M.V.Act - Scooterist injured in accident -No Contributory negligence - in charge sheet , Panchanam and site sketch it was mentioned that the scooter fell on right side and car was on right side - Tribunal held that there is no contributory negligence basing on criminal court judgment - Appeal - their lordships held that On a careful perusal of the award, I find no illegality or irregularity in the award. As rightly observed by the Tribunal, the I.O was the best person to explain as to under what circumstances he had to show the complainant as accused in his charge-sheet. A perusal of the charge-sheet would show that basing on the statement of LW.3S.K. Imam who was said to be an eye witness, the I.O it appears charge-sheeted the complainant. However, without their physical presence before the Tribunal, the charge-sheet and other documents cannot be accepted on their face value and hence the Tribunal rightly rejected them and accepted the evidence of PW.1 which withstood the rigor of cross-examination. Then, a perusal of the judgment in C.C.No.274 of 2006 would show that the criminal Court after conducting full-fledged trial, found the scooterist not guilty and acquitted him. LW.3 in the charge-sheet was examined as PW.3 before the Magistrate. It was mentioned in the judgment that he admitted in the cross-examination that the crime vehicle i.e, scooter was proceeding on the left side of the road and the Zen car came in the opposite direction towards right side of the road. In view of the aforesaid judgment, Exs.B.1 to B.4 will not have any probative value. In this regard, the argument of the appellant that criminal court judgment will not have bearing in a civil case cannot be accepted for the reason that when the appellant relied upon the charge-sheet and other documents, the respondent/claimant can equally rely upon the criminal courts judgment to prove that those documents will have no probative value. So at the outset, the argument of the appellant that the Tribunal erred in fixing liability on the appellants cannot be upheld. Then the submission of 1st respondent/ claimant is concerned, since he failed to file appeal or cross objections claiming higher compensation than awarded by the Tribunal, his prayer for enhancement of compensation cannot be accepted in view of the decision of Supreme Court reported in Ranjana Prakash and others vs. Divisional Manager and another . Accordingly, I find no merits in the appeal. = M.A.C.M.A No.648 of 2010 07-07-2014 United India Insurance Co. Ltd,Rep. by its Deputy Manager, Hyderabad. ... Appellant D. Shankar Singh and another.. Respondents = 2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11599

M.V.Act - Scooterist injured in accident -No Contributory negligence -  in charge sheet , Panchanam and site sketch it was mentioned that the scooter  fell on right side and car was on right side - Tribunal held that there is no contributory negligence basing on criminal court judgment - Appeal - their lordships held that On a careful perusal of the award, I find no illegality or irregularity in the award. As rightly observed by the Tribunal, the I.O was the best person to explain as to under what circumstances he had to show the complainant as accused in his charge-sheet.  A perusal of the charge-sheet would show that basing on the statement of LW.3S.K. Imam   who was said to be an eye witness, the I.O it appears charge-sheeted the complainant.  However, without their physical presence before the Tribunal, the charge-sheet and other documents cannot be accepted on their face value and hence the Tribunal rightly rejected them and accepted the evidence of PW.1 which withstood the rigor of cross-examination. Then, a perusal of the judgment in C.C.No.274 of 2006 would show that the criminal Court after conducting full-fledged trial, found the scooterist not guilty and acquitted him. LW.3 in the charge-sheet was examined as PW.3 before the Magistrate.  It was mentioned in the judgment that he admitted in the cross-examination that the crime vehicle i.e, scooter was proceeding on the left side of the road and the Zen car came in the opposite direction towards right side of the road. In view of the aforesaid judgment, Exs.B.1 to B.4 will not have any probative value.  In this regard, the argument of the appellant that criminal court judgment will not have bearing in a civil case cannot be accepted for the reason that when the appellant relied upon the charge-sheet and other documents, the respondent/claimant can equally rely upon the criminal courts judgment to prove that those documents will have no probative value. So at the outset, the argument of the appellant that the Tribunal erred in fixing liability on the appellants cannot be upheld.  Then the submission of 1st respondent/ claimant is concerned, since he failed to file appeal or cross objections claiming higher compensation than awarded by the Tribunal, his prayer for enhancement of compensation cannot be accepted in view of the decision of Supreme Court reported in Ranjana Prakash and others vs. Divisional Manager and another . Accordingly, I find no merits in the appeal. =

