HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.1392 of 2017
JUDGMENT:
This appeal is filed by the Insurance Company aggrieved of the order and decree dated 06.12.2016 in M.V.O.P.No.1111 of 2014 on the file of the XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. According to the petitioner, on 12-03-2014 at about 7-00 p.m., the petitioner was proceeding on his motorcycle after completion of the teaching practice session from Husanabad to Akkannapet and when he reached Thotapally bus stand, the auto bearing No. AP.15.TB.2280 being driven by its driver came from opposite direction in a rash and negligent manner with high speed and dashed his motorcycle, due to which, he fell down on the road and sustained grievous injuries and fractures. Immediately he was shifted to Husnabad Government Hospital by 108 ambulance for first aid and shifted to Government Hospital, Warangal and 2 MGP, J MACMA.No.1392 of 2017 again he was shifted to KIMS Hospital, Hyderabad. Thus, he is claiming compensation of Rs.5,00,000/- under various heads.
4. Respondent No.1 remained ex parte. Respondent No.2 filed counter disputing the manner of accident, nature of injuries sustained by the petitioner, age, avocation and income of the claimant and further contended that the claim is exorbitant and sought for dismissal of the claim petition.
5. Based on the above pleadings, the Tribunal framed the following issues:
1) Whether the accident took place due to the rash and negligent driving of the driver of Auto bearing no. AP.15.TB.2280?
2) Whether the petitioner is entitled to
compensation and if so, from whom and if so
to what extent?
3) To what relief?
6. In order to prove the issues, on behalf of the petitioner, the petitioner examined himself as PW-1 and also got examined PWs.2 and 3 and got marked Exs.A1 to A14. On behalf of the respondent No.2-Insurance Company, RW-1 was examined and Exs.B1 to B4 got marked.3
MGP, J MACMA.No.1392 of 2017
7. On considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.16,59,000/- towards compensation along with costs and interest at 9% per annum from the date of petition till the date of deposit to the appellant-claimant against the respondent Nos.1 and 2 jointly and severally.
8. Heard the learned Standing counsel for the appellant- Insurance Company and the learned Counsel for respondent No.1. Perused the material available on record.
9. The learned counsel for the appellant-Insurance Company has submitted that the Tribunal has erred in fastening the liability on the appellant-Insurance Company; that there is no liability on the Insurance Company, as the driver of the offending vehicle was not having valid driving license and that the compensation awarded by the tribunal is highly excessive. Accordingly, prayed to set aside the impugned order in the O.P.
10. The learned Counsel appearing on behalf of respondent No.1 sought to sustain the impugned award of the Tribunal contending that considering the disability sustained by the petitioner and the treatment taken by him, the learned Tribunal 4 MGP, J MACMA.No.1392 of 2017 has awarded reasonable compensation and the same needs no interference by this Court.
11. With regard to the manner of accident, a perusal of the impugned judgment shows that the tribunal having considered the evidence of P.W.1, coupled with the documentary evidence, has categorically observed that the accident occurred due to the rash and negligent act of the driver of the offending vehicle and has rightly answered the issue in favour of the claimant and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal in this regard.
12. As per the evidence available on record, the evidence of claimant/PW-1 and PW-2 coupled with the documentary evidence shows that the petitioner sustained fracture of femur and 5 x 7 cm boneless with grievous injuries over right forearm. PW-2 deposed that he found that right knee of the petitioner has broken injury measuring 7 x 3 cms. On the outer side of the knee and there was one more open wound on the right leg measuring 3 x 1 cm. There was a lot of condemnation on the thigh and leg wounds. Fracture of femur was fixed with ilizarov ring fixation + corticotomy right femur + debridment of the right thigh and right forearm. He 5 MGP, J MACMA.No.1392 of 2017 further stated that the petitioner sustained disability of 45% to 65%. Further he needs re-surgery for removal of plate, which may costs Rs.80,000/- to Rs.1,00,000/-. Thus, considering the evidence of PWs.1 and 2 coupled with the documentary evidence, the tribunal rightly taken the disability sustained by PW-1 at 60%.
13. According to the petitioner, he was an M.B.A. student, B.Ed. Teacher and taking up home tuitions and earning Rs.8,000/- per month. Therefore, considering the age and avocation of the petitioner, the tribunal rightly taken the income of petitioner at Rs.8,000/- per month while calculating the compensation towards the disability. As per the records, the claimant was aged about 29 years at the time of accident. Then the appropriate multiplier in light of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation1 would be "17". Thus, the future loss of income due to 60% disability comes to Rs.8,000 x 12 x 17 x 60/100 = Rs.9,79,200/-, which the petitioner/claimant is entitled. Thus the tribunal rightly awarded an amount of Rs.9,79,000/- towards loss of income.
1 2009 ACJ 1298 (SC) 6 MGP, J MACMA.No.1392 of 2017
14. With regard to the medical expenses, PW-3 the doctor who treated the petitioner deposed that the petitioner paid Rs.1,32,000/- and Rs.1,76,489/- and also supported the bills, which are in total for Rs.4,34,000/-. However, considering the treatment taken by the petitioner and the amount spent by him, the tribunal rightly awarded an amount of Rs.3,50,000/- towards medical expenses, which is not disturbed. Further the tribunal has also awarded Rs.50,000/- towards pain and sufferance and mental agony and Rs.50,000/-towards extra nourishment, traveling and attendant charges, which is very excessive and as such, they are restricted to Rs.50,000/- towards pain and sufferance, extra nourishment and transport charges. The tribunal also awarded an amount of Rs.1,50,000/- for the past and present and future loss of earnings, which is not considered by this Court, since the tribunal already awarded Rs.9,79,000/- towards loss of income. Therefore, in view of the above calculation, in total, the claimant is entitled for Rs.13,79,000/-.
15. Learned counsel for the appellant-Insurance Company submitted that the driver of the offending vehicle was not having valid driving license and as such, they are not liable to pay 7 MGP, J MACMA.No.1392 of 2017 compensation to the petitioner. Except examining RW-1, there is no rebuttal evidence produced by the respondents to show that the driver of the offending vehicle was not having valid driving license. Further Ex.A2 charge sheet discloses that the driver of the offending vehicle was charged under Section 338 of Indian Penal Code only and he was not charged for not having valid driving license. Hence, the tribunal rightly held that the respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner.
16. Coming to the aspect of interest, the interest awarded by the Tribunal is very excessive and as such, the rate of interest as awarded by the tribunal at 9% is reduced to 7.5%.
17. In the result, the M.A.C.M.A. is partly allowed by reducing the compensation amount awarded by the Tribunal from Rs.16,59,000/- to Rs.13,79,000/-. The rate of interest awarded by the tribunal at 9% is reduced to 7.5% p.a. from the date of petition till the date of realization against the respondent Nos.1 and 2. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. On such deposit of compensation amount by the respondents, the claimant 8 MGP, J MACMA.No.1392 of 2017 is at liberty to withdraw the same without furnishing any security. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
______________________ M.G.PRIYADARSINI,J 04.11.2022 pgp