HONOURABLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A.Nos.2751 of 2016 and 3007 of 2016
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2751 of 2016 filed by the
Insurance Company and M.A.C.M.A.No.3007 of 2016 filed by
the claimant-injured assailing the quantum of compensation,
are directed against the very same order and decree, dated
16.06.2016 made in M.V.O.P.No.680 of 2011 on the file of the
Chairman, Motor Accidents Claims Tribunal-cum-XIV
Additional Chief Judge (FTC), City Civil Court, Hyderabad (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.38,00,000/- for the injuries sustained by her in the motor vehicle accident that occurred on 29.04.2010. According to her, on the fateful day, at 10:30 a.m., she was proceeding on her 2 MGP, J Macma_2751_2016 and 3007_2016 scooty bearing No. AP 10 AP 4950 from her residence to work place i.e., Oris Banjara hotel and when she reached near Narayana college, Hyderabad, one lorry tipper bearing No. AP 12 U 9957, owned by respondent No. 1, insured with respondent No. 2, being driven by its driver in rash and negligent manner, dashed the claimant from back side. As a result, the claimant fell down and sustained grievous injuries to Abdomen, fracture to pelvis, head injury and other injuries at sensitive parts below Abdomin and blunt injuries all over the body. Immediately, she was admitted in Global hospital for treatment. Due to the said accident, the claimant sustained permanent disability, lost her income, amenities and social status, her marriage life also affected and experiencing mental agony. Thus, the claimant laid the claim against the respondents for Rs.38.00 lakhs.
4. Before the Tribunal, while the respondent No.1 remained ex parte, the respondent No.2-Insurance Company filed counter denying the manner in which the accident took place, age, avocation and income of the claimant. The issuance of policy in respect of the crime vehicle is also disputed. It is also 3 MGP, J Macma_2751_2016 and 3007_2016 contended that the compensation claimed is excessive and prayed to dismiss the claim-petition.
5. Considering the oral and documentary evidence on record, the tribunal has partly allowed the O.P. and awarded total compensation of Rs.17,84,000/- with interest @ 7.5% per annum to be paid by the respondent Nos.1 & 2 jointly and severally.
6. Heard the learned counsel for the appellant-claimant and the learned Standing Counsel for the Insurance Company. Perused the material available on record.
7. The learned Standing Counsel appearing on behalf of Insurance Company (appellant in MACMA No. 2751 of 2016) submits that the driver of the lorry tipper was not holding any valid driving licence to drive the lorry tipper and therefore, there is clear violation of terms and conditions of the policy. In view of the violation of terms and conditions of policy, the respondent No. 1 alone is liable to pay the compensation and no liability can be fastened on the insurance company. The learned Standing Counsel further contended that there is contributory negligence on the part of the injured, who contributed to the 4 MGP, J Macma_2751_2016 and 3007_2016 said accident which has also not been considered by the Tribunal. It is lastly contended that even according to the claimant, she was working in a Hotel apart from doing Catering business, and therefore, as her avocation is not permanent in nature, the Tribunal should have restricted the future prospects to the extent of 40%.
8. On the other hand, the learned counsel for the claimant (appellant in MACMA No. 3007 of 2016) has contended that the medical evidence adduced by the claimant has not been properly appreciated by the Tribunal while awarding the compensation. Ex.A.9 is the original disability certificate issued by P.W.3, plastic surgeon. P.W.3 deposed that the claimant sustained abdominal disability at 30% due to large incisional hernia and the total disability comes at 90%. Further, Ex.A.11 is the original disability certificate issued by P.W.2, orthopedic surgeon and member of medical board of Osmania General Hospital and MGM, Warangal. P.W.2 deposed that the claimant had sustained 60% partial disability. It is contended that though P.W.2 assessed the disability at 60%, there is 100% functional disability as the claimant has lost her earning 5 MGP, J Macma_2751_2016 and 3007_2016 capacity due to the injuries suffered in the accident. Basing reliance on the said medical evidence, the learned counsel submits that the claimant has sufficiently established that the claimant has sustained permanent disability and lost her 100% earning capacity, however, the Tribunal has estimated the disability at 60% thereby awarded meager amount towards loss of income due to disability.