As a result the claimant (pillion driver) and the rider of the scooter fell down
and claimant sustained fracture both bones of right leg besides other injuries.
On these
pleas, the claimant filed OP No.881 of 2006 against respondents 1 and 2, who
are the owner and insurer of the offending car and claimed Rs.3,50,000/- as
compensation under different heads mentioned in the OP.
the Tribunal granted Rs.90,500/- as compensation with interest @ 7%  per
annum as follows:
        Pain and suffering                                      Rs.20,000-00
        Hospital charges                                        Rs.44,876-00
        Incidental expenditure                          Rs.  5,000-00
        Expenditure for future surgery                  Rs.10,000-00
        Loss of salary to the petitioner during the
     period of treatment, rest and recovery             Rs.  5,442-00
     Loss of future amenities of life                   Rs.  5,000-00
        ------------------
                                Total                           Rs.90,318-00
        ------------------
(Rounded of to Rs.90,500/-)
Conculsion
The accident, involvement of scooter bearing No.AP 29 Q 6721
and Maruthi Zen Car bearing No.AP 31 AF 9549 and injuries to the claimant
are not in dispute.   As can be seen, the bone of contention in the appeal is
with regard to the liability fixed on the car driver.  Before the Tribunal, the
claimant deposed as if the offending car came in the opposite direction on a
wrong side being driven by its driver at high speed and in a rash and
negligent manner and dashed the scooter.  In the cross-examination, except
giving suggestion that there was no negligence on the part of the scooter
rider, nothing specific could be extracted to establish that the scooter rider
swerved on the wrong side and dashed the car. Be that it may, the
respondents did not adduce any contra evidence by examining the car driver
or any eye witnesses to buttress their claim. The Insurance Company relied
upon Ex.B.2charge sheet, Ex.B.3Panchanama and Ex.B.4Sketch of        
scene of offence. In Ex.B.4, it is drawn as if the car was on its left side and
scooter fell down on its extreme right side (wrong side). The Tribunal did not
agree to consider these documents on the observation that the respondents in
the OP failed to examine the I.O and the eye witness shown in the charge-
sheet (LW.3) to prove the contents of the charge-sheet. Accordingly, it fixed
the liability on the car. Also viewing the matter in another angle, the Tribunal
observed that even if it is held that the scooterist was also responsible for
the accident to some extent, then for the composite negligence of the two
vehicles, the claimant being a third party can choose both or one of the
tort-feasors as his defendant and in such event also, the owner and insurer of
the car cannot escape their liability. Accordingly, it fixed liability on the
owner and insurer of the car. On a careful perusal of the award, I find no
illegality or irregularity in the award. As rightly observed by the Tribunal,
the I.O was the best person to explain as to under what circumstances he had to
show the complainant as accused in his charge-sheet.  A perusal of the
charge-sheet would show that basing on the statement of LW.3S.K. Imam  
who was said to be an eye witness, the I.O it appears charge-sheeted the
complainant.  However, without their physical presence before the Tribunal,
the charge-sheet and other documents cannot be accepted on their face value
and hence the Tribunal rightly rejected them and accepted the evidence of
PW.1 which withstood the rigor of cross-examination. Then, a perusal of the
judgment in C.C.No.274 of 2006 would show that the criminal Court after
conducting full-fledged trial, found the scooterist not guilty and acquitted
him. LW.3 in the charge-sheet was examined as PW.3 before the Magistrate.
It was mentioned in the judgment that he admitted in the cross-examination
that the crime vehicle i.e, scooter was proceeding on the left side of the road
and the Zen car came in the opposite direction towards right side of the road.
In view of the aforesaid judgment, Exs.B.1 to B.4 will not have any probative
value.  In this regard, the argument of the appellant that criminal court
judgment will not have bearing in a civil case cannot be accepted for the
reason that when the appellant relied upon the charge-sheet and other
documents, the respondent/claimant can equally rely upon the criminal
courts judgment to prove that those documents will have no probative value.
So at the outset, the argument of the appellant that the Tribunal erred in
fixing liability on the appellants cannot be upheld.

