HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.1383 of 2008 Date: 07-07-2011 Between: The Oriental Insurance Co. Ltd ………. Appellant And Asma and another ………. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.1383 of 2008 ORDER: This appeal is preferred against the order dated 04-01-2008 passed in M.V.O.P.No.2990 of 2004 on the file of the II Additional Metropolitan Sessions Judge-cum-XVI Additional Chief Judge, Hyderabad. 2. The brief facts of the case are that on 07-02-2004 at about 2-30 AM, while the petitioner aged about 15 years was travelling in a van along with other family members and when they reached Panjagutta X roads, Hyderabad, a lorry bearing No.AP 09T 4782, driven by its driver in a rash and negligent manner, hit the van due to which the petitioner sustained fracture of femur, injury to hip and bone apart from head injuries. She was shifted to NIMS Hospital, Panjagutta, Hyderabad where she underwent surgeries and took treatment as inpatient for about 25 days. Therefore, the petitioner filed the O.P. claiming compensation of Rs.1,50,000/- under all the heads. 3. During the course of trial, the petitioner herself was examined as PW-1 and Exs.A-1 to A-11 were got marked on her behalf. On behalf of the respondents, RW-1 was examined and Exs.B-1 to B-4 were got marked. The Tribunal, after considering the oral and documentary evidence adduced by both parties, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle and accordingly, allowed the O.P. in part awarding total compensation of Rs.1,10,818/- under all the heads with interest @ 7.5 % per annum from the date of petition till the date of realisation, and made the owner and Insurance Company of the offending vehicle jointly and severally liable to pay the compensation. Aggrieved thereby, the Insurance Company preferred the present appeal. 4. The learned counsel appearing for the appellant- Insurance Company mainly urged that the driver of the offending vehicle had no valid driving licence as on the date of accident and thus the Tribunal erred in fastening the liability against the Insurance Company since there is clear violation of the policy conditions and in any view of the matter, the finding of the Tribunal on that score should be set aside. He also urged that the Tribunal liberally granted the compensation of Rs.50,000/- towards discomfort and inconvenience though there is no medical evidence to that effect and therefore, the same is not sustainable. 5. The learned counsel for the first respondent-petitioner, while supporting the order of the Tribunal, sought for dismissal of the appeal. 6. Now the point for consideration is whether the impugned order of the Tribunal dated 04-01-2008 is sustainable? 7. The factum of the accident is not disputed. As seen from the impugned order, the first respondent is the owner and the second respondent is the Insurer of the offending vehicle and that the offending vehicle had valid insurance coverage on the date of accident. It is the contention of the appellant-Insurance Company that the driver of the offending vehicle had no valid driving licence and the same is clarified through the evidence of RW-1. Exs.B-2 to B-4 are the crucial documents. According to the appellant-Insurance Company, on the letter addressed to the RTA to know the truth or otherwise of the driving licence possessed by the driver of the offending vehicle, it was clarified that the alleged driving licence is a fake one. Strangely the officers of RTA are not examined by the Insurance Company. Without examining the concerned officials to prove Exs.B-2 to B-4, no amount of credence will be given to those documents. The Tribunal also, while discussing the evidence on record on that score, rejected Exs.B-2 to B-4 fastening the liability on the Insurance Company. 8. Having gone through the documents in Exs.B-2 to B-4, it came to light that the alleged driving licence possessed by the driver of the offending vehicle is a fake one. However, while taking into consideration the recitals thereunder and as the Insurance Company failed to discharge their burden in proving the said documents, it is directed that the Insurance Company should indemnify the compensation payable to the petitioner, however the same can be recovered from the owner of the offending vehicle (pay and recover). 9. Accordingly, the finding of the Tribunal is set aside on that score. 10. With regard to the compensation, the petitioner claimed the compensation of Rs.1,50,000/- and the Tribunal granted Rs.1,10,818/- under all the heads. As per the impugned order, the Tribunal granted the compensation of Rs.30,000/- towards pain and suffering, Rs.25,818/- towards medical expenses, Rs.2,500/- towards extra nourishment, Rs.2,500/- towards incidental charges and Rs.50,000/- towards discomfort and inconvenience. However, the Tribunal failed to grant any compensation for the injuries sustained by the petitioner. The award of compensation granted under the head of discomfort and inconvenience, in my view, is without any basis. It is strange to note that no doctor was examined in proof of the injuries sustained by the petitioner, however, Ex.A-5, discharge certificate, and other relevant bills in proof of the medical expenses towards treatment, were filed. Therefore, while taking into consideration of the same and further the petitioner being 15 years aged girl at the time of accident, it is just and reasonable to grant an amount of Rs.30,000/- towards compensation for the injuries sustained by the petitioner, while disallowing the award of Rs.50,000/- towards compensation for discomfort and inconvenience as granted by the Tribunal. The other findings of the Tribunal, while granting compensation under other heads and rate of interest, are sustainable. 11. With the above modification, the M.A.C.M.A. is allowed in part reducing the compensation from Rs.1,10,818/- to Rs.90,818/-. No order as to costs. _______________ K.S. APPA RAO, J Date: 07-07-2011 YCR