IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.Nos.834 of 2009 and 1719 of 2010 M.A.C.M.A.No.834 of 2009 Between: The New India Assurance Co. Limited, represented By its Senior Divisional Manager, Kurnool .. Appellant AND A. Vidyathamma and another .. Respondents M.A.C.M.A.No.1719 of 2010 Between: A. Vidyathamma .. Appellant AND S. Ananthiah and another .. Respondents COMMON JUDGMENT: Both the appeals arise out of the award in O.P.No.8 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Mahabubnagar, dated 26-03-2007 and hence, they are being disposed of by the common judgment. M.A.C.M.A.No.1719 of 2010 is by the claimant in O.P.No.8 of 2001 and M.A.C.M.A.No.834 of 2009 is by the 2nd respondent- insurer therein. The factual background is that the claimant was going in jeep No.AP-22-D 5598 on 05-07-2000 at about 9.10 A.M., when the jeep turned turtle near Venkatapur due to rash and negligent driving by the driver. The claimant sustained grievous injuries and had fractures of superior and inferior pubic rami, fracture of left inferior pubic rami, fracture of left pelvis, fracture of left fibula and other multiple injuries all over the body. She was shifted to Government Hospital, Mahabubnagar and after two days, was referred to Osmania General Hospital, Hyderabad. She took treatment in Udaya Orthopaedic Clinic at Hyderabad till 2-8-2000 and she continued treatment as outpatient for more than one year spending Rs.80,000/- towards treatment and expenditure. She also lost her salary and increments due to loss of service and sustained permanent disability apart from physical and mental pain and agony and loss of earning capacity. Crime No.114 of 2001 was registered by the Mahabubnagar police against the jeep driver and hence, the claimant sought for a compensation of Rs.5,00,000/-. While the owner of the vehicle remained ex parte before the Tribunal, the insurer contested the claim denying all the allegations of the claimant and contending that the claimant travelling as an unauthorized passenger in a private jeep in violation of the terms and conditions of the insurance policy is not entitled to any compensation from the insurer. The Tribunal framed issues about the responsibility for the accident and entitlement of the claimant to compensation and examined PWs.1 to 3 and RW.1 and marked Exs.A.1 to A.10 and B.1 to B.5 during enquiry. It rendered the impugned award firstly accepting the evidence of the injured-PW.1 corroborated by Ex.A.1-First Information Report and Ex.B.4-Charge Sheet as probablising the rash and negligent driving of the jeep driver being the cause for the accident. The Tribunal referred to Ex.A.2-wound certificate issued by the Government Hospital, Mahabubnagar and Ex.A.5-Discharge Summary from Udaya Orthopaedic Clinic, Hyderabad, which disclosed that the claimant had fractures of superior and inferior pubic rami on the right side, inferior rami on the left side and left fibula, for which she underwent a surgery on 12-07-2000. The Tribunal considered it reasonable to award Rs.40,000/- towards pain and suffering and on the basis of Ex.A.4-Bills to a tune of Rs.22,435/-, the Tribunal awarded Rs.25,000/- towards medical expenditure, Rs.3,000/- towards extra nourishment, Rs.2,500/- towards attendant charges and Rs.2,000/- towards transportation. Referring to the evidence of PW.2 and Disability certificate-Ex.A.6, the Tribunal noted the contention about 25% disability and noted from Ex.A.-9 Salary certificate that the claimant was discharging her duties as usual even after the accident. As there was no loss of earning capacity, the Tribunal did not award any sum under that head, but awarded Rs.25,000/- towards loss of amenities and inconvenience with reference to the disability. Noting that the claimant was on medical leave from 5-7-2000 to 1-8-2001 as seen from Ex.A.8, Ex.A.10 and the evidence of PW.3, the Tribunal arrived at loss of gross salary at Rs.55,500/-. In the absence of any evidence about the loss of increments and future prospects, the Tribunal did not grant any separate compensation under these heads and thus, total compensation payable came to Rs.1,53,000/- under all the heads. The Tribunal repelled the contention of the insurer about its non-liability and observed that the claimant claimed to be travelling in the jeep as the owner of the jeep was known to her. While the claimant was not a fare paid passenger, the claimant, a third party to the insurance policy, was held not disadvantaged by any violation of the policy conditions by the owner of the vehicle. Observing that any such violation may entitle the insurer to proceed against the owner, the Tribunal concluded that both the owner and insurer of the vehicle are jointly and severally liable to pay the compensation of Rs.1,53,000/- with interest at 7.5.