HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.175 of 2017 and 402 of 2017
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.175 of 2017 filed by the claimant
and M.A.C.M.A. No. 402 of 2017 filed by the United India
Insurance Company Limited, are directed against the very same
order and decree, dated 23.09.2016 made in O.P.No. 89 of 2008
on the file of the Motor Accident Claims Tribunal-cum-III
Additional District Judge, Nizamabad(for short "the Tribunal").
2. For the sake of convenience, hereinafter the parties will be
referred to as per their array before the Tribunal.
3. Brief facts of the case are that the claimant, aged about
19 years, has filed a petition, through his father, under Section
166 of the Motor Vehicles Act, 1994, claiming compensation of
Rs.35,00,000/- for the injuries suffered by him in a motor
vehicle accident occurred on 04.07.2007. According to the
claimant, on 04.07.2007, while he was travelling in the auto
bearing No. AP 23U 5059 from Pregnapur to Gajwel, at about
8:45 p.m., when the auto reached near Gajwel Petrol Pump, the
driver drove the auto in a rash and negligent manner and
dashed against the Tractor bearing No. AP 26Y 6265. As a
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result, the claimant sustained multiple grievous injuries and
fractures. He was in coma and was treated at different
hospitals and had incurred Rs.3.00 lakhs towards medical
expenses, nursing and nourishing. At the time of accident, he
was hale and healthy and was pursuing B. Tech course and as a
result of injuries and fractures, he had sustained permanent
disability. Therefore, he laid a claim for Rs.35.00 lakhs against
the respondent No. 1, owner of the auto and respondent No. 2,
Insurance Company of the Auto.
4. Before the Tribunal, while respondent No.1 remained ex parte, respondent No.2-Insurance Company filed its counter denying all the averments in the claim-petition, including the manner in which the accident took place, age, avocation, earning capacity of the claimant, medical expenditure incurred. It is the specific contention of the Insurance Company that there was contributory negligence on the part of the claimant as he was sitting by the side of the driver of the auto at the time of accident. It is further contended that the driver was not holding valid driving license and that the compensation claimed is excessive and exorbitant.
5. Considering the averments in the claim petition, counter and both the oral and documentary evidence brought on record, 3 the Tribunal has allowed the O.P. in part awarding compensation of Rs.14,31,400/- with costs and interest at 6% per annum from the date of the petition till the date of realization payable by both the respondents. Challenging the same, the present appeals came to be filed by the claimant as well as the Insurance Company respectively.
6. Heard the learned counsel for the claimant and learned Standing Counsel for the Insurance Company. Perused the material available on record.
7. It is contended by the learned counsel for the claimant (appellant in MACMA No. 175 of 2017) that inasmuch as the claimant was B. Tech student at the time of accident, the monthly income fixed by the Tribunal at Rs.5,000/- is very low and needs to be enhanced to Rs.12,000/- per month. Further, considering the injuries suffered by the claimant, the Tribunal ought to have taken the permanent disability at 100% but not 83%. Even the loss of future earnings awarded by the Tribunal are on lower side. The amount of Rs.1,00,000/- awarded by the Tribunal under the heads of injuries, shock, pain & suffering is meagre. Therefore, he prayed to enhance the compensation by allowing the appeal.
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8. On the other hand, the learned Standing Counsel for the Insurance Company (appellant in MACMA No. 402 of 2017) has contended that the Tribunal ought not to have relied on the evidence of P.W.1, father of the claimant, as he was not eyewitness to the accident. There was no record to prove that the claimant was under Coma for seven months and that the disability assessed by the Tribunal at 83% is also on higher side. It is contended that there was contributory negligence on the part of the claimant as he was sitting by the side of the driver of the auto at the time of the accident. It is contended that admittedly, the claimant had taken treatment at Gandhi Hospital, wherein the treatment is at free of cost and in the absence of any comprehensive evidence in relation to medical expenses, the Tribunal ought not to have awarded a lumpsum amount of Rs.4,35,000/- towards medical treatment. It is lastly contended that the seating capacity of the auto is 3+1, but at the time of accident, total six passengers were travelling in the auto and therefore, as the auto was overloaded, there was violation of terms and conditions of the policy and the liability ought to have been fixed on the owner of the auto alone by exonerating the Insurance Company.
