IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A.Nos.3367 of 2002 and 3440 of 2002 C.M.A.No.3367 of 2002 Between: Bhavana Sambasiva Rao ..Appellant AND Angad Vithal Rao and others .. Respondents C.M.A.No.3440 of 2002 Between: Vatttikuti Bhaskar Rao ..Appellant AND Angad Vithala Rao and others .. Respondents JUDGMENT: As both the appeals arise against the common award, they are being disposed of by this common judgment. C.M.A.No.3367 of 2002 is directed against the dismissal of M.V.O.P.No.289 of 1998 and C.M.A.No.3440 of 2002 is directed against the award of only Rs.10,000/- with interest at 9% per annum and proportionate costs as against the claim of Rs.1,00,000/- in M.V.O.P.No.554 of 1998 by the common order dated 18-03-2002. The factual background for the appeals is that the appellant in C.M.A.No.3367 of 2002 is the owner of car No.AP 16 K 199, insured with the New India Assurance Company Limited and on 19-5-1997, he and others were going in the said car to Pune and on the way, Lorry No.MH 12 FA 9615 dashed against the car near Temburni. A person died and other inmates of the car were injured. The petitioner in M.V.O.P.No.554 of 1998 was driving the car and both the owner and driver were injured. They were admitted in Government Hospital, Sholapur and Crime No.76 of 1997 was registered by Temburni police. The appellant in C.M.A.No.3367 of 2002 claimed to be an agriculturist getting more than Rs.10,000/- per month, to be owning lorries and to be doing business in finance and curry leaves. He claimed to have lost his memory and earning power due to the injuries and still undergoing treatment for the permanent disability. He claimed to have lost his teeth and therefore, he claimed a compensation of Rs.1,50,000/- from the owner and insurer of the lorry and the insurer of the car. The driver-appellant in C.M.A.No.3440 of 2002 claimed that his earnings were Rs.1500/- per month and he suffered total disability due to the accident and he is not in a position to work. He spent huge amount for treatment and hence, he sought for a compensation of Rs.1,00,000/- from the owners and insurers of the car and the lorry jointly and severally. The owner of the lorry did not contest the claim of either claimant and the owner of the car also did not contest the claim of the driver. The insurer of the lorry contended that it did not receive any information about the accident from the owner of the lorry and the driver did not possess a valid and effective driving licence. The lorry had no valid and subsisting permit and the manner of accident and nature of injuries were not mentioned in the claim petitions. Putting the claimants to strict proof of their allegations, the insurer of the lorry desired the claims to be dismissed. The insurer of the car contested the claims contending that the insurer is not liable to pay any compensation, when the insured is not liable to pay the same and unless the claimants proved their allegations, the claims are not sustainable. Hence, it desired the claims to be negatived. On such pleadings, the Tribunal framed issues in both the claim petitions about the responsibility for the accident and entitlement of the claimants to compensation. Both the claim petitions were clubbed and tried together at the request and with the consent of the parties and during enquiry, PWs.1 to 3 were examined and Exs.A.1 to 11 and B.1 to B.3 were marked. The Tribunal rendered the impugned common award, firstly referring to the evidence of both the injured-PWs.1 and 2 and the contents of Ex.A.1-First Information Report and Ex.A.2 charge sheet. The Tribunal also referred to M.V.O.P.No.398 of 1997 arising out of the same accident in which the legal representatives of the deceased were awarded compensation. The Tribunal further noted that in the light of Ex.B.1-copy of the order in M.V.O.P.No.398 of 1997, the accident has to be concluded to be due to the rash and negligent driving of the car itself. The contention that the accident occurred due to the rash and negligent driving of the lorry has negatived as even the First Information Report and the charge sheet disclosed the fault to be on the part of the driver of the car. The Tribunal then considered the entitlement of the owner of the car to any compensation and observed that Ex.B.3-insurance policy did not cover the owner’s personal risk. Though it is a comprehensive policy, no premium was paid covering the personal risk of the owner and referring to New India Assurance Company Limited v. Doredla Satyanarayana (1998 ACJ 952), the Tribunal concluded that the owner is not a third party, while he was travelling in his own car and the insurer is not liable to pay any compensation when the policy did not cover such risk. The Tribunal also referred to United India Insurance Company Limited v. Odeti Mallu Bai (1995 ACJ 851). The Tribunal, therefore, did not go into the quantum of compensation claimed by the owner of the car. While noting that the accident occurred due to the rash and negligent driving of the car by the petitioner in M.V.O.P.No.554 of 1998, the Tribunal still found from Ex.B.3-insurance policy that as the risk of the driver was covered by payment of premium of Rs.15/-, the claimant is entitled to compensation from respondents 3 and 4. Coming to the quantum of compensation, the Tribunal referred to the oral and documentary evidence produced by PW.2 and referred to the evidence of the doctor as PW.3, who observed that the case sheet marked Ex.A.8 did not disclose what were the injuries suffered by PW.2 or their nature. As it was only probablised that he would have spent some amount