Telangana High Court
The Oriental Insurance Company Limited vs A.Venu Gopal Chary And 2 Others on 30 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1152 OF 2018
AND
CROSS OBJECTIONS No.12 OF 2018
COMMON JUDGMENT:
1. Aggrieved by the order dated 31.10.2017 passed in M.V.O.P.No.42 of 2016, on the file of the Motor Vehicles Accidents Claims Tribunal -cum- XII Additional Chief Judge, City Civil Court, Secunderabad, the 2nd respondent in M.V.O.P./Insurance Company filed M.A.C.M.A.No.1152 of 2018 seeking to set-aside the order of the learned Tribunal. Also, having not satisfied with the compensation awarded by the learned Tribunal, the claim petitioner in M.V.O.P. filed Cross Objections No.12 of 2018 seeking for enhancement of compensation.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The brief facts of the case are that the claim petitioner, who is injured, filed a petition under Section 166 of the Motor Vehicles Act, 1988 and Section 455 of A.P.Motor Vehicle Rules, 1989 read with Section 140 (c) of Motor Vehicles Act, 1988, seeking compensation of Rs.50,00,000/- along with interest @ 12% per annum for the injuries sustained to him in an accident that occurred on 01.06.2015 at 11.00 A.M. It is stated by the petitioner/inured that on 01.06.2015 at about 11.00 A.M., when the petitioner/injured was proceeding on his motorcycle from 2 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 Thumukunta to Secunderabad and when reached near Hakimpet Bus Depot, one TATA Vista Car bearing No.TS-10EC-7060 came at a high speed in a rash and negligent manner and dashed the motorcycle of the petitioner, due to which he fell down on the road and sustained severe multiple fractures to left leg, bleeding injuries on left hand, bleeding injuries on left side of the chest, deep cut bleeding injuries on left forearm and deep cut bleeding injuries on left foot. Immediately, the petitioner was shifted to Sree Balaji Hospital, Pet Basheerbad, Medchal Road in '108' Ambulance and later shifted to Kamineni Hospital, where the petitioner underwent surgery to his left leg and was discharged on 05.06.2015. Police of Alwal Police Station, registered a case in Crime No.378 of 2015 for the offence punishable under Section 338 of IPC against the driver of the Car. It is further stated by the petitioner that he was aged 28 years at the time of accident and was Graduated in Commerce and joined Coffee Day shop for special training in Bar Food Technology and Management and was working as Deputy District Manager in Jubilant Food Works Limited and was getting salary of Rs.40,000/- per month. He was earning a sum of Rs.15,000/- per month from Aluminium Work contract. Due to the said accident, the petitioner was bedridden for four (4) months and was unable to sit, squat and walk and thus became permanently disabled person and was put to suffer economically and socially for balance of life and hence filed the claim petition seeking compensation against 3 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 the respondent Nos.1 to 3, who are the owner, insurer and driver of the crime vehicle.
4. Despite service of notices to respondent Nos.1 & 3, they failed to appear before the Trial Court. As such, they were set ex- parte.
5. Respondent No.2, who is the insurer of the crime vehicle, filed counter denying the averments made in the claim petition including, age, occupation, income, disability of the petitioner and contended that the accident occurred due to the contributory negligence of the driver of the crime vehicle. It is also contended that the concerned police did not forward the relevant documents to the insurer as required under Section 158(6) of MV Act, 1988. It is also contended that the 1st respondent, who is the owner of the crime vehicle, did not furnish the particulars of the policy, date, time, place of accident, name of the driver and his driving license as required under Section 134(c) of M.V Act, 1988 and that the compensation claimed is excess and exorbitant and hence prayed to dismiss the claim against it.
6. Based on the rival contentions made by both the parties, the learned Tribunal had framed the following issues for consideration:-
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MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
1. Whether the pleaded accident occurred resulting in injury of viz., A Venu Gopal Chary due to rash and negligent driving of the TATA Vista Car bearing No.TS-10EC-7060?
