THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.Nos.850 AND 1530 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.298 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.850 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.1530 of 2015 seeking
enhancement of the compensation.
2. For the sake of convenience, the appellant in
M.A.C.M.A.No.850 of 2015 is referred to as 'Insurance Company
and the appellant in M.A.C.M.A.No.1530 of 2015 is referred to
as 'Claimant'.
3. M.A.C.M.A.No.1530 of 2015 is filed by the claimant
contending that though she claimed Rs.5,00,000/-, the court
below awarded only Rs.1,71,000/- which is unjust and
unsustainable. The court below ought to have granted higher
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amount towards expenditure for hospitalization, medicines,
tests etc., since the expenditure incurred by her is
unaccounted. Therefore, prayed the Court to allow the appeal
by enhancing the compensation.
4. On the other hand, M.A.C.M.A.No.850 of 2015 is filed by
the Reliance General Insurance Company Ltd., contending that
the court below erred in holding that the accident occurred due
to the rash and negligent driving of the driver of the Mini bus
bearing No.AP 9V 9670; the court below failed to appreciate that
accident occurred due to the involvement of Innova Car bearing
No.AP 9 BX 324 and ought to have atleast held that the accident
took place due to the contributory negligence of the driver of the
Innova car and also the driver of Mini bus and apportioned the
compensation accordingly. It is further contended that the
court below erred in awarding Rs.48,054/- towards expenditure
for hospitalization, medicines, tests etc and the claimant is
entitled only to the actual medical expenses incurred by her and
the court below failed to consider that under clause 4 (ii) of the
2nd schedule of the Motor Vehicles Act, 1988 medical expenses
not exceeding Rs.15,000/- can only be awarded and also
disputed awarding of Rs.1,00,000/- for pain and suffering on
account of four grievous injuries, actually the injured is entitled
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for Rs.5000/- for each grievous injury; it is also disputed that
the interest @ 7.5% awarded by the court below is high and the
claimant is entitled only to 6% p.a. As such, he prayed the
Court to modify the impugned order and to apportion the
liability equally to the driver of the Mini bus and also driver of
the Innova car.
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.
6. Learned counsel for the claimant would submit that due
to the injuries received in the accident, petitioner suffered lot of
mental agony and also spent lot of amount in hospitals, but
without observing the same, the court below awarded only
Rs.1,71,000/-. Therefore, prayed the Court to enhance the
compensation from Rs.1,71,000/- 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 the Mini bus only, which is contrary to the evidence. He also
relied on the judgment of the High Court of A.P., in Agnuru
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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 the Mini bus and driver of the Innova car.
8. The facts of the case in the petition are that while the
claimant was proceeding from Penimella Village to Hyderabad
along with her family members in an Innova car bearing No.AP
09 BX 324, when they reached Debbaguda gate, Kandukur near
a culvert, one Mini Bus bearing No.AP 9V 9670 came in opposite
direction and proceeding towards Srisailam side, at high speed
in a rash and negligent manner dashed the Innova Car, due to
which, the claimant had sustained grievous injuries.
Immediately, the claimant was shifted to Yashoda Hospital,
Hyderabad wherein, she underwent surgeries and is still
undergoing treatment.
9. 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 the Mini bus.
1
2006 ACJ 855
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10. 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 the 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
compensation and prayed the Court to dismiss the O.P., against
the Insurance Company.
11. To prove the claim the appellant/claimant herself got
examined as Pw.1 and also examined Pw.2-Dr.N. Anil Kumar,
and Exs.A.1 to A.7 are marked. 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
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driver of the Mini bus. Against the said decision, the Insurance
Company filed M.A.C.M.A.No.850 of 2015 contending that there
is contributory negligence on the part of the driver of the Innova
Car, no witness was examined on their behalf to prove the same
except examining the employee of Insurance Company.
13. On the other hand, the claimant who is an injured and
eye witness filed Ex.A.1-certified copy of the FIR, Ex.A.2-
certified copy of charge sheet, Ex.A.3-certified copy of the scene
of offence panchanama and Ex.A.4-certified copy of the MLC
report and Ex.A.5-discharge summary showing that the
claimant sustained injuries in the said accident.
14. 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 :
15. 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 KL,J &SKS,J Macmas_850 & 1530_2015 7 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 the Mini 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 the Mini bus, as such, the observations made in the above judgment are not applicable to this case. Apart from that the KL,J &SKS,J Macmas_850 & 1530_2015 8 Insurance Company failed to examine any eye witness on their behalf to prove the negligence of driver of Innova Car whereas Pw.1 is injured 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.
POINT NO.2 :
16. The claimant's appeal is that though she claimed Rs.5,00,000/-, the court below awarded only Rs.1,71,000/- which is not sufficient. To prove the injuries and also the medical expenses, the petitioner in court below examined Pw.2- Dr. Anil Kumar. His evidence is that petitioner was admitted in hospital on 07.11.2010 with history of being involved in a road accident, that she sustained grievous injuries on head with sutures, fracture of D1 Vertebra, fracture pubic inferior pubic Ramus and she was discharged on 12.11.2010. He acknowledges Ex.A.4-MLC which shows that petitioner sustained poly trauma with head injury fracture of D1 Vertebra, fracture pubic inferior pubic Ramus and Ex.A.5- discharge KL,J &SKS,J Macmas_850 & 1530_2015 9 summary shows that petitioner was admitted in hospital on 07.11.2010 and discharged on 12.11.2010 and she paid an amount of Rs.47,000/-. Ex.A.7 is the set of medical bills for Rs.1,054/-.
17. As the claimant suffered four grievous injuries, the Court below awarded Rs.1,00,000/- as compensation under the head of pain and suffering which is sufficient.
18. The claimant is entitled to Rs.25,000/- for transportation and extra-nourishment as she was in the hospital from 07.11.2010 to 12.11.2010. The claimant is also entitled to Rs.48,054/- towards hospitalization, medicines, tests etc., as per Ex.A.5-Discharge summary and an amount of Rs.1,054/- towards medical bills as per Ex.A.7-medical bill. She is also entitled to Rs.5000/- towards damage to clothing and 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. The court below has not granted any amount under the head loss of future prospects. As the claimant 2 2022 Livelaw (SC) 968 KL,J &SKS,J Macmas_850 & 1530_2015 10 received fracture injuries, she would not have attended to her classes for six months. Therefore, an amount of Rs.30,000/- under the head loss of future prospects would meet the ends of justice. Hence, the total compensation the claimant entitled to is Rs.2,59,108/-.
19. Thus, in all the claimant is entitled to Rs.2,59,108/- as compensation under the following heads :
Pain & Suffering : Rs. 1,00,000/-
Transportation & Extra-nourishment: Rs.25,000/-
Hospital Charges : Rs.48,054/-
Medical bills : Rs.1,054/-
Litigation charges : Rs.50,000/-
Damage to clothes : Rs.5000/-
Loss of future prospects : Rs.30,000/-
___________________
Total : Rs.2,59,108/-
___________________
The said amount is rounded off to Rs.2,60,000/-
20. 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., KL,J &SKS,J Macmas_850 & 1530_2015 11 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.
21. IN THE RESULT, M.A.C.M.A.No.850 of 2015 filed by the Insurance Company is dismissed and M.A.C.M.A.No.1530 of 2015 filed by the claimant is partly allowed. The order and 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.1,71,000/- to Rs.2,60,000/- with interest @ 7.5% per annum from the date of 3 2023 ACJ 1013 KL,J &SKS,J Macmas_850 & 1530_2015 12 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