HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No. 993 of 2015
JUDGMENT:
Being dissatisfied with the order and decree passed by the Chairman, Permanent Lok Adalat at Karimnagar in Permanent Lok Adalat Case No.7 of 2009 dated 18.04.2011, the appellant/petitioner has filed the present appeal.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. Brief facts of the petitioner's case are that on 21.05.2008 the petitioner was returning home on his motorcycle bearing No. AP.15.N.1640 and at about 11-20 a.m. when he reached the outskirts of Vannaram village, lorry bearing No. AP.16.TY.0529 being driven by its driver came in rash and negligent manner with high speed from his back side and dashed his motorcycle, as a result of which, he fell down and suffered grievous injuries all over the body and immediately he was shifted to NIMS, Hyderabad, in an ambulance, where he was treated as inpatient from 21.5.2008 to 17.6.2008. Thus, he claimed compensation of Rs.3,00,000/- under various heads.
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4. Respondent Nos.1 and 2 remained ex parte; Respondent No.3 filed counter disputing the manner of accident and the nature of injuries sustained by the petitioner and the treatment taken by him. It is further contended that the driver of the lorry had no driving license to drive the vehicle and as such, they are not liable to pay compensation to the petitioner.
5. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether on 21.5.2008 at 11-20 hours at the outskirts of Thadikal village, there was an accident involving vehicle bearing No. AP.16.TY.529 of R2?
2. Whether such accident was due to the negligent driving of driver of R1?
3. Whether that vehicle was insured with R3 and that insurance cover the nature of accident as stated in the petition?
4. Whether the petitioner received injuries as claimed in the petition in that accident?
5. Whether the petitioner is entitled to compensation and if so, from whom and at what rage?
6. Whether there are any violations of the terms and conditions of the policy and if so what effect?
7. To what relief?3
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6. In order to prove the issues, PWs.1 and 2 were examined and Exs.P1 to P5 got marked on behalf of the petitioner. On behalf of respondent No.3, no witnesses were examined and no documents were marked.
7. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.1,10,000/- towards compensation to the appellant-claimant against the respondent No.2, while dismissing the claim against the respondent Nos.1 and 3 along with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of payment within 30 days from the date of award.
8. Heard the learned Counsel for the appellant/claimant and the learned Standing Counsel for the respondent No.3- Insurance Company. Perused the material available on record.
9. The learned Counsel appearing on behalf of appellant/ claimant submitted that although the claimant established the fact that the petitioner sustained disability due to the injuries caused in a motor accident, the Tribunal awarded meager amount. It is further contended that the Tribunal failed to 4 MGP,J Macma_993_2015 appreciate the evidence on record and without there being any evidence on behalf of the respondents to show that the driver of the offending vehicle had no license, the Tribunal erred in exonerating the liability of Insurance Company.
10. The learned Standing Counsel appearing on behalf of respondent No.3-Insurance Company submitted that the Tribunal after considering the oral and documentary evidence available on record, has awarded reasonable compensation against the respondent No.2 and the same needs no interference by this Court. Therefore, the learned counsel sought for dismissal of the appeal.
11. With regard to the manner of accident, there is no dispute with regard to the manner of accident. However, after evaluating the evidence of PW-1 coupled with the documentary evidence produced by him, the Tribunal rightly held that the accident occurred due to the rash and negligence on the part of the driver of the offending vehicle.
12. With regard to the quantum of compensation is concerned, the evidence of PW-2 Doctor shows that the 5 MGP,J Macma_993_2015 petitioner was admitted on 21.5.2008 with crush injury of right leg along with loss of skin and fracture of the lateral ankle and dorhun of foot and was operated by Plastic Surgeon under anesthesia for debridement, external fixations and skin grafting etc. Thus the evidence of PW-2 shows that the petitioner sustained one grievous injury and three simple injuries. Therefore, considering the injuries sustained by the petitioner, an amount of Rs.25,000/- is awarded for one grievous injury and Rs.15,000/- is awarded for three simple injuries @ Rs.5,000/- for each simple injury. Further an amount of Rs.25,000/- is awarded towards pain and sufferance, which is reasonable and the same is not disturbed. Considering Ex.P5 medical bills and the treatment taken by the injured, an amount of Rs.44,000/- is awarded towards treatment and medical expenses. According to the petitioner, he is an agriculturist and getting Rs.6,000/- per month. Since there is no income proof, an amount of Rs.1,500/- per month is taken as income and awarded Rs.9,000/- towards loss of earnings for six months, which is very less. Therefore, the income of the petitioner can be taken at Rs.4,500/- per month 6 MGP,J Macma_993_2015 and for six months, an amount of Rs.27,000/- is awarded towards loss of earnings.
13. With regard to the disability sustained by the petitioner, PW-2 deposed that all the injures healed leaving scars and there was 25% reduction movement on right ankle since bony injury was seckled by the Ortho Surgeon. But the Tribunal awarded Rs.25,000/- in lump sum towards partial permanent disability, which is very less. As stated above, the income of the petitioner is taken at Rs.4,500/- per month. As per the records, the claimant was aged about 68 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 "5". Thus, the future loss of income due to 25% disability comes to Rs.4,500 x 12 x 5 x 25/100 = Rs.67,500/-, which the petitioner/claimant is entitled. The petitioner is also entitled for Rs.10,000/- towards extra nourishment, attendant and transport charges. Thus in all, the petitioner is entitled for Rs.2,13,500/-which is just and reasonable.
1 2009 ACJ 1298 (SC) 7 MGP,J Macma_993_2015
14. With regard to the liability, it is contended by the appellant-Insurance Company that the driver of the offending vehicle was not having valid driving license. As per Section 149(2) of the Motor Vehicles Act, 1988, heavy burden lies upon the insurer to prove that the driver of the vehicle had no valid driving license at the time of the accident. There is no rebuttal evidence to show that the driver of the offending vehicle was not having valid driving license. Further the charge sheet was also filed against the driver of the crime vehicle only for the offence under Section 338 IPC. As per the principles laid down by the Apex Court in RUKMANI AND OTHERS v. NEW INDIA ASSURANCE CO. AND OTHERS2, when the insurer had failed to prove the defence raised in the statement of objections, such a plea cannot be accepted. When the police officer or the records are not summoned from the transport authority to establish the fact that the driver of the offending vehicle was not having a valid and effective driving license, then, under such circumstances, it has to be held that the insurer has failed to discharge its burden. Under these circumstances, the contention of the learned counsel for 2 (1998) 9 SCC 160 8 MGP,J Macma_993_2015 the appellant/Insurance Company cannot be sustained and it is hereby rejected. Further the Motor Vehicles Act is a beneficial piece of legislation. Therefore, in view of the above discussion, respondent Nos.1 to 3 are jointly and severally liable to pay compensation to the petitioner.
15. In the result, the M.A.C.M.A. is allowed in part by enhancing the compensation amount awarded by the Tribunal from Rs.1,10,000/- to Rs.2,13,500/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of Order of the Tribunal till the date of realization, payable by respondent Nos. 1 to 3 jointly and severally. 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 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 14.11.2022 pgp