MACMA/159/2005 of New India Assurance Company Rep., by its Branch Manager, Vs Kommu Rangaiah, on 31 December 2014

JUDGMENT:

This appeal is preferred by the petitioner-Insurance Companydissatisfied with the order, dated 29.09.2004, in O.P.No.1049 of 2000on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal– cum – II Additional District Judge, R.R.District, N.T.R.Nagar,whereunder and whereby a sum of Rs.2,40,000/- was granted by theTribunal as compensation for the injuries sustained by respondentNo.1 viz., K.Rangaiah fastening liability on the respondents.

2. The appellant herein is respondent No.2; respondent No.1, whois the injured, is respondent No.1; respondent No.2, who is the ownerof the jeep, is respondent No.2; respondent No.3, who is the owner ofthe lorry bearing No.AP 13T 1222 in the O.P. before the Tribunal isrespondent No.3.

3. For the sake of convenience, the parties are hereinafter referredto as arrayed in the O.P. before the Tribunal.

4. The facts, in brief, are that on 19.06.2000, while petitioner wasproceeding in the jeep bearing No.AP28F 4095 belonging torespondent No.1 and when it reached near Lothuvagu after crossingPargi bus stand, a lorry bearing No.AP 13T 1222 came in oppositedirection driven in a rash and negligent manner by its driver, hit thejeep in which the petitioner was travelling resulting in grievous injuriesto him. Thereby, petitioner lost his right hand, fell unconscious andwas treated in Osmania General Hospital and spent Rs.50,000/-towards medical expenses. According to him, he was working as aHamali as on the date of accident and earning Rs.6,000/- per month.On account of loss of his right hand, he is unable to pursue hisoccupation and, therefore, he sought Rs.4,50,000/- towards

5. Respondent Nos.1 and 3, who are the owners of both thevehicles, remained ex parte.

6. Respondent Nos.2 and 4-Insurers filed their separate countersopposing the claim required the petitioner to prove the materialallegations mentioned in the petition.

7. In the direction of accounting for responsibility about theaccident, the Tribunal framed the following three issues:

“1. Whether the accident occurred on 19.6.2002 at 7.15AM on road leading to Parigi to Hyderabad, on account of therash and negligence of the driver of the lorry bearing No.AP 13T 1222 which dashed the vehicle bearing No.AP 18F 4095?

2. Whether the petitioner is entitled to claim anycompensation, if so, how much?

3. To what relief?”

8. During enquiry, petitioner examined himself as PW.1 and alsoexamined K.Narsimha Reddy as PW.2 and marked Exs.A1 to A4. Onbehalf of the respondents, no oral evidence was let in, but Exs.B1 andB2 were marked.

9. The Tribunal on issue No.1 on appraisal of evidence let in by thepetitioner recorded the finding that the accident has occurred due tonegligence of both the drivers. On issue No.2, the Tribunal basing onthe evidence of P.W.1 and in the absence of proof in regard to income,it has taken Rs.60/- as daily wage of a Hamali, which works out toRs.1,800/- per month. Since the petitioner was aged 45 years, it hastaken ‘15’ as multiplier, which works out to Rs.2,70,000/-. The Tribunalhas taken the percentage of disability at 75% and thus, worked out theloss of earning capacity at Rs.2,02,500/-, besides Rs.7,500/- towardsmedical expenses, Rs.5,000/- towards attendant charges, Rs.5,000/-towards extra nourishment, Rs.15,000/- towards pain and suffering anda sum of Rs.2,500/- towards loss of personal earnings. Thus, the Tribunal has granted a total sum of Rs.2,40,000/- by fastening theliability on respondent Nos.1 and 2 to the extent of 50% of thecompensation and the other 50% on respondent Nos.3 and 4, withfurther directions as to withdrawal of the compensation.

10. Aggrieved of the said order, respondent No.2-New IndiaInsurance Company preferred the instant appeal contending in thegrounds of appeal that despite the positive evidence of P.W.2, that theaccident has occurred due to rash and negligent driving of the lorrydriver and even Ex.A1-F.I.R. supporting the evidence of P.W.2, still,the Tribunal recorded finding that both the drivers are responsible forthe accident, which is unsustainable and contrary to the evidence onrecord. It is, therefore, contended that the Tribunal ought to have heldthat the accident occurred only due to rash and negligent driving of thelorry driver and the insurer of the lorry alone is liable to pay thecompensation. Hence sought to set aside the order and decree to theextent of imposing liability on it.

11. Heard learned counsel for the appellant and learned counselappearing for respondent No.1. There is no representation on behalf ofrespondent No.4 insurance company, which is the insurer of the lorryinvolved in the accident.

12. Perused the order and the findings recorded and conclusionarrived at by the Tribunal. The Documents marked by the petitioner arecertified copy of FIR in crime No.68 of 2000, attested copy of MedicalCertificate, report of C.T.Scan of the petitioner, bunch of medical bills,as Exs.A1 to A4 respectively, besides the insurance policies of boththe vehicles Exs.B1 and B2, which were marked on consent in theevidence of P.W.2.

13. Thus, it is very clear that neither the charge sheet nor thejudgment of the learned Judicial Magistrate of First Class concerned nor the scene of occurrence, panchanama, if any, recorded by theinvestigating officer, nor the sketch of scene of occurrence are filed bythe petitioner to enable the Tribunal in appreciating the issue in properperspective. The Tribunal on issue No.1 just observing that simplybecause P.W.2 gave report to the police, he cannot absolve hisresponsibility in driving the jeep in rash and negligent manner andought to have taken precaution despite there was every possibility toavoid taking place of the accident, arrived the finding that there wasnegligence on the part of both the drivers.

14. No doubt, the Tribunal made an observation on issue No.1 thatthe material placed before the Court establishes there is negligence onthe part of both the drivers but, it is really strange andununderstandable that in the absence of the charge sheet, the judgment of the learned Magistrate, who disposed of the calendarcase in case it was disposed of by the date of the order underchallenge, the scene of occurrence panchanama, and the map of thescene of occurrence, as to how the Tribunal was able to arrive at suchconclusion. Thus, it is clear that the Tribunal just recorded the findingwithout there being legally acceptable evidence placed before it.

16. Hence, it is a fit case to remit the matter to the Tribunal byaffording opportunity to both sides to file the relevant documents and tolead further evidence by examining the relevant witnesses and torecall and examine the witness already examined. The order of theTribunal is, therefore, set-aside allowing the appeal, remitting thematter to the Tribunal with a direction to dispose of the O.P preferablywithin six months from the date of receipt of a copy of this Order.

17. As a sequel thereto, Miscellaneous Applications, if any, pendingin this appeal stand disposed of.

_____________________________

A. SHANKAR NARAYANA, J

31[st] December, 2014.LMV/KNL

THE HON’BLE SRI JUSTICE A. SHANKAR NARAYANA

M.A.C.M.A No.159 OF 2005

Lmv/ knl

Date:31.12.2014