2. Whether the petitioner is entitled to any compensation and if so, at what quantum and what is the liability of the respondents?
3. To what relief?
7. Before the Tribunal, on behalf of the petitioner/injured, PWs1 to 5 were examined and Exs.A1 to A17 were marked. On behalf of Respondent No.2/Insurance Company, RW1 was examined and Ex.B1-Copy of Insurance Policy was marked.
8. After considering the evidence and documents filed by both sides, the learned Tribunal had allowed the claim petition of the petitioner/injured by awarding compensation of Rs.22,64,760/- with simple interest @ 9% per annum from the date of filing of petition till the date of deposit of amount which is payable by Respondent No.2 in the first instance, who in turn is entitled to recover the same from respondent Nos.1 & 3, who are the owner and driver of the crime vehicle. Aggrieved by the said order, the 2nd respondent in O.P. preferred M.A.C.M.A.1152 of 2018 and the claim petitioner had filed Cross Objection petition No.12 of 2018 seeking enhancement of compensation.
9. Heard both sides and perused the material available on record.
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MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
10. The contentions of the learned Standing Counsel for appellant/Insurance Company are that the learned Tribunal erred in applying pay and recovery policy; failed to observe that the driver of the crime vehicle do not possess valid driving license to drive the crime vehicle which is violation of policy conditions and hence, Insurance Company is not liable to pay any compensation. It also contended that future prospects should be awarded in a death case but not in disability case and that the petitioner is working as a Supervisor even after the accident and hence, he is not entitled for future prospects and that the medical expenses paid through Raksha PPA ought not to have been granted to the petitioner and that the amounts awarded under different heads are excess. It is also contended that the learned Tribunal awarded excess interest which is @ 9 % per annum.
11. Per contra, the learned counsel for the Cross-Objector/claim petitioner contended that the learned Tribunal ought to have fixed monthly salary @ Rs.40,000/- and Rs.15,000/- towards Aluminium works and ought to have considered disability @ 25% as stated by PW5/Doctor who treated the petitioner/injured and hence, prayed to allow the cross-objection petition by enhancing the compensation.
12. Now the points that emerges for determination are,
(i) Whether the order passed by the learned Tribunal requires interference of this Court?
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MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
(ii) Whether the cross-objector/claim petitioner is entitled for enhancement of compensation?
POINTS:-
13. This Court has perused the evidence and documents available on record. The claim petitioner examined himself as PW1 and got examined PWs 2 to 5 on his behalf and got marked Exs.A1 to A17. A perusal of Ex.A1 shows that Police of Alwal Police Station, registered a case in Crime No.378 of 2015 under Section 337 IPC against the driver of the crime vehicle and after conducting thorough investigation, filed charge sheet against the driver and owner of the crime vehicle under Ex.A2. The said charge sheet also reveals that the accident occurred due to the rash and negligent driving of the driver of TATA Vista Car bearing No.TS-10EC-7060. Ex.A3 is the extract of Medico Legal Case record issued by Kamineni Hospital wherein the petitioner/injured sustained abrasion of left patella, abrasion on left mid shaft, abrasion on left heel postural and fracture of left leg tibia . Ex.A4 is the Discharge Summary of Kamineni Hospital. Ex.A5 is the Medical Certificates (3 in number) issued by Kamineni Hospitals. Ex.A6 is the Disability Certificate issued by an Orthopaedic Surgeon stating that the petitioner/injured sustained 25% disability. Ex.A7 is the Service Certificate along with Payslips for the months of December, 2016, January, 2017 and February, 2017 issued by Jubilant Food Works Limited stating that the petitioner was working as a Guest Delight Manager since 25.03.2011. Ex.A8 7 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 is the extract of Bank statement of the petitioner/injured. Ex.A9 is the Aluminium Fitting charges Quotation (6 in number). Exs.A10 to A12 are the medical bills worth Rs.7,951/-, Rs.1,26,839/- and Rs.5,302/-. Ex.A13 are the Rental bills worth Rs.8,590/-. Ex.A14 are the receipts from personal attendants which comes to Rs.36,000/-. Ex.A15 is the motorcycle repair bills worth Rs.31,860/-. Ex.A16 are the Lab reports and Ex.A17 are the Memorandum of marks.
