THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.Nos.889 AND 1643 OF 2015
COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Feeling aggrieved by the order and decree dated
13.01.2015 in O.P.No.297 of 2011 passed by the VIII Additional
District & Sessions Judge, Ranga Reddy District at L.B.Nagar,
the Reliance General Insurance Company Ltd., filed
M.A.C.M.A.No.889 of 2015, challenging the liability and also the
quantum of compensation. The appellant/petitioner/claimant in
the said O.P., filed M.A.C.M.A.No.1643 of 2015 seeking
enhancement of the compensation.
2. For the sake of convenience, the appellant in
M.A.C.M.A.No.889 of 2015 is referred to as 'Insurance Company
and the appellant in M.A.C.M.A.No.1643 of 2015 is referred to
as 'Claimant'.
3. The Reliance General Insurance Company Ltd., filed
M.A.C.M.A.No.889 of 2015 contending that the court below
erred in holding that the appellant company is liable to pay
compensation of Rs.2,03,351/- with interest @ 7.5% p.a. As
can be seen, the accident occurred due to the contributory
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negligence of the driver of the Mini bus bearing No.AP 9V 9670
and also the driver of Innova Car bearing No.AP 9 BX 324, as
such the court below ought to have apportioned the
compensation. It is further contended that the court below
grossly erred in awarding Rs.1,00,351/- towards expenditure
for hospitalization, medicines, tests etc, whereas as per clause 4
(ii) of the 2nd schedule of the Motor Vehicles Act, 1988, the
claimant is entitled to only Rs.15,000/- and also erred in
awarding Rs.75,000/- for pain and suffering on account of three
grievous injuries, in fact, the claimant is entitled for Rs.5000/-
for each injury and also disputed the interest awarded @ 7.5%
p.a. As such prayed the Court to set aside the order of the
court below.
4. On the other hand, M.A.C.M.A.No.1643 of 2015 is filed by
the claimant contending that the court below erroneously
granted only Rs.2,03,351/- instead of Rs.5,00,000/- as claimed
by the claimant and he is entitled for higher amounts towards
hospitalization medicines and tests etc. Therefore, prayed the
Court to enhance the compensation.
5. Heard Sri T. Mahender Rao, learned counsel appearing for
the Reliance General Insurance Co., Ltd., and Sri Putta Krishna
Reddy, learned counsel appearing for the claimant.
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6. Learned counsel for the claimant would submit that due
to the injuries received in the accident, petitioner/claimant
suffered lot of mental agony and also spent lot of amount in
hospitals, but without observing the same, the court below
awarded only Rs.2,03,351/-. Therefore, prayed the Court to
enhance the compensation from Rs.2,03,351/- to Rs.5,00,000/-
7. Per contra, the learned counsel for the Insurance
Company would submit that there is contributory negligence on
the part of driver of the Innova Car also and without observing
the same, the court below wrongly put the liability on the driver
of Mini bus only, which is contrary to the evidence. He also
relied on the judgment of the High Court of A.P., in Agnuru
Jaya Ramulu Vs Mohammed Afzal Miyan and another 1 and
prayed the Court to reduce the compensation amount awarded
by the court below and also to apportion the liability between
the driver of Mini bus and driver of the Innova car.
8. The facts of the case in the petition are that while the
petitioner/claimant was proceeding from Penimella Village to
Hyderabad along with his family members in an Innova car
bearing No.AP 09 BX 324, when they reached Debbaguda gate,
1
2006 ACJ 855
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Kandukur near a culvert, one Mini Bus bearing No.AP 9V 9670
proceeding towards Srisailam side came in an opposite direction
at high speed in a rash and negligent manner and dashed the
Innova Car, due to which, the claimant had sustained grievous
injuries. Immediately, he was shifted to Yashoda Hospital,
Hyderabad wherein, he underwent surgeries and is still
undergoing treatment. The petitioner was minor at the time of
filing of the O.P. Hence, he was represented by his natural
guardian i.e., mother.
