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2020 Supreme(AP) 276
IN THE HIGH COURT OF ANDHRA PRADESH
J.UMA DEVI, J.
The New Assurance Company Ltd., - Appellant
Versus
P.Subbarayudu – Respondent
M.A.C.M.A No.2012 of 2013
Decided on : 11-03-2020
Advocate Appeared:
For the Appellant : T.V. SRI DEVI
For the Respondent: MAHADEVA KANTHRIGALA
Point of Law: It is suffice to state that the general rule of proving rash and negligent driving to claim compensation under Motor Vehicle Act was diluted by introduction of this Section. This being welfare legislation is intended to provide financial assistance, to the dependants of the person involved in a road accident and incurred inability or suffered death. Hence, we have no hesitation to hold that the dependants of the deceased person are having option either to approach the Commissioner under Workmen’s Compensation Act, since the person died during the course of his employment or under Section 163-A of the Motor Vehicles Act.
Headnote:
Motor Vehicle Act – Sections 163A, 166 – Compensation – Award, passed in O.P. on file of Chairman, Motor Accidents Claims Tribunal is assailed by New India Assurance Company Limited, with whom offending Ashok Leyland lorry is insured, whereunder it has been directed to pay compensation to the claimant together with interest and costs – Held, Court below looking into nature of injuries received by claimant to left knee which is fractured and also another injury said to be received by him which is also found to be grievous in nature, awarded compensation of Rs.25,000/- in respect of two grievous injuries, another Rs.25,000/- under head of “pain and suffering” and Rs.25,000/-towards medical expenditure, extra nourishment, transportation charges and other incidental expenditure – Trial court on close scrutiny wound certificate issued by District Hospital, and other material available in case record appears to have granted compensation of Rs.75,000/- to claimant in total, but declined to grant compensation under head of “future loss of earning” as no disability certificate issued by Medical Board was placed before it, even though PW 2 was examined, as he failed to give evidence with reference to X-rays – Appeal Dismissed (Paras 16, 17, 19)
Facts of the case:
Contention raised by the insurance company to claim that the award impugned is against to law is that the claim petition under Section 163A of the M.V.Act cannot be filed by a person who himself caused the accident. The accident in question has taken place due to the negligent driving of the offending lorry by the claimant.
Findings of The court:
Court below looking into nature of injuries received by claimant to left knee which is fractured and also another injury said to be received by him which is also found to be grievous in nature, awarded compensation of Rs.25,000/- in respect of two grievous injuries, another Rs.25,000/- under head of “pain and suffering” and Rs.25,000/-towards medical expenditure, extra nourishment, transportation charges and other incidental expenditure – Trial court on close scrutiny wound certificate issued by District Hospital, and other material available in case record appears to have granted compensation of Rs.75,000/- to claimant in total, but declined to grant compensation under head of “future loss of earning” as no disability certificate issued by Medical Board was placed before it, even though PW 2 was examined, as he failed to give evidence with reference to X-rays
Result: Appeal Dismissed
JUDGMENT:
1. The award, dated 25.03.2008, passed in O.P.No.156 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Madanapalle (for short “the Tribunal”) is assailed by the New India Assurance Company Limited, with whom the offending Ashok Leyland lorry bearing No.KA-07-A9991 is insured, whereunder it has been directed to pay compensation of Rs.75,000/- to the claimant together with interest and costs.
2. The grounds urged by the appellant-insurance company to challenge the award impugned are precisely stated as under:
3. The first and foremost contention raised by the insurance company to claim that the award impugned is against to law is that the claim petition under Section 163A of the M.V.Act cannot be filed by a person who himself caused the accident. The accident in question has taken place due to the negligent driving of the offending lorry by the claimant.
4. The second contention of the insurance company is that it has not been noticed by the court below that the claimant filed the petition under Section 166 of M.V.Act, in such circumstances, the same may not have been converted into Sec.163A of M.V.Act. The conversion of the petition under Section 163A of M.V.Act by the Tribunal on its own accord is totally unjustified.
5. The third contention of the insurance company is that even if the risk of the claimant is covered under the policy, an application for compensation is to be made under Workmen’s Compensation Act.
6. Apart from the aforementioned contentions, yet another contention is raised in ground No.4 as regard to the awarding of Rs.25,000/-under the head of “medical expenditure” and Rs.25,000/-under the head of “pain and suffering”. The insurance company’s contention is that the amount awarded under the heads of “pain and suffering” and “medical expenditure” is on higher side.
7. The 1st respondent herein is the claimant in O.P.No.156 of 2007 and he laid the claim for compensation against the appellant-insurance company and the owner of the lorry bearing No.KA-07-A9991. His case as narrated in the claim statement is that while he was proceeding in the lorry bearing No.KA-07-A9991 as its driver it was hit to a lorry bearing No.KA25-1657 which was stationed and as the result of it, he sustained grievous injuries to his left knee and to waist. Immediately after the accident, he was taken to District Hospital, Koppal for treatment.
8. To prove his case, the claimant examined himself as PW 1 and examined Dr.M.Sanjeevarayudu as PW 2. The trial court after close scrutiny of evidence of PW 1 and the documents produced by him thought that granting of compensation of Rs.75,000/-is fair and reasonable and accordingly passed the award in his favour by allowing his claim partly though he laid the claim for compensation of Rs.1,50,000/-as against the appellant-insurance company and the insured of the lorry bearing No.KA-07-A9991.
9. In the claim statement it is nowhere pleaded or asserted by the claimant that due to the negligent driving of the lorry bearing No.KA-07-A9991, the said lorry was hit to the lorry bearing No.KA25-1657 which was stationed and thus, he sustained grievous injuries to his left knee.
10. His case is that he is the driver of the offending lorry Ashok Leyland lorry (10 wheeler) bearing No.KA-07-A9991 and the said lorry is insured with the appellant herein and that the policy obtained for the said lorry by the 2nd respondent herein was in force by the date of the accident. Since there is no assertion as regard to the negligence, if any, on the part of the claimant, the court below having thought it appropriate to recast the issue “whether the accident occurred due to rash and negligent driving of offending Ashok Leyland lorry (10 wheeler) bearing No.KA-07-A9991 involved resulting in injuries to the petitioner P.Subbarayudu?”, as follows:
“Whether the offending vehicle was involved in the accident as contemplated under section 163-A of Motor Vehicles Act?”
11. The
