Telangana High Court
Shriram General Insurance Company ... vs Busarapu Sampath on 10 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
MACMA NO.499 of 2019
AND
MACMA NO.47 OF 2019
COMMON JUDGMENT:
Being aggrieved by the order dated 19-10-2018 in MVOP.No.435 of 2012 on the file of III Addl. District Judge, Karimnagar, who was also acting as Chairman, Motor Accidents Claims Tribunal, where under, the Tribunal awarded an amount of Rs.6,27,962/- as compensation in favour of the petitioner in the above referred OP, the petitioner/claimant as well as the 3rd respondent-insurance company have filed these two Civil Miscellaneous Appeals under Section 173 of Motor Vehicles Act (for short 'M.V. Act').
2. The petitioner/claimant has filed MACMA.No.47 of 2019 on the ground that the Court below awarded less compensation and he is entitled to another sum of Rs.17,32,038/- while seeking enhancement of the compensation, filed the appeal on the following grounds.
3. The Tribunal ought to have considered that he was working as tractor driver and was earning Rs.6,000/- per month. But in view of the fractures to his right hand, he 2 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 cannot work as driver of the two wheeler or a four wheeler which is evident from the record marked as Ex.A11 Disability Certificate and evidence of Medical Officer would show he is suffering from 75% disability, therefore, the Court below ought to have awarded more compensation than the amount awarded. The Tribunal committed an error in not considering the monthly income of the petitioner as Rs.6,000/- but considered a meager amount of Rs.3,000/- as his monthly income, thereby, the said finding is contrary to the judgments of the Hon'ble Apex Court. The Tribunal committed an error in not considering the medical bills which were marked as A5, A6 and A9. The Court below awarded meager amount of Rs.50,000/- towards pain and sufferance ignoring the fact that the petitioner suffered four fractures to the right hand and he had undergone two surgeries. Therefore, the Court below ought to have awarded more compensation, thereby, sought for enhancement.
4. Whereas, the 3rd respondent in the said petition namely Shriram General Insurance Company Limited has filed MACMA.No.499 of 2019 on the ground that the Tribunal awarded excess compensation, thereby, sought for setting aside the order on the following grounds.
3 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
5. The Court below failed to consider that the accident took place due to the negligence of the petitioner/claimant. The Tribunal without any basis granted a sum of Rs.1,29,562/- towards medical expenditure. The Court below did not consider Ex.A10 the extract of driving license shows that the petitioner can drive the vehicle, thereby, he did not suffer any disability. Thereby, ought not to have added 40% of the notional income of the petitioner towards future prospects. The 3rd respondent further claimed that the tribunal applied an incorrect multiplier which is on higher side and considered 50% disability without any proper basis, therefore, sought for reduction of the compensation.
6. Since both the appeals are against the same judgment and the contentions raised by the parties before the trial Court and the appeals are one and the same, both the appeals can be disposed by a common judgment.
7. Before adverting to the respective contentions of the above stated appellants, it is necessary to see what was the case of petitioner before the Court below and how it was dealt with by the Tribunal. The petitioner who filed MVOP.No.435 of 2012 has claimed that on 02-10-2011 at about 8.00 p.m., he and other persons boarded one Tata 4 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 Magic auto bearing No.AP 15 TA 7511, Peddapalli and was proceeding towards Kachapur Village and at about 8.40 p.m., when the auto reached outskirts of Venkatraopalli, the first respondent who was driving the auto, drove it in a rash and negligent manner, lost control, thereby, the auto overturned. The petitioner has claimed that he received four fractures to his right hand and he was shifted to Government Hospital, Peddapalli. Thereafter, he was taken to Devishetty Hospital, Karimnagar and later shifted to Devishetty Hospital, Secunderabad. He has undergone different types of medical tests and was treated as in-patient from 03-10-2011 to 07-10-2011.
8. The petitioner has claimed that he spent an amount of Rs.2,20,000/- for treatment, transportation, extra nourishment and sought for an amount of Rs.8,00,000/- as compensation. The first respondent opposed the claim and by filing counter specifically contended that when an old woman tried to cross the road and on noticing her he had applied sudden brakes to avoid accident, thereby, the auto turned turtle, thereby, there was no fault on his part. However, even if any amount is to be paid as compensation, that has to be 5 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 paid by the insurance company which is shown as respondent No.3.
9. The owner of the auto remained ex parte.
10. Whereas, the insurance company filed a separate counter disputing the averments made in the petition and sought for dismissal of the claim.
11. The tribunal has framed the following three issues.
1. Whether the accident occurred due to the rash and negligent driving by the offending motor vehicle i.e., Tata Ace Magic bearing No.AP 15 TA 7511 driven by its driver?
2. Whether the petition is entitled to compensation, if so, to what amount and from whom ?
3. To what relief?
12. During the enquiry, three witnesses were examined on behalf of petitioner. Exs.A1 to A11 and Ex.C1 were marked on his behalf. The respondents did not adduce any oral evidence but respondent No.3 filed and marked the copy of insurance policy as Ex.B1. The Tribunal having appreciated the pleadings and also the evidence, allowed the petition in part granting a sum of Rs.6,27,962/-.