9. In the said O.P., the driver of the Mini bus was set ex
parte and the Insurance Company filed counter stating that the
alleged accident occurred due to the contributory negligence of
the driver of Innova Car bearing No.AP 9 BX 324. As such, the
claim is not maintainable, as the driver of Innova Car was not
made as a party. It is also contended that the Mini bus is not
insured with the company and policy was not in existence on
the date of accident; the driver of the Mini bus was not having
valid driving license and though the owner of Mini bus had
knowledge about the said fact, he entrusted the vehicle to him
in violation of the provisions of the Motor Vehicles Act and
therefore, the Insurance Company is not liable to pay the
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compensation and prayed the Court to dismiss the O.P., against
the Insurance Company.
10. With regard to the accident, a case in Cr.No.184 of 2010
was registered under Section 304-A and 337 of the IPC in
Kandukur Police Station against the driver of Mini bus.
11. To prove the claim, the mother of the appellant/claimant
was examined as Pw.1 and Pw.2-Dr.B.Mahender Reddy, and
Exs.A.1 to A.7 are marked. Ex.A.1 is the certified copy of the
FIR, Ex.A.2- certified copy of charge sheet, Ex.A.3-certified copy
of the scene of offence panchanama, Ex.A.4-certified copy of the
MLC report, Ex.A.5-discharge summary showing that the
claimant sustained injuries in the said accident, Ex.A.6-final bill
issued by Yashoda Hospital and Ex.A.7-Medical bill. On behalf
of the Insurance Company, one Syed Rehmathullah, Senior
Executive of the Insurance Company was examined as Rw.1 and
Ex.B.1-Policy was marked.
12. Basing on the evidence on record, the court below opined
that the accident occurred due to the negligent driving of the
driver of the Mini bus. Against the said decision, the Insurance
Company filed M.A.C.M.A.No.889 of 2015 contending that there
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is contributory negligence on the part of driver of the Innova
Car.
13. Now, the points for consideration are :
1.
Whether the accident occurred on 07.11.2010 due to the contributory negligence of the driver of the Mini bus and driver of the Innova car ?
2. Whether, the claimant is entitled for enhancement of compensation as prayed for ?
POINT NO.1 :
14. On going through the documents filed by the claimant, Ex.A.1 FIR is issued immediately after the accident and Ex.A.2 charge sheet, which is filed after due investigation, it is evident that the driver of the Mini bus is responsible for the accident. Ex.A.3 scene of offence panchanama also shows that accident occurred due to the negligence of the driver of the Mini bus. Though summons were served on the driver of the Mini bus, he has not contested the claim and not denied the manner in which the accident occurred. There is no dispute with regard to occurrence of accident and the injuries received by the claimant, whereas, the Insurance Company disputed the liability and claim contending that there is contributory negligence, whereas, the evidence on record clearly shows that the accident occurred due to the negligence of the driver of Mini KL,J &SKS,J Macmas_889 & 1643_2015 7 bus. The Insurance Company relied on the judgment in Agnuru Jaya Ramulu's case, wherein the date of accident itself was in dispute though the accident occurred on the intervening night of 12/13.7.1997, the medical officer evidence would show that the accident occurred on the intervening night of 11/12.7.1997. Therefore, the Court came to the conclusion that the documents filed by the claimants are not reliable. As such, the appeal was decided stating that there is contributory negligence on the part of claimant also. Whereas, in the present case, the documents filed by the claimant clearly proves that the accident occurred due to the negligent driving of the driver of Mini bus. As such, the observation made in the above judgment is not applicable to this case. Apart from that the Insurance Company failed to examine any eye witness on their behalf to prove the negligence of driver of Innova Car, whereas Pw.1 is one of the injured and eye witness deposed about the manner in which the accident occurred. Therefore, there is no force in the contention of the Insurance Company that accident occurred due to the contributory negligence on the part of both the drivers. As such, the issue is decided in favour of the claimant and against the Insurance Company. Accordingly, this point is answered.
