HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.134 OF 2007
JUDGMENT:
The injured-claimant filed this
appeal, having been aggrieved by the Order/Award of the learned Chairman of the
Motor Accidents Claims Tribunal–cum-V Additional District Judge, Nizamabad(for
short, ‘Tribunal’) in M.V.O.P.No.279 of 2004 dated 12.07.2006, against the
owner and insurer of the auto bearing No.AP 25 U 1862 of the claim of
Rs.2,00,000/- for dismissing in toto with finding of the alleged accident not
proved much less from rash and negligent driving of the driver of the auto of 1st
respondent, preferred the appeal with contentions in the grounds of the appeal
that the award of the tribunal is contrary to law, weight of evidence,
preponderance of probabilities and erroneous
in appreciation of the material on record and against the settled
propositions of law and hence to allow the appeal by setting aside the
dismissal of the award of the tribunal.
2.
The 1st respondent-owner of the auto remained ex parte before the tribunal is not served and the dismissal of the
appeal against the owner no way fatal as remained exparte before the tribunal.
In this regard, in M.Chakradhara Rao v. Y.Baburao[1], the
Division Bench of this Court at paragraph No.12 held that statutory liability
of the insurance company, in the absence of the owner of the crime vehicle in
the appeal filed by the claimants, can be decided and maintainable. As held
also in New India Assurance Company Limited v. Harijana Babakka[2] for fixing statutory liability, the presence
of the owner at the appellate stage is not necessary. The same was also quoted
with approval in G.Aravind Kumar v. Md Sadat Ali[3].
Thus, the contention that the appeal is not maintainable without impleading
owner of the vehicle as co-respondent against the insurer of the vehicle is not
sustainable and thereby it can be taken up for hearing. The parties hereinafter
are referred to as arrayed before the Tribunal for the sake of convenience in
the appeal
3.
The learned counsel for the 2nd respondent-Insurer who also contended that the award of the tribunal is a
reasoned one and there is no proof of the accident and involvement of the
vehicle and thereby for this Court while sitting in appeal there is nothing to
interfere, hence to dismiss the appeal.
4).
Now the points that arise for consideration in the appeal are:
1.
Whether
the dismissal award of the tribunal is not correct and requires interference by this Court while
sitting in appeal if so what just compensation
to arrive and with what rate of interest?
2.
To what result?
POINT-1:
5.
The alleged accident and sustaining of
injury was on 08.03.2003. The claimant as P.W.1 deposed that immediately after
the occurrence she was shifted to government hospital, Nizamabad. The law is set in motion by Ex.A.1 F.I.R.
dated 14.05.2003 which is five days after the accident. The Ex.A.1 FIR report
of the injured shows that on 08.05.2003 she was one of the passengers in the
auto bearing No.AP 25 U 1862 from Kallur village to go to Government hospital,
Nizamabad and when the auto reached in front of the hospital and when she got
down, there was altercation between her and auto driver regarding payment
thereby she again boarded the auto and the auto driver therefrom rashly and
negligently driven the auto, due to which she fell down from the auto and sustained
injuries to her both legs and to other parts of the body and admitted in the
government hospital and it was at about 10.00 A.M., the occurrence took place
and she is undergoing treatment and there was a delay therefrom. The police registered the case against the
auto driver and filed charge sheet covered by Ex.A.3 under Section 337 and 338
of I.P.C. and the doctor who issued wound certificate(Ex.A.5) was cited as
L.W.2 besides the claimant as L.W.1. The
police investigation shows the occurrence took place and the claimant sustained
injuries in the accident. The wound
certificate issued by the government doctor L.W.2 of the Ex.A.5 charge sheet
also shows there is a fracture to the left ankle and another simple injury to
the left cheek. The tribunal should have considered this material aspect of
evidence which establishes the accident in awarding compensation. Thus, the
dismissal of the claim by the tribunal is unsustainable and to be set aside.
6.
Now coming to the quantum of compensation there is no other evidence available
on record but for to say she was treated for the so called fracture of left ankle. Thereby an amount of Rs.20,000/- for the fracture with pain and sufferance,
Rs.2,000/- for other simple injury and Rs.10,000/- towards medical expenses,
loss of earnings, attendant and transport charges in all Rs.32,000/- is just to
award.
7.
Coming to the rate of interest, from the settled proposition of law in TN
Transport Corporation v. Raja Priya[4],
Sarla Verma v. Delhi Transport Corporation[5]
and from the latest expression of the Apex Court in Rajesh v. Rajbir
Singh[6],
the interest is awarded at
7½% p.a. Accordingly, Point-1 for consideration is answered.
POINT
-2:
8.
In the result, the appeal is partly allowed by setting aside the dismissal
award of the tribunal and by awarding compensation of Rs.32,000/-(Rupees thirty
two thousand only) with interest at 7½% p.a. from the date of appeal filed till
realization/deposit with notice. Respondents
are directed to deposit said amount with interest within one month from today,
failing which the claimant can execute and recover. On such deposit or execution and recovery,
the claimant is permitted to withdraw the same. There is no order as to costs
in the appeal.
9.
Consequently, miscellaneous petitions, if any, pending in this appeal, shall
stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:19.02.2014
VVR
