Andhra Pradesh High Court - Amravati
V.Jayageetha vs Apsrtc 2 Others on 31 October, 2022
BVLNC, J MACMA No.2203 of 2016
Page 1 of 44 dt.31.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CIVIL MISCELLANEOUS APPEAL No.2203 OF 2016
JUDGMENT:
This appeal is preferred by the claimant challenging the award
dated 14.06.2016 passed in M.V.O.P.No.261 of 2012 on the file of Motor
Accidents Claims Tribunal-cum-IV Addl. District Judge, Tirupati, wherein
the Tribunal while allowing the petition, awarded a compensation of
Rs.9,13,740/- with interest @ 7.5% p.a., from the date of petition till the
date of deposit for the injuries sustained by her in the motor vehicle
accident.
2. For the sake of convenience, the parties hereinafter referred
to as they were arrayed in the lower Court.
3. As seen from the record, originally the petitioner filed an
application U/s 166 (1) (a) of Motor Vehicles Act, 1988 (for brevity "the
Act") claiming compensation of Rs.12,00,000/- on account of the
permanent disability and injuries sustained by the petitioner in a motor
vehicle accident occurred on 09.03.2012 while the petitioner was
travelling in APSRTC hire bus bearing No.AP 03Y 8996 from
Appalayagunta to Tirupati and at Krishna Stone Crusher on Puttur -
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Tirupati road the petitioner fell down from the running bus at a curve,
under the jurisdiction of Vadamalapet Police Station.
4. The facts of the case show that on 09.03.2012 at about 11.00
a.m., while the petitioner was travelling in the APSRTC hire bus bearing
No.AP 03Y 8996 from Appalayagunta to Tirupati, and when the said bus
reached near Krishna Stone Crusher, the driver of the bus drove the same
in a rash and negligent manner, due to which the petitioner fell down
from the running bus and sustained crush injury on her left chest.
Immediately she was taken to SVRRGG Hospital, Tirupati by 108
Ambulance.
On receipt of the statement of the injured, a case in
Cr.No.12/2012 under Section 338 of IPC was registered by Vadamalapet
P.S., against the driver of the bus and subsequently, after conducting
investigation, the police filed the charge sheet against him on the file of
Addl. Judicial Magistrate of I Class, Puttur.
The injured was aged about 43 years and she was hale and
healthy prior to the accident. The petitioner is a house wife and she was
doing tailoring work and earning Rs.3,000/- p.m., and contributing the
same to her family. From 09.03.2012 to 22.03.2012 she was treated in
the said hospital and again on 29.03.2022 she was admitted in the same
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hospital as the injury to upper left chest was not healed. Subsequently,
on the advice of doctors, she was admitted in C.M.C. Hospital, Vellore on
03.04.2012, where on examination the doctors found that there was a
large irregular ulcer measuring about 30 x 10 cm., in the anterior chest
wall extending from the midline to the left anterior chest wall laterally,
supero inferiorly from left infraclavicular region to the supramammary
region. There was dusky discoloration around the circumference of the
ulcer. The margins were clearly demarcated and necrotic material with
purulent discharge. On palpation, there was increased warmth and
tenderness. The base was indurated extending from the infra mammary,
supraclavicular regions and to the shoulder. The doctors at C.M.C.
Hospital operated the petitioner viz., (1) Anterior chest wall debridement
and left mastectomy on 03.04.2012; (2) Redebridement of the anterior
chest wall on 08.04.2012 and emergency tracheostomy was done on
09.05.2012 and she was there in the I.C.U. for three days. Later, her
wound was found to have fungal growth in few areas of the debrided
wound, fungal culture had grown Mucormycosis. The wound became
unhealthy and she needed a redebridment. The petitioner was receiving
nebulisations for persistent wheeze. The petitioner became tachypnoea
with respiratory alkalosis. Further, there was sudden onset upper airway
obstruction secondary to the generalized oedema with laryngeal oedema
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she developed probably due to hypoalbuminemia. Her saturation again
dropped and she was shifted back to SICU for ventilation. She was given
frequent nebulisations and then the respiratory symptoms improved.
