Telangana High Court
Vayalapally Venkat Rao vs Arukala Ramesh Kumar on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.Nos.607 of 2021 and 37 of 2022
COMMON JUDGMENT:
MACMA No.607 of 2021 is an appeal by the claimant and MACMA No.37 of 2022 is an appeal by the insurance company. Considering the fact that these two appeals arises out of the same award dated 04.06.2021 passed in M.V.O.P.No.2371 of 2015 on the file of the Motor Accident Claims Tribunal-cum- XXVI Additional Chief Judge, City Civil Court, Hyderabad (for short "the Tribunal"), these two appeals are taken up together and decided by this common judgment.
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. The facts leading to filing of these two appeals are that M.V.O.P.No.2371 of 2015 was filed under Section 166 of the Motor Vehicles Act, 1988 and Rules 475/1B of APMV Rules 1989, r/w Sections 168, 140 (C) of APMV Act, 1988 by the petitioner, claiming compensation of Rs.18,00,000/- for the injuries sustained in the motor vehicle accident. It is stated that on 09.08.2015 at about 11.50 a.m., while the petitioner was proceeding on his motor cycle to go to his son Prashanth's 2 hospital at Gandhipeta side and when he reached near APPA junction, one lorry bearing registration No.AP-29-V-7989 came across from right side and dashed him, as a result, he fell on the left side abetting to the road side fencing and sustained fracture of right leg at hip level and below knee, left leg fracture, injuries to face, head injury and other injuries. The petitioner was admitting in Continental Hospital, Gachibowli and was operated, rods were inserted in leg and advised for six months bed rest and he was later operated several times and his right leg was amputated below the knee in the said hospital.
4. On a complaint, the Police, registered a case in Crime No.957/2015 under Section 337 IPC against the driver of the crime vehicle.
5. It is contended that at the time of accident, petitioner was hale and healthy and was earning Rs.80,000/- per month by working in M/s.NATCO Pharma Limited and used to contribute to the same for his family, that due to the said accident, he sustained severe injuries and subjected to huge loss of earnings.
6. The respondents 1 and 3 remained ex parte. The respondent No.2-insurance company filed counter denying the 3 manner in which the accident took place, the age, avocation and injuries sustained by the petitioner. It is contended that rider of motor cycle is not having valid and effective driving license and that the petitioner and the rider were plying the said vehicle in contravention of the provisions of MV Act and Rules. It is contended that the quantum of compensation claimed is excessive and exorbitant and prayed to dismiss the claim petition.
7. On the basis of the above pleadings, the Tribunal framed the following issues:-
1. Whether the accident took place due to the rash and negligent driving of the lorry bearing no.AP-29-V-7989 causing injuries to the petitioner ?
2. Whether the petitioner is entitled to compensation, if so, to what extent and against whom ?
3. To what relief?
8. In order to substantiate the case, on behalf of the petitioner/injured, P.Ws.1 to 4 were examined and Exs.A1 to A28 were marked. On behalf of the respondent-insurance company, no witness is examined, however, Exs.B1 and B2 were marked.
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9. The Tribunal, on conclusion of the pleadings and evidence placed on record by the parties, vide the impugned award, held that the accident had occurred due to the rash and negligent driving of the driver of the lorry and accordingly, awarded an amount of Rs.35,24,000/- with interest @ 6% per annum from the date of petition till the date of realization to be paid by the respondents 1 to 3 jointly and severally. Challenging the same, the present Appeals came to be filed by the petitioner/injured as well as the insurance company.
10. Heard Sri C.M.Prakash learned counsel for the appellant/injured and Sri N.Mohan Krishna, learned Counsel for the appellant/insurance company. Perused the record.
11. The principal grounds of challenge by the insurance company in MACMA No.37 of 2022 are that the accident occurred due to the own negligence of the injured/claimant and hence, appellant-insurance company is not liable to pay any compensation; that the insurer and insured of motor cycle on which the claimant/injured was travelling are proper and necessary parties for adjudication and non-joinder of the same, claim of the claimant/injured is liable to be dismissed; that claimant did not suffer any disability in the said accident; that 5 the Tribunal failed to see that insurance company already paid Rs.7 lakhs for the medical expenditure incurred in the hospital and hence, the said amount has to be deducted from the amount awarded by the Tribunal and finally, prayed to set aside the award passed by the Tribunal.