14. It is the contention of the learned counsel for appellant that the driver of the crime vehicle do not possess valid driving license to drive the crime vehicle which is violation of policy conditions and hence, Insurance Company is not liable to pay any compensation.
15. In this regard, it is pertinent to refer the decision of the Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s United India Insurance Company and Another 1 wherein, the Hon'ble Supreme Court held that the Insurance Company is liable to pay the victim even if the driver was unlicensed so that the victim should not be deprived of the money due to him. Hence Insurance Company has full rights to recover their money from the owner of the vehicle. Further, the owner can make the unlicensed driver to pay the compensation.
1 AIR 2013 Supeme Court 2262 8 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
16. From the above decision, it is clear that the Insurance Company cannot be exonerated from its liability to pay the compensation amount. It shall pay the compensation at first and then recover the same from the owner, who in turn can add the unlicensed driver to pay the compensation. Hence, the contention of the learned counsel that the Tribunal erred in applying pay and recover policy is unsustainable.
17. It also contended by the learned Standing Counsel for Insurance Company that future prospects should be awarded in a death case but not in disability case and that the petitioner is working as a Supervisor even after the accident and hence, he is not entitled for future prospects.
18. In this regard, it is pertinent to refer to Ex.A7-Service Certificate along with evidence of PW5, who is an Orthopaedic Surgeon. A perusal of Ex.A7-Service Certificate along with pay slips issued by Jubiliant Food Works Limited shows that the petitioner/injured is working as a Guest Delight Manager even after the accident and the disability sustained to him is only 25% and not permanent as per Ex.A6- Disability Certificate issued by PW5, who is an Orthopaedic Surgeon and that there is no obstruction/loss to his future monthly earnings. Hence, this Court by considering the above facts, feels that the petitioner/injured is not entitled for future prospects and is inclined to interfere with 9 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 the finding of the learned Tribunal as far as this aspect is concerned.
19. It is the further contention of the learned Standing Counsel for Insurance Company that the medical expenses paid through Raksha PPA ought not to have been granted to the petitioner. In this regard, it is pertinent to refer to the recent judgment delivered by Bombay High Court reported in the case between Royal Sundaram Alliance Insurance Co. Ltd. Vs. Ajit Chandrakant Rakvi and Ors 2 , wherein, the issue of double benefit has been decided in a similar manner based on the decision of the Apex Court in Helen C.Rebello v.Maharashtra State Road Transport Corporation and Another 3 . It was held by the Court that the nature of the proceedings under the Act is of relevance and a claim petition for compensation in regard to motor accident filed by the injured is neither a suit nor an adversarial lis in the traditional sense. Thus, the benefits emanating from an independent and unconnected contract of insurance cannot be considered by the Tribunal as it besets with variables rooted in contract.
20. Therefore, in view of the above discussion and also based on the above decision, the petitioner/injured is entitled for medical expenses even though part of some amount was paid through medical insurance.
2 2020 ACJ 691 3 1999 ACJ 10 (SC) 10 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
21. It is also the contention of the learned counsel for appellant/Insurance Company that the amounts awarded by the Tribunal under different heads are excess and that the learned Tribunal awarded excess interest @ 9 % per annum.
22. A perusal of Medical bills filed under Ex.A12 shows that the petitioner had incurred a sum of Rs.1,22,444.36 towards medical expenses, but not Rs.1,40,092/- as claimed by the petitioner/injured and awarded by the Tribunal. Further, the Rent-a-Car receipt filed under Ex.A13 shows that the petitioner hired a vehicle for rent for an amount of Rs.2,150/-, but not Rs.8,509/- as alleged by the petitioner. It is also pertinent to note that though PW2 in his evidence stated that the petitioner incurred an amount of Rs.31,860/- towards repairing charges for his motorcycle, but Ex.A15 receipt reveals that the petitioner incurred a sum of Rs.16,420/- only but not Rs.31,860/- as stated by PW2. Hence, this Court is of the opinion that the learned Tribunal, without calculating the expenses incurred properly, had awarded huge amounts towards compensation for which this Court is inclined to interfere with the same and hereby reduces the amounts which are awarded in excess while calculating the compensation amount.
