (for short, ’Tribunal’) dismissing both the claim petitions filed under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

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2) Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

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3 ) The contentions in the grounds of appeal as well as oral submissions by the appellants-Petitioners respectively and common in nutshell are that the Judgment and decree of the Tribunal dismissing the claims are contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in dismissing the O.P. on the sole ground that the Ex.A-1 F.I.R speaks against the car driver as accused, that the Tribunal did not even care to go into the contents of the F.I.R and instead opined that since the document relied upon by the Petitioner was against him the case has to be dismissed, that the Tribunal ought to have seen that the testimony of the R.W-1 very clearly shows that the F.I.R was lodged 24 hours after the accident has taken place, that the complaint clearly mentions that the complaint was lodged after higher authorities of the respondent corporation had come to the accident site and instructed the driver to lodge the complaint on their dictation, that the Tribunal instead of going to appreciate the circumstances of the case which clearly shows that all the Petitioners were injured and shifted to a hospital at Vijayawada and were in no condition to be examined by the police nor could give any complaint, that the Tribunal ought to have seen

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that the evidence of R.W-1 very clearly shows that the driver of the bus was at fault and R.W-1 has deposed that he was illiterate, and on said date it was raining at the time of accident and at the scene of offence there was a curve and he had to go to the right side of the road to take the curve, that the Tribunal should have weighed the evidence of R.W-1 and added to it the delay in the filing of F.I.R, that the Tribunal should have seen that the incident was only due to the negligence of the R.T.C driver that the findings of the Tribunal are contrary to the judicial precedents laid by the Apex Courts; that the Tribunal failed to give a finding about the contention raised by the Petitioners that being the occupants of the Maruthi car, they are entitled for compensation as the policy has a coverage for the occupants of the car and prayed to allow the appeal by setting aside the dismissal award of the Tribunal.

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4) Now the points that arise for consideration in the appeal are:

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1. Whether the awards of the Tribunal in dismissing the claims of the respective claimants is liable to be set aside, if so with what observations and for what compensation?

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2. To what result?

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POINT No.1:

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5) The fact which are not in dispute are that the accident took place on 11.06.2001 at Konakanchi-Mullapadu cross roads involving APSRTC bus bearing No.AP 10 Z 6741 belonging to the Respondent No.1 and the car of the claimants bearing No.AP 9J 1155. But, for whose negligence the accident occurred is the question arises in the present appeals. During the course of trial, the respective claimants were examined as P.W-1 and also marked copy of F.I.R which was presented by the driver of the R.T.C bus alleging that the driver of the car drove the car in a rash and negligent manner and dashed the stationed bus. The Tribunal in its finding held that the accident occurred due to the negligent driving of the car driver Amrutha Rao-claimant in O.P. No.1322 of 2003, no other than father of Vikranth Kumar-claimant in O.P. No.1387 of 2003 and no proof was filed by the claimants stating that the accident was occurred

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completely due to the rash and negligent driving of the driver of the R.T.C and more so, the driver of the R.T.C bus was examined as R.W-1 and supported the contents of F.I.R and therefrom dismissed the claim petitions.

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6) It is impugning the same, the present appeals are filed. It is not in dispute that the claim in O.P. No.1322 of 2013 is no other than the driver of the car and the other claimant in O.P. No.1387 of 2003 is no other than son of said driver of the car. From this, a perusal of Ex.B-1 policy shows, it is only an Act policy and not either standard package or comprehensive policy. I n National Insurance Co. Ltd. V. Balakishnan^[1] it was held that Act policy does not cover risk of inmates of the car or pillion rider of the bike unless it is a standard package policy to cover the risk of such of them from IRDA regulation dated 16.11.2009. The amounts paid under the policy speak that liability being paid as basic premium Rs.340/- and for paid driver Rs.15/-. Total Rs.355/besides service tax Rs.18/-. The limitations for use mentioned as social, domestic and pleasure purpose and insured person’s own business. The policy does not cover use for hire or reward, organized racing, speed testing and carriage of goods in connection with any trade or business or use for any purpose in connection with motor trade. Thus, Rs.15/covered only for the paid driver. From this, so far as the claimant in O.P. No.1387 of 2003 by name Vikranth Kumar, S/o.Amrutha Rao concerned, there is no coverage of risk of inmate of the car from the Act policy. Even coming to the claimant in O.P. No.1322 of 2003 by name Amrutha Rao, it is not even his case in the claim petition that he was paid driver under the original owner of the car Smt.D.Rama Devi. Once that is the case, if the original owner permitted said Amrutha Rao and his son or any other family members, leave about the controversy whether said Rama Devi and other inmate Ramani are one and the same or not and the relation of the owner of the car to users; the users of the car step into the shoes of the owner and cannot be regarded as third parties to make any claim against the owner and insurer of the car. The very claim petition so far as