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9. A perusal of the impugned order discloses that the Tribunal having framed Issue No.1 as to whether the accident occurred on 4.7.2007 at about 8.45 p.m. due to rash and negligent driving of the driver of auto bearing No. AP-23-U-5059, and having considered the evidence of P.W.5, another inmate of the auto, coupled with the documentary evidence, Ex.C.1, copy of FIR and Ex.C.2, copy of Charge Sheet, has categorically observed that the accident occurred only due to the rash and negligent driving of the driver of the Auto and has answered the issue in favour of the claimant and against the respondents. Seeking exoneration of liability from the payment of compensation, the learned Standing Counsel for the Insurance Company firstly contends that as per Ex.C.2, Charge Sheet, the auto was overloaded than the permitted seating capacity and therefore, there is violation of terms and conditions of the policy by the owner of the Auto. Secondly, it is contended that the driver of the Auto was not holding any valid driving licence as on the date of accident. However, no evidence in this regard is let in by the Insurance Company except examining its employee as R.W.1. During the course of cross-examination, R.W.1 admitted that that the charge sheet does not reflect that the accident was caused due to the overload of the Auto. Therefore, this Court finds no force in the above contentions advanced by 6 the learned Standing Counsel. Even as regards the contributory negligence, the evidence of P.W.5, eyewitness to the accident, clearly discloses that the accident occurred only due to the rash and negligent driving of the Auto by its driver. Though he was cross-examined at length, no contra evidence was elicited to discredit his testimony. Therefore, I see no reason to interfere with the findings of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.
10. As regards the quantum of compensation, Ex.C.3, injury certificate, discloses that the claimant suffered one laceration, fracture of frontal bone and one crush injury at right ankle. Ex.C.4, Inpatient Record issued by Gandhi Hospital, discloses that the claimant was admitted in Gandhi Hospital on 05.07.2007 for head injury and was discharged on 22.08.2007. The medical record further discloses that there was loss of consciousness and nasal bleeding, fracture of left frontal bone with cerebral edema for which he was operated. P.W.2, Dr. Sib Kumar @ Sohel, the then Neurosurgeon at Gandhi Hospital, deposed that "on 5-7-2007 patient by name K. Kranthi (petitioner) was admitted with history of loss of consciousness and on examination he found Glasgow Coma scale (GCS) was E1 M2 Vi 7 bilateral pupils 1.5 mm sluggishly reacting to right white stable and CT scan of brain showed compound fracture of left frontal bone, cerebral edema and diffused axenil injury to brain...". He further deposed that the treatment was uneventful. Ex.C.6 is the disability certificate issued by District Medical Board, Nizamabad, showing 83% disability suffered by claimant because of mental illness caused by the accident. To prove Ex.C.6, P.W.4, the member of Medical Board, who is a signatory to Ex.C.6, was also examined. Considering Ex.C.6 and the evidence of P.W.4, this court is of the view that the Tribunal has rightly accepted the disability of the claimant at 83%. The evidence of P.W.3, Physiotherapist, is to the effect that he treated the claimant from March 2010 to June 2010 and Ex.C.9 is the bill issued by him. P.W.6 deposed that he was being paid Rs.100/- per day for engaging his auto for taking the claimant to Sanjeevani Hospital, Nizamabad for treatment since 2010 till 11.03.2016. Considering the said evidence and the medical bills covered by Exs.C.8 and C.9, this Court is of the view that the amount of Rs.4,35,000/- awarded by the Tribunal towards hospital & medical expenses, transportation, extra nourishment and attendant expenses is reasonable and needs no interference. Even the amount of Rs.1,00,000/- awarded by the Tribunal under the heads 'injury, shock, pain & suffering' is 8 reasonable and needs no interference. Considering the age of the claimant as 19, considering his educational qualifications as reflected under Ex.C.11, certificate of ECE; Ex.C.12, TC from the Institute of Aeronautical Engineering and Ex.C.13, E-Cet Rank Card, the fixation of income of the claimant at Rs.5,000/- per month by the Tribunal is on lower side and needs to be enhanced. This Court, taking into account the educational qualifications of the claimant, is inclined to fix his monthly salary at Rs.8,000/-. Therefore, by applying multiplier '18', the loss of future earnings of the claimant comes to Rs.14,34,240/- (Rs.8,000 x 12 x 18 x 83/100). Thus, the total loss of future earnings due to disability of the claimant is enhanced from Rs.8,96,400/- to Rs.14,34,240/-. Hence, the total compensation payable to the claimant comes to Rs.19,69,240/-.
11. Accordingly, M.A.C.M.A.No.175 of 2017 filed by the claimant is allowed in part enhancing the quantum of compensation from Rs.14,31,400/- to Rs.19,69,240/- payable by the respondent Nos. 1 & 2 jointly and severally. The MACMA No.402 of 2017 filed by the Insurance Company is dismissed. The enhanced amount shall carry interest at 7.5% p.a. from the date of filing of the O.P. till the date of realization. Respondents are directed to deposit the said amount within two months from 9 the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire compensation amount. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
______________________ M.G.PRIYADARSINI,J 13.04.2023 Tsr 10 HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.Nos.175 of 2017 and 402 of 2017 DATE: -04-2023