G ARAVIND KUMAR Vs. SADAT ALI

JUDGEMENT

(1.) Appellant filed claim petition in OP No. 1256 of 2002 on the file of the IV Additional Chief Judge-cum-Motor Accident Claims Tribunal, City Civil Court, Hyderabad, seeking compensation of Rs.3,00,000/- under Section 166 of the Motor Vehicles Act, 1988 (for short - 'the Act'), for the injuries sustained by him alleging that on 6.3.2002 while he, along with his friend Shailender, was proceeding on his Hero Honda Motorcycle bearing No.AP-28-AC-54 to college on left side of the road slowly and reached near Raasi Ceramics at about 9.30 a.m., a Jeep bearing No.AP-5-T-2571, owned by first respondent and insured with second respondent, came in opposite direction being driven at high speed, in a rash and negligent manner, dashed the motorcycle and caused injuries to both of them. According to him, he sustained fractures to his right leg and crush injuries and other blunt injuries all over the body. He claims that by the time of accident he was studying Engineering III year and was earning Rs.3000/- per month by imparting tuitions. Because of the accident, he was bedridden and lost the academic year as well as income and incurred huge expenditure towards medical treatment, extra nourishment, nursing and transport. The first respondent filed counter denying the manner of accident. The second respondent filed counter denying the age and income of the appellant and also the negligence attributed on the part of the jeep driver. The second respondent also sought protection under Section 149 of the Act and relying on the decision in R.D. Hattangadi v. M/s Pest Control India (P) Ltd., 1995 1 ACC 281 (SC), contended that the claimant is not entitled to any interest on non-pecuniary damages and loss of future income. Based on the said pleadings, the Tribunal framed the following issues for trial. (1) Whether the petitioner sustained injuries due to rash and negligent driving of 1 st respondent's lorry? (2) Whether the petitioner is entitled for compensation, if so, to what amount and from whom? (3) To what relief? On behalf of the claimant, PWs.1 to 3 were examined and Exs.A1 to A8 were marked. On behalf of the respondents, RWs.1 and 2 were examined and Exs.B1 and B2 were marked. Considering the material on record, the Tribunal, holding that the claimant sustained injuries due to the rash and negligent driving of the jeep involved in the accident which belongs to the first respondent, awarded Rs.72,800/- as compensation to the claimant with proportionate costs and interest at 9% per annum from the date of petition till the date of realization. Aggrieved by the compensation awarded to him, the claimant preferred the present appeal.

(2.) During pendency of the appeal, the claimant filed MACMA MP No.3761 of 2010 with a prayer to enhance the claim amount from Rs.3,00,000/- to Rs.9,00,000/- in view of the grievous fractures and disability sustained by him. It is also alleged that because of the accident he lost one precious academic year and, even after completion of B.Tech (EEE), lost employment opportunities in many organizations like Ordinance Factory, Vijay Electricals etc., due to the permanent partial disability sustained by him whereas his classmates are drawing salaries ranging from Rs.4,00,000/- to Rs.7,00,000/- per annum. The second respondent filed counter resisting the application mainly on the ground of its maintainability apart from various other grounds. It is stated that though the first respondent, the owner of the jeep involved in the accident who entered appearance and contested the matter before the Tribunal, expired during pendency of the appeal, no steps are taken to bring on record his legal representatives and, therefore, the appeal stands abated. Further, in the cause title itself the claimant mentioned that the first respondent is not a necessary party to the application and the settled law is that the liability of insurance company arises only when the insured has liability. In support of the said contention reliance is placed on the Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121, wherein it is held that the insurance company cannot be made liable without mulcting the liability on the insured and that the liability of insurer arises for the purpose of indemnifying the insured under the contract of insurance when the liability of the insured has been upheld.

(3.) The points that arise for consideration in this appeal are- (i) Whether the compensation awarded by the Tribunal is just, if not, to what compensation is the appellant entitled? (ii) Whether the relief of enhancement of the claim amount from Rs.3,00,000/- to Rs.9,00,000/- sought by the claimant in MACMA MP No.3761 of 2010 is liable to be allowed?