9. As regards the manner of accident, it is the main contention of the learned Standing Counsel for the Insurance Company (appellant in MACMA No. 2751 of 2016) that the accident occurred due to the contributory negligence even on the part of the claimant as per Ex.B.1, scene of offence, which discloses that the claimant came on the road riding her scooty from by lane to the main road and took right turn without observing the moving traffic on the main road and therefore, the Tribunal should have apportioned contributory negligence. In light of the said contention, it is to be seen whether there was any contributory negligence on the part of the claimant. As seen from the record, Ex.A.1, FIR, was registered against the driver of the crime vehicle. Further, after due investigation into 6 MGP, J Macma_2751_2016 and 3007_2016 the crime, police laid the charge sheet, Ex.A.2, against the driver of the offending vehicle stating that the accident occurred due to the rash and negligent driving of the offending vehicle and the driver was charged for the offence under Sections 304-A IPC. That apart, P.W.1 clearly stated that the accident occurred only due to the rash and negligent driving of the Lorry tipper by its driver. Though it is the case of the Insurance Company that there was contributory negligence on the part of the deceased, for the reasons best known to it, the Insurance Company did not take any steps to summon the driver of the offending Tipper to prove that there was contributory negligence on the part of the injured, who is the best person to speak in this regard. Further, no contra evidence was elicited in the cross- examination of P.W. 1, to discredit her testimony. Therefore, considering the evidence of P.W.1 and Exs.A.1 & A.2, FIR and charge sheet, the Tribunal has rightly held that the accident occurred only due to the rash and negligent driving of the Lorry tipper by its driver. Hence, this Court is not inclined to interfere with the said findings of the Tribunal which are based on appreciation of evidence in proper perspective. Thus, the only 7 MGP, J Macma_2751_2016 and 3007_2016 dispute in the present appeal is with regard to the quantum of compensation.
10. As per the medical evidence available on record, the claimant sustained polytrauma with abnormal injury plus pelvis fracture, grievous injuries on abdomen and other multiple grievous injuries all over the body due to the said accident. Immediately after the accident, she was admitted in Global hospital for treatment and she spent Rs.1,10,344/- towards her treatment. Ex.A3, Injury certificate shows that the claimant has sustained polytrauma with abnormal injury plus pelvis fracture, grievous injuries on abdomen and other multiple grievous injuries all over the body. Considering the nature of injuries sustained by the claimant, considering the evidence of P.W.4, R.M.O. of Global Hospital, who deposed that the claimant had spent Rs.56,402/- as reflected under Ex.A.14, bunch of medical bills, the tribunal rightly awarded an amount of Rs.1,15,000/- towards medical expenses and extra nourishment which need no interference by this court. Further, the claimant filed Exs.A.9 & A.11, Disability Certificates issued by P.Ws. 3 & 2 respectively. As per Ex.A.11 issued by P.W.2, member of 8 MGP, J Macma_2751_2016 and 3007_2016 Medical Board of Osmania General Hospital and MGM, Waranagal, the claimant sustained 60% permanent disability on account of the injuries sustained by her. In light of the said evidence, the Tribunal has rightly accepted the disability sustained by the claimant at 60%.