23. Per contra, it is the contention of the Cross-objector/claim petitioner (injured) that though PW5, who is an Orthopaedic Surgeon, stated that the petitioner/injured sustained 25% 11 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 disability, but the learned Tribunal took disability @ 20% which is very meagre. This Court, by considering the evidence of PW5 and Ex.A6-Disability Certificate, is inclined to interfere with the finding of the learned Tribunal and hereby fix the disability @ 25% instead of 20%. It is also the contention of the learned counsel for the cross-objector that the learned Tribunal ought to have fixed the monthly salary of the petitioner/injured @ Rs.40,000/- and Rs.15,000/- respectively. In this regard, it is pertinent to refer to the evidence of PW4, Manager of the Jubilant Food Works under whom the petitioner/injured is working, who deposed that the petitioner is working in their company on a salary of Rs.31,650/- per month. A perusal of Ex.A9-Bills issued to Platinum properties private limited reveals that they are self-made bills and the petitioner/injured failed to examine the concerned person to prove that he worked as an Aluminium Work Contractor. Therefore, this Court is of the considered opinion that the Tribunal had rightly taken the income of the petitioner/injured @ Rs.31,650/- which needs no interference by this Court.
24. Now, coming to quantum of compensation, this Court, in view of the above changes made, is inclined to interfere with the findings of the learned Tribunal and hereby calculate the compensation as mentioned below:
25. As per evidence of PW4, it is evident that the petitioner/injured was earning a sum of Rs.31,650/- as salary per 12 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018 month. Hence, the same is taken as his monthly income for calculating compensation. This Court, by considering the evidence of PW5 along with Ex.A6-Disability Certificate, is inclined to fix the disability @ 25% and by applying relevant multiplier '17' as per the guidelines laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation 4, the total annual loss of income due to the said disability comes to Rs.16,14,150/- (31,650 x 12 x 17 x 25%). Apart from this, the petitioner was also awarded an amount of Rs.94,950/- towards loss of earnings for three months; an amount of Rs.2,150/- towards transport charges; an amount of Rs.1,22,444.36 towards medical expenses; an amount of Rs.10,000/- towards extra nourishment; an amount of Rs.25,000/-towards pain and suffering ; an amount of Rs.18,000/- towards attendant charges; an amount of Rs.16,420/- towards damages to motor-cycle . Thus in all, the petitioner/injured is entitled for a total compensation of Rs.19,03,114.36/-
26. With regard to interest awarded by the learned Tribunal, this Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 5, reduces the rate of interest from 9% per annum to 7.5% per annum. 4 2009 ACJ 1298 (SC) 5 2013 ACJ 1403 = 2013 (4) ALT 35 13 MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018
27. In the result, M.A.C.M.A.No.1152 of 2018 filed by the Insurance Company is partly-allowed reducing the compensation awarded by the Tribunal from Rs.22,64,760/- to Rs.19,03,114.36/- and the Cross-Objections petition filed by the petitioner/injured is also partly-allowed by considering the disability @ 25% instead of 20% as awarded by the Tribunal. The compensation so awarded shall carry interest @ 7.5% per annum from the date of filing of petition till the date of realization payable by the appellant/Insurance Company in the first instance within a period of two months from the date of receipt of a copy of this order and is entitled to recover the same from the respondent Nos.2 & 3, who are the owner and driver of the crime vehicle. On such deposit, the claim petitioner/X-objector is entitled to withdraw the same without furnishing any security. There shall be no order as to costs.
28. Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.30.08.2024 ysk