HONOURABLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A.Nos.2005 of 2015 and 2027 of 2015
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2005 of 2015 filed by the
claimant-injured and M.A.C.M.A.No.2027 of 2015 filed by the
Insurance Company assailing the quantum of compensation,
are directed against the very same order and decree, dated
08.07.2015 made in M.V.O.P.No.726 of 2010 on the file of the
Motor Accidents Claims Tribunal-cum-Additional District Judge
at Nizamabad (for short "the Tribunal").
2. For the sake of convenience, the parties hereinafter will be
referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
against the respondents claiming compensation of
Rs.8,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 11.07.2010. According to him, on the fateful day, at 10:30 a.m., while he was travelling in auto bearing No. AP 25V 5022 from Nandipet to Donkeshwar, and when the auto reached near Ashram turning in Shapur 2 MGP, J Macma_2005_2015 and 2027_2015 Village Shivar, the driver drove the auto in rash and negligent manner and dashed the auto bearing No. AP 25V 7236, coming in opposite direction, owned by respondent No. 1 and insured with respondent No. 2, being driven by its driver in rash and negligent manner. Due to the accident, the claimant sustained multiple grievous injuries and his left leg and right foot were amputated. He was treated as inpatient at Shashank Hospital, Nizamabad where he was also underwent operation by incuring Rs.3.00 lakhs. Respondent Nos. 1 & 2 are the owner and insurer of auto bearing No. AP 25V 7236 and respondent Nos. 3 & 4 are the owner and insurer of the auto bearing No. AP 25V 5022. Claiming that both the drivers were rash and negligent in driving the autos which resulted in causing the accident, the claimant laid the claim against the respondents for Rs.8.00 lakhs.
4. Before the tribunal, while the owners of the autos remained ex parte, the Reliance General Insurance Company, which happened to be the same insurance company for both the autos, being respondent Nos. 2 & 4, filed written statement resisting the claim petition. Considering the claim and the written statement filed by the insurance company, and on 3 MGP, J Macma_2005_2015 and 2027_2015 evaluation of the evidence, both oral and documentary, the learned Tribunal has allowed the O.P. awarding compensation of Rs.9,92,340/- with 7.5% interest per annum to be paid by the respondent Nos. 1 to 4 jointly and severally. Challenging the same, the present appeals came to be filed by the claimant and the insurance company respectively.
5. The main contention of the learned counsel for the appellant-claimant is that the claimant had suffered head injury, crush injury to both the legs, grievous injuries on other parts of the body and left leg was amputated as a result of which, he had suffered permanent disability at 80%. He further submits that the evidence of PW.2, doctor, coupled with Ex.A.4, disability certificate, issued by the Medical Board, amply established that the claimant sustained 80% permanent disability as his left leg was amputated below the knee and it is very difficult for him to do any work. Therefore, the learned counsel for the claimant contends that the tribunal ought to have awarded Rs.15.00 lakhs towards compensation. It is further contended that as the claimant had lost his left leg below knee level and became permanently disabled, the tribunal 4 MGP, J Macma_2005_2015 and 2027_2015 ought to have awarded certain amount under the head of loss of amineties to life.
6. On the other hand, learned Standing Counsel for the insurnace company would contend that the tribunal grossly erred in fastening the liability on the insurer, even when there was no valid and effective driving licence possessed by the driver of respondent No. 1. It is further contended that the auto bearing No. AP 25V 5022 was transport vehicle and as its driver was possesssing license for only non-transport vehicle but not transport vehicle, the tribunal ought not to have fastened liability upon the insurance company to pay the compensation. It is further contended that the amounts awarded by the tribunal towards medical expenditure, transport charges and pain & suffering are abnormal.
7. Heard the learned counsel for the claimant and the learned Standing Counsel for the insurance company. Perused the material available on record.
8. As seen from the impugned order, the tribunal while considering the issue No. 1 "whether the accident occurred due to contributory negligence of both drivers of autos", duly 5 MGP, J Macma_2005_2015 and 2027_2015 analysing the evidence of P.W.1, eyewitness, who is also an injured, coupled with documentary evidence, Exs.A.1, FIR, and Ex.A.2, Charge Sheet, and as there was no rebuttal evidence by the insurance company, came to the conclusion that the accident was occurred due to rash and negligent driving of both the auto drivers. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident was occurred due to the rash and negligent driving of both the drivers of the autos.