9)      Then the submission of 1st respondent/ claimant is concerned, since he
failed to file appeal or cross objections claiming higher compensation than
awarded by the Tribunal, his prayer for enhancement of compensation cannot
be accepted in view of the decision of Supreme Court reported in Ranjana
Prakash and others v. Divisional Manager and another . Accordingly, I
find no merits in the appeal.

2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11599

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.648 of 2010

07-07-2014

United India Insurance Co. Ltd,Rep. by its Deputy Manager, Hyderabad. ...
Appellant

D. Shankar Singh and another.. Respondents  

Counsel for Appellant                   : Sri A.V.K.S. Prasad

Counsel for Respondent No.1     : Sri K. Hari Mohan Reddy

<Gist:

>Head Note:

?Cases referred:
1)      AIR 1994 AP  320
2)      2011 ACJ 2418


HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.648 of 2010

JUDGMENT:  
        Aggrieved by the Award dated 29.10.2009 in OP No.881 of 2006
passed by the Chairman, MACT-cum-XXII Additional Chief Judge, City
Criminal Court, Hyderabad (for short the Tribunal), the R2/Insurance
Company preferred the instant MACMA.  
2)      The factual matrix of the case is thus:
a)      The case of the claimant is that on 29.01.2006 at about 5:45 p.m, while
he along with another was proceeding on scooter bearing No. AP 29 Q 6721
slowly on the left side of the road from Edupayala Durgamma temple to
Hyderabad and when they reached near Gummadidala village outskirts, one
Maruthi Zen Car bearing No.AP 31 AF 9549 came in the opposite direction
with high speed and in a rash and negligent manner and dashed their scooter.
As a result the claimant (pillion driver) and the rider of the scooter fell down
and claimant sustained fracture both bones of right leg besides other injuries.
Immediately he was admitted in Ram Hospital and thereafter shifted to
Basant Sahney Hospital, Secunderabad for better treatment. It is averred that
the accident was occurred due to the negligence of the car driver. On these
pleas, the claimant filed OP No.881 of 2006 against respondents 1 and 2, who
are the owner and insurer of the offending car and claimed Rs.3,50,000/- as
compensation under different heads mentioned in the OP.
b)      R1 filed counter and contended that accident was occurred due to the
fault of the rider of scooter, as he drove the same in a rash and negligent
manner and there is no negligence on the part of car driver.
c)       R2/Insurance Company opposed the claim denying all the petition
averments. R2 contended that burden lies on the claimant to prove that
accident was occurred due to rash and negligent driving by the car driver and
denied that rider of the scooter was having valid licence at the time of
accident. R2 contended that claim is excessive and exorbitant and prayed to
dismiss the OP.
d)      During trial, PWs.1 to 4 were examined and Exs.A1 to A8 and Exs.X1
to X3 were marked on behalf of the claimant. RW1 was examined and
Exs.B.1 to B5 were marked on behalf of the respondents.
e)      A perusal of the award would show that Tribunal having regard to the
oral and documentary evidence has held that offending car driver was
responsible for the accident. Sofaras quantum of compensation is concerned,
the Tribunal granted Rs.90,500/- as compensation with interest @ 7%  per
annum as follows:
        Pain and suffering                                      Rs.20,000-00 
        Hospital charges                                        Rs.44,876-00 
        Incidental expenditure                          Rs.  5,000-00
        Expenditure for future surgery                  Rs.10,000-00 
        Loss of salary to the petitioner during the
     period of treatment, rest and recovery             Rs.  5,442-00
     Loss of future amenities of life                   Rs.  5,000-00
        ------------------
                                Total                           Rs.90,318-00 
        ------------------
(Rounded of to Rs.90,500/-)