13. Heard both parties.
14. The following points arose for consideration in these two appeals :
6 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
1. Whether the petitioner is entitled to more compensation than the compensation that was awarded by the tribunal?
2. Whether the tribunal granted excess compensation? If so, whether the same can be reduced as prayed for by the third respondent?
15. The 3rd respondent - insurance company who filed MACMA.No.499 of 2019 has contented that the Court below failed to see that the accident occurred due to the negligence of the first respondent, thereby, ought not to have granted compensation. However, as could be seen from the impugned order, it shows that apart from his oral evidence, the petitioner has marked the certified copies of FIR lodged against the accident, copy of the charge sheet filed by the police against respondent No.1 and other record. The petitioner himself was the eye witness to the accident and he categorically deposed before the Court that the above referred accident took place due to the rash and negligent driving by the first respondent - driver.
16. Respondent No.1 who filed counter with a specific contention that having noticed an old woman crossing the road, he has applied sudden brakes, thereby, auto overturned etc. did not choose to examine himself to substantiate the claim. Even if the contents of counter filed by respondent 7 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 No.1 are accepted to be true, it itself shows the rash and negligent driving by the first respondent. Had there been no such rash or negligent driving, it could not have been a difficult task for the driver to stop the vehicle if he noticed a person crossing the road. Respondent No.1 who is expected to drive the vehicle in such a way to stop the same when ever it is required, could not control the vehicle, it is only because of the high speed or negligent driving.
17. Therefore, the contention of the 3rd respondent that there was no such rash or negligent driving cannot be accepted.
18. Respondent No.3 has claimed that the petitioner had obtained duplicate driving license which is marked as Ex.A10. Therefore, it shows that the petitioner was not suffering from any physical disability and there could not have been any compensation on account of alleged disability. Simply because the petitioner obtained renewal of the old driving license, it may not amount to the fitness of the petitioner to drive the vehicle. The petitioner has been examined himself as PW.1 and he could examine the Medical Officers and proved the fractures which he suffered in the above accident. The observations made by the Chairman in 8 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 the order also indicates that he had an occasion to see the petitioner at the time of evidence and the petitioner demonstrated before the Court that he is not able to fold his right hand because of the above referred fractures.
19. Therefore, this contention of 3rd respondent also need not be considered. The impugned award clearly shows that the learned Chairman having considered the details and other medical record awarded a sum of Rs.1,29,562/-. Therefore, the grounds raised by the 3rd respondent for rejection of the compensation are not established, thereby, appeal preferred by the insurance company is liable to be dismissed.
20. The petitioner who was not satisfied with the compensation of Rs.6,27,962/- has filed the appeal and sought for enhancement on the ground that the Court below did not consider his actual income while calculating the loss of income and calculating the compensation. Even though, the petitioner has claimed that he was a tractor driver and earning Rs.6,000/- per month, except his oral evidence, there is no other proof in support of the said claim. In fact, he is not able to prove the alleged employment as a tractor driver. However, considering the driving license and age of the 9 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 petitioner, the Court below notionally calculated the income of the petitioner as Rs.3,000/- and having added Rs.1200/- per month towards future prospects, considered the contention of the petitioner that he suffered disability awarded an amount of Rs.4,28,400/-.
21. It is true, the petitioner has claimed before the Court below that he suffered 75% of disability, and he is entitled to more compensation. In support of the claim, the petitioners tried to rely on a judgment between 'Pappu Deo Yadav vs. Naresh Kumar and Others' 1. However, the record placed before the Court clearly shows that the petitioner suffered four fractures to his right hand and after he has undergone surgeries, he was discharged from the Hospital under a stable condition. In the above referred judgment, where the injured suffered amputation to right hand, the Court considered the disability as 65%. But in the case on hand, it is not as if the petitioner lost his arm in the accident, he suffered major fractures. Even though, he is not in a position to bend his hand completely, it cannot be treated as 75% disability. Therefore, the Court below rightly considered the difficulty as 50% disability and having 1 2020 (6) ALD 198 (SC) 10 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019 notionally assessed the income of the injured as Rs.3,000/- and after adding future prospects, awarded an appropriate compensation which includes the compensation towards medical expenditure, extra nourishment, transportation and also towards pain and sufferance. It is true, the Court below awarded a sum of Rs.50,000/- towards pain and sufferance. However, it is also very clear that the Court below granted separate compensation of Rs.4,28,400/- as compensation for the disability. Therefore, there are no grounds for enhancement of the compensation, as such, the appeal is liable to be dismissed.
22. In the result, both the appeals are dismissed. Consequently, Miscellaneous applications if any, are closed. No costs.
________________________ SAMBASIVA RAO NAIDU, J 10th January, 2024.
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