Portex tracheostomy tube was converted into a metallic one. Finally, she
was discharged on 01.06.2012 with a plan for STSG on the anterior chest
wall. The doctors advised the petitioner to take protein diet and also
advised her to take plastic surgery for her chest as totally her left chest
was removed. The petitioner spent huge amount for her treatment. On
22.06.2012 the petitioner was admitted in Prasanth Nursing Home,
Tirupati and on 23.06.2012 plastic surgery was done.
Due to the injuries the left breast of the petitioner was
removed, left shoulder got infected and flesh and skin were removed, due
to which she is not able to lift the shoulder, movements restricted, she
cannot lift the hand and she cannot do the work like prior to the accident,
which is a permanent disability.
The accident occurred due to the rash and negligent driving
by the driver of the bus, which was hired by the 2nd respondent with the
1st respondent and the 2nd respondent insured the said bus with the 3rd
respondent and the policy of insurance was in force on the date of
accident. Hence, the claim for compensation.
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5. Before the Tribunal, the 1st respondent resisted the petition in
the counter filed on his behalf and contended that the 2nd respondent
drove the said bus with care and caution, there was no rash or negligence
on the part of driver of the bus, the 2nd respondent hired the bus to the 1st
respondent for a period of four years from 26.06.2011 to 25.06.2015, the
said bus was insured with the 3rd respondent and the agreement clearly
shows that the respondents 2 and 3 are responsible to pay any claim if
arises under the provisions of Motor Vehicles Act, the 2nd respondent paid
premium for IMT - 44 to the 3rd respondent and therefore, the 1st
respondent is not liable to pay compensation.
6. The 2nd respondent resisted the petition by filing a counter
contending that the driver of the bus bearing No.AP 03Y 8996 drove the
same with care and caution and there was no rash or negligence on the
part of the driver of the bus, the 1st respondent is not liable to pay any
compensation as per the terms of the agreement, the driver of the bus
was holding valid driving licence at the time of accident and the amount
of compensation claimed by the petitioner is excessive.
7. The 3rd respondent/insurance company filed counter
resisting while traversing the material averments with regard to proof of
age, manner of accident, rash and negligence on the part of the driver of
the crime bus, nature of injuries, period of treatment, medical
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expenditure, and liability to pay compensation and contended that the 2nd
respondent was not having valid driving licence to drive such type of
vehicle, the 2nd respondent endorsed the vehicle to the driver who was not
having a valid and effective driving licence to drive such type of vehicle at
the time of accident, the 3rd respondent insurance company is not liable
to pay compensation as the 2nd respondent has violated the terms and
conditions of the policy, the vehicle pertaining to the 2nd respondent was
not having valid fitness certificate and plying the same in violation of the
terms and conditions of the policy and therefore, the 3rd respondent is not
liable to pay compensation.
8. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
1. Whether the petitioner received injuries in the motor vehicle
accident that took place on 09.03.2012 at about 11.00 a.m., due
to rash and negligent driving of the driver of hired APSRTC bus
bearing No.AP 03Y 8996 of the 1st respondent as alleged?
2. Whether the petitioner is entitled to compensation and if so what
is the quantum of compensation amount and against whom?
3. To what relief?
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9. To substantiate her claim, the petitioner examined P.Ws.1 to
5 and got marked Exs.A1 to A16, Ex.X1 and Ex.C1. On behalf of the
respondents, R.Ws.1 to 3 were examined and Exs.B1 to B5 were marked.
10. The Tribunal, taking into consideration the evidence of
P.Ws.1 to 5, coupled with Exs.A1 to A16, Ex.X1 and Ex.C1 and the
evidence of R.Ws.1 to 3 and Exs.B1 to B5, held that the accident took
place due to rash and negligent driving of the driver of the offending bus,
and awarded a compensation of Rs.9,13,740/- with interest @ 7.5% p.a.,
from the date of petition till the date of deposit.
11. The contention of the appellant/claimant is that (point No.1)
the Tribunal erred in holding that the 2nd respondent i.e., owner of the
bus is alone liable to pay compensation and that 3rd respondent
insurance company is not liable to indemnify the insured, though
insurance policy was valid and in force as on the date of accident. The
other contention of the claimant is that (point No.2) the Tribunal failed to
appreciate the evidence of doctor (P.W.4), who deposed that permanent
disability suffered by the claimant is 80% and that the Tribunal erred in
fixing the annual income of the claimant at Rs.36,000/- only, oblivious of
the fact that even a servant-maid was earning Rs.200/- per day at the
relevant point in time and therefore, the Tribunal would have fixed the
BVLNC, J MACMA No.2203 of 2016
Page 8 of 44 dt.31.10.2022
income of the claimant, who is a house-wife at Rs.72,000/- p.a., and by
applying the permanent disability as per the evidence of P.W.1.
