HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.123 OF 2015
JUDGMENT:
Heard learned counsel Sri A.V.K.S.Prasad, learned counsel for the appellant-insurance company and Sri.M.Govind Reddy, learned standing counsel for respondent No.1/claimant.
2. The present appeal has been filed by the appellant-insurance company assailing the award passed by Motor Accidents Claims Tribunal-cum-IX Additional District Judge, Wanaparthy (for short, 'Tribunal') in O.P.No.305 of 2012, dated 03.06.2014 and thereby for seeking enhancement of compensation.
3. The brief factual matrix of the present appeal is as under:
4. On 09.11.2010 at about 11.00 a.m., while the claimant was proceeding on his motor cycle bearing registration No.AP-22-B- 0968 along with one Shiva as pillion rider and when they reached near Gandhi Chowk towards Degree College, Wanaparthy, a tractor trailer bearing No.AP-22-AB/0743-074 came in rash and negligent manner and dashed to his motor cycle, as a result, himself and pillion rider fell down and petitioner sustained multiple injuries. Immediately, he was shifted to Government Area Hospital, LNA,J MACMA No.123 of 2015 2 Wanaparthy and thereafter he was shifted to SVS Hospital and from there he was shifted to Gandhi Hospital, where he was treated as inpatient and underwent surgery for removal of left spleen and left kidney. The Police, Wanaparthy Town Police Station registered a case in Crime No.154/2010 against the driver of tractor for the offence under Sections 337 and 338 of IPC.
5. The claimant filed claim petition against the owner of the vehicle and insurance company under Section 166 of Motor Vehicles Act, 1988 before the MACT claiming compensation of Rs.15,00,000/- along with interest on account of injuries sustained by him in a motor vehicle accident.
6. The claimant was aged about 23 years as on the date of accident, hale and healthy and as a bore-well operator apart from doing cultivation and was earning an income of Rs.15,000/- per month and contributing the same for the welfare and maintenance of the family and due to accident, he was suffering with permanent disability and thereby, the petitioner was unable to do any work and lost income source.
7. The respondent No.1, the owner of the crime vehicle remained ex-parte. The 2nd respondent-Insurance Company filed LNA,J MACMA No.123 of 2015 3 counter denying the material averments of the claim petition including the age, occupation and earnings of the claimant, the manner of accident and a valid driving license of the claimant to drive the motor vehicle. It was further contended that it was the claimant who was negligent and having lost control of the motor cycle fell down and sustained injuries and suppressing the same, got filed case against the driver of the crime vehicle. Hence, 2nd respondent is not liable to pay compensation.
8. On the basis of the pleadings, the MACT has framed the following issues:
i) Whether the accident dated 09.11.2010 near Jammichettu at Gandhi Chowk of Wanaparthy village was due to the rash and negligent driving of the tractor/trolley bearing registration No.AP-22-AB/0743-074 by its driver and that the petitioner has suffered injuries in that accident ?
ii) Whether the petitioner is entitled to any compensation from the respondents and if so, to what extent and from whom ?
iii) Whether the petitioner/rider himself was negligent in riding the motor cycle and as such he was responsible for the accident ?
iv) To what relief ?
LNA,J MACMA No.123 of 2015 4
9. In order to substantiate the case, on behalf of the claimant, P.Ws.1 to 4 were examined and Exs.A1 to A15 and Exs.X1 to X3 were marked. The 2nd respondent-insurance company did not choose to examine any witness, but copy of policy was marked as Ex.B1.
10. The MACT, on due consideration of the evidence and material placed on record, came to conclusion that the accident took place due to the rash and negligent driving of the tractor trailer and awarded compensation of Rs.13,41,000/- to the claimant along with interest @ 7.5% per annum. The owner of the vehicle and the Insurance company i.e., respondents 1 and 2 were held to be jointly and severally liable to pay the said compensation.
11. During the course of hearing of appeal, learned counsel for appellant submitted that the MACT committed error in taking the monthly income of the claimant as Rs.5,000/- in the absence of any cogent evidence. The MACT also erred in taking 50% disability for assessing the loss of earning in the absence of any evidence. He further submitted that MACT erroneously granted further sum of Rs.7,50,000/- towards loss of kidney and spleen and finally prayed to allow the appeal setting aside the award passed by MACT.
LNA,J MACMA No.123 of 2015 5 Consideration:
12. The main contention raised by the learned counsel for appellant is that the MACT grossly erred in taking the monthly income of the claimant as Rs.5000/-. Perusal of record would show that on due consideration of documentary evidence i.e., Exs.A10 and A11, which are the pahani and pattadar pass books, which shows that claimant owns Acs.5.00 agricultural land, the MACT had assessed the monthly income of the claimant at Rs.5,000/-. In considered opinion of this Court, the MACT has rightly assessed the income of the claimant in the light of Exs.A10 and A11 and no ground has been made out to interfere with the assessment of monthly income of the claimant by MACT.
13. The other contention of the learned counsel for appellant is that the MACT erred in taking 50% disability for assessing the loss of earnings capacity at Rs.5,40,000/- and erred in granting further sum of Rs.7,50,000/- towards loss of kidney and spleen. In support of the disability, the claimant got examined P.W.4- Dr.Geetha, who has produced case-sheet of the claimant along with its attested Xerox copy, which was marked as Ex.X3. P.W.4 deposed that claimant was admitted in Osmania General Hospital LNA,J MACMA No.123 of 2015 6 on 09.11.2010 at 10.26 p.m., with history of road traffic accident and on examination he was found to have sustained great-III spleenic laceration thrombosis of left renal artery and suspected fracture of left wrist joint and that claimant was operated on 10.11.2010 splanectomy left nephrectomy was done and on 12.10.2010 fracture of left wrist below elbow stab was applied, treatment was given for 10 days.
14. It is further revealed from the evidence of P.W.4 and the contents of Ex.X3 that spleen was removed in splenectomy and left kidney was also removed. Considering the evidence of P.W.4 and material placed on record, the MACT has assessed that claimant has sustained 50% disability and considering the medical evidence on record that removal of kidney, petitioner cannot live like a normal person having chances of infection for rest of his life and awarded Rs.7,50,000/- for loss of vital organs i.e., removal of kidney and spleen and awarded total compensation of Rs.13,41,000/-.
15. The Tribunal has recorded elaborate reasons for awarding Rs.7,50,000/- towards loss of vital organs. It is admitted fact that the claimant sustained grievous, internal injuries and two vital LNA,J MACMA No.123 of 2015 7 organs i.e., kidney and spleen were removed because of the injuries sustained by the claimant. In the light of above, in considered opinion of this Court, the MACT has not committed any error in awarding Rs.7,50,000/- towards loss of vital organs.
16. Further, with regard to award of 50% disability, the MACT has considered that in view of removal of removal of vital organs and also injuries sustained by him in the accident, the claimant cannot live like a normal person and the claimant also been on regular medication. Therefore, in considered opinion of this Court, the Tribunal has justified in awarding 50% disability to the claimant. No ground is made out by the appellant warranting this Court to interfere with the said finding of the MACT. Conclusion:
17. In the light of factual matrix of the case, in considered opinion of this Court, there is no irregularity in the award passed by the MACT and further, the appellant-insurance company failed to make out any ground warranting this Court to interfere with the award passed by the MACT. Therefore, the appeal fails and is accordingly dismissed, affirming the award passed by the MACT. The appellant-insurance company is directed to deposit the entire LNA,J MACMA No.123 of 2015 8 compensation amount within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount, if any, already deposited. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07.11.2023 kkm