IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE R. KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO : 758 of 1999 AND CROSS OBJECTIONS (SR) No. 33683 OF 1999 (Appeal under Section ____ against the order/decree in OP no. : 753 of 1995 dated 25/11/1998 on the file of the court of theII Additonal District Judge, Visakhapatnam) Between: The Oriental Insurance Co. Ltd. Kazikuzhi, Kottayyam-686004 .... APPELLANT AND 1 Nagireddy China Suryanarayana S/o late Surappa R/o Penugollu Dharmavaram, S. Rayavaram Mandal, Visakhapatnam Dist. 2 P.S. Rajendran S/o P.N. Sankaran Vellore Post, Pazhoopurambil, Vellor, Kottayam Dist., Kerala State 3 Abraham Kurdakosa (not necessary party in this appeal) ....RESPONDENTS Counsel for the Appellant:MS.I.MAAMU VANI Counsel for the Respondents: MR.CH.DHANAMJAYA The Court delivered the following JUDGEMENT: HON’BLE SRI JUSTICE R. KANTHA RAO CIVIL MISCELLEANEOUS APPEAL No.758 OF 1999 AND CROSS OBJECTIONS (SR) No. 33683 OF 1999 COMMON JUDGMENT: This appeal is filed by the Oriental Insurance Company against the award dated 25.11.1998 in M.O.P.No.753 of 1995 passed by the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Visakhapatnam. 2. Claim petitioner, who is the first respondent herein, filed cross objections contending that the compensation awarded by the Tribunal is meager. 3. For the sake of convenience, the appellant herein is referred to as Insurance Company and the cross objector as claimant. 4. The claimant filed the claim petition under Section 166 of Motor Vehicle Act, 1988 (for short, “M.V.Act”) claiming compensation of Rs.1,00,000/- for the injuries received by him in a motor vehicle accident occurred on 27.02.1995. The Tribunal upon making an enquiry into the claim, wherein PWs.1 and 2 were examined and Exs.A- 1 to A-6 were marked on behalf of the claimant and no evidence was adduced by the appellant and other respondents, awarded an amount of Rs.25,000/- as compensation under ‘no fault liability’ with interest at the rate of 12% per annum from the date of petition till realization. The Tribunal awarded the compensation under Section 140 of M.V.Act i.e., under "No Fault Liability". The Tribunal also in Para 15 held that the evidence of PW.1 (the claimant) is not believable with regard to his travel in the lorry with goods and the same cannot be accepted but at the same time granted compensation under ‘no fault liability’, to which there is no exception. 5. The said finding of the Tribunal is challenged by the Insurance Company, who was third respondent before the Tribunal. 6. Where as the claimant filed cross objections assailing the finding of the Tribunal on the ground that the compensation has to be awarded on ‘fault liability’ and also sought enhancement of the compensation on the ground that it is not just and reasonable. 7. Both the appeal and cross objections are heard together since they arise out of the same award passed by the Tribunal and they are being disposed of by this common Judgment. 8. Heard the learned counsel appearing for the Insurance Company, Smt. I. Maamu Vani and learned counsel appearing for the claimant, Mr. B.V.S.S. Kameshwar Rao. 9. The learned counsel appearing for the Insurance Company would submit that the finding recorded by the Tribunal that the Insurance Company is liable to pay compensation under ‘no fault liability’ is erroneous and even as per the findings on record, the claimant was traveling as gratuitous passenger in the lorry, which is goods vehicle, the Insurance Company cannot be held liable to pay the compensation and it is in violation of terms and conditions of the policy and, therefore, it is not liable to pay the compensation in terms of the provisions of the amended Motor Vehicle Act, 1994. In support of her contention the learned counsel relied upon National Insurance Company Limited Vs. Jethu Ram and Others[1] which is to the effect that the Insurance company is not liable to pay compensation under ‘no fault liability’ (under section 140 of the M.V.Act) if it is ultimately held that under policy of insurance the insurer is not liable to pay the compensation in question but the insurer is entitled to get reimbursed the amounts paid by it from the owner of the vehicle. 10. On the other hand the learned counsel appearing for the claimant would submit that as per the evidence, which was forthcoming before the Tribunal, the learned Tribunal ought to have awarded compensation under Section 166 of M.V.Act instead of awarding the compensation under Section 140 of M.V.Act. According to the learned counsel, the evidence on record indicates that the accident occurred on account of the rash and negligent driving of the driver of the said lorry. 11. The learned Tribunal held at Para 8 of the award that as per the evidence of PW.1, coupled with the documents Ex.A-1 to A-3, it is very clear that the accident occurred due to rash and negligent driving of the driver and the act of driver allowing the petitioner/claimant to sit in the cabin of the lorry in which iron rods are loaded amounted to negligence. However, even if it is held that the accident was caused due to the negligent act of the driver of the lorry the crucial question would be whether the Insurance Company can be exonerated from paying the compensation to the claimant on the ground that there was violation of terms and conditions of the policy by the owner of the vehicle. Except the evidence of the claimant there was no material to prove that the claimant was traveling with his goods i.e., five bunches of bananas and 3 gunny bags of coconuts and there by he cannot be considered as owner of the goods. In the absence of any reliable evidence adduced by the claimant that he was traveling with his goods in the lorry, it has to be held that he is a gratuitous passenger in the vehicle. Even, otherwise, according to the Section 147 of M.V.Act and as per the stipulation in the Insurance Policy the traveling of passengers is prohibited in a goods vehicle and in such an event the Insurance Company cannot be made liable to pay the compensation. 