Telangana High Court
Chola Ms General Insurance Co. Ltd., vs Guguloth Veeranna on 12 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.No.1010 of 2023
JUDGMENT:
Heard Sri A.Ramakrishna Reddy, learned standing counsel for the appellant-insurance company, and Ms. T.Swetcha, learned counsel for respondent No.2.
2. The present appeal has been filed by the appellant-insurance company challenging the Award passed by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Kothagudem (for short, 'Tribunal') in MVOP No.86 of 2018, dated 17.03.2023, and thereby to set aside the said Award.
3. The brief factual matrix of the case is as under:-
On 22.09.2017 at about 20:00 hours, the claim petitioner- respondent No.1 herein and one Bhukya shiva went to Bodu village for taking treatment on Bhukya Siva's Motorcycle bearing No.TS04-EE-7443 and after treatment, they were returning to their village, and when they reached Bodu Sub-station, the driver of the Motorcycle bearing No.TS04 EK1226 coming from Tekulapally to Bodu village, in opposite direction, drove the said vehicle in a rash LNA,J MACMA No.1010 of 2023 2 and negligent manner in high speed and dashed the above said Bhukya Shiva's Motorcycle. As a result, the claim petitioner, who is the pillion rider and the said Shiva fell on the road and the claim petitioner sustained grievous injury i.e., laceration of the right knee, many fractures over the right leg and multiple injuries all over the body.
3.1. On receipt of complaint, the Police, Bodu P.S registered a case in Crime No.27/2017 under Sections 337 and 338 IPC against the driver of the Crime Vehicle i.e., Motorcycle bearing No.TS 04 EK 1226 and after completion of the investigation, the police filed a charge sheet before the Magistrate concerned. 3.2. It was averred that the claim petitioner was aged about 32 years by the date of the accident and he was hale, healthy, and energetic before the accident. The petitioner worked as a mason and was getting a salary of Rs.10,000/- per month. 3.3. It was further averred that for treatment of the said injuries, the claim petitioner was shifted to Yashoda Hospital, Hyderabad, wherein major surgeries were done and his right leg above the knee was amputated, and skin and bone grafting was done to other LNA,J MACMA No.1010 of 2023 3 fractures. He took treatment as an inpatient for a period of 30 days under the supervision of Orthopedic surgeons. 3.4. It was also averred that due to the amputation of the right leg above the knee, the claim petitioner is unable to move from the bed and even unable to attend his normal duties and had to suffer from the same for the entire life. Hence, the claim petition against the owner and the insurer of the crime vehicle, seeking to grant compensation of Rs.25,00,000/- (Rupees Twenty Five lakhs only), for the injuries sustained by the claim petitioner in the motor vehicle accident, along with costs and interest @18% per annum from the date of the accident till realization.
4. Before the Tribunal, the owner and the insurer of the crime vehicle filed a counter contending inter alia denying the manner of the accident as narrated in the claim petition, the age, avocation and the income of the petitioner, nature of treatment and the medical expenses incurred by him. It was further stated that the driver of the Motorcycle bearing No.TS 04 EK 1226 was not having a valid driving licence. The claim of compensation is highly LNA,J MACMA No.1010 of 2023 4 excessive and hence, prayed to dismiss the claim petition in limine with costs.
5. Based on the pleadings of both sides, the following issues were framed:-
"1. Whether the petitioner sustained injuries in the motor vehicle accident? If so, whether the accident occurred due to the rash and negligent driving of the Motorcycle bearing No.TS 04 EK 1226?
2.Whether the petitioner is entitled to claim compensation? If so to what amount and from whom?
3. To what relief?"
6. During the trial, on behalf of the claim petitioner, P.Ws.1 to 4 were examined, and Exs.A-1 to A-12 were marked. On behalf of the appellant-insurance company, none were examined, but Ex.B-1-Attested copy of the insurance policy was marked.
7. The Tribunal, on due consideration of evidence and material placed on record, came to a conclusion that the accident took place due to rash and negligent driving of the crime vehicle and awarded compensation of Rs.29,56,270/- along with costs and interest @ 7.5% per annum from the date of petition till the date of deposit.
LNA,J MACMA No.1010 of 2023 5 The owner and insurer of the crime vehicle were directed to deposit the compensation amount within one month from the date of the said Award.
8. The contentions of the learned Standing Counsel for the appellant is mainly two fold; firstly, that there was a head on collision between the two motor cycles, but the Tribunal failed to take note of the said fact and held that the accident occurred due to the rash and negligent driving by the driver of motor cycle bearing No.TS04 EK 1226; and secondly, that the Tribunal erred in taking the monthly income of the claim petitioner at Rs.12,000/-.
9. On the other hand, Ms. T.Swetcha, learned counsel for respondent No.2-owner of the crime vehicle, submitted on the same lines as that of the learned Standing Counsel for the appellant i.e., with regard to denial of rash and negligent driving by the driver of the motor cycle bearing No.TS04 EK 1226 in causing the accident and further, also disputed the avocation and earnings of the claim petitioner.
LNA,J MACMA No.1010 of 2023 6
10.Consideration :
A perusal of the record shows that the claimant-injured examined himself as P.W-1 and narrated the manner in which the accident occurred reiterating his version made in the claim petition.