POINT No.1:-
12. The case of the appellant/claimant is that she is a house-wife
and also doing tailoring works and on 09.03.2012 at about 11.00 a.m.,
she boarded APSRTC hired bus bearing No.AP 03Y 8996 at
Appalayagunta near Tirupati and when the bus was going towards
Tirupati, the driver of the bus drove the bus in a rash and negligent
manner in spite of curves and as a result she fell down from the bus near
Krishna Stone Crusher and received crush injury on her left chest and
police registered Ex.A1 F.I.R., for the offence punishable u/s 337 of IPC
against conductor of the bus and later, after investigation filed Ex.A2
police report (charge sheet) against bus driver and also the conductor of
the bus for the offence punishable u/s 337 of IPC and Sections 134 (a)
and (b) of Motor Vehicles Act and Exs.A3 to A16 and Ex.X1 proved that
the petitioner received injuries in the road accident and the respondents
did not examine any witness against the evidence of the petitioner about
the manner in which the accident was occurred and therefore, the
evidence of the petitioner proved that the accident occurred due to rash
and negligent driving of the bus by the driver, and the medical evidence
produced by the petitioner proved that she spent Rs.3,30,658/- towards
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treatment provided at C.M.C. Hospital, Vellore and on account of the
injuries sustained in the accident her left breast was removed on
09.05.2012 as proved by Ex.A6 discharge summary and the evidence of
P.W.4 proved the same and as per his evidence she sustained permanent
disability at 80% and the evidence of P.W.5 proved that she sustained two
grievous injuries in the accident and the Medical Board issued Ex.A16
assessing the permanent disability as 52% and in those circumstances,
the petitioner claimed a total sum of Rs.12,00,000/- towards
compensation under various heads pleading that she is a house-wife and
a tailor and her income at relevant point of time was Rs.3,000/- p.m., and
age was 43 years at the time of accident, and that the respondent
No.1/APSRTC, respondent No.2/owner of hired bus and respondent
No.3/insurer of the bus are jointly and severally liable to pay the
compensation.
13. The 1st respondent/APSRTC contention is that APSRTC hired
the bus from the 2nd respondent from 26.06.2011 to 25.06.2015 for four
years and it was insured with 3rd respondent and as per the hire
agreement it carries IMT - 44 hire package policy and therefore, the 2nd
and 3rd respondents are jointly and severally liable to pay any claim to be
arisen under the provisions of Motor Vehicles Act and the 1st respondent
is not liable to pay any compensation as per the terms of the agreement
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as 2nd respondent paid the premium for IMT - 44 to the 3rd respondent
and the same was in force at the time of the accident as the policy was
valid from 13.06.2011 to 12.06.2012. The 1st respondent also contended
that the accident was not occurred due to the rash or negligent driving of
the driver, but it occurred due to the negligence on the part of the
petitioner and the claim of the petitioner is excessive and exorbitant.
14. The 2nd respondent contended that he hired the bus with the
1st respondent for a period of four years from 26.06.2011 to 25.06.2015
and it was insured with the 3rd respondent and paid premium for IMT -
hirer package also and it was valid on the day of accident and as per the
agreement 2nd and 3rd respondents are responsible to pay any claims if
arise under the provisions of Motor Vehicles Act and the 3rd respondent is
liable to indemnify the same and therefore, the 2nd respondent is not
liable to pay any compensation and the driver was having a valid and
subsisting driving licence and there is no violation of terms and
conditions of the policy and that accident occurred due to the negligence
of the claimant and there was no negligence on the part of the driver of
the bus and the compensation claimed by the petitioner is exorbitant and
excessive.
