Accident claim Section 166 of the Motor Vehicles Act, 1988- Mere allegation is not enough that the vehicle has no permit to ply the vehicle at the time of accident - lower court wrongly not decreed the claim against insurance company = Mohd. Ashraf ali ... Appellant M/s. Krushi Chaitanya Youvajana Sangam,Nawapet (Village and Mandal), Ranga Reddy Dist. A.P., rep.by its President,and another.... Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10591

 Accident claim Section 166 of the Motor Vehicles Act, 1988Mere allegation is not enough that the vehicle has no permit to ply the vehicle at the time of accident - lower court wrongly not decreed the claim against insurance company =
Liability of insurance company =
the insurer cannot evade liability merely on the
ground that there was no valid permit for the auto to ply at the time of the
accident.  The insurer is liable to prove its contention.  The insurer neither
let in any oral evidence nor did it produce any document except the copy of the
policy (Ex.B.1) to show that the offending auto did not possess valid permit to
ply at the time of the accident. 
Quantum of compensation =
Regarding the quantum of compensation, the claimant produced medical  
bills to a tune of Rs.3,087/- under Ex.A.7. 
In view of the fact that the
claimant sustained one grievous injury in the shape of a fracture and six simple
injuries, I consider that it would be appropriate to award compensation at
Rs.7,000/- towards medical expenses. 
The Tribunal awarded Rs.15,000/- towards 
grievous injury and Rs.12,000/- at the rate of Rs.2,000/- per each of six simple
injuries and at a total of Rs.27,000/-. 
 I consider that the compensation
awarded by the Tribunal towards for one grievous injury and six simple injuries
is just and reasonable. 
The Tribunal awarded compensation at Rs.10,000/- towards
pain and sufferance. 
Where the claimant sustained fracture and six simple
injuries and had attended the hospital for more than 20 days, award of
Rs.12,000/- deserves to be awarded towards pain and sufferance.  
The claimant is
also entitled to compensation at Rs.4,000/- towards extra nourishment where the
petitioner was 58 years old at the time of the accident.
        11.     Accordingly, the claimant is entitled to compensation at
a) Compensation towards  
    medical expenses                                    .. Rs.  7,000/-

b)  Compensation towards injuries               .. Rs.27,000/-

b) Compensation towards  
    pain and sufferance                                 .. Rs.12,000/-

c) Compensation towards  
    extra nourishment                           .. Rs.  4,000/-

                                                                   ----------------
                                Total           .. Rs.  50,000/-
                                                           ===========   

        12.     The claimant is accordingly entitled to Rs.50,000/- together with
interest at 9% per annum from the petition till deposit.  Respondents 1 & 2, for
the reasons set out, are jointly and severally liable to answer the claim.
Respondents shall deposit the awarded amount within one month from today.  On 
such deposit, the claimant shall be entitled to withdraw the same together with
accrued interest and costs of the Tribunal.

HON'BLE Dr. JUSTICE K.G.SHANKAR    

MA CMA No.174 of 2005  

27-11-2013

Mohd. Ashraf ali ... Appellant

M/s. Krushi Chaitanya Youvajana Sangam,Nawapet (Village and Mandal), Ranga  
Reddy Dist. A.P., rep.by its President,and another.... Respondents

Counsel for the petitioners:  Sri V. Pratap Rao
                               for Sri V. Atchut Ram
       
Counsel for the Respondents: Sri Kotasiri Sreedhar,
                              Sri S. Bhoopal Reddy &
                                Sri T. Ramesh

<Gist:

>Head Note:

?Cases referred:

1. 2010 ACJ 1441
2. 2009 ACJ 1902
3. 2010 ACJ 1188
4. 2010 ACJ 1371
5. 2010 ACJ 1526
6. 2010 ACJ 1579
7. 2001 ACJ 328


HON'BLE Dr. JUSTICE K.G. SHANKAR    

MA CMA No.174 of 2005  

Date:  27.11.2013

JUDGMENT:  

