APHC010125922023 IN THE HIGH COURT OF ANDHRA PRADESH MONDAY,THE SECOND DAY OF MARCH TWO THOUSAND AND TWENTY SIX THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL Between: 1. M/S.THE ORIENTAL INSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, D.0, TP CLAIMS SERVICE HUB, ZOOM PLAZA, NEAR VINAYAKA THEATRE, RING ROAD,VIJAYAWADA. 1. KANDIPALLI GURUMURTHY, S/O.SATHYA RAO, HINDU, MALE, AGE 28 YEARS, LORRY CLEANER, R/O.D.NO.3 ELURU. 2. G ANAND, S/O SUNDARA RAO, HINDU, MALE, AGE 35 YEARS , DRIVER OF LORRY BEARING NO.AP 36 X 6699 , R/O.D.NO.7 50/2,CHITTINAIDU COLONY VISAKHAPATNAM DIST 3. SMT MANCHAM RAJYALAKSHMI, W/O PEDDIRAJU, HINDU, FEMALE, AGE 55 YEARS , OWNER OF LORRY 'PAWING NO. AP 36 X 6699 , R/O D.NO. 17 GAJUWAKA, VISAKHAPATNAM, VISAKHAPATNAM Appeal filed under Order 41 of CPC praying tha pleased to allow this appeal by setting aside the decree and judgment passed in M.V.O.P.No.300 of 2017 on the file of The Motor Accident Claims Tribunal Cum - Principal District Judge , West Godavari at Eluru, Dated 15 September, 2022 and pass 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) MONDAY,THE SECOND DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 113 M/S.THE ORIENTAL INSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, D.0, TP CLAIMS SERVICE HUB, ZOOM PLAZA, NEAR VINAYAKA THEATRE, RING ROAD,VIJAYAWADA. ...APPELLANT AND KANDIPALLI GURUMURTHY, S/O.SATHYA RAO, HINDU, MALE, AGE 28 YEARS, LORRY CLEANER, R/O.D.NO.3-97, ASHOK NAGAR , G ANAND, S/O SUNDARA RAO, HINDU, MALE, AGE 35 YEARS , DRIVER OF LORRY BEARING NO.AP 36 X 6699 , R/O.D.NO.7 50/2,CHITTINAIDU COLONY , GAJUWAKA , VISAKHAPATNAM, VISAKHAPATNAM DIST SMT MANCHAM RAJYALAKSHMI, W/O PEDDIRAJU, HINDU, FEMALE, AGE 55 YEARS , OWNER OF LORRY 'PAWING NO. AP 36 X 6699 , R/O D.NO. 17-12-13, PEDA GANTYADA, TRR JUNCTION , GAJUWAKA, VISAKHAPATNAM, VISAKHAPATNAM DISTRICT . ...RESPONDENT(S): nder Order 41 of CPC praying that the High pleased to allow this appeal by setting aside the decree and judgment passed in M.V.O.P.No.300 of 2017 on the file of The Motor Accident Claims Tribunal Principal District Judge , West Godavari at Eluru, Dated 15 September, 2022 and pass IN THE HIGH COURT OF ANDHRA PRADESH [3333] THE HONOURABLE SMT JUSTICE V.SUJATHA NO: 113 OF 2023 M/S.THE ORIENTAL INSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, D.0, TP CLAIMS SERVICE HUB, ZOOM PLAZA, NEAR VINAYAKA THEATRE, RING ROAD,VIJAYAWADA. ...APPELLANT KANDIPALLI GURUMURTHY, S/O.SATHYA RAO, HINDU, MALE, AGE 97, ASHOK NAGAR , G ANAND, S/O SUNDARA RAO, HINDU, MALE, AGE 35 YEARS , DRIVER OF LORRY BEARING NO.AP 36 X 6699 , R/O.D.NO.7-13- , GAJUWAKA , VISAKHAPATNAM, SMT MANCHAM RAJYALAKSHMI, W/O PEDDIRAJU, HINDU, FEMALE, AGE 55 YEARS , OWNER OF LORRY 'PAWING NO. AP 36 13, PEDA GANTYADA, TRR JUNCTION , DISTRICT . ...RESPONDENT(S): t the High Court may be pleased to allow this appeal by setting aside the decree and judgment passed in M.V.O.P.No.300 of 2017 on the file of The Motor Accident Claims Tribunal- Principal District Judge , West Godavari at Eluru, Dated 15th day of 2 IA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 41 days in filing the M.A.C.M.A. against the decree and judgment M.V.O.P.No.300 of 2017 on the file of The Motor Accident Claims Tribunal-Cum — Principal District Judge, West Godavari at Eluru, Dated 15th day of September, 2022 , and pass IA NO: 2 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the Judgment and Decree dated 15th day of September, 2022 passed in M.V.O.P.No.300 of 2017 on the file of The Motor Accident Claims Tribunal-Cum — Principal District Judge, West Godavari at Eluru, including the execution proceedings , pending disposal of the main M.A.C.M.A., and pass Counsel for the Appellant: 1. GUDI SRINIVASU Counsel for the Respondent(S): 1. KAMBHAMPATI RAMESH BABU The Court made the following: 3 THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 113 OF 2023 JUDGMENT:- The Insurance Company filed the present Appeal challenging the order and decree, dated 15.09.2022 in M.V.O.P.No.300 of 2017 on the file of the Court of the Motor Accidents Claims Tribunal-cum-Principal District Judge, West Godavari at Eluru, whereby and whereunder the Tribunal granted compensation of Rs.12,54,556/- to the Claimant/ Respondent No.1 herein, as against the claim of Rs.15,00,000/-, on account of the injuries sustained by him in a motor accident that occurred on 12.12.2015. 2. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 3. The case of the petitioners, in brief, is as follows: On 12.12.2015, the Claimant was on duty as a cleaner along with driver i.e Respondent No.1 of the lorry bearing No. AP 36 X 6699 got loaded Charcoal for transportation from HPCL, Visakhapatnam to BSPL Company, Tirhoura, Chhattisgarh. On 13.12.2015 at 11.00 p.m, the Respondent No.1 parked the offending vehicle at BSPL Company compound. On the instructions of Respondent No.1, the Claimant climbed on the top of the tanker (offending vehicle). While so, Respondent No.1 rashly and negligently moved the offending vehicle suddenly and carelessly, due to which the Claimant got connected with high-tension wires and electrocuted and fell down from the top of the offending vehicle and sustained severe multiple grievous crush injuries 4 all over the body. Therefore, the Claimant filed a claim petition seeking compensation. 4. Before the Tribunal, the Respondents No. 1 and 2 i.e Driver and Owner of the offending lorry were remained ex parte. 5. The Respondent No.3 filed counter-affidavit denying the material averments made in the claim petition and inter alia contended that there is negligence on the part of the Electrical Department i.e APEPDCL, which is necessary party. As such, the claim petition is bad for non-joinder of proper and necessary party. It is further contended that the Respondent No.1 did not possess valid and effective driving license to drive the heavy goods vehicle and the offending vehicle does not have proper registration, permit and fitness certificates. As such, the Respondent No.2 violated the terms and conditions of insurance policy by handing over the offending vehicle to a person, who does not have valid driving license under Section 170 of Motor Vehicles Act. It was further contended that the compensation claimed by the Claimant is highly excessive and exorbitant and hence, it was prayed to dismiss the claim petition. 6. Basing on the pleadings, the Tribunal framed the following issues for trial: “1. Whether the accident dated 13.12.2015 occurred due to rash or negligent driving of lorry bearing No. AP 36 X 6699, by its driver/ 1st Respondent and whether the Petitioner sustained injuries in the said accident? 5 2. Whether the Petitioner is entitled to compensation? If so, how much amount and from which of the Respondent? 3. To what relief?” 7. On behalf of the petitioners/claimants, P.Ws.1 to 3 were examined. On behalf of Claimants Exs.A1 to A16 and Ex.X1 were marked. Respondent No.3 examined as RW-1 and marked Ex.B1. The RTO Official was summoned and examined as RW-2 and marked Ex.X2 and X3. 8. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition against Respondent Nos.1 to 3, awarding compensation of Rs.12,54,556/- with interest @ 7.5% per annum from the date of filing of the petition till the date of deposit and directed Respondents No.1 to 3 to deposit the said amount of compensation within three (03) months from the date of the award. 9. Aggrieved by the said award, the Respondent No.3/Insurance Company preferred this Appeal contending that the injured clamant was sustained injuries due to electrocution. Therefore, the APEPDCL is proper and necessary party to the proceedings, but the Tribunal ignored the same. It is further contended that the Tribunal ought to have seen that the offending vehicle is a oil tanker. To drive the said oil tanker, the driver has to possess valid hazardous driving license. In the instant case, the driver did not possess valid hazardous driving license. Therefore, the owner of the lorry has violated the terms and conditions of the policy and provisions of Motor Vehicles Act. The quantum of compensation awarded to the Claimant was also questioned 6 on the ground that the awarded amount was exorbitant and excessive. Therefore, prayed to allow the appeal. 