HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.4243 of 2014
JUDGMENT:
Being not satisfied with the quantum of compensation awarded in the order and decree, dated 12.08.2014, made in M.V.O.P.No.2850 of 2011 on the file of the Motor Accidents Claims Tribunal-cum-XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad (for short "the Tribunal"), the appellant/ claimant preferred the present appeal seeking enhancement of the compensation.
2. The facts, in issue, are as under:
The appellant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in a road accident that occurred on 04.09.2011. According to the appellant, on the fateful day, while he was proceeding in the offending vehicle i.e., Auto bearing No.AP 07Y 6075, owned by respondent No.1 and insured with respondent No.2, from Rudravaram village to Dulipala and when the auto reached the outskirts of Dulipala, the driver drove the 2 auto in a rash and negligent manner at high speed, lost control over the auto, as a result, the auto turned turtle. The appellant sustained grievous injuries and he was shifted to Government Hospital, Sattenapally. According to the appellant, due to the injuries sustained by him, he suffered permanent disability and he is unable to carry on his regular duties. Therefore, the appellant laid the claim against the respondents, seeking compensation.
3. After considering the claim and the counter filed by respondent No.2, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.6,00,000/- with interest at 7.5% per annum. However, as there was violation of terms and conditions of the policy, the Tribunal invoking the doctrine of pay and recover directed respondent No.2 to pay the compensation amount at the first instance and then recover the same from respondent No.1. Challenging the quantum of compensation awarded, the present appeal is filed by the appellant/claimant.
4. Heard learned counsel for the appellant and learned Standing Counsel for respondent No.2.
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5. Learned counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side and seeks enhancement of the same as he suffered 89% permanent disability due to spinal injury, the Tribunal ought to have accepted the same considering the evidence of P.Ws.2 and 3 and Ex.A14, disability certificate, issued by the Medical Board, Guntur. Therefore, prayed to enhance the compensation duly taking the disability at 89%.
6. Per contra, the learned Standing Counsel for the Insurance Company submits that the quantum of compensation awarded by the Tribunal is based on evidence and the same needs no interference.
7. The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged either by the owner or insurer of the vehicle.
8. The short question that arises for consideration is "whether the compensation awarded by the Tribunal is just and equitable"?
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9. In order to establish his case, the appellant examined himself as PW.1 and the Doctors, who treated him, as P.Ws.2 and 3. In support of the injuries as well as the disability sustained by him, the appellant got marked Ex.A.14, disability certificate, issued by the Medical Board, Guntur. P.W.2, the Orthopedic Surgeon, deposed that the appellant was admitted in their hospital for spinal card injury, that he was operated on 06.09.2008 and was discharged on 15.09.2008. The evidence of P.W.3, the doctor E.Rajendra Kumar, is that the appellant was diagnosed with C5, C6, traumatic Disc Prelapse with neurological injury. He further deposed that the appellant underwent surgical management in Vijaya Health and was referred to him for rehabilitation and physiotherapy for two months. He further deposed that due to the injuries, the appellant was unable to do any hard work, including agriculture work. As seen from Ex.A14, disability certificate, issued by the Medical Board, Guntur, the appellant suffered 89% permanent disability due to the injuries suffered to the spinal card. Merely because non- examination of the member of the Medical Board, who issued the Ex.A14, disability certificate, the Tribunal ought 5 not to have brushed aside the same. Therefore, considering the evidence of P.Ws.1 to 3 and Ex.A14, this Court is inclined to accept the disability suffered by the appellant at 89%.
10. As regard the income, according to the appellant, he was 54 years and was agriculturist. Therefore, considering the age and avocation of the appellant, this Court is inclined to fix the income of the appellant at Rs.60,000/- per annum. As the age of the appellant at the time of accident was about 54 years, the appropriate multiplier in view of the judgment of Sarla Verma Vs. Delhi Transport Corporation1, is '11'. Therefore, adopting the said multiplier the loss of earnings on account of the disability comes to Rs.60,000/- x 11 x 89/100 = Rs.5,87,400/-. Further, the amount of Rs.1,00,000/- awarded for injuries; Rs.30,000/- towards pain and suffering, mental agony; Rs.1,00,000/- towards extra nourishment, travelling and attendant charges and Rs.2,20,000/- towards medical expenses are not interfered with. Thus, in all the appellant is entitled to a sum of Rs.10,37,400/- as compensation. 1 2009 ACJ 1298 6
11. At this stage, the learned Counsel for the Insurance company submits that the appellant claimed only a sum of Rs.10,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
12. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another2 and Nagappa Vs. Gurudayal Singh3 the appellant is entitled to get just compensation even if it is more than the amount what was claimed by the claimant.
13. Insofar as the liability is concerned, as per the charge sheet, Ex.A2, the driver of the offending vehicle was chargesheeted for the offence punishable under Section 181 of the M.V.Act and that the auto was overloaded than the permitted seating capacity and therefore, there was clear violation of terms and conditions of the policy. It is well settled law that even if, passenger vehicle is overloaded, the Insurance Company is not totally absolved of its liability to indemnify the owner. In United India 2 (2011) 10 SCC 756 3 2003 ACJ 12 (SC) 7 Insurance Co. Ltd. v. K.M. Poonam and others4, and National Insurance Co. Ltd. v. Tulna Devi and others5, though the vehicle was carrying passengers in excess of the number of passengers permitted, which was beyond the terms of the contract, the Supreme Court had applied the principle of pay and recover. Therefore, in the light of the judgments of the Apex Court referred to above, the Tribunal has rightly invoked the doctrine of pay and recover and rightly directed the insurance company to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle, which needs no interference by this Court.
14. Accordingly, the appeal is allowed by enhancing the compensation from Rs.6,00,000/- to Rs.10,37,400/- . The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. The appellant is directed to pay Deficit Court Fee on the enhanced amount. However, following the doctrine 'pay and recover', the Insurance Company is directed to pay the compensation amount to the appellant, at the first instance and thereafter recover the same from the owner of the offending 4 2011 ACJ 917 5 2009 ACJ 581 8 vehicle i.e., the respondent No.1 without initiating any separate proceedings, as was directed by the tribunal. Time to deposit the compensation is two months from the date of receipt of a copy of this judgment. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 27.12.2022 tsr 9 HONOURABLE JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.4243 of 2014 DATE: -12-2022