        Hence, the appeal by United India Insurance Company Limited.
3)      Heard arguments of Sri A.V.K.S. Prasad, learned counsel for appellant/
Insurance Company and Sri K. Hari Mohan Reddy, learned counsel for R1/
claimant.   Notice to R2 was returned unserved.
4)      Learned counsel for appellant made it clear that he is not particular on
the quantum of compensation awarded by the Tribunal and his main thrust is
on the liability fixed on the car driver by the Tribunal. He argued though
initially scooterist lodged FIR against the car driver, however, the
Investigating Officer of Jinnaram P.S upon investigation had come to
conclusion that the scooterist went on wrong side of the road and hit the car
and hence, he charge-sheeted him. He argued that though this fact was
brought to the notice of the Tribunal by producing Ex.B.2charge sheet,
Ex.B.3Panchanama and Ex.B.4Sketch of scene of offence, the Tribunal  
failed to consider them in a proper perspective and on the other hand, having
relied upon the evidence of PW.1the claimant, it rejected those documents
holding that the Investigating Officer (I.O) and another eye witness
mentioned in the charge-sheet (LW.3) were not examined. The Tribunal
committed a further error by holding that it is a case of composite negligence
of two vehicles and the claimant being a third party can claim against both or
any of the tort-feasors. Learned counsel vehemently argued that the entire
appreciation of facts and law by the Tribunal is wrong and having regard to
the evidence on record, the Tribunal ought to have held that the scooter rider
was at fault and dismissed the claim as against the owner and insurer of the
car.
5 a)    Per contra, supporting the award, learned counsel for 1st respondent/
claimant firstly argued that in the counter filed by the Insurance Company
except denying the case of claimant, it has not taken a specific plea to the
effect that the scooterist swerved his vehicle to the wrong side and dashed the
car and on the other hand, taking advantage of perfunctory investigation by
the I.O, he has argued before the Tribunal as if the scooterist was at fault.
However, the Tribunal on correct appreciation of facts and evidence has
rightly observed that the Insurance company failed to examine the I.O and the
other eye witness (LW.3) mentioned in the charge-sheet and therefore,
charge-sheet and the scene of offence sketch cannot be taken on their mere
face value.  The Tribunal further observed that when two vehicles were
involved in the accident and the accident was occurred due to the composite
negligence of both the vehicles, the claimant who is a third party with
reference to those vehicles can choose either both or one of the vehicles to
sue.  In view of the aforesaid clear findings of the Tribunal, he argued, the
Insurance Company cannot harp the Tribunal was wrong.  He further argued
that even charge-sheet filed by the I.O proved wrong by the criminal court in
its judgment holding after full-fledged trial that the rider not guilty.
Learned counsel produced copy of judgment in C.C.No.274 of 2006 on the file of
J.M.F.C, Special Mobile Court, Medak and submitted that the contention of
Insurance Company has no legs to stand.
b)      Secondly, learned counsel argued that compensation awarded was too
low and this Court can enhance the same in spite of the fact that no appeal is
preferred by the claimant.  He submitted that in fact, the claimant is entitled
to more compensation than claimed by him.
6)      As a reply, counsel for appellant argued that judgment of the criminal
court will not have a bearing in a civil case.  On this aspect, he relied upon
the decision reported in United India Insurance Company Limited, Kurnool
vs. Madiga Thappeta Ramakka and others .
7)      In the light of above rival arguments, the point for determination in this
appeal is:
Whether the award passed by the Tribunal is factually and legally
sustainable?
8)   POINT: The accident, involvement of scooter bearing No.AP 29 Q 6721
and Maruthi Zen Car bearing No.AP 31 AF 9549 and injuries to the claimant
are not in dispute.   As can be seen, the bone of contention in the appeal is