11. The owner and insurer of the alleged crime vehicle though filed counter before the Tribunal denying the contents of the claim petition as regards the manner of occurrence of the accident, did not take any steps to examine the driver of the alleged crime vehicle to disprove the version of the claim petitioner. Further, the police concerned after investigation, filed Ex.A-2-charge sheet before the Magistrate concerned against the driver of the alleged crime vehicle.
12. Therefore, in the absence of any rebuttal evidence adduced on behalf of the owner and insurer of the alleged crime vehicle as regards the manner of occurrence of the accident, due credence has to be given to the evidence of P.W-1.
13. In the light of the above, this Court is of the considered opinion that the Tribunal rightly held that the accident occurred due to the rash and negligent driving by the driver of the crime LNA,J MACMA No.1010 of 2023 7 vehicle i.e., TS04 EK-1226 and fastened the liability on the owner and insurer of the said vehicle to pay the compensation to the claim petitioner.
14. Coming to the earnings of the claim petitioner, he produced Ex.A-9-Identity Card to show that he used work as a Mason and also examined P.W-2 who stated that the claim petitioner used to earn Rs.10,000/- to Rs.15,000/- per month by working as a Mason. However, the claim petitioner did not file any salary certificate to prove his earnings. Hence, it can be reasonably presumed that the earnings of the claim petitioner would be Rs.10,000/- per month.
15. In order to assess the loss of earnings, it is pertinent to note that the claim petitioner adduced ample evidence in proof of the injuries sustained by him, the treatment and the surgeries undergone by him and the disability suffered by him. He also got marked Ex.A-10-Disability Certificate issued by the Medical Board, Kothagudem District, which shows that he suffered 75% functional disability due to amputation of the right leg above the knee. Therefore, this Court is of the considered view that the claim petitioner is entitled to compensation under the head 'loss of LNA,J MACMA No.1010 of 2023 8 earnings' for a period of six months, which comes to Rs.10,000/- x 6 = Rs.60,000/-.
16. Insofar as addition of income of the deceased towards future prospects, since the claim petitioner was self-employed and was aged about 32 years as on the date of accident, in view of paragraph-59.4 of the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd., vs. Pranay Sethi and others 1, he is entitled to future prospects by addition of 40% of the income. Therefore, in the considered opinion of this Court, the Tribunal erred in not awarding any amount towards loss of future prospects.
17. Further, it is established from the evidence of P.W-2 that the claim petitioner was self-employed i.e., working as a mason and as per Ex.A-9-Identity card, he was aged about 32 years as on the date of the accident. Therefore, the claim petitioner is entitled to future prospects of 40% of 10,000/- per month, which comes to Rs.4,000/- per month. Thus, the income of the claim petitioner including the future prospects comes to Rs.1,68,000/- per annum. As there is no dispute regarding the age of the claim petitioner- injured, by applying the ratio laid down in Sarla Verma Vs. Delhi 1 (2017) 16 SCC 680 LNA,J MACMA No.1010 of 2023 9 Transport Corporation and another 2, the appropriate multiplier to be applied is '16'.
18. It is to be noted that the claim petitioner has adduced evidence which clinchingly prove that he suffered 75% functional disability due to the injuries sustained by him in the accident.
19. Thus, in view of the above discussion, the compensation amount to be awarded to respondent No.1 herein-claim petitioner under the head 'loss of future prospects' is recalculated as 75% of Rs.1,68,000/- which comes to Rs.1,26,000/-. By applying the appropriate multiplier of '16', having regard to the age of the claim petitioner-injured as 32 years as on the date of the accident, he is entitled to a sum of Rs.20,16,000/- under the head 'loss of future prospects'.
20. Except the modification of the Award of the Tribunal as regards the loss of earnings and the permanent disability of the claim petitioner, the compensation awarded by the Tribunal under the other heads i.e., Transportation to hospital, extra nourishment, medical expenses and pain and suffering remains unaltered. 2 (2009) 6 SCC 121 LNA,J MACMA No.1010 of 2023 10
21. Accordingly, the claim petitioner is entitled to compensation under different heads which is as under:-
Sl.No. Head Compensation awarded
1. Income Rs.1,20,000/- per annum (Rs.10,000/-
per month)
2. Future prospectus Rs.48,000/- (40% of the annual
income i.e.,1,20,000/-)
3. Total income Rs.1,68,000/- per annum
4. Percentage of functional disability 75% 5. Multiplier 16
6. Permanent disability Rs.20,16,000/-
(75% x Rs.1,68,000/- x 16)
7. Loss of earnings Rs.10,000/- x 6 = Rs.60,000/-
8. Transportation to hospital Rs.15,000/-
9. Extra nourishment Rs.10,000/-
10. Medical expenses Rs.3,15,068/-
11. Pain and Suffering Rs.1,25,000/-
12. Total compensation Rs.25,41,068/-
22. In the result, the Appeal is partly allowed and the impugned Award, dated 17.03.2023, passed by the Tribunal insofar as compensation amount is concerned is modified by reducing the compensation amount from Rs.29,56,270/- to Rs.25,41,068/-. The above compensation amount of Rs.25,41,068/- shall carry interest @ 7.5% per annum from the date of the claim petition till the date LNA,J MACMA No.1010 of 2023 11 of realization. The appellant shall deposit the said compensation amount within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount already deposited by it. However, the insurance company is directed to first satisfy the Award and later recover the same from the owner of the crime vehicle i.e., respondent No.2 herein There shall be no order as to costs.
23. Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date:12.02.2024 Dr