The New India Assurance Company Ltd. vs V.D. Suresh and Another

Dr. B. Siva Sankara Rao, J.—The 2nd respondent-insurance company filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Medak at Sangareddy, (for short, ''Tribunal'') in M.V.O.P. No. 432 of 2001, dated 23.03.2005, awarding compensation of Rs. 67,000/- (Rupees Sixty seven thousand only) with interest at 9% per annum as against the claim of the claimant of Rs. 1,00,000/- (Rupees one lakh only) in the claim petition u/s 166 of the Motor Vehicle Act, 1988 (for short, ''the Act''). Heard Sri B. Naresh, the learned counsel for the appellant-2nd respondent and Sri L. Prabhakar Reddy, learned counsel for the claimant-1st respondent. Against the appeal 2nd respondent (owner of the vehicle), the appeal is dismissed for default for non-payment of batta vide order dated 25.01.2010 and still there is nothing against maintainability of the appeal but for if at all to contend if any additional liability on owner for notice and hearing with opportunity to contest, thus taken up the appeal to decide on merits. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The contentions of the insurer in the grounds of appeal as well as in course of hearing in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal was erred in arriving a wrong conclusion in not fixing contributory negligence despite the injured-claimant while coming from behind having the finder of lost opportunity to avert the accident hit the lorry as a result of which he sustained injuries and solely liable, that the award in granting compensation is against to the principles of law and granting of compensation of Rs. 67,000/- for the two fractures sustained as can be seen from Exs. A-3 to A-5 is also excess and not sustainable hence, to reduce the quantum and apportion liability and also to reduce rate of interest while arriving just compensation as prayed for.

2(a). Whereas in the course of hearing, the claimant as 1st respondent to the appeal, (since the appeal is dismissed against the 2nd respondent for default on 25.01.2001) contended that the very proceeding without leave of the Court u/s 170 of the Act before the Tribunal to maintain the appeal not sustainable as also laid down by the Apex Court in Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, that joining of the insurer by themselves in the claim petition would not amount to impleading u/s 170 of the Act; that thereby the compensation awarded by the Tribunal against the driver, owner and insurer became final for insurer''s appeal won''t lie on merits against quantum of compensation or contributory negligence and also that the amount of compensation no way on high side to challenge. The other decision relied is A.P.S.R.T.C. Vs. P. Venkat Rao and Others, United India Insurance Company Limited v. Sona Devi 2007 Law Suit (Del) 2404, wherein above expression of the Apex Court was relied. On contra to the above, the insurer-appellant relied upon United India Insurance Company Ltd. Vs. Shila Datta and Others, (three Judges bench of the Apex Court) to say that when the insurer was made a party before the Tribunal by the insured even insured did not file independent appeal, the insurer can maintain the appeal questioning the claim on merits by taking all pleas which the insured also can take even in the absence of leave of the Tribunal u/s 170 of the Act.

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

Whether the appeal filed by the insurance company is maintainable, if not whether there is any contributory negligence on the part of the claimant in sustaining the injuries out of the accident and if so at what proportion with the negligence on the part of the driver of the lorry of the 1st respondent, insured with the 2nd respondent to the claim petition (appellant)?

Whether the compensation arrived by the Tribunal of Rs. 67,000/- on different heads is requires interference by this Court and if so with what extent and the same is the just compensation and what rate of interest with what observations?

To what result?

POINT No. 1:

The factual matrix of the case is that, on 25.12.1999 when the claimant was going on scooter No. AP 9N 6623 along with his wife to Gongloor village when they reached in the limits of Taddanpalli village, the lorry bearing No. AEN 5688 driven by its driver in a rash and negligent manner in a high speed, stopped the lorry all of a sudden without observing traffic on road and caused the accident, due to which the claimant and his wife received fracture injuries and the claimant was shifted to Government Sangareddy and later NIMS Hospital, Hyderabad and taken treatment for one month. The claimant filed the petition claiming compensation of Rs. 1,00,000/- under various heads and the Tribunal after considering his claim and after examination of witnesses on both sides, held that the accident occurred was due to the rash and negligent driving of the 1st respondent-driver of the crime vehicle and awarded compensation of Rs. 67,000/- with interest at 9% p.a. against respondent Nos. 1 and 2 jointly and severally.

