HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.Nos.
650 OF 2007 AND 4136 OF 2008
COMMON
JUDGMENT:
These two appeals are filed by both the parties i.e. United India
Insurance Company Limited i.e. MACMA No.4136 of 2008 and the injured-claimant
i.e. MACMA No.650 of 2007, having been aggrieved by the Order/Award of the
learned Chairman of the Motor Accidents Claims Tribunal–cum–II Additional Chief
Judge, City Civil Court, Hyderabad, (for
short, ‘Tribunal’) in M.V.O.P.No.624 of 2005 dated 26.10.2006 in the claim
petition under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’).
2. Heard Smt.P.S. Manjula Kumar, the learned counsel for
the appellant Insurer in MACMA No.4136 of 2008 who is 2nd respondent
in MACMA No.650 of 2008 and Sri B.Parameshwara Reddy, the learned counsel for
the 1st respondent-claimant in MACMA No.4136 of 2008 who is and appellant in MACMA No.650 of 2007.
The 2nd respondent-owner in MACMA No.4136 of 2008 served with notice
called absent with no representation, hence taken as heard for his absence to
decide on merits. Perused the material on record and the parties hereinafter
are referred to as arrayed before the Tribunal for the sake of convenience in
the appeal.
3. The
contentions of the Insurer in both the appeals as well as submissions during
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 alleged policy
not issued by the Insurer for the alleged crime vehicle and it is a fake policy
and the order of the Tribunal fixing liability is liable to be set aside and
the claimant played fraud in obtaining the award on fake policy as if issued by
the Insurance Company branch at Diwan
Deweli, though there was no such branch
in the address even, to say wrong address given and hence to set aside the
award for no liability. It is also the specific ground No.8 that the claimant
through some advocate earlier filed O.P.2219 of 2005 on the same cover note and
that was on contest dismissed on 017.12.2007 and having suppressed the same, he
continued the proceedings to show in the habit of filing false claims on fake
cover notes and hence, to set aside the award.
4. Whereas,
the contentions of the claimant in both the appeals as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law for erred in awarding the compensation of Rs.36,000/- without
properly taking into consideration of the injuries sustained by the appellant
in the accident, that the Tribunal has taken the earnings of the claimant
properly and he became totally disabled to attend any work, hence, to award
just compensation and also dismiss the appeal of the Insurance Company since
they failed to disprove his claim.
5. The
1st respondent-owner of the vehicle having been remained ex parte before the Tribunal did not
choose to put forth his appearance herein, hence taken as heard to decide on
merits.
6).Now
the points that arise for consideration in the appeal are:
1. Whether the compensation awarded by
the Tribunal is not just and utterly low and requires interference by this
Court while sitting in appeal against the award for enhancement as claimed by
the claimant as appellant in MACMA No.650 of 2007 or the same is to be held not
maintainable or liable to be dismissed in toto for not covered by any policy as claimed by the Insurer in MACMA No.4136 of
2008 and with what observations?
2. To what result?
POINT-1:
7. The
facts of the case are that on 10.02.2005 while the claimant was going on foot on the road and crossing
the road at petrol pump IOC, a TATA Sumo bearing No.AP 29 T 2532 belongs to
M.Srinivasulu-owner-2nd respondent insured with the appellant (in
MACMA No.4136 of 2008) covered by Ex.A.8 policy, came from Kothur side, at high
speed being driven by its driver in rash and negligent manner dashed against
the claimant, as a result, the claimant fell down, sustained injuries and was
treated in Osmania General Hospital, which occurrence is covered by Ex.A.1 First
Information Report and Ex.A.2 charge sheet. Basing on oral and documentary
evidence on record, The Tribunal awarded compensation of Rs.36,000/- in all
with interest at 7.5%p.a. against both the respondents in the claim petition
with joint and several liability.
8. There is no dispute on the factum of the claimant sustained
injury involving vehicle on the fateful day at the time and place as narrated
as a result of rash and negligent driving of the driver of the said Tata
Sumo. The counsel for the claimant could
not dispute the fact in saying he came to know from verification of the
documents supplied by the Insurer in the appeal about earlier O.P.No.2219 of
2000 filed for the self same claimant that went in dismissal. It is as contended by the counsel for the
claimant the O.P.No.624 of 2005 was earlier in point of time before the City
Civil Court, Hyderabad and the so called dismissal of O.P.No.2219 of 2005 dated
17.12.2007 was filed subsequently and it might be outcome from the claimant
through somebody for engaged two advocates for the claim being rustic cooli and
from non-proving of the factum of the accident resulted earlier dismissal of
the claim petition, this claim petition was proceeded with and that the Insurer
is also at equally fault for no reason to plead in the counter or even in the
arguments while disposal of the claim.
Anyhow, from this fact covered by said order marked for reference by
this Court as Ex.C.1 since the Court document, the award in O.P.No.2219 of 2005
ended in dismissal on 17.06.2007 with observation in para-9(a) while dealing
with issue No.2(page-8) that the so called insurance particulars furnished are false
and the Insurer cannot be fastened with liability for not issuing any policy
for the crime vehicle and the Tribunal awarded compensation therein against the
owner only, while dismissing against the
Insurer for a sum of Rs.47,500/- with interest at 7.5%p.a. and now from the
impugned appeal what the quantum of compensation awarded is only Rs.36,000/-
with interest at 75%p.a. and in the factual matrix from the injuries sustained
by the claimant what was awarded of Rs.47,500/- which is just and nothing
requires to increase apart from the same was made final so far as the owner of
the vehicle against whom it was granted
from Ex.C.1 order, this present O.P.No.624 of 2005 filed earlier in point of
time having regard to the factum of the subsequently filed O.P. 2219 of 2005
was already disposed off, the O.P.No.624 of 2005 is not maintainable.
Accordingly, Point No.1 is answered.
POINT -2:
9. In the result, the MACMA No.650/2007 is
dismissed holding as not maintainable on the very claim in O.P.No.624 of 2005
in view of subsequently filed O.P.No.2219 of 2005 for the same claimant for the
self same accident against the owner of the Tata Sumo vehicle was granted
relief by dismissing against the Insurer on 17.12.2007 holding the policy
particulars are fake and consequently the MACMA No.4136 of 2008 filed by the
Insurer is allowed. There is no order as to costs.
________________________
Dr. B. SIVA
SANKARA RAO, J
Date:
10.02.2014
VVR