15. The contention of the 3rd respondent/insurance company is
that the petitioner sustained only simple injuries and that accident was
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occurred due to the negligence of the petitioner and petitioner was sitting
in the bus negligently opposite to the door way without holding properly
and while the bus was taking a turn, the petitioner lost control and fell
down from the bus and inspite of the best efforts made by the driver, the
accident was occurred and that the driver is not having a valid licence to
drive the vehicle at relevant point in time and the 2nd respondent
entrusted the vehicle to a person who was not having valid driving licence
and therefore, the 3rd respondent is not liable to indemnify as per the
terms and conditions of the policy. The 3rd respondent further contended
that the bus is not having valid fitness certificate on the date of the
accident and therefore, the 2nd respondent violated the terms and
conditions of the policy and further the bus was not having a valid permit
on the date of the alleged accident to ply on the alleged route of the
accident and thereby 2nd respondent violated the terms and conditions for
plying the vehicle in a non-permit route and the claim of the petitioner is
exorbitant and excessive and the 3rd respondent is protected u/s 149 of
the Motor Vehicles Act for violation of the terms and conditions of the
policy.
16. The petitioner in order to establish her case that the accident
occurred due to the rash and negligent driving of the driver of the bus,
has examined herself as P.W.1. She filed copies of Ex.A1 F.I.R., and
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Ex.A2 police report (charge sheet) laid by the police after conducting
investigation about the accident. The evidence of P.W.1 coupled with
Ex.A1 F.I.R., and Ex.A2 police report (charge sheet) prima facie show that
the accident occurred due to the rash and negligent act of the driver and
conductor of the bus. The respondents to contradict the evidence of
petitioner who was travelling in the bus at the time of the accident, did
not examine either the conductor or the driver of the bus, who are the
best witnesses to depose about the manner in which the alleged accident
occurred and the role of petitioner in the accident to say that petitioner
contributed for the accident. The 2nd respondent was examined as R.W.3,
but he is not an eye witness to the incident. R.W.1 is a Legal Officer
working in the 3rd respondent company and therefore, he is also not an
eye witness to the incident. R.W.3 is the 2nd respondent and he is the
owner of the hire bus. He is also not an eye witness to the incident.
R.W.2 is a Senior Assistant working in the office of Regional Transport
Authority, Tirupati. Therefore, none of the witnesses examined for the
respondents are eye witnesses to the incident that occurred on
09.03.2012. In that view of the matter, I do not find any error in the
finding of the Tribunal that the accident was occurred due to the rash
and negligence of the driver of the bus.
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17. Coming to the main contention of the claimant/appellant is
that the Tribunal erroneously exonerated the 3rd respondent/ insurance
company from liability and awarded compensation against the 2nd
respondent only, who is the owner of the bus hired with the 1st
respondent APSRTC at the relevant point in time inspite of the 2nd
respondent paid premium for IMT-44 hirer - package policy, and there is
no violation of terms and conditions of the policy. The learned counsel for
the claimant vehemently argued that the Tribunal erred in holding that
the ratio laid down by the Hon‟ble Apex Court in Uttar Pradesh State
Road Transport Corporation Vs. Kulsum and others reported in (2011)
8 SCC 142; a Full Bench judgment of High Court of Andhra Pradesh at
Hyderabad in APSRTC, Hyderabad and another Vs. B.Kanakaratnabai
and others reported in 2013 (1) ALD 644 (FB); and also the judgment of
the Punjab and Haryana High Court in Motiram Vs. ICICI Lombard and
others (MANU/PH/3042/2014). The learned counsel for the 3rd
respondent/insurance company submitted arguments that the owner has
violated the terms and conditions of the policy and therefore, u/s 149 (2)
of the Motor Vehicles Act the insurance company was exonerated by the
Tribunal, and there are no grounds to interfere with the findings of the
Tribunal on this aspect. The learned counsel for the 1st
respondent/APSRTC and 2nd respondent/owner of the bus submitted that
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the Tribunal erred in holding that the owner violated the terms and
conditions of the insurance policy, and that route permit is not a
condition covered by the policy and it will not be covered by the word
„permit‟ as mentioned in the policy as well as under the provisions of the
Motor Vehicles Act as laid down in Moti Ram's case, and therefore, there
is no violation of the terms and conditions of the policy and as such the
3rd respondent/insurance company shall indemnify the insured to pay
compensation as per the terms of the hire agreement.