11. As regards the income, according to the claimant, she was 28 years old at the time of accident and earning Rs.18,000/- to Rs.20,000/- per month working in Oris Banjara Hotel apart from undertaking catering orders for small functions. However, no document is produced in order to prove the same. Hence, the tribunal took the monthly income of the claimant at Rs.6,000/-. However, considering the avocation claimed and the age of the claimant, this Court is inclined to fix the monthly income of the claimant at Rs.7,000/-. However, the Tribunal has erroneously added 50% towards future prospects. In this regard, it is to be seen that the nature of the job as pleaded by the claimant is cook/catering business which cannot be termed as permanent nature. Therefore, the Tribunal was not right in adding future prospects at 50%. As the age of the claimant at the time of accident was 28 years, she is entitled to addition of 9 MGP, J Macma_2751_2016 and 3007_2016 40% towards future prospects to the established income, as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others1. Hence, the future monthly income of the deceased comes to Rs.9,800/- (Rs.7,000/- + Rs.2,800/-). Since the claimant was 28 years old at the time of the accident, as held by the Tribunal, the appropriate multiplier is '17' as per the guidelines laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation2. Adopting multiplier '17', the total loss of income due to disability comes to Rs.11,99,520/- (Rs.9,800 x 12 x 17 x 60/100). Considering the nature of injuries suffered by the claimant and the period of treatment, the amount of Rs.1,50,000/- awarded by the Tribunal towards pain and sufferings is also not disturbed. As regards the amount of Rs.3,50,000/- awarded by the Tribunal towards surgery and medicines, the same is rightly awarded relying upon the evidence of P.W.3, who deposed that the claimant was advised to undergo three operative surgery at a higher center and in light of Ex.A.8, original estimation certificate issued by Shreshta 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 10 MGP, J Macma_2751_2016 and 3007_2016 Sushruth Hospital. So also, considering the evidence of P.W.2, the tribunal has rightly awarded a sum of Rs.42,000/- (Rs.8,400 x 5 years) towards usage of Abdominal binder lumbo sacral belt for her entire life and hand stick, which are reasonable. Insofar as loss of amenities and loss of expectation of life is concerned, in Kavita v. Deepak and others3, the Apex Court held that in respect of victims of accident, who are disabled either 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. Relying upon the decision of Nizam's Institute of Medical Sciences v. Prasanth S.Dhananka4, the Apex Court also held that "assuming the claimant's life expectancy to be 55 years, we deem it appropriate to award a sum of Rs.3,00,000/- under the head of loss of 3 (2012) 9 SCC 604 4 (2009) 6 SCC 1 11 MGP, J Macma_2751_2016 and 3007_2016 amenities and loss of expectation of life". In light of the said decisions, the amount of Rs.1,50,000/- awarded by the Tribunal towards loss of amenities considering the disability suffered by the claimant is reasonable and needs no interference. That apart, the claimant is entitled to Rs.25,000/- towards grievous injuries, Rs.10,000/- towards transport and attendant charges. Thus, in all, the claimant is entitled for the compensation as under:-
Sl.No. Amount awarded under Amount awarded Amount
the Head by Tribunal awarded/enhanced
by this Court
1. Medical expenses & Rs.1,15,000/- Rs.1,15,000/-
extra nourishment
2. Loss of income on Rs.9,72,000/- Rs.11,99,520/-
account of disability
of 60%
3. Loss of amenities, Rs.1,50,000/- Rs.1,50,000/-
happiness &
enjoyment of life
4. Towards future Rs.3,50,000/- Rs.3,50,000/-
surgery/treatment
5. Towards cost of Rs.42,000/- Rs.42,000/-
binders for 5 years
6. Towards grievous Nil Rs.25,000/-
injuries
12
MGP, J
Macma_2751_2016 and 3007_2016
7. Towards Rs.5,000/- Rs.10,000/-
Transportation &
attendant charges
8. TOTAL Rs.17,84,000/- Rs.18,91,520/-
12. With regard to the liability, the tribunal has rightly held that there is insurance coverage to the Lorry tipper which covers the risk of the claimant as Ex.B.2, copy of insurance policy clearly discloses that policy was in force from 03.12.2009 to 02.12.2010 and the alleged accident occurred on 29.04.2010 i.e., between 03.12.2009 to 02.12.2010, hence, the insurance company is liable to pay compensation. Although it is pleaded that the driver of the offending vehicle was not holding valid driving licence, the Insurance Company did not lead any evidence in this regard before the tribunal and therefore, the said plea, at this stage, cannot be entertained in the absence of any evidence let in by the Insurance Company.
13. In the result, while dismissing M.A.C.M.A.No.2751 of 2016 filed by the insurance company, the M.A.C.M.A.No.3007 of 2016 filed by the claimant is partly allowed by enhancing the compensation awarded by the Tribunal from Rs.17,84,000/- to 13 MGP, J Macma_2751_2016 and 3007_2016 Rs.18,91,520/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization, payable by respondent Nos. 1 and 2 jointly and severally. Time to deposit the amount is one month from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the amount without furnishing any security. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI 29.03.2023 gms 14 MGP, J Macma_2751_2016 and 3007_2016 THE HONOURABLE SMT JUSTICE M.G. PRIYADARSINI M.A.C.M.A.Nos.2751 of 2016 and 3007 of 2016 .03.2023 gms