towards medical expenses, the Tribunal awarded Rs.5,000/- towards medical expenses and Rs.5,000/- towards injuries, making a total of Rs.10,000/- payable with interest at 9% per annum and proportionate costs. In C.M.A.No.3367 of 2002, the owner of the car claimed that it was negligence of the driver that resulted in the accident and under the comprehensive policy under which additional premium was paid, the insurer is liable to compensate him for his injuries and their consequences. Even if the accident was due to the composite negligence of both the drivers of the vehicles, he is entitled to compensation. The appellant in C.M.A.No.3440 of 2002 claimed that he was unconscious for 20 days and took treatment in Private Hospital spending Rs.40,000/- to Rs.50,000/-. The head injuries resulted in C.T. scan and cardiographic observation and the Tribunal went wrong in not awarding any compensation for pain and suffering or permanent disability commensurate with the gravity of the injuries. Sri M. Koteswara Rao, learned counsel representing Sri N. Subba Rao, learned counsel for the appellants and Sri R. Suresh Kumar, learned counsel representing Sri Bathula Venkateswara Rao, learned standing counsel for Oriental Insurance Company Limited and Sri B. Devanand, learned standing counsel for New India Assurance Company Limited are heard. The points that arise for consideration, are – 1) Whether the insurer of the car is liable to pay just and adequate compensation to the owner of the car? 2) Whether the quantum of compensation awarded to the driver of the car needs any enhancement? 3) To what relief? Insofar as the responsibility for the accident is concerned, the Tribunal had found that Ex.B-1 and Ex.B-2 certified copy of the order and decree in M.V.O.P.No.398 of 1997 arising out of the same accident at the instance of the legal representatives of the person, who died in the accident, clearly concluded that the accident occurred due to the rash and negligent driving of the car only without any share of responsibility for the driver of the lorry. The finding of the Tribunal in M.V.O.P.No.398 of 1997 appeared to have become final in the absence of any material produced by either claimant to show that the said award was challenged or was interfered with. That apart, the Tribunal noted that even the earliest version in the First Information Report-Ex.A.1 and the result of the investigation by the statutory investigating agency in Ex.A.-2 also disclosed that the accident occurred due to the rash and negligent driving of the car only. If so, the driver or owner or insurer of the lorry cannot be fastened with any liability to pay any compensation in respect of either claimant and this conclusion of the Tribunal, therefore, does not call for any interference. Point No.1: Ex.B.3-copy of the policy of insurance coupled with the positive evidence of RW.2 was referred extensively in the impugned award and it was found that the insurance policy did not cover the personal risk of the owner and that no additional premium was paid to cover such personal risk of the owner and notwithstanding the policy being a comprehensive policy, there was no way by which the terms and conditions of the insurance policy could have been interpreted to extend any liability for the personal risk of the owner on the insurer. The binding precedents relied on by the Tribunal and the factual conclusions arrived by it on the probabilities arising out of the evidence on record are, therefore, not susceptible to any interference and no liability can be fastened to the insurer, while the question of the owner compensating himself does not arise. This point is, hence, answered against the appellant in C.M.A.No.3367 of 2002. Point No.2: The claimant in M.V.O.P.No.554 of 1998 is the driver of the vehicle, who was driving the car at the relevant time and the finding of the Tribunal that notwithstanding that the accident occurred due to the rash and negligent driving of the car by him, Ex.B.3-insurance policy covered his risk was not challenged by any party and it has become final. While the owner and insurer of the lorry are not responsible to compensate him, the owner and insurer of the car have to, therefore, compensate him justly and adequately. He deposed as PW.2 that he received an injury on the head and lost one of his teeth and was treated in Sholapur for 10 days and then at Guntur for a period of two or three months spending Rs.40,000/- to Rs.50,000/-. He claimed to be getting head-ache and fear complex for driving even after treatment. However, he did not file any document to show his salary and he did not specify the injuries suffered or the treatment taken or the consequences of the injuries. The evidence of the doctor as PW.3 is about PW.2 complaining of headache and fear complex, while he admitted that he had no record to show that he treated PW.2. He stated nothing about the injuries. Exs.A.3 to A.6 and Ex.A8 relating to the treatment of PW.2 did not cover anything specific as noted by the Tribunal. Though PW.2 might have been in shock after the accident, in the absence of any proof of any specific injury or any adverse consequences even after treatment, the compensation awarded by the Tribunal does not appear to be susceptible to any interference and consequently, the compensation awarded by the Tribunal has to be concluded as just and adequate. Point No.3: In the light of the conclusions on point Nos.1 and 2, both the appeals have to fail, but in the circumstances, without costs. In the result, both the appeals are dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 07-10-2010 Ksn