* HON’BLE SRI JUSTICE GHULAM MOHAMMED +C.M.A.No. 948 OF 2001 %17-06-2010 #Oriental Insurance Company. ….appellant Vs. $ Cheemakurthi Venkata Kanaka Raju and three others …. Respondents !Counsel for the Appellants: Smt A. Anasuya Counsel for the Respondents: Jayanti SC Sekhar <Gist : >Head Note: ? Cases referred: 1. 1995 ACJ 358 2. AIR 2008 SC 2218 HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No. 948 OF 2001 JUDGMENT: Oriental Insurance Company is the appellant who filed the appeal challenging the quantum of compensation granted in OP No. 653 of 1998 dated 09.08.2000 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Vizianagaram, filed under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs. 1,50,000/-. 2. The brief facts of the case are as follows: On 08.1.1998 the petitioners have boarded the auto bearing No.AP 35 T 2074 at Rajapulova Junction to go to their respective places of work from residence, the first respondent-driver of the auto drove the vehicle in a rash and negligent manner, due to which, the auto turned turtle and the petitioner sustained both simple and grievous injuries and immediately all of them were shifted to Government Hospital, Vizianagaram for treatment. Hence, laid a claim for compensation against respondents 1 to 4 who are driver, owner and insurers of the vehicle. 3. Respondents 1 and 2 who are driver and owner of the auto respectively remained ex parte. The third respondent-United Insurance Company filed the counter denying the material averments of the petitions and contended that the driver is not having valid driving licence to drive the vehicle and the petitioners have to prove that the policy covers the risk of passengers, the various amounts claimed by the petitioners and prayed for dismissal of the petitions. The third respondent-United Insurance Company again filed counter contending that the auto bearing No. AP 35 T 2074 was insured with the respondent- Oriental Insurance Company Limited, Visakhapatnam by its owner second respondent vide cover note No. 505358 and prayed to exonerate the 3rd respondent-United Insurance Company from its liability. 4. On behalf of claimants, PWs 1 to 5 were examined and Exs. A-1 to A-15 were marked. On behalf of respondents DW-1 was examined and Exs. B-1 and B2 were marked. 5. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the accident and the injures to the petitioner are due to rash and negligent driving of auto bearing No. AP 35 T 2074 by R-1 driver? 2. Whether the petitioner is entitled for any compensation, if so, from which of the respondents? 3. To what relief? 6. In view of the plea raised by R-3-United India Insurance Company, the petitioner in O.P.Nos. 653 and 655 of 1998 filed I.A.No. 1248 of 1999 to implead the Oriental Insurance Company Limited as 4th respondent, and that petition was allowed and the Oriental Insurance Company Limited was impleaded as 4th respondent and filed its counter denying the averments made in the petition and the amounts claimed in all the Ops are excessive and finally prayed for dismissal of the petitions as the auto is not having the permit to carry passengers. 7. The Tribunal again after filing the counter by R- 4-Oriental Insurance Company Limited framed the following additional issues: 1. Whether the accident vehicle auto is having proper permit to carry passengers and if so how many to carry in auto? 2. Whether the accident vehicle i.e., auto was driven by the duly licenced driver and is he having proper driving licence? 8. On consideration of the oral and documentary evidence, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the auto bearing No. AP 35 T 2704 by its driver. With regard to the quantum of compensation, the Tribunal fixed the earning capacity of the appellant at Rs. 40/- per day for 25 days as an unskilled labourer and thus his monthly income comes to Rs. 1,000/- and annual income comes to Rs. 12,000/- and thus the compensation fixed at Rs. 21,600/- (12,000x18 x10/100). Being aggrieved by the same, the Oriental Insurance Company preferred this appeal. 9. Learned counsel appearing for the appellant submits that the learned Judge ought to have observed that there was no stage carriage permit to run Auto Rikshow on hire basis. He also submits that the learned Judge ought to have appreciated the evidence of PW-1, which says that the owner of the vehicle was not having valid permit for transporting the passengers. He further submits that the learned Judge having rightly observed that “evidence of PW-1 coupled with Ex. B1 disclose that first respondent i.e., driver was not holding valid driving licence as on the date of accident” erred in holding that it is respondent’s duty to prove that the driver is not having valid driving licence. 10. On the other hand, the learned counsel appearing for the claimant submits that the compensation granted is very meager and fixing the income as Rs. 40/- per day is without any basis and the same is arbitrary. He also submits that the Tribunal is erred in fixing the multiplier as 18 and the disability as 10% is wholly unjust and arbitrary. He further submits that the Tribunal erred in awarding Rs. 6,000/- and Rs. 8,000/- only to the claimants in O.P.No. 653 and 655 towards pain and suffering and the same is too low and the Court below erred in not granting any amount for medical expenses. 11. Heard the learned counsel appearing for both sides and perused the entire material made available on record. 12. The Court below held that Ex. B1 endorsement issued by R.T.A. itself is sufficient to prove that the driver R-1 was not holding valid driving licence, made it clear that is not a public document following the judgment reported in UNITED INDIA INSURANCE COMPNAY LIMITED VS. MADIGA THAPPEA RAMAKKA AND OTHERS[1] , wherein this Court held that the “Insurance Company neither summoned the driver nor R.T.A official to prove that the driver did not have any licence, insurance company appointed an investigating officer and his report was filed without examining him and held that the insurance company has not discharged its burden, by producing the document i.e., investigators report”. Therefore, in this particular case also without examining the RTA officials it cannot be said that the insurance company has proved that the driver was not holding valid driving licence but also disqualified from obtaining such licence to drive particular type of vehicle. Hence, the Court below rightly held that the liability of the Insurance Company cannot be exonerated without proving that the driver was not holding valid driving licence and that he is disqualified from obtaining any such licence. Therefore, I see no reasons to interfere with the order passed by the Tribunal on this aspect. However, following the judgment of the Supreme Court reported in ORIENTAL INSURANCE COMPNAY VS. ZAHARULNISHA AND OTHERS[2] , the appeal filed by the Insurance Company is allowed to the limited extent and it is directed that the appellant-insurance company though not liable to pay the amount of compensation, but in the nature of the case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle third respondent herein. 13. Accordingly, the appeal filed by the Insurance Company is allowed in part directing the Insurance Company to satisfy the award and shall recover the amount deposited by it along with interest from the owner of the auto bearing No. AP 35 T 2074, third respondent herein. As far as the interest is concerned, the rate of interest granted by the Tribunal is reduced from 12% to 7% per annum. _____________________ GHULAM MOHAMMED, J Date: 17.06.2010 KK [1] 1995 ACJ 358 [2] AIR 2008 SC 2218