HON’BLE SRI JUSTICE P. NAVEEN RAO REVIEW C.M.A. M.P. No.1275 OF 2013 IN M.A.C.M.A. No.4339 OF 2008 Date: 28-08-2013 Between: Chunduri Srinivasa Rao. - - - Review Petitioner. And Kotapati Somaiah and another. - - - Respondents. This Court made the following : HON’BLE SRI JUSTICE P. NAVEEN RAO REVIEW C.M.A. M.P. No.1275 OF 2013 IN M.A.C.M.A. No.4339 of 2008 ORDER: This Review Petition is filed by the appellant seeking review of the judgment dated 03.11.2011 in M.A.C.M.A. No.4339 of 2008. M.A.C.M.A. No.4339 of 2008 is directed against M.V.O.P. No.776 of 1999 on the file of Motor Accidents Claims Tribunal-cum--cum-I Additional District and Sessions Judge, Guntur. Petitioner in M.V.O.P. No.776 of 1999 is the appellant. 2. On 28.10.1998, while the petitioner was going on his motor cycle from Prattipadu to Guntur and when he reached near Rama Vagu Sapta in the outskirts of Prattipadu village, at about 07.00 p.m., the tractor and trailer bearing registration No.AP-7T-389 and 390 driven in a rash and negligent manner at high speed came in his opposite direction and dashed against the petitioner. The petitioner and the pillion rider fell down and sustained injuries. Petitioner sustained injuries on the right side of his chest, right elbow, abdomen for Haemo Peritoneum due to liner injury. He suffered shock and pain and became permanently disabled. Since no compensation was paid by the owner of Crime vehicle, petitioner/appellant instituted M.V.O.P. No.776 of 1999 in the Motor Accidents Claims Tribunal-cum-I Additional District and Sessions Judge, Guntur claiming compensation of Rs.2,00,000/-. On behalf of the petitioner PWs.1 to 3 were examined and Exs.A-1 to A-8 and Ex.X-1 were marked. On behalf of the respondents, neither any witnesses were examined nor got marked any documents. 3. The doctor, who deposed as Prosecution Witness No.2, stated that he found one abrasion on the right side of the chest and a lacerated wound on the posterior aspect of the right elbow and fracture of right humurus lower end and right side fracture of ribs. Surgery was conducted and noticed bleeding in the abdomen and observed posterior form of lever injury and the lever was bleeding. On evaluation of evidence on record, the Motor Accidents Claims Tribunal awarded a compensation of Rs.72,209/- which would carry interest at the rate of 7.5% p.a. and held only the first respondent liable to pay the compensation. 4. Not satisfied with the compensation determined by the Claims Tribunal, the petitioner filed M.A.C.M.A. No.4339 of 2008. Two grounds are urged by the petitioner-appellant. First ground is that Tribunal having noticed that the tractor and trailer is covered by insurance policy, erred in fixing the liability only on the first respondent and eschewing the Insurance Company; and secondly, the compensation awarded by the Claims Tribunal is not just and reasonable compensation as compared to the suffering and hardship underwent by the petitioner due to the accident. This Court considered the appeal only with reference to quantum of compensation determined by the Claims Tribunal, dismissed the M.A.C.M.A. There was no discussion on the second contention of the petitioner- appellant. Aggrieved by the same, this Review Petition is filed. 5. Learned counsel for petitioner contends that this Court erred in not adjudicating on the primary ground of challenge i.e. holding the Insurance Company as not liable to pay compensation. The crime vehicle is covered by policy of insurance granted by 2nd respondent- Insurance Company and accident occurred due to rash and negligent driving of the Crime vehicle. This is not considered by this Court. Learned counsel submits that non consideration of main ground with regard to liability of Insurance Company while disposing of the case is an error apparent on the face of the record and hence liable to be reviewed. 6. In support of his contention, learned counsel for the petitioner submits that the pillion rider on the motor cycle who was also injured filed M.V.O.P. No.556 of 1999 claiming compensation of Rs.90,000/- and the very same Owner and Insurance Company were arrayed as respondent Nos.1 and 2. This M.V.O.P. was adjudicated by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur. The said M.V.O.P was allowed by judgment dated 21.05.2003, wherein the learned Tribunal held that the accident was caused due to the rash and negligent driving of the driver of the tractor and trailer and that the tractor and trailer was insured by the National Insurance Company Limited and both owner and the Insurance Company were held jointly and severally liable to honour the compensation. This Award is marked as Ex.A-8 before the Claims Tribunal in M.V.O.P. No.776 of 1999 filed by the petitioner. There is no whisper in the judgment by the Claims Tribunal regarding this M.V.O.P. In support of first ground this was specifically urged and relied on. These facts could not be brought to the notice of this Court when the appeal was disposed of. 7. As can be seen from the record, M.V.O.P. No.556 of 1999 and M.V.O.P. No.776 of 1999 arose out of the same accident involving the same tractor and trailer. The said tractor and trailer was insured by the National Insurance Company, which was arrayed as respondent No.2 in both these M.V.O.Ps. M.V.O.P. No.556 of 1999 was adjudicated by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur. Whereas M.V.O.P. filed by the petitioner was adjudicated by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Guntur. The petitioner in M.V.O.P. No.556 of 1999 is the pillion rider travelling along with the petitioner in M.V.O.P. No.776 of 1999. On consideration of the rival contentions, the Claims Tribunal framed the following three issues for consideration in M.V.O.P. No.556 of 1999 : 1. Whether the accident occurred due to rash and negligent driving of the driver of Tractor-Trailer i.e. Tractor bearing registration No.A.P.7T-389 and Trailor bearing registration No.A.P.7T-390? 