KL,J &SKS,J Macmas_889 & 1643_2015 8 POINT NO.2 :
15. Basing on the documents filed by the claimant and the evidence of Pw.2-Dr B.Mahender Reddy, the court below awarded an amount of Rs.75,000/- towards pain and suffering, Rs.15,000/- towards better nutrition, Rs.10,000/- towards conveyance and attendant charges and Rs.1,00,351/- towards expenditure for hospitalization, medicines and tests etc., and Rs.3000/- towards damage to clothing.
16. As seen from the record and the evidence of Pw.2, the claimant was admitted in hospital on 07.11.2010 with history of being involved in a road accident. He sustained bilateral contusions temporal right hemorrhagic parietal contusions, pelvis fracture right eschemia, right sacral and anterial wall of acetabelum. He was treated conservatively and was discharged on 20.11.2010. He was also seen by the Neuro surgeon and an orthopaedic surgeon and all the injuries are grievous in nature.
17. As petitioner/claimant was minor on the date of accident and he suffered three grievous injuries, he is entitled for Rs.75,000/- towards pain and suffering. He is also entitled for an amount of Rs.50,000/- towards loss of amenities as he being a minor. He is also entitled for an amount of Rs.25,000/-
KL,J &SKS,J Macmas_889 & 1643_2015 9 towards transportation and extra-nourishment as he was in hospital, for almost 15 days. The claimant is also entitled for an amount of Rs.5000/- towards damage to clothing. The claimant is also entitled for Rs.1,00,351/- towards medical expenses and further amount of Rs.50,000/- towards litigation charges, in view of the judgment of the Apex Court in Sidram Vs Divisional Manager, United India Insurance Co., Ltd and another 2 and Sriram General Insurance Vs Bhagat Singh Rawat in SLP (C) Nos.11669-11671/202. Hence, the total compensation the claimant entitled to is Rs.3,05,351/-.
18. Thus, in all the claimant is entitled to Rs.3,05,351/- as compensation under the following heads :
Pain & Suffering : Rs. 75,000/-
Loss of amenities : Rs.50,000/-
Transportation & extra-nourishment : Rs.25,000/-
Medical expenses : Rs.1,00,351/-
Litigation charges : Rs.50,000/-
Damage to clothes : Rs.5000/-
___________________
Total : Rs.3,05,351/-
___________________
The said amount is rounded off to Rs.3,05,360/- 2 2022 Livelaw (SC) 968 KL,J &SKS,J Macmas_889 & 1643_2015 10
19. As far as the issue of rate of interest is concerned, the Insurance Company submitted that 7.5% per annum interest is high, but 6% is reasonable interest. Whereas, the Apex Court in Sonal Gupta and another Vs United India Insurance Co., Ltd. and another 3, in paragraph No.31 it was observed as under :
"31. As far as issue of rate of interest is concerned, it should be 7.5 per cent in view of the latest decision of the Apex Court in National Insurance Co. Ltd., V Mannat Johal, 2019 ACJ 1849 (SC), wherein the Apex Court has held as under :
"(13) The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12 per cent per annum but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5 per cent per annum and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
Accordingly, point No.2 is answered.
20. IN THE RESULT, M.A.C.M.A.No.889 of 2015 filed by the Insurance Company is dismissed and M.A.C.M.A.No.1643 of 2015 filed by the claimant is partly allowed. The order and 3 2023 ACJ 1013 KL,J &SKS,J Macmas_889 & 1643_2015 11 decree dated 13.01.2015 of the VIII Additional District & Sessions Judge, Ranga Reddy District at L.B.Nagar is modified enhancing the compensation from Rs.2,03,351/- to Rs.3,05,360/- with interest @ 7.5% per annum from the date of petition till realization. The owner and Insurance Company of the Mini Bus are jointly and severally liable to pay the said compensation. The owner and Insurance Company of the Mini Bus are directed to deposit the said amount with interest and costs, after deducting the amount which was already deposited, within one month from the date of receipt of certified copy of this judgment. On deposit of the said amount, the claimant is permitted to withdraw the entire amount. No order as to costs.
Miscellaneous applications, if any, pending in these M.A.C.M.As, shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date : 31.10.2023 Rds