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the owner and insurer of the car thereby wouldn’t lie for the claimants are not third parties as held by the expressions of the Apex Court in Dhana Raj V. National Insurance Co. Ltd^[2] , National Insurance Co. Ltd. V. Sadananda Mukh i^[3] , Oriental Insurance Co. Ltd. V. Rajani Dev i^[4] , Oriental Insurance Co. Ltd V. Jhuma Saha^[5] , Ningamma V. united Insurance Co. Ltd .^[6]

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7) Now, the next aspect concerned is whether there is any rash and negligent driving on the part of the driver of the RTC bus. The accident was dated 11.06.2001 at Konakanchi-Mallapadu cross roads at about 5.00 P.M while the bus and the Maruthi Car were proceeding in opposite direction of the car proceeding towards Hyderabad and the bus proceeding towards Vijayawada. Among the documents, Exs.A-1 to A-9 filed in claim petition of Amrutha Rao in O.P. No.1322 of 2003, there is no M.V.I. Report filed, there is no even charge sheet filed, there is no even scene observation report filed, but for only F.I.R-Ex.A-1 and the other are relating to treatment and medical expenses etc., P.W-2 is the doctor and there is no other eye witness examined in proof of the accident. Even the very F.I.R, Ex.A-1 was issued by driver of the RTC bus, R.W-1 Subhani set the law in motion, which is on the next day of the accident i.e., on 12.06.2001 the F.I.R report received and registered at 12.00 noon. The F.I.R reads that while the bus was proceeding towards Vijayawada and the Maruthi Car proceedings towards Hyderabad in opposite direction having noticed the driver proceeding in rash and negligent driving, the bus was swerved to the extreme left side and stopped even so, due to the rash and negligent driving of the car driver by name E.Amrutha Rao (Claimant in O.P. No.1322 of 2003) the car dashed the bus and due to which the bus right side front portion of the bus damaged. The inmates of the car- Amrutha Rao, Vikranth Kumar (claimant in O.P. No.1387 of 2003) sustained injuries and Amrutha Rao received fracture to the left leg and also fracture to right leg above knee, left thigh and also on the stomach etc., and himself and the inmates of the bus secured ambulance and

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shifted them to Vijayawada, Charitasri Hospitals and he was remained at the place of bus and after receiving the instructions from his superiors he has given the report. Once F.I.R is against said Amrutha Rao, claimant by the bus driver Subhani who deposed as R.W-1 and from his crossexamination also there is nothing to show but for suggestions as if the bus driver at fault, for this Court while sitting in appeal against the conclusions arrived by the Tribunal of said Amrutha Rao-driver of the car at fault and not the bus driver, there is nothing to interfere as even pending appeal, there was no any little attempt made by the claimants to file M.V.I. Report and scene observation report regarding the exact portion of the damage of the bus and to the car and the location of the bus and the car on the road and width of the road and place of accident on the road and accident of respective damages and charge sheet as additional evidence to receive. Without which, there is nothing even either to remand the matter to record any further evidence or from the material on record to come to any different conclusion. Thus, there is nothing to fasten any liability on the R.T.C for nothing to show from the evidence on record of bus driver at fault in both the O.P claims. Accordingly point No.i is answered.

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POINT No.ii:

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8) In the result, both the appeals are dismissed. There shall be no order as to costs.

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9) Miscellaneous petitions, if any pending in both the appeals, shall stand closed.

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Dr. B. SIVA SANKARA RAO, J

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Date: 12-12-2014 ksh

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[1] (2013)1 SCC 731