9. Coming to the contention of the learned Standing Counsel for the insurance company that one of the drivers did not possess any valid driving licence, as rightly observed by the tribunal, no iota of evidence, except R.W.2, in this regard was adduced by the insurance company and therefore, the tribunal has rightly not considered the said claim. The other contention of the insurance company is that the other driver i.e., driver of the respondent No. 3 was holding license only to drive non- transport vehicle and whereas the vehicle involved is a transpot vehicle and therefore, the insurance company is not liable to pay the compensation. The question as to whether the driver of the vehicle holding licence to drive non-transport vehicle was authorised to drive transport vehicle, is no longer res integra in 6 MGP, J Macma_2005_2015 and 2027_2015 view of the judgment in the case of Mukund Dewangan vs. Oriental Insurance Company Limited and others1, wherein the Apex Court held that "the mere fact that the driver who possessed a licence to drive the light motor vehicle did not possess a licence to drive heavy transport vehicle by itself would not be sufficient to hold that the insurance company would be absolved of its liability to pay compensation". In view of the above clarification by the Apex Court, the said contention of the learned Standing Counsel regarding non-possessing of transport driving licence by the driver of respondent No. 3 and therefore, it is not liable to pay the compensation does not merit consideration and the same is rejected.
10. As regards the quantum of compensation, Ex.A.7, the medical bills, reflect that the claimant had to purchase medicines for the treatment by incuring Rs.1,47,340/-, which has been rightly awarded by the tribunal. As regards the disability sustaind by the claimant, as seen from Ex.A.3, medical certifificate, the claimant's left leg was amputated upto knee level. Ex.A.4 is the Disability Certificate issued by the District Medical Board, which shows that due to the amputation 1 (2016) 4 SCC 298 7 MGP, J Macma_2005_2015 and 2027_2015 of left leg, the claimant had sustained 80% disability. Although the claimant had claimed that he was getting annual income of Rs.1,20,000/- from agricultural source, the tribunal has rightly held that there was no actual loss from his agriculture source, as it is only a supervisory loss. By placing Ex.A.10, salary certificate, the claimant has claimed that he used to get Rs.3,520/- per month as Village Revenue Assistant and he had lost his job. Considering all these aspects, more particularly medical evidence i.e., P.W.2, doctor and Ex.A.4, disability certificate, the tribunal has awarded a sum of Rs.8.00 lakhs towards permanent disability in lumpsum, which is just and reasonable in the circumstances of the case. That apart, the tribunal has adequately awarded a sum of Rs.20,000/- towards transport charges; Rs.10,000/- towards pain and suffering and Rs.15,000/- towards extra-nourishment. Thus, in all, the tribunal has rightly awarded Rs.9,92,340/-, which is just and reasonable compensation. However, in this case, the claimant had lost his left left leg upto knee level and suffered 80% disability. As far as loss of amenities and loss of expectation of life is concerned, in Kavita v. Deepak and others2, the Apex Court has held that victims of accident, who are disabled, either 2 (2012) 9 SCC 604 8 MGP, J Macma_2005_2015 and 2027_2015 permanently or temporarily, adequate compensation should be awarded not only for the physical injury and treatment but also for the loss of earning and inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount awarded for pain, suffering, loss of enjoyment of life and medical expenses.
11. In the instant case, since the claimant has already suffered various injuries and has sustained 80% disability because of the amputation of left leg upto knee level, this Court deems it fit to award a sum of Rs.1,00,000/- towards loss of amenities and loss of expectation of life.
12. Accordingly, while dismising M.A.C.M.A.No.2027 of 2015 filed by the insurance company, the M.A.C.M.A.No.2005 of 2015 filed by the claimant is allowed in part by enhancing the compensation awarded by the tribunal from Rs.9,92,340/- to Rs.10,92,340/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of the order passed by the Tribunal till the date of realization, payable by respondent Nos. 1 to 4 in the O.P. jointly and severally. Time to depoist the amount is two 9 MGP, J Macma_2005_2015 and 2027_2015 months from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the amount without depositing any security. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI .10.2022 tsr