IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SEVENTH [27TH] DAY OF NOVEMBER, TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.986 of 2004 Between: M/s United India Insurance Co. Ltd., Rep. by its Divisional Manager, Kurnool … Appellant And: P Venkateswara Reddy @ Venkata Reddy & another … Respondents C.M.A.No.4309 of 2004 Between: P. Venkateswara Reddy @ Venkata Reddy … Appellant And: R Venugopal Reddy & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.986 of 2004 & C.M.A.No.4309 of 2004 COMMON JUDGMENT: These two appeals arise out of the order dated 15.10.2003 in MV OP No.951 of 1998 on the file of the Motor Accidents Claims Tribunal cum I Additional District Judge, Kurnool [for short ‘the Tribunal’], wherein, the claim of the first respondent in CMA No.986 of 2004 and the appellant in CMA No.4309 of 2004, was allowed in part, awarding a sum of Rs.32,500/- with interest at 9% per annum from the date of petition. 2. CMA No.4309 of 2004 is filed by the claimant seeking enhancement of the compensation. CMA No.986 of 2004 is filed by the insurer, questioning the award. Heard both sides in both the appeals. Perused the record. As the two appeals arise out of the same order, they are heard together and are being disposed of by this common judgment. 3. The claimant filed petition seeking compensation of Rs.3,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 30.08.1998. According to him on that day he along with others was travelling in a jeep from Badvel to Kampasamudram and on account of the rash and negligent driving of the vehicle by its driver, the jeep over turned, resulting in grievous injuries to the left leg of the claimant besides other injuries and that he was shifted to Government Hospital, Nandyal and from there, he was taken to NIMS Hospital, Hyderabad, where he has undergone treatment for 25 days. It is further stated that the claimant was aged 31 years and was earning Rs.4,000/- per from business and he lost future earning capacity. 4. The owner of the vehicle remained ex-parte. The insurer filed counter opposing the claim and denying their liability to pay the compensation. During enquiry, PWs.1 to 4 were examined and Exs.A.1 to A.38 were marked on behalf of the claimant. No oral evidence was adduced by the insurer, but Ex.B.1 copy of the policy was marked. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the jeep by its driver. The said finding is not seriously challenged in this appeal. The Tribunal further held that the claimant is entitled for compensation of Rs.32,500/- against the owner and also insurer. Aggrieved by the same, the insurer filed CMA No.986 of 2004, where as the claimant filed CMA No.4309 of 2004 for enhancement of the compensation. 6. Learned counsel for the insurer would contend that the Tribunal erred in fastening joint and several liability on the appellant- insurer, though in fact the risk of the passengers in the jeep is not covered by the policy Ex.B.1 and no additional premium was paid in that regard. Learned counsel for the claimant would on the other hand contend that the claimant was a third party and therefore, his risk is duly covered by the policy. He would further contend that the Tribunal failed to award medical expenses in a sum of Rs.30,000/- as covered by bunch of medical bills Exs.A.7 to A.35 and awarded only part of the amount in a sum of Rs.15,000/- The Tribunal also failed to award any amount towards extra nourishment, attendant charges. 7. A copy of the policy Ex.B.1 would show that no additional premium was paid in respect of any passenger. As per Ex.B.1 premium is paid in respect of third parties and third party property damage and the risk of the driver. No premium is paid to cover the risk of any of the passengers in the jeep and the vehicle is shown to be a private car. As the claimant was admittedly travelling in the vehicle as a passenger at the time of the accident, he cannot be considered to be a third party. If there was any passenger in the said vehicle, his risk would not be covered by policy Ex.B.1 because no additional premium is paid in respect of any of the passengers. The Tribunal, therefore, erred in directing the appellant-insurer to pay the amount, though no liability can be fastened on the insurer, inasmuch as the risk of the claimant is not covered by the policy at all. The Tribunal also erred in holding that there was violation of terms and conditions of the policy and therefore the insurer has to pay the amount initially and recover the same from the owner of the vehicle. 8. It is not the case where the owner violated the terms and conditions of the policy but it is a case where the risk of the passenger is not covered by the policy at all. The liability of the insurer to reimburse the owner arose under terms and conditions of the policy by virtue of contractual obligations between the two. When the contract itself does not provide for reimbursement of the compensation in respect of risk of a passenger, the question of imposing any liability on the insurer to pay the amount does not simply arise. Under those circumstances, it is considered that the direction given by the Tribunal that the insurer shall pay the amount initially and recover the same from the owner is unsustainable in the facts and circumstances of the present case and the same is accordingly set aside. 9. It is stated that in pursuance of the interim order dated 31.03.2004, the appellant-insurer has deposited half of the award amount besides interest and costs and the claimant has already withdrawn the same. In the circumstances of the case and having regard to the fact that the claimant may not be in a position to repay the amount that was already withdrawn at this length of time, it is directed that the amount already deposited by the insurer and withdrawn by the claimant may not be recovered from him. It is however, open to the insurer to recover the said amount from the owner of the vehicle. It is also open to the claimant to recover balance amount from the owner of the vehicle. 10. Regarding the enhancement of the compensation, the contention of the appellant in CMA No.4309 of 2004 is that under Exs.A.7 to A.35 the claimant has incurred an expenditure of about Rs.30,000/-. The evidence on record also shows that the claimant underwent treatment as inpatient for 25 days at NIMS Hospital, Hyderabad after he was shifted from Government Hospital, Nandyal. Having regard to the fact that because of the injuries suffered by the claimant and also length of the hospitalization, it is only just and proper that the claimant is entitled for compensation towards extra nourishment and attendant charges. The Tribunal awarded a sum of Rs.10,000/- towards permanent disability. In fact, there is no certificate of disability as such filed by the claimant. PW.3-Doctor, who examined the claimant, testified that the claimant was having 15% of permanent disability, but he has not issued any disability certificate. PW.3 admitted that he assessed the disability after examining the claimant clinically and based on the complaint made by the claimant regarding restriction of movements and his inability to squat or sit. In the absence of any documentary evidence showing that the injuries have led to any disability, the oral evidence of PW.3 regarding the assessment of the disability at 15%, which assessment is based only on the clinical examination and the complaint made by the claimant, cannot be taken into consideration. So the question of estimating any loss of earning capacity of the injured on account of the disability therefore does not arise. The Tribunal awarded a sum of Rs.5,000/- towards pain and suffering and Rs.2,500/- towards loss of past earnings, which are considered to be just and reasonable. In addition to the amount awarded by the Tribunal, it is considered just and proper to award a sum of Rs.5,000/- towards extra nourishment and Rs.5,000/- towards attendant charges, besides a sum of Rs.15,000/- towards balance amount of medical expenses. The claimant is, therefore, held entitled for a total compensation of Rs.57,500/- [Rs.32,500/- awarded by the Tribunal + Rs.25,000/- awarded in the appeal] with interest at 9% per annum on the original amount from the date of petition and at the same rate on the enhanced amount from the date of appeal, till the date of realisation. The impugned award is modified accordingly. 11. In the result, CMA No.986 of 2004 filed by the insurer is allowed, subject to the direction contained there under and CMA No.4309 of 2004 filed by the claimant is allowed in part to the extent stated above. No order as to costs. ______________________ G.V.SEETHAPATHY, J Date: 27.11.2009 bss