THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.Nos.851 AND 1535 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.296 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.1851 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.1535 of 2015 seeking enhancement of the
compensation.
2. For the sake of convenience, the appellant in
M.A.C.M.A.No.851 of 2015 is referred to as 'Insurance Company
and the appellant in M.A.C.M.A.No.1535 of 2015 is referred to
as 'Claimant'.
3. M.A.C.M.A.No.851 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
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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.1,33,079/- 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. The court below erred in awarding Rs.5000/- per
month for a non-earning member and grossly erred in awarding
Rs.2,25,000/- towards compensation for partial and permanent
disability of 25% observing that as per clause 5 (a) & (b) of the
2nd schedule of the Motor Vehicles Act, if the disability is partial,
the compensation awardable would be such percentage of
compensation which would have been payable in the case of
permanent total disablement and failed to see that the claimant
is not entitled for any compensation for partial and permanent
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disability of 25%. He further contended that the court below
grossly erred in awarding Rs.75,000/- for pain and suffering for
three grievous injuries but entitled for only Rs.15,000/- and
also erred in awarding interest @ 7.5% p.a.
4. On the other hand, M.A.C.M.A.No.1535 of 2015 is filed by
the claimant contending that the court below awarded only
Rs.4,56,079/- as against the claim of Rs.8,00,000/- erroneously
and also erred in awarding only Rs.75,000/- towards pain and
suffering which is very less. As such, she is entitled for
enhancement of 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.
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.4,56,079/-. Therefore, prayed the Court to enhance the
compensation from Rs.4,56,079/- to Rs.8,00,000/-.
7. Per contra, learned counsel for the Insurance Company
would submit that there is contributory negligence on the part
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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
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 proceeding
towards Srisailam side, came in an opposite direction at a high
speed in a rash and negligent manner and dashed the Innova
Car due to which, the claimant had sustained grievous injuries.
Immediately, she was shifted to Yashoda Hospital, Hyderabad
wherein, she underwent surgeries and is still undergoing
treatment. The claimant is a housewife and had an income of
1
2006 ACJ 855
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Rs.30,000/- per month and the same is contributed towards
maintenance of her family.
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 Mini bus.
10. In the said O.P., the driver of 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. It is further
contended that 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 on her behalf Pw.2-Dr.S. Narsing Rao,
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Orthopaedic Surgeon, Padmaja Hospital and Pw.3-Dr.S.Srinivas
Reddy, Orthopaedic Surgeon, Osmania Hospital were examined
and Exs.A.1 to A.7 and Ex.C.1-original case sheet 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
driver of Mini bus. Against the said decision, the Insurance
Company filed M.A.C.M.A.No.851 of 2015 contending that there
is contributory negligence on the part of the driver of Innova
Car. Except examining the employee of Insurance Company no
other eye witness was examined to support its contention.
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, Ex.A.4-certified copy of the MLC report,
Ex.A.5-Medical bills, Ex.A.6-disability certificate, Ex.A.7-
X-rays and Ex.C.1 original case sheet.
14. Now, the points for consideration are :
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1.
Whether the accident occurred on 7.11.2010 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 Mini bus is responsible for the accident. Ex.A.3 scene of offence panchanama also shows that accident occurred due to the negligence of driver of the Mini bus. Though summons was served on the driver of 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 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 KL,J &SKS,J Macmas_851 & 1535_2015 8 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 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. Basing on the evidence on record and relying on the evidence of Pws.2 and 3, Exs.A.5 to A.7 and Ex.C.1, the court below awarded an amount of Rs.4,57,079/-, and the same is disputed by the claimant.
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17. As per Ex.A.4-MLC the claimant has suffered three grievous injuries and one simple injury in the accident and the same is also affirmed by Pw.2. Hence, claimant is entitled to Rs.75,000/- for the grievous injuries and Rs.5000/- for one simple injury. Therefore, the claimant is entitled to Rs.80,000/- towards pain and suffering for the injuries suffered by her. The claimant is also entitled to Rs.25,000/- towards transportation and extra-nourishment as she was in hospital from 07.11.2010 to 24.11.2010, and Rs.1,33,079/- towards hospitalization, medicines tests etc., as evident from Ex.A.5-medical bills, 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.
18. As seen from the record, the claimant is a housewife. To prove the disability, the claimant has filed Ex.A.6-disability certificate and as per to Ex.A.6, the physical disability is estimated at 25%. No document is filed by the claimant to prove her income. As the claimant has not filed any document 2 2022 Livelaw (SC) 968 KL,J &SKS,J Macmas_851 & 1535_2015 10 in proof of her income, her income is taken at Rs.5000/- per month. Therefore, the annual income comes to Rs.60,000/-. As the claimant is aged about 45 years, the appropriate multiplier applicable is '15'. Hence, the claimant is entitled to Rs.2,25,000/- (Rs.60,000/-X 15 multiplier X 25% disability) towards partial permanent disability.
19. Thus, in all the claimant is entitled to Rs.5,18,079/- as compensation under the following heads :
Pain & Suffering : Rs.80,000/-
Transportation & Extra-nourishment: Rs.25,000/-
Hospitalization, medicines and : Rs.1,33,079/-
Tests etc.,
Litigation charges : Rs.50,000/-
Permanent disability : Rs.2,25,000/-
Damage to clothing : Rs.5,000/-
___________________
Total : Rs.5,18,079/-
___________________
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_851 & 1535_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.851 of 2015 filed by the Insurance Company is dismissed and M.A.C.M.A.No.1535 of 2015 filed by the claimant is partly allowed. The order and decree dated 13.01.2015 in O.P.No.296 of 2011 of the VIII Additional District & Sessions Judge, Ranga Reddy District at L.B.Nagar is modified enhancing the compensation from Rs.4,56,079/- to Rs.5,18,079/- with interest @ 7.5% per 3 2023 ACJ 1013 KL,J &SKS,J Macmas_851 & 1535_2015 12 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