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Judgment
K.G. Shankar, J.—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 u/s 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. 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.
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.
P.W. 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.
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.
In Kamala Mangalal Vayani and Others Vs. United India Insurance Co. Ltd. and Others, 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. United India Insurance Co. Ltd. Vs. Barkat Bibi and Others, , 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.
In Gian Chand Negi Vs. Menoka Manna and Others, 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. Vs. Purna Hazarika and Others, etc., 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.
In Tashi Rigzin Vs. Stanzin Jigmed and Others, 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. Vs. Smt. Mahadevamma, Raju and H.M. Gopal Reddy, , 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 Company Limited, Kakinanda Vs. Illapu Seethamma and others, , 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.
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.
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.
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/-
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. Accordingly, the Civil Miscellaneous Appeal is ordered without costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.