18. Ex.B1 is the true copy of hire agreement between the 1st and
2nd respondents dt.29.06.2011. Ex.B1 shows that the owner shall keep
the bus road-worthy in terms of Chapter-VI of the M.V.Act, 1988 from
time to time, by carrying out necessary maintenance and repairs at his
own cost and the owner shall keep the vehicle duly insured
comprehensively duly incorporating the APSRTC as the hirer of the
vehicle in the insurance policy against the column "Owner" to cover all
risks and the Proposal Form shall be signed by both the owner and the
hirer and the insurance policy certificate of the vehicle shall carry "IMT-44
Indemnity to hirer-package policy-negligence of the owner or hirer"
endorsement; and the owner shall also pay other taxes and levies payable
as a consequence of the operation of the above vehicle to all the
authorities concerned and further, the owner shall be liable for all claims
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that may arise due to statutory violations out of the operations, like claim
due to accidents payable under the provisions of M.V.Act, 1988 and
APSRTC shall under no circumstances be made liable or responsible to
pay compensation that may be awarded by Motor Accidents Claims
Tribunal or Tribunals in respect of accidents and that in the event of
payment of compensation by APSRTC to the injured persons/dependents
of deceased persons or to the owners of the property damaged, by any
Award of the Motor Vehicle Accidents Tribunal / Order of the Court in
cases involving accident to hire buses, the APSRTC shall have right to
recover the said compensation from the hire bus owner and the hire bus
owner hereby agreed that he shall not dispute the said recovery. The
agreement also says that owner shall depute the driver engaged on hire
bus for imparting requisite training programmes and that the owner shall
provide a driver with a valid driving licence having validity of not less than
five years experience to drive the vehicle and the driver employed by the
owner shall undergo medical examination by a Medical Officer of the
APSRTC and the owner shall furnish photo copy of the driving licence and
the corporation shall provide the conductor for operation of the service
with necessary equipment for issuing tickets.
19. Ex.B2 is the copy of the certificate-cum-policy schedule
issued by the 3rd respondent. It shows that the policy was issued on
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13.06.2011 and it is valid till mid night of 12.06.2012. Admittedly, the
accident was occurred on 09.03.2012. Therefore, the policy was in force
as on the date of accident, and it further discloses that IMT-44
endorsement was attached to the policy and that a sum of Rs.125/- was
paid towards indemnity to hire - IMT-44. Therefore, it establishes that
the agreement of hire was within the knowledge of the 3rd respondent and
there is no violation of any condition of the policy in this regard and thus
admittedly the policy also does not prohibit the hire of the bus by the 2nd
respondent with the 1st respondent. In that view of the matter, the 2nd
respondent is vicariously liable for the negligent acts committed by the
driver deputed by him to drive the bus hired to the 1st respondent
Corporation. The 3rd respondent is liable to indemnify the same as per
the terms of the policy.
20. On this aspect Hon‟ble Apex Court in Uttar Pradesh State
Road Transport Corporation Vs. Kulsum and others1, held that,
.....Thus, the vehicle was given on hire by the owner of the vehicle
together with its existing and running insurance policy. In view of the
aforesaid terms and conditions, the Insurance Company cannot
escape its liability to pay the amount of compensation...."
1 (2011) 8 SCC 142.
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".....Thus, it can safely be inferred that effective control and
command of the bus was that of the Appellant."
" .....If the Corporation had become the owner even for the specific
period and the vehicle having been insured at the instance of original
owner, it will be deemed that the vehicle was transferred along with
the Insurance Policy in existence to the Corporation and thus
Insurance Company would not be able to escape its liability to pay
the amount of compensation."
".....The liability to pay compensation in respect of death of or injury
caused to the person or property of a third party undoubtedly arises
when such injury is caused when the insured is using the vehicle in
a public place. It also arises when the insured has caused or allowed
any other person (including an independent contractor) to use his
vehicle in a public place and the death of or injury to the person or
property of a third party is caused on account of the use of the said
vehicle during such period, unless such other person has himself
taken out a policy of insurance to cover the liability arising out of
such an accident."
".....wherein it has been directed that the amount would first be paid
by the Company, with right to it to recover the same from owner of
the vehicle....."
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21. In APSRTC, Hyderabad and another Vs. B.Kanaka
Ratnabai and others2, a Full Bench of the High Court of Andhra
Pradesh, at Hyderabad held that,
".....We find force in this contention. Given the similarities of the
facts in Kulsum MANU/SC/0846/2011 = (2011) 8 SCC 142 and the
cases arising in our State, the ratio laid down in the said judgment
would squarely apply in so far as cases arising under the Act of
1988 are concerned."