Though it is the contention of the claimant-1st respondent impugning the maintainability invoking Section 170 of the Act by referring to the expression of Apex Court in Sankarayya (1 supra) by virtue of the subsequent expression of the Apex Court in Shila Datta (4 supra), the Three Judge bench of the Apex Court expressed that the claim application and pursuant to it award of the Tribunal is not an adversarial adjudication between litigant parties to a dispute, but a statutory determination of compensation on occurrence of an accident by considering what are the significant factors so to determine and once in the claim application the claimants implead the insurer even the Act does not require the claimants to implead the insurer of the vehicle as party-respondent but for to them to voluntarily choose; in such a case, insurance company becomes entitled to raise all grounds without being restricted to grounds available u/s 149(2) of the Act and to raise all grounds since available the insurer need not seek permission of the Tribunal u/s 170 of the Act. Therefore, the appeal is maintainable enabling the insurer to take the pleas available to the insured. Once the appeal is maintainable, this appellate authority can go into the merits of the matter.

Now, coming to the manner of accident that is not in dispute, the fact that the injured was proceeding on the scooter from behind to the crime lorry and the crime lorry when suddenly applied brakes, the scooter of the injured coming in contact with the crime lorry there to some extent as the finder of last opportunity to avert; negligence also on the claimant from above facts and circumstances of the case to say that there is a contributory negligence on the part of the claimant also. So far as the contributory negligence and apportionment of liability in this regard is concerned, it all depends upon facts and circumstances of the case as there is no hard and fast rule in this regard, more particularly from the size of the vehicle, manner of accident, condition and width of road. In this matter, from the factual matrix, contributory negligence can be fixed at reasonable ratio of 20% against the claimant bike rider to fix the remaining liability i.e., 80% on the insurer.

Now, coming to quantum of compensation, as per Ex. A-4 the Government hospital medical record i.e., O.P. chit, there is fracture of right clavicle compound and another fracture on scalp with blunt injury to head. Ex. A-3 also refers two fractures so also the Ex. A-5 of NIMS hospital. Once, the first fracture is compound one and the second fracture to scalp is also associated with wound on head; the compensation in all for said two fractures awarded by the Tribunal of Rs. 30,000/- is utterly low. No doubt as contended by the insurer in the absence of independent appeal or cross-objections, this Court has no right to enhance the compensation as laid down by the Apex Court in Ranjana Prakash and Others Vs. Divisional Manager and Another, in categorical terms that in the appeal filed by insurer or owner or driver as the case may be, the claimant but for to support the quantum on one ground or other has no right to ask for enhancement of compensation so also the appellate authority has no power under Order XLI Rule 33 C.P.C. to enhance in absence of independent appeal or cross objections. Keeping in mind said principle of law, an amount of Rs. 30,000/- is reasonable compensation to the 1st compound fracture of right clavicle to the claimant and for other fracture at Scalp associated with blunt injury on head an amount of Rs. 20,000/- is just and reasonable which are including for pain and sufferance. Apart from the two fractures, for treatment he undergone an amount of Rs. 10,000/- can be awarded as medical expenses though no worth medical bills filed against what the Tribunal awarded a meager amount of Rs. 2,000/-. Regarding loss of earnings awarded by the Tribunal i.e., Rs. 28,000/- by taking for 75 days in spite of Ex. A-6 sanction of leave proceedings show only 21 days that too commuted/medical leave; the awarding of said amount out of the compensation is totally unsustainable to negate. However, for extra nourishment and transport charges what the Tribunal granted of Rs. 2,000/- each requires no interference. Further, the claimant is entitled to attendant charges for a period of treatment estimated to an amount of Rs. 5,000/-. Upon the compensation, the claimant is entitled the interest only at 7.5% p.a. as what the Tribunal awarded at 9% p.a. is unsustainable as per the expression in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, apart from Rajesh and Others Vs. Rajbir Singh and Others, As far as the damage of the scooter of the claimant due to the accident concerned, no bills filed in that regard to prove what was the amount incurred and hence, a minimum amount of Rs. 3,000/- awarded towards scooter repairs in the absence of any material to support the claim of Rs. 12,000/- with no worth plea even in the claim petition. Thus, in all it comes to Rs. 72,000/-. Against which after deducting the contributory negligence of 20% on the part of the claimant, what he entitled comes to Rs. 57,600/-, which is rounded to Rs. 58,000/-. Accordingly the point No. 1 for consideration is answered.

POINT No. 2:

In the result, the appeal is partly allowed apportioning the contributory negligence on the part of the claimant at 20% and of the insurer and insured of crime lorry at 80% and the compensation awarded by the Tribunal against the insured and insurer in favour of the claimant, after deducting contributory negligence is reduced from Rs. 67,000/- to Rs. 58,000/- and the rate of interest awarded by the Tribunal is also reduced from 9% p.a. to 7.5% p.a. There shall be no order as to costs in the appeal. Miscellaneous petitions, if any, in this appeal shall stand closed.