% per annum from the date of petition till realization and proportionate costs. The Tribunal gave further directions about the disbursement of the compensation. The insurer contended in MACMA.No.834 of 2009 that it took permission under Section 170 of the Motor Vehicles Act from the Tribunal to contest the claim on all or any of the grounds that are available to the insured. The use of private car for a commercial purpose allowing an unauthorized passenger like the claimant cannot make the insurer liable when the policy does not cover the risk of the occupant of the jeep. Hence, the insurer desired the entire claim to be negatived. The claimant pleaded in MACMANo.1719 of 2010 that the compensation granted was disproportionate and low with reference to the disability suffered by her and physical and mental pain and agony she was subjected to apart from loss of promotion and money. Sri C. Prakash Reddy, learned standing counsel for the insurer and Sri V. Hanumantha Rao, learned counsel for the claimant and Smt. Vanga Anitha, learned counsel for the owner of the vehicle are heard. The finding of the Tribunal about the accident having been caused due to the rash and negligent driving of the jeep was not challenged by any of the parties and the said finding, therefore, has become final. Therefore, the points that arise for consideration in these appeals are,-- 1) Whether the insurer is liable to compensate the claimant? 2) Whether the claimant is entitled to any enhancement of compensation? 3) To what relief? Point No.1: Sri C. Prakash Reddy, learned standing counsel for the insurer rightly relied on United India Insurance Co. Limited, Renigunta v. C. Goverdhan and another[1] wherein the learned Judge made it clear that in respect of a jeep, which is not a public service vehicle, insurance of a passenger travelling in the jeep was optional and not compulsory and an act policy covers the risk of third parties but not the passengers either gratuitous or fare paying. The passenger travelling in a vehicle was held to be not a third party for the purpose of insurance and an act policy was held not to cover the risk of the passengers travelling in the vehicle. When a policy did not cover the risk at all and no additional premium is paid, the risk of passengers is not covered by the insurance policy and the insurer is not liable. In the present case also, it is seen from the admitted facts that Ex.B.1-Insurance policy does not cover the risk of passengers either gratuitous or fare paying and no additional premium was alleged or proved to have been paid to cover the risk of such passengers. In fact, the Tribunal noted the contentions in this regard and also observed that Ex.B.1-Insurance policy was issued for the vehicle as a comprehensive policy for a private purpose. Even the Tribunal did not state that any additional premium was paid to cover the passengers nor does it state that comprehensiveness of the policy will cover the passengers also. Therefore, in the light of the precedent above referred to, the insurer cannot be made liable to pay any compensation to the claimant under the circumstances. However, by virtue of the interim orders passed in MACMAMP.No.1295 of 2009 on 9-11-2010 the claimant was permitted to withdraw 25% of the compensation awarded along with proportionate costs and interest on the same till the date of deposit by the insurer before the Tribunal without furnishing any security and if the claimant had so withdrawn such amount, the insurer should be made entitled to recover such amount from the owner of the vehicle without the necessity of being referred to any separate legal proceedings for this purpose. Point No.2: The claimant desires the compensation to be enhanced. But the reasoning of the Tribunal in this regard was detailed, reasoned and in tune with the broad human probabilities arising out of the evidence on record. For four fractures claimed by the claimant, the Tribunal awarded Rs.40,000/-, which worked out to Rs.10,000/- for each fracture. Apart from the said damages for pain and suffering, towards whatever bills were produced under Ex.A.4 to a tune of Rs.22,435/-, the Tribunal awarded Rs.25,000/- towards medical expenses. The Tribunal also granted reasonable sums of Rs.3,000/-, Rs.2,500/- and Rs.2,000/- towards extra nourishment, attendant charges and transport charges. Notwithstanding that the claimant was attending to her duties after treatment as earlier, the Tribunal still granted Rs.25,000/- towards loss of amenities and inconvenience with reference to the alleged disability of restricted internal rotation and movements of pelvis along with limping. The salary for the entire period of her medical leave was also directed to be reimbursed to the extent proved and what was the Dearness Allowance payable was not proved by the claimant either before the Tribunal or before this Court. Any loss of increments or promotion or future prospects were not proved and under the circumstances, the assessment of the compensation by the Tribunal at Rs.1,53,000/- cannot be considered unreasonable. It is repeatedly laid down that the object of compensation is to compensate and not to result in any unjust enrichment, and therefore, the quantum of compensation awarded with interest and proportionate costs will have to be confirmed. Point No.3: In the light of my findings on Point Nos.1 and 2, the appeal filed by the insurer should succeed and the appeal filed by the claimant should fail. But, in the peculiar facts and circumstances of the case, the parties can be directed to bear their own costs. Accordingly, MACMA.No.834 of 2009 is allowed without costs and MACMANo.1719 of 2010 is dismissed without costs. If the claimant withdrew any amount from out of the amount deposited by the insurer, the insurer is entitled to recover the same from the owner of the vehicle. _____________________ G. BHAVANI PRASAD, J Date: 15-11-2010 Ksn [1] 2007 (4) ALD 665