"On principle, it is not open to the Insurance Company to absolve
themselves of liability towards passengers/third party risks on the
short ground that the insured vehicle has been given on hire without
following the prescribed procedure....."
".....we hold that mere hiring of insured buses by the owners to the
APSRTC would not in any manner limit the liability and
accountability of the Insurance Companies, be it under the Act of
1088 or the Act of 1939, to honour passengers/third party risks
covered by the Insurance Policies issued by them in favour of the
owners. Notwithstanding the hiring of insured buses by the owners
to the APSRTC, the Insurance Companies shall be solely and
exclusively liable for payment of the compensation arising out of such
passengers/third party claims unless any of the grounds in Section
149 (2) of the Act of 1988/Section 96 (2) of the Act of 1939 are made
out......"
2 2013 (1) ALD 644 (FB).
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22. In Managing Director, K.S.R.T.C. and Others Vs. New
India Assurance Company Ltd. And Others3 the Hon‟ble Apex Court
held that,
".....It has not been shown that owner could not have given bus on
hire as per any provision of policy....."
".....The insurance company admittedly has insured the vehicle and
taken the requisite premium and it is not a case set up by the insurer
that intimation was not given to the insurance company of the hiring
arrangement....."
".....As such, insurer is liable to make indemnification and cannot
escape the liability so incurred by the KSRTC."
".....It was held that the UPSRTC have become the owner of the
vehicle during the specified period and vehicle having been insured
at the instance of the original owner, it would be deemed that vehicle
was transferred along with insurance policy to UPSRTC. The insurer
cannot escape the liability to pay the compensation. The appeal
preferred by UPSRTC was allowed. The instant cases are more or
less the same and the decision of this Court in UPSRTC v. Kulsum
(supra) also buttress the submission raised by KSRTC......"
In Uttar Pradesh State Road Transport Corporation Vs.
National Insurance Co. Ltd., and Others (MANU/SC/0569/2021)4 the
Hon‟ble Apex Court held that,
3 2015 ACJ 2849.
2021 0 Supreme (SC) 891.
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".....that the person supervising the driver is liable to pay the
compensation to the victim. During such time, however, it will be
deemed that vehicle was transferred along with the insurance policy,
even if it were insured at the instance of the original owner. Thus, the
Insurance Company would not be able to escape its liability to pay
the amount of compensation."
23. The Tribunal considered the judgments of the High court of
Andhra Pradesh at Hyderabad in B.Kanakaratnabai case, and also the
judgment of the Hon‟ble Apex Court in Kulsum case, and held that
1st respondent is not liable to pay compensation, and 2nd respondent
being owner of the bus is liable to pay compensation, but erred in holding
that insurance company is not liable to indemnify the 2nd respondent the
insured in the case. The claimant relied upon the judgment of Punjab
and Haryana High Court in Moti Ram Vs. ICICI Lombard and others
(MANU/PH/3042/2014), but the Tribunal without considering the law
properly, simply observed that the above judgment is not applicable to the
facts of the case on hand. The insurance company in their counter, as
already stated supra, has taken a plea that the owner has violated the
terms of the policy on the ground the driver was not having valid driving
licence at the time of the accident. But the insurance company did not
produce any evidence showing that the driver of the bus was not having
valid licence at the time of accident. The burden is on the insurance
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company to prove the same as per Section 149 (2) of the Motor Vehicles
Act since insurance company has taken the plea that the terms and
conditions of the policy were violated. The Hon‟ble Supreme Court in
Singh Ram Vs. Nirmala and others5 held that,
"In Swaran Singh (supra), this Court held that the holder of a driving
licence has a period of thirty days on its expiry, to renew it:
"45. Thus, a person whose licence is ordinarily renewed in terms
of the Motor Vehicles Act and the Rules framed thereunder,
despite the fact that during the interregnum period, namely, when
the accident took place and the date of expiry of the licence, he
did not have a valid licence, he could during the prescribed period
apply for renewal thereof and could obtain the same automatically
without undergoing any further test or without having been
declared unqualified therefor. Proviso appended to Section 14 in
unequivocal terms states that the licence remains valid for a
period of thirty days from the day of its expiry.