12. MACMA No.607 of 2021 is an appeal filed by the claimant/injured seeking for enhancement of compensation. The grounds seeking for enhancement of compensation was that the Tribunal had not considered the Ex.A22-disability certificate issued by the Medical Board, however, the Tribunal accepted only 30% disability, which is bad in law. The learned counsel for claimant/injured submitted that Tribunal erred in taking the salary of the injured as Rs.40,000/-. He submitted that injured is working as Production Manager in M/s.NATCO Pharma Ltd., and if he is continued in service, he would have get salary of Rs.80,000/- per month. He further submitted that the Tribunal erred in awarding meager amounts of compensation under the heads i.e., transportation, extra nourishment, medical expenses, pain and suffering etc; that Tribunal also erred in not considering Ex.A25, which is the purchase bill of prosthesis of right leg amounting to Rs.4,41,000/-. He further submitted that the Tribunal erred in deducting amount awarded for 6 C.M.relief fund. He further submitted that claimant/injured is entitled interest more than 12% per annum as per the decision of Magma General Insurance Co. Ltd., vs. Nanuram [2018 ACJ 2782 SC), however, the Tribunal only awarded interest at 6% p.a., which is contrary to the above decision and finally prayed to enhance the compensation amount.
13. In support of the contention, learned counsel for the claimant/injured relied on the following decisions:
i) Anthony @ Anthony Swamy v. K.S. RTC. 1;
ii) Oriential Insurance Co. Ltd., v. Khaloon @ Jasmai Singh Khaloon 2;
iii) ICICI Lombard General Insure vs. Ajay Kumar Mohanty 3;
iv) Dantamoni Sankar @ Sankariaah v. T.Rajaiah and another 4;
v) Divisional Controller KSRTC v. Mahadeva Shetty and another 5;
vi) Mohd. Sabeer v. Regional Manager, UP. State Road Trans. Corpn., 6
14. As regards the contention of the appellant-insurance company in MACMA No.37 of 2022, it has been submitted that 1 2020 (4) ALD 220 (SC) 2 2021 (5) ALD 118 SC 3 2018 ACJ 1020 SC 4 2020 (6) ALD 57 (TS) 5 (2003) 7 SCC 197 6 2023 ACJ 1 7 the injured/claimant did not suffer any fracture injuries in the said accident and Tribunal failed to see that the injured claimant was continued in employment and was paid salary even after his retirement and that he himself resigned from job on his own and therefore, there was no loss of earnings from the accident.
15. Coming to the grounds raised by the appellant-insurance company, as per the evidence and material placed on record, the Tribunal had come to conclusion that accident occurred due to rash and negligent driving of the crime vehicle, in which the injured sustained severe injuries and his right leg was amputated above the knee, which is evident from Ex.A15- discharge summary.
16. The insurance company that insurance company further contended that the employer company paid Rs.7 lakhs for the medical expenditure incurred in Continental hospital, however, the insurance company failed to show any receipt showing that it paid Rs.7 lakhs to the injured towards his medical expenditure.
17. In view of the above, this Court is of the opinion that appellant-insurance company has failed to discharge its 8 obligations so far as proving the contention raised by it by placing cogent, substantial material and evidence on record. Further, the insurance company failed to let in any witness in support of it contention.
18. In the absence of any material on the part of appellant- insurance company, the contentions raised by the appellant- insurance company thus stands answered in the negative.
19. Coming to the appeal in MACMA No.607 of 2021 filed by the claimant/injured, on perusal of the entire award, the injured claimed that he was earning Rs.80,000/- per month by working in M/s.NATCO Pharma Limited, however, according to the evidence of injured as P.W.1, he was earning Rs.40,000/- per month and he did not produce any evidence to prove his income apart from salary, therefore, the Tribunal had rightly assessed the income of the injured as Rs.40,000/- per month.
20. Insofar as the other contention raised by the learned counsel for appellant/injured with regard to the disability suffered by him is concerned, as per the evidence of P.W.4- Doctor, who assessed the disability and issued Ex.A22-disability certificate, the injured sustained 75% disability and he cannot walk without support and also cannot work. On due 9 consideration of the medical evidence and disability suffered by the injured, the Tribunal observed that injured himself resigned from NATCO Pharma and was not terminated by his employer on account of disability and that as injured educated he can do some or other job for his livelihood, his functional disability as 75% cannot be the same for his loss of earning capacity and by following the decision in Raj Kumar Vs. Ajay Kumar and another 7, the disability in relation to the whole body is scaled downed to 30% and with regard to loss of earning capacity, the Tribunal had rightly assessed the loss of 30% out of the earnings of petitioner.