with regard to the liability fixed on the car driver.  Before the Tribunal, the
claimant deposed as if the offending car came in the opposite direction on a
wrong side being driven by its driver at high speed and in a rash and
negligent manner and dashed the scooter.  In the cross-examination, except
giving suggestion that there was no negligence on the part of the scooter
rider, nothing specific could be extracted to establish that the scooter rider
swerved on the wrong side and dashed the car. Be that it may, the
respondents did not adduce any contra evidence by examining the car driver
or any eye witnesses to buttress their claim. The Insurance Company relied
upon Ex.B.2charge sheet, Ex.B.3Panchanama and Ex.B.4Sketch of      
scene of offence. In Ex.B.4, it is drawn as if the car was on its left side and
scooter fell down on its extreme right side (wrong side). The Tribunal did not
agree to consider these documents on the observation that the respondents in
the OP failed to examine the I.O and the eye witness shown in the charge-
sheet (LW.3) to prove the contents of the charge-sheet. Accordingly, it fixed
the liability on the car. Also viewing the matter in another angle, the Tribunal
observed that even if it is held that the scooterist was also responsible for
the accident to some extent, then for the composite negligence of the two
vehicles, the claimant being a third party can choose both or one of the
tort-feasors as his defendant and in such event also, the owner and insurer of
the car cannot escape their liability. Accordingly, it fixed liability on the
owner and insurer of the car. On a careful perusal of the award, I find no
illegality or irregularity in the award. As rightly observed by the Tribunal,
the I.O was the best person to explain as to under what circumstances he had to
show the complainant as accused in his charge-sheet.  A perusal of the
charge-sheet would show that basing on the statement of LW.3S.K. Imam  
who was said to be an eye witness, the I.O it appears charge-sheeted the
complainant.  However, without their physical presence before the Tribunal,
the charge-sheet and other documents cannot be accepted on their face value
and hence the Tribunal rightly rejected them and accepted the evidence of
PW.1 which withstood the rigor of cross-examination. Then, a perusal of the
judgment in C.C.No.274 of 2006 would show that the criminal Court after
conducting full-fledged trial, found the scooterist not guilty and acquitted
him. LW.3 in the charge-sheet was examined as PW.3 before the Magistrate.  
It was mentioned in the judgment that he admitted in the cross-examination
that the crime vehicle i.e, scooter was proceeding on the left side of the road
and the Zen car came in the opposite direction towards right side of the road.
In view of the aforesaid judgment, Exs.B.1 to B.4 will not have any probative
value.  In this regard, the argument of the appellant that criminal court
judgment will not have bearing in a civil case cannot be accepted for the
reason that when the appellant relied upon the charge-sheet and other
documents, the respondent/claimant can equally rely upon the criminal
courts judgment to prove that those documents will have no probative value.
So at the outset, the argument of the appellant that the Tribunal erred in
fixing liability on the appellants cannot be upheld.

9)      Then the submission of 1st respondent/ claimant is concerned, since he
failed to file appeal or cross objections claiming higher compensation than
awarded by the Tribunal, his prayer for enhancement of compensation cannot
be accepted in view of the decision of Supreme Court reported in Ranjana
Prakash and others v. Divisional Manager and another . Accordingly, I
find no merits in the appeal.

10)     In the result, this MACMA is dismissed by confirming the award
passed by the Tribunal in O.P.No.881 of 2006.  No order as to costs in the
appeal.
     As a sequel, miscellaneous applications pending, if any, shall stand
closed.

_________________________  
U.DURGA PRASAD RAO, J    
Date: 07.07.2014

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