46. Section 15 of the Act does not empower the authorities to reject
an application for renewal only on the ground that there is a break in
validity or tenure of the driving licence has lapsed, as in the
meantime the provisions for disqualification of the driver contained
in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would
indisputably confer a right upon the person to get his driving licence
renewed. In that view of the matter, he cannot be said to be
delicensed and the same shall remain valid for a period of thirty
5 AIR 2018 SC 1290.
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days after its expiry." The following conclusion has been recorded in
summation in the judgment::
"(iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in sub-
section (2)(a)(ii) of Section 149, has to be proved to have been
committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving licence or disqualification of
the driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards the insured, the insurer
has to prove that the insured was guilty of negligence and failed
to exercise reasonable care in the matter of fulfilling the condition
of the policy regarding use of vehicles by a duly licensed driver or
one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their
liability must not only establish the available defence(s) raised in
the said proceedings but must also establish "breach" on the part
of the owner of the vehicle; the burden of proof wherefor would be
on them.
(v) The court cannot lay down any criteria as to how the said
burden would be discharged, inasmuch as the same would
depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of
the insured concerning the policy condition regarding holding of a
valid licence by the driver or his qualification to drive during the
relevant period, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach or breaches
BVLNC, J MACMA No.2203 of 2016
Page 23 of 44 dt.31.10.2022
on the condition of driving licence is/are so fundamental as are
found to have contributed to the cause of the accident. The
Tribunals in interpreting the policy conditions would apply "the
rule of main purpose" and the concept of "fundamental breach" to
allow defences available to the insurer under Section 149(2) of the
Act.
(vii) The question, as to whether the owner has taken reasonable
care to find out as to whether the driving licence produced by the
driver (a fake one or otherwise), does not fulfil the requirements of
law or not will have to be determined in each case".
24. In the case on hand, the insurance company though has
taken a plea that the driver of the bus was not having valid licence, did
not adduce any evidence, much less cogent evidence to prove the said
plea taken by the insurance company under Section 149(2) of the Motor
Vehicles Act.
25. The other plea taken by the insurance company as could be
seen from the counter is that the bus was not having a route permit to
travel in the route where the alleged accident was occurred on
09.03.2012. The insurance company‟s case is that as per Ex.B1 policy
there are limitations as to the use of the vehicle and the policy covers use
only under a permit within the meaning of Motor Vehicles Act, 1988 or
such carriage falling under sub-section (3) of Section 66 of the Motor
Vehicles Act, 1988. The 3rd respondent in support of its case filed Exs.B4
BVLNC, J MACMA No.2203 of 2016
Page 24 of 44 dt.31.10.2022
and B5 in the evidence of R.W.2, who is working as Senior Assistant in
Regional Transport Authority Office, Tirupati. He deposed that he
brought particulars of the vehicle bearing No.AP 03Y 8996 and as per
Ex.B5 on 09.03.2012 the vehicle had no permit to ply. In the cross-
examination he deposed that he is giving evidence as per the record of
their office in Chittore District only with regard to renewal of the permit.
Therefore, his evidence makes out that information in Ex.B5 is only
limited to his office records. The insurance company did not produce any
other cogent evidence to prove that the vehicle was not having permit to
ply at the time of the accident. The Tribunal in its judgment observed
that the 2nd respondent has violated the terms and conditions of the
insurance policy by allowing the vehicle on road without route permit at
the time of the accident, and that the evidence of R.W.3, who is owner of
the vehicle cannot be considered because no such documentary evidence
is placed before the Tribunal to show that route permit was renewed to
ply the bus from Appalayagunta towards Tirupati.
