MACMA/2371/2011 of Pallela Srinivasa Rao, Vs M/s. Sai Surya Earth Movers, on 30 December 2014

JUDGMENT:

Aggrieved by the Order, dated 08.06.2011, in O.P. No.542 of2009, passed by the Chairman, Motor Accidents Claims Tribunal –cum – X Additional District and Sessions Judge, (F.T.C),Visakhapatnam at Anakapalle, (for short, ‘the Tribunal’) maintained bythe claimant – injured under Section 166 of the Motor Vehicles Act,1988 (for short, ‘the Act’) for Rs.5,00,000/-, since the Tribunaldismissed the claim, the claimant preferred the present appeal with thecontentions in the grounds of appeal that the Tribunal gravely erred inappreciating the evidence on record, including the conviction judgmentagainst the driver of the tipper, wherein the injured – claimant was onlyhelper-cum-cleaner in the course of employment. Hence to set asidethe dismissal award of the Tribunal and to allow the appeal and togrant compensation as prayed for.

02. Learned counsel for the appellant – claimant reiterated thesame in the course of arguments.

03. Whereas, it is the contention of learned counsel for the 2[nd]respondent – insurer among the two respondents including the ownerof the tipper that the award of the Tribunal holds good and the accidentwas the result of unauthorized and illegal operation of the tipper by theinjured not even driver of the vehicle, thereby for his self negligencenot even entrusted the duty by the insured as a helper, hence there isno liability either on the owner of the vehicle or on the insurer andsought for dismissal of appeal.

04. Perused the material on record. The parties will hereinafterbe referred to as arrayed before the Tribunal for the sake ofconvenience.

05. Now the points that arise for consideration are,

i.Whether the Award of the Tribunal dismissing the claimagainst the respondents is unsustainable and if so, the claimant is entitled to any compensation, if so to whatamount and with what rate of interest and with what liabilityagainst the respondents?

ii.To what result?

Point No.i:

06. Exs.A.1, A.3 and A.4 - First Information Report, Motor VehicleInspector’s Report and Charge Sheet respectively speak that oneBanki Ananda Rao was the driver of the said tipper, which was insuredwith the 2[nd] respondent covered by Ex.B.1 – policy. Ex.A.5 is the copyof driving licence of the said Banki Ananda Rao. The said Anada Raowas found guilty in C.C. No.22 of 2009.

07. P.W.1 is the injured – claimant. P.W.3 is an eye witness tothe occurrence and he deposed that he was driver of another lorrybearing No.5951. The Tribunal did not believe his evidence sayingthat he came with number of another lorry and inconsistent version.Even that evidence, as concluded by the Tribunal in paragraph 12 ofthe judgment as unreliable and is ignored, there is evidence of P.W.1 –injured with reference to Exs.A.1, A.3 and A.4 and A.12, FirstInformation Report, Motor Vehicle Inspector’s Report, Charge sheetand Judgment respectively, in all showing the crime tipper of the 1[st]respondent insured with the 2[nd] respondent was driven by the saidBanki Ananda Rao. Even in the counter and the additional counterfiled by the insured as the 2[nd] respondent, it did not dispute the injuriessustained by the injured - claimant which are the burnt injuries byelectrocution while the tipper was in use saying out come ofnegligence and mishandling of the tipper, the injured – claimantwithout any right and in not even duty in working under the 1[st]respondent to claim as helper or cleaner of the tipper. The insuredmainly placed reliance on Ex.B.2 - First Information Report, which wasregistered on the report of one Srinivasa Rao claimed as Supervisorunder the