        The injured-claimant in O.P.No.1813 of 2001 on the file of the XII
Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad laid this
claim under Section 166 of the Motor Vehicles Act, 1988 seeking compensation at
Rs.1,00,000/- for the injuries sustained by him. The Tribunal awarded
compensation at Rs.40,087/- together with interest at 9% per annum.  Questioning
the same, he laid the appeal.
        2.      On 22.04.2001 the claimant was travelling in an unregistered new
auto rikshaw owned by the first respondent and insured with the second
respondent.
At about 10.30 a.m., near Indian Dhaba, Kothagudem village, the driver of the
auto applied sudden brakes resulting in the auto turning turtle. The claimant
sustained injuries in the said accident.  He consequently laid the claim
petition u/s.166 of M.V. Act.
        3.      The claimant contended that he sustained grievous injuries over his
right hand, right femur, left eye, left knee and left nose, that he underwent
treatment in Osmania General Hospital, Hyderabad from 22.04.2001 till 15.05.2001
and that he subsequently underwent treatment for three more months.
The claimant asserts that he was 58 years old at the time of accident, that he
was a trailer and that he was earning Rs.5,000/- per month.  His contention is
that he has not been able to discharge his functions subsequent to the accident.
        4.      PW.2, who examined the claimant, certified that the claimant
suffered 30% disability.  He did not treat the claimant. On the basis of the
evidence, the Tribunal awarded Rs.15,000/- towards grievous injury on the right
hand, Rs.2,000/- for each of the six simple injuries at a total of Rs.12,000/-
and Rs.3,087/- towards medical expenses. The Tribunal also awarded Rs.10,000/- 
towards pain and sufferance and ultimately award was passed for a sum of
Rs.40,087/-.  More important, the Tribunal held that the insurer was not liable
to answer the claim and that the first respondent-owner of the auto alone was
liable to satisfy the claim.
        5.      The learned counsel or the insurer submitted that there is no ground
either for enhancement of compensation or for making the insurer jointly and
severally with the owner of the auto riksha.  The learned counsel for the
claimant contended that the insurer is jointly and severally liable with the
owner of the auto when the vehicle was insured, whether registration number was
issued or otherwise.
6.      In Mamala Mangalal Vayani v. United India Insurance Co. Ltd.1, the insurer
contended that the offending vehicle did not possess permit to operate as a
public service vehicle. The Supreme Court held that onus is upon the insurance
company to show that there was no breach of terms and conditions of the policy.
In United India Insurance Co. Ltd. v. Barkat Bibi2, the insurer contended that
the truck involved in the accident was driven without route permit and fitness
certificate.  Considering that the burden of proving the contention is upon the
insurer, a learned single Judge of Jammu and Kashmir High Court held that the
insurer was liable to satisfy the claim.
7.      In Gian Chand Negi v. Menoka Manna3, the insurer sought to avoid its
liability contending that the offending vehicle was plying without valid fitness
certificate and route permit.  The insurer, however, did not lead evidence in
that aspect.  A learned single Judge of Himachal Pradesh High Court held that
the insurer was liable to satisfy the claim.  In New India Assurance Co. Ltd. v.
Purna Hazarika4  the insurer denied the liability on the ground that bus
involved in the accident was not plying on the route permitted under the permit
at the time of the accident.  However, the insurer did not lead any evidence on
that point.  Holding that the onus would be upon the insurer to establish its
case, Gauhati High Court disallowed the claim of the insurer.
8.      In Tashi Rigzin v. Stanzin Jigmed5, a Division Bench of Jammu and Kashmir
High Court held that the very defence that the offending vehicle violated
conditions of route permit was held to be not permitted in view of Sec.149 (2)
of M.V. Act. In New India Assurance Co. Ltd. v. Mahadevamma6, a maxi cab was
involved in an accident.  The insurer tried to avoid its liability on the ground
that the maxi cab was permitted to ply as a contract carriage, but was plying as
a stage carriage at the time of the accident. A Karnataka High Court observed
that the violation of terms of the permit is not a ground to absolve the insurer
from liability. In National Insurance Co. Ltd v. Illapu Seethamma7, the
insurance company contended that the driver of the offending vehicle did not
possess a valid driving licence, but failed to establish the same. A learned
single Judge of this Court held that onus is upon the insurer to establish that
the driver did not hold valid and effective driving licence.  The insurer is not
absolved from liability.
9.      The learned counsel for the petitioner placed reliance upon these
decisions to contend that the insurer cannot evade liability merely on the
ground that there was no valid permit for the auto to ply at the time of the
accident.  The insurer is liable to prove its contention.  The insurer neither
let in any oral evidence nor did it produce any document except the copy of the
policy (Ex.B.1) to show that the offending auto did not possess valid permit to
ply at the time of the accident.  There is no dispute that the accident was on
account of the rash and negligent driving of the driver of the auto.  Further,
it is a case of res ipsa loquitor. The inevitable conclusion when the auto
suddenly turned turtle is that the driver of the auto was driving the auto in a
rash and negligent manner at the time of accident.  Viewed in any angle,
negligence on the part of the driver of the auto is established.  In the absence
of contrary evidence, it shall be presumed that the auto had been permitted to
ply at the time of the accident.  The second respondent-insurer consequently is
jointly and severally liable with the first respondent- owner of the auto.
        10.     Regarding the quantum of compensation, the claimant produced medical  
bills to a tune of Rs.3,087/- under Ex.A.7. In view of the fact that the
claimant sustained one grievous injury in the shape of a fracture and six simple
injuries, I consider that it would be appropriate to award compensation at
Rs.7,000/- towards medical expenses. The Tribunal awarded Rs.15,000/- towards 
grievous injury and Rs.12,000/- at the rate of Rs.2,000/- per each of six simple
injuries and at a total of Rs.27,000/-.  I consider that the compensation
awarded by the Tribunal towards for one grievous injury and six simple injuries
is just and reasonable. The Tribunal awarded compensation at Rs.10,000/- towards
pain and sufferance. Where the claimant sustained fracture and six simple
injuries and had attended the hospital for more than 20 days, award of
Rs.12,000/- deserves to be awarded towards pain and sufferance.  The claimant is
also entitled to compensation at Rs.4,000/- towards extra nourishment where the
petitioner was 58 years old at the time of the accident.
        11.     Accordingly, the claimant is entitled to compensation at
a) Compensation towards  
    medical expenses                                    .. Rs.  7,000/-

b)  Compensation towards injuries               .. Rs.27,000/-

b) Compensation towards  
    pain and sufferance                                 .. Rs.12,000/-

c) Compensation towards  
    extra nourishment                           .. Rs.  4,000/-

                                                                   ----------------
                                Total           .. Rs.  50,000/-
                                                           ===========   

        12.     The claimant is accordingly entitled to Rs.50,000/- together with
interest at 9% per annum from the petition till deposit.  Respondents 1 & 2, for
the reasons set out, are jointly and severally liable to answer the claim.
Respondents shall deposit the awarded amount within one month from today.  On 
such deposit, the claimant shall be entitled to withdraw the same together with
accrued interest and costs of the Tribunal.
13.     Accordingly, the Civil Miscellaneous Appeal is ordered without costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

__________________  
Dr. K.G. SHANKAR, J  
Date:  27.11.2013

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