26. Therefore, it appears that the Tribunal has wrongly placed
the burden of proof on the owner instead of the insurance company. The
question is whether route permit pleaded by the insurance company will
come within the definition of „permit‟ as per sub-section (2) of Section 31
and Section 149(2) of the M.V.Act? The learned counsel for the
BVLNC, J MACMA No.2203 of 2016
Page 25 of 44 dt.31.10.2022
appellant/claimant relied upon a judgment of High Court of Punjab and
Haryana in Moti Ram case, and contended that none of the provisions
contained in both Sections refers to route permit, and therefore, there is
no violation of the terms and conditions of Ex.B2 policy and as such
insurance company cannot be exonerated, and hence, it is jointly and
severally liable for the compensation amount along with the owner of the
bus. Hon‟ble Punjab and Haryana High Court in the above judgment held
that,
"A Division Bench of this Court while deciding FAO No. 3726 of 2006
titled as "United India Insurance Company Limited v. Subhash
Chander and others" on 18.8.2006, considered the case of "Challa
Bharathamma (supra)" has dealt with a question of route permit and
held as under:--
"We have carefully perused the judgment and we find that, in the
said case, there was no permit at all in terms of definition of permit,
as contained in Section 2(31) of the Motor Vehicles Act, 1988 (for
short 'the Act'). The said definition, on reproduction, reads as under:--
"2(31) "Permit" means a permit issued by a State or Regional
Transport Authority or an authority prescribed in this behalf under
this Act authorizing the use of a motor vehicle as a transport vehicle."
We have also perused Section 149 of the Act which relates to
insurer's liability and it is reproduced as under:--
BVLNC, J MACMA No.2203 of 2016
Page 26 of 44 dt.31.10.2022
"149. Duty of insurers to satisfy judgments and awards against
persons insured in respect of third party risks.-
(1) If, after a certificate of insurance has been issued under sub-
section (3) of Section 147 in favour of the person by whom a policy
has been effected, judgment or award in respect of any such liability
as is required to be covered by a policy under clause (b) of sub-
section (1) of Section 147 (being a liability covered by the terms of the
policy) (or under the provisions of Section 163A) is obtained against
any person insured by the policy, then, notwithstanding that the
insurer may be entitled to avoid or cancel or may have avoided or
cancelled the policy, the insurer shall, subject to the provisions of this
section, pay to the person entitled to the benefit of the decree any
sum not exceeding the sum assured payable thereunder, as if he
were the judgment debtor, in respect of the liability, together with
any amount payable in respect of costs and any sum payable in
respect of interest on that sum by virtue of any enactment relating to
interest on judgments.
(2) No sum shall be payable by an insurer under Sub-section (1) in
respect of any judgment or award unless, before the commencement
of the proceedings in which the judgment or award is given the
insurer had noticed through the Court or, as the case may be, the
Claims Tribunal of the bringing of the proceedings, or in respect of
such judgment or award so long as execution is stayed thereon
pending an appeal; and ah insurer to whom notice of the bringing of
any such proceedings is so given shall be entitled to be made a party
thereto and to defend the action on any of the following grounds,
namely.-
BVLNC, J MACMA No.2203 of 2016
Page 27 of 44 dt.31.10.2022
(a) that there has been a breach of a specified condition of the policy,
being one of the following conditions, namely:-- (i) a condition
excluding the use of the vehicle- (a) for hire or reward, where the
vehicle is on the date of the contract of insurance a vehicle not
covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is
used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle;
or
(ii) a condition excluding driving by a named person or persons or by
any person who is not duly licensed, or by any person who has been
disqualified for holding or obtaining a driving licence during the
period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to
by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the
non-disclosure of a material fact or by a representation of fact which
was false in some material particular.
(3) Where any such judgment as is referred to in Sub-section (i) is
obtained from a Court in a reciprocating country and in the case of a
foreign judgment is, by virtue of the provisions of Section 13 of the
Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter
adjudicated upon by it, the insurer (being an insurer registered under
the Insurance Act, 1938 (4 of 1938) and whether or not he is
BVLNC, J MACMA No.2203 of 2016
Page 28 of 44 dt.31.10.2022
registered under the corresponding law of the reciprocating country)
shall be liable to the person entitled to the benefit of the decree in the
manner and to the extent specified in Sub-section (1), as if the
judgment were given by a Court in India:
Provided that no sum shall be payable by' the insurer in respect of
any such judgment unless, before the commencement of the
proceedings in which the judgment is given, the insurer had notice
through the Court concerned of the bringing of the proceedings and
the insurer to whom notice is so given is entitled under the
corresponding law of the reciprocating country, to be made a party to
the proceedings and to defend the action on grounds similar to those
specified in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-
section (3) of section 147 to the person by whom a policy has been
effected, so much of the policy as purports to restrict the insurance of
the persons insured thereby by reference to any condition other than
those in clause (b) of Sub-section (2) shall, as respects such liabilities
as are required to be covered by a policy under clause (b) of Sub-
section (1) of section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the
discharge of any liability of any person which is covered