1[st] respondent. The injured – claimant operated the tipper in theabsence of the driver and one of the tipper instruments was touching tothe live wire and thereby electrocuted. The Tribunal pointed out thesame as if really the said Ananda Rao was the driver of the offendingvehicle at the time of the accident. Certainly Ex.B.2 – report was givento the police against the said Ananda Rao. It is without evenexamination of the said Srinivasa Rao on behalf of the insured bysimply relying upon so-called First Information Report contents ofEx.B.2 and the so-called statement of the said B. Ananda Rao coveredby Ex.B.3 as if he was not the driver of the tipper and in his absence itwas operated, the R.W.2 –Surveyor with reference to his report –Ex.B.4, to speak any facts when he has no personal knowledge andthere is no one of the survey report examined to prove including thestatement of Banki Ananda Rao, any former statement made by suchwitness relating to the same fact, is not evidence to admit that too of aliving person available, so to prove either to corroborate under Section157 or contradict under Section 145 or 155(3) of the Evidence Act,1872. Thus, there is no sanctity to the statement Ex.B.3 referred inEx.B.4 report of the Surveyor, so also Ex.B.2 - F.I.R. No doubt, thereare two First Information Reports. As per the Law, the first one got thevalue under Section 154 Cr.P.C. as F.I.R. and the second one only tobe treated as one under Section 161/162 Cr.P.C. Even if it is taken forarguments sake therefrom, Ex.A.1 – F.I.R. only got Section 161/162Cr.P.C. value, the police investigated and filed charge sheet againstthe said Banki Ananda Rao for his negligent driving that resulted theaccident and at his plea of guilty, he was convicted by Ex.A.12 -judgment that is placed reliance by the claimant in support of hiscontention, there is nothing to belie the same even from any littleinconsistency pointed by the Tribunal from the cross-examination ofP.W.1 in his saying as “it is true I was sitting in the cabin at the time ofaccident”, again saying that “not seated in the cabin but in the body ofthe tipper” that is not an inconsistency much less material to belie the substratum of the case of the complainant or his evidence as P.W.1 toignore the injuries he sustained while the Tipper in use. The Tribunaltotally ignored these vital aspects in appreciation of evidence andsimply dismissed the claim though the material on record shows thatthe accident was the result of rash and negligent driving of the tipperby Banki Ananda Rao and therefrom the claimant – injured sustainedburnt injuries covered by wound certificate – Ex.A.2. As seen from therecord, it shows that there is negligence on the part of the injured alsoand it can be fixed at 20%.

08. Ex.A.7 is the discharge summary and Ex.A.10 is the disabilitycertificate showing amputation of left hand below elbow and there isalso burn injury to right foot and also little his finger was removed andthere was also another burn injury to the back parietal region. Thedisability estimated by the Tribunal from the amputation of left handabove elbow is 65%. Even taken the injured as cleaner, the accidentwas dated 30.10.2008, it is just to take the earnings at Rs.3,500/- permonth and 65% permanent disability therein comes to Rs.2,275/- permonth and after application of multiplier ‘18’, it comes to Rs.4,91,400/-(2,275 x 12 x 18). Besides the above, the claimant would be entitledfor an amount of Rs.62,889/- towards medical expenses covered byEx.A.11 – bills. Apart from this, the claimant would be entitled for anamount of Rs.40,000/- towards pain and suffering for the injuriesincluding removal of little finger of the left hand associated byamputation right leg foot burnt injury and back parietal region burninjury, loss of earnings till the recovery that is for a period of threemonths is Rs.6,725/- (Rs.2,275/- x 3) rounded of to Rs.7,000/-, theclaimant would be entitled for an amount of Rs.20,000/- towardsattendant and transport charges and extra nourishment; in all theclaimant would be entitled for an amount of Rs.6,21,289/-. After taking20% negligence of the petitioner, the petitioner is entitled for 80% ofthe amount which is Rs.4,97,031/- which is rounded of to Rs.5,00,000/-with interest @ 7.5% per annum from the date of claim petition till realization as claimed. Accordingly, point No.i is answered.

Point No.ii:

09. In the result, the appeal is allowed granting compensation ofRs.5,00,000/- (Rupees five lakhs only) with interest @ 7.5% per annumfrom the date of claim petition till realization against the respondentsand in favour of the claimant, to deposit the said amount deducting anyamount out of it so far paid/ deposited if any within one month from thedate of receipt of a copy of this order by the respondents, failing whichthe claimant can execute for recovery. There shall be no order as tocosts of the appeal.

10. Miscellaneous petitions, if any, pending in this appeal shallstand closed.

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Dr. B. SIVA SANKARA RAO, J

30.12.2014 BV