10. On the other hand, learned counsel for the Claimant/ Respondent No.1 and 2 herein has supported the impugned award and prayed to dismiss the Appeal. 11. Service of notices made on the Respondents No. 1 and 3/ driver and owner of the offending vehicle, but none represented on their behalf. 12. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 13. The Claimant himself was examined as PW-1, who deposed with regard to nature of the accident. In support of his contention, he also got marked Ex.A1 to Ex.A10 documents and got examined PW-2 and 3, who are the doctors, who treated the Claimant after the said accident. The Respondents got examined RW-1, who categorically deposed that as per Ex.A1, the Claimant is a cleaner of the offending vehicle, he does not know the charge sheet filed by the Police under Section 338 of IPC. However, he denied the suggestion that the claim comes under Motor Vehicles Act, but not under Workman’s Compensation Act. However, admittedly under Ex.B1 covers 2 + 1 including the driver of the offending vehicle. The Tribunal considering the evidence of PW-1 and RW-1 coupled with Ex.A1 to Ex.A10 held that the 7 Claimant proved the accident due to rash and negligent driving of the driver of the Respondent No.1 to drive the offending vehicle, in which the Claimant sustained injuries including amputation of both hands and answered the issue No.1 in favour of the Claimant. 14. With regard to quantum of compensation is concerned, though, it is the case of the Claimant that he was working as cleaner and earning Rs. 10,000/- per month. In the absence of any evidence to that extent, the Tribunal considered the average income per day as Rs. 200/- and consequently his notional income was taken as Rs. 6,000/- per month. 15. As the Claimant sustained 90% of disability in the said accident, due to amputation of both upper limbs as per Ex.A10, which was submitted by evidence of PW-2, who deposed that he is running hospital under the name and style of Sujatha Hospital, Visakahpatnam. On 16.12.2015 at 9.00 a.m the Claimant came to his hospital with injuries. He found the injuries, deep burns of both ankle and feet and both are grievous in nature. The Claimant again came on 25.12.2015 by that time his right hand was already amputation and underwent deep fasciotomies surgery to left hand in the other hospital. He conducted review surgery and amputated left hand of the Claimant till below the elbow. He treated him and discharged him. Ex.A8 Medical Bills were issued by him; Ex.A9 is the prescription and Ex.X1 is the discharge summary. 16. The Claimant also got examined PW-3, who is a Member of Andhra Medical College, Visakhapatnam, who conducted operation on 18.12.2015 8 and amputated the right upper limb below elbow along with fasciotomy of left upper limb of the Claimant and that he issued Medical Bills i.e Ex.A8. In the absence of any evidence contra to the evidence of PWs 2 and 3, the Tribunal assessed the percentage of disability at 90%, which in fact well reasoned. Since the age of the Claimant about 36 years, the Tribunal applied the relevant multiplier of ‘15’ applicable to the age of the Claimant i.e., 36 years and arrived at Rs.9,72,000/- (72,000/- x 90/100 x 15) towards loss of future earnings, as per the decision of the Hon’ble Apex Court in Sarla Verma v. Delhi Transport Corporation1. 17. Further, the Tribunal awarded following conventional heads such as Rs.45,000/- towards medical bills; Rs. 50,000/- towards transportation charges; Rs.20,000/- towards hospitalization charges; Rs. 20,000/- towards attendant charges; Rs.10,000/- towards loss of amenities and Rs. 25,000/- towards future medical expenses, which totally comes to Rs.12,54,556/-, which cannot be found fault with. In all, the compensation awarded by the Tribunal is just and proper and cannot be said to be excessive or on higher side. This Court finds no error in the order of the Tribunal granting the said compensation to the petitioner. 