21. In Anthony (supra), the Hon'ble Apex Court held that disability of the left leg is 75% amounting to total body disability of 37.5%, but the High Court considered the physical disability at 25% of the whole body without giving any reasoning for the reduction of the percentage and has also not considered the nature of permanent disability suffered by the appellant.
22. In Raj Kumar, the Hon'ble Supreme Court held that the assessment of compensation of future earnings would depend on the effect and impact of such disability on his working 7 2011 (1) SCC 343 10 capacity. It has further held that ascertainment to the effect of permanent disability on the actual earning involves three steps,
i) what activities the claimant could carry in spite of the permanent disability and what he could not do
ii) to ascertain his avocation, profession and nature of work before the accident as also his age
iii) a) whether he is totally disabled from earning any kind of livelihood
b) whether he can still carry out on the activities effectively which he was carrying on earlier.
c) whether he was restricted from discharging his previous activities but is able to carry some other lesser scale of activities to earn for his livelihood.
23. Perusal of the record would show that the claimant was working as Production Officer in M/s.NATCO Pharma Ltd., at the time of the accident. The petitioner is working as production officer before he resigned from NATCO Pharma. Therefore, it shows that petitioner himself resigned, but he was not terminated by his employer on account of disability sustained by him. The petitioner can undertake any other suitable job since he is educated and qualified and earn his livelihood to some extent. Therefore, his earning capacity is not affected 75% due to his physical disability due to amputation. In the light of above circumstances, the Tribunal has assessed the notional disability of the claimant as 30% as against 75% mentioned in 11 the disability certificate. Therefore, this Court is not inclined to interfere with the said aspect.
24. In Mohd. Sabeer (supra), the Hon'ble Supreme Court in paragraph-14 held that to assess the quantum of compensation to be awarded, this Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the appellant as held in Sandeep Khanuja v. Atul Dande 2017 ACJ 979 (SC). In paragraph-18, it was further held that it is well settled position of law that in cases of permanent disablement caused by a motor accident. Claimant is entitled not only to future loss of income, but also future prospects. Just compensation must be interpreted in such a manner that the claimant in the same position as he was before the accident took place. In paragraph-22 it was held that the cost of the prosthetic leg itself being Rs.2,60,000/- and the life of the prosthetic leg is for 5-6 years and also requiring amount for its maintenance of Rs.15,000/- and Rs.20,000/-; the amount awarded as compensation by the Hon'ble High Court would only last the appellant for about 15 years. It has further held that the purpose of fair compensation is to restore the injured to the position he was in prior to the accident as best as possible. Therefore, the Hon'ble Court in paragraph-23 held that the 12 appellant is to be awarded compensation of Rs.7,80,000/- for the prosthetic limbs alone and an amount of Rs.5,00,000/- was awarded for its maintenance.
25. Perusal of record, the Tribunal failed to consider Ex.A25, which is the purchase bill dated 06.05.2018 for Rs.4,41,000/- of prosthesis of right leg from Dakshin Rehabilitation Center, Somajiguda. In view of the above decision, the petitioner is entitled to compensation for purchase and maintenance of the prosthetic leg. In considered opinion of this Court, petitioner is to be awarded compensation of Rs.4,41,000/- and for maintenance of the same he is to be awarded an additional amount of Rs.2,20,000/-, totaling Rs.6,61,000/-.
26. Insofar as the other contention raised by the learned counsel for appellant-injured that the Tribunal erred in awarding meager amounts under the heads of transportation, extra nourishment, pain and suffering etc., in considered opinion of this Court, the Tribunal on considering the evidence and documents, had rightly awarded the amounts under various heads and needs no interference by this Court for the said contention raised by the appellant/injured. 13
27. Insofar the interest is concerned, the appellant/injured is entitled to 7.5% per annum instead of 6% per annum awarded by the Tribunal and the award passed by the Tribunal is to be modified.
28. In the result, MACMA No.607 of 2021 stands partly allowed and compensation amount is enhanced from Rs.35,24,000/- to Rs.41,85,000/- and the interest is awarded at 7.5% per annum instead of 6% per annum from the date of the petition till the date of realization and MACMA No.37 of 2022 stands dismissed. The insurance company is directed to ensure that the entire amount of compensation is deposited within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount, if any, already paid by it. There shall be no order as to costs.
29. Pending miscellaneous applications, if any, shall stand closed.
_____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 28.02.2024 kkm 14 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.Nos.607 of 2021 and 37 of 2022 Date: 28.02.2024 Kkm