12. Further, Ex.A2, certified copy of the M.V.I. report, indicates that the vehicle was under a valid policy with the Insurance Company and irrespective of the terms and conditions of the policy, the insurer is not liable to pay the compensation to the injured claimant, since, he is an unauthorized passenger in a goods vehicle and such a traveling is prohibited under the Act. 13. The learned counsel appearing for the claimant would contend that the compensation is very low and is not proportionate to the injuries sustained by the claimant. But the claimant did not adduce the required documentary evidence in proof of the permanent disability sustained by him. 14. Ex.A-3, injury certificate, filed by him shows that he received two grievous injuries and one simple injury, whereas in Ex.A-5, certificate issued by Dr. M.V.Adinarayana on behalf of the Superintendent of King George Hospital, Visakhapatnam, it is stated as follows: “This is to certify that N.China Suryanarayana, M:50 Yrs; I.P.No.4033 was admitted in SV Ward, Ortho.I Unit under Dr.C.Laxminarayana, M.S., Ortho. on 27.02.1995 with crush injury Rt. foot and leg. He was discharged on 08.06.1995.” 15. However, the evidence of PW.2, Dr.M.V.Adinarayana, who issued Exs.A3 as well as A5, shows that the claimant was admitted in King George Hospital, Visakhapatnam on 27.02.1995 with crush injury on right foot and right leg and that he was discharged on 08.06.1995. He further, deposed that he examined the claimant on 14.03.1997 and found that right foot of the claimant was deformed and inverted with complete loss of movement of right ankle joint. According to the doctor, PW.2, the claimant was walking with the help of stick and was complaining severe pain at the time of walking and he has assessed the disability at 40%, which is partial and permanent. 16. As regards the injuries and the difficulty experienced by the claimant while walking, as stated by PW.2 in the evidence, can be accepted but the disability aspect cannot be accepted in the absence of any disability certificate issued by the medical board, which is competent to issue the said certificate and constituted for the said purpose. The claimant who claims to have undergone treatment in King George Hospital did not produce any disability certificate issued by the medical board. Therefore, the claimant in this case failed to prove that he sustained disability and he can be compensated only for the injuries i.e., 2 grievous injuries and 1 simple injury, sustained by him which are disclosed from Ex.A3, injury certificate. 17. Even though the compensation was granted wrongly under Section 140 of M.V.Act, the same being just and reasonable, having regard to the nature of the injuries sustained by the claimant, the same cannot be enhanced. 18. Even though it is held hereinbefore that the appellant/Insurance company is not liable to pay compensation, as per the settled legal position and also in view of the fact that the injured claimant/cross objector being a person residing in a remote village cannot pursue the owner at this point of time and recover the amount from the owner of the vehicle, despite the fact that the owner of the vehicle is liable to pay the compensation, appellant/Insurance Company is directed to satisfy the award and then recover the amount from the owner of the vehicle without filing a fresh suit and only by filing an Execution Petition. It is submitted by the learned counsel appearing for the appellant/Insurance Company that pursuant to the interim order granted by this Court earlier, the Insurance Company deposited half of the amount already. The Insurance Company is directed to deposit the remaining amount accrued so far. 19. However, on the amount of compensation of Rs.25,000/- the learned Tribunal granted interest at the rate of 12% per annum from the date of petition till the date of order and at the rate of 15% from the date of order till the date of realization. The learned counsel appearing for the Insurance Company submitted that the interest being on higher side is liable to be scaled down in this appeal. According to this Court also the interest granted by the Tribunal below is not in accordance with law and the same is reduced to 7.5% per annum from the date of petition till realization. The Insurance Company is liable to deposit the remaining amount with interest accrued so far from the award which is modified in this appeal, within three months from the date of receipt of a copy of this Judgment and it can recover the same from the owner of the vehicle, who is held liable to pay the compensation to the claimant. In the result, the Civil Miscellaneous Appeal filed by the Insurance Company is partly allowed and the cross objections filed by the first respondent/injured claimant are dismissed. There shall be no order as to costs. ___________________________ JUSTICE R. KANTHA RAO 25th August, 2009 MD [1] (1999) 9 SCC 62