18. The main contention raised by the Insurance Company is that the Respondent No.1 i.e driver of the offending vehicle does not have effective valid hazardous driving license as on the date of accident and hence, the Insurance Company is not liable to pay the compensation. It is the contention 1 2009 ACJ 1298 9 of the Respondent No.3/ Appellant that the driving license of hazardous goods carriage for a particular period i.e from 16.09.2014 to 15.09.2015 was there, but as on the date of accident i.e on 13.12.2015, the endorsement was not there. Whereas on 19.08.2016, it was renewed and valid up to 18.08.2017. However, considering the fact that on the specific date of the accident, there is no endorsement of hazardous vehicle. As the Respondent No.1 is having effective driving license to drive heavy transport vehicle as on the date of accident. Relying upon the decision of Madras High Court in “K. Venkatanarayanan v. Balaji”2, wherein it was held that the where the owner does not choose to adduce evidence that he was not aware of the fact that the person to whom vehicle was endorsed, did not have valid driving license, burden is on the owner if he wants to avoid liability. Therefore, in the instant case, when the Respondent No.1 is not debarred from driving the offending vehicle i.e heavy goods transport vehicle with hazardous endorsement, it cannot be said that there is technical violation and Respondent No.3 cannot be exonerated from its liability. The Tribunal further held that the Respondent No.3 is jointly and severally liable to pay compensation along with Respondents No. 1 and 2. Therefore, this Court opined that the Tribunal well considered the issue. 19. However, on perusal of the Award passed by the Tribunal, it can be observed that it is an admitted fact that as on the date of accident, the Respondent No.1 was not possessing valid driving license as it was expired 2 2002- ACJ- 1063 (Madras) 10 on 15.09.2015. However, the accident occurred on 13.12.2015 and thereafter- on 19.08.2016, it was renewed and valid up to 18.08.2017. The said fact clearly shows that as on the date of accident, the Respondent No.1 did not possess valid driving license to drive the offending vehicle. 20. However, it is to be noted that in National Insurance Co. Ltd. v. Swaran Singh & Ors., 3 the Hon’ble Supreme Court has held that if the insurer successfully proves a breach of policy condition, the insurance company may still be directed to pay compensation to the Claimants and then recover the amount from the insured (owner of the vehicle). This ensures that the rights of the third-party victim are protected and it was emphasized that insurance policies are statutorily required to protect third parties, and even in cases of breach by the insured, the insurer's liability towards third-party victims does not vanish immediately. 21. In the case on hand, the evidence adduced by the claimants before the Tribunal would substantially prove that the accident occurred due to the rash and negligent driving of the offending vehicle, wherein the Claimant sustained injuries due to electrocution. In view of the same and in the light of the decision of the Hon’ble Supreme Court referred to supra, the contention of the appellant that it cannot be directed to pay the compensation cannot be accepted. 3 (2004) 3 SCC 297 11 22. In view of the above discussion, while confirming the quantum of compensation awarded by the Tribunal, this Court deems it appropriate to allow the appeal in-part by directing the Appellant/ Insurance Company to deposit the compensation and then recover the amount from the owner of the vehicle i.e Respondent No.3 herein. 23. With the above direction, this appeal is partly allowed. No costs. Pending miscellaneous applications, if any, shall stand closed. ___________________ JUSTICE V.SUJATHA Date: 02.03.2026 KK 12 THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 113 OF 2023 02.03.2026 KK