2. Whether the petitioner is entitled to compensation, and if so to what amount and against whom? 3. To what relief? 8. On consideration of the evidence on record, with regard to issue No.1, the Tribunal held that the accident occurred due to rash and negligent driving by the driver of the tractor and trailer. With regard to issue No.2, the Tribunal held that respondent No.1 owner of the offending vehicle is vicariously liable for the negligent act of his driver and as such the first respondent is liable to pay the compensation. It is further held that the second respondent as the insurer of the first respondent vehicle is also liable to pay compensation and therefore respondent Nos.1 and 2 were held jointly and severally liable to pay the compensation. 9. M.V.O.P. No.776 of 1999 was earlier disposed of on 13.04.2004. This judgment was challenged in M.A.C.M.A. No.1495 of 2004. This Court noticed that the Tribunal committed an error in having been swayed mainly by Exs.A-3 and A-5, which have not been proved clearly by eliciting the same from the Doctor, who issued them. This Court by judgment dated 29.02.2008 remitted the M.A.C.M.A. for consideration afresh. 10. In M.V.O.P. No.776 of 1999, on consideration of the contentions urged by the parties, the Claims Tribunal framed the following three issues for consideration : 1. Whether the accident took place due to the rash and negligent driving of the driver of Tractor-Trailer AP 7T 389 and 390? 2. Whether petitioner is entitled for compensation, if so, to what amount and from whom? 3. To what relief? 11. No clear finding is recorded on rash and negligent driving and with reference to the liability of the Insurance Company. The Tribunal recorded as under : “12. The contesting respondent did not choose to deny or let in any evidence substantiating its contention that the tractor and trailer was not insured with it. The particulars of the cover note were furnished, yet there was no response. The first respondent who intended to disown its liability stating that the tractor was insured with the second respondent did not file a copy of the policy issued by the second respondent. Under these circumstances first respondent failed to prove the existence of policy and it being in force as on the date of accident having contested this petition, I hold that R-2 cannot be tagged on with any liability. Therefore, under the circumstances of the evidence as discussed by me, I hold that first respondent is alone liable to pay the compensation.” 12. Thus, in spite of remittance of the matter by this Court for re- consideration of the issue, no care was taken in adjudicating the matter based on the evidence on record and in giving clear findings on the issues formulated for consideration. Though specific ground is raised in the Appeal, it was not specifically addressed to. 13. In view of the finding recorded by the Claims Tribunal regarding the same incident in M.V.O.P. No.556 of 1999, which finding was accepted by the Insurance Company and paid the claim amount awarded therein, the Claims Tribunal in M.V.O.P. No.776 of 1999 could not have come to a different conclusion with reference to the liability of the Insurance Company to indemnify the owner and to pay the compensation to the claimant. Learned counsel for the Insurance Company does not dispute the fact of the Claims Tribunal holding the Insurance Company liable regarding the incident on the same vehicle and paying the compensation as awarded by the Claims Tribunal. This fact is not brought to the notice of this Court by either side when the appeal was disposed of. This is an error apparent on the face of the record. 14. This Court could not have dismissed the M.A.C.M.A. if the fact that concerning the same vehicle the Claims Tribunal in M.V.O.P. No.556 of 1999 held that the accident was caused due to the rash and negligent driving of the crime vehicle and that the owner and the Insurer of the vehicle are jointly and severally held liable to pay the compensation and compensation was paid by Insurance Company in compliance thereof. Thus, not undertaking the review of the order of this Court would result in miscarriage of justice and is therefore necessary to review the order and rectify the error, which is apparent on the face of the record. 15. Accordingly, judgment dated 03.11.2011, in M.A.C.M.A. No.4339 of 2008 is reviewed. The evidence on record substantiates the contention of the petitioner/appellant that accident was caused due to rash and negligent driving of the Crime vehicle and therefore the 2nd respondent/Insurance Company which insured the Crime vehicle is also liable to pay the compensation determined. It is ordered that the second respondent-Insurance Company is also jointly and severally liable to pay the compensation along with the owner of the vehicle. Subject to the above modification, the Review Petition is disposed of. No order as to costs. _____________________ P. NAVEEN RAO, J Date: 28-08-2013. Dsh HON’BLE SRI JUSTICE P. NAVEEN RAO Review C.M.A. M.P. No.1275 OF 2013 IN M.A.C.M.A. No.4339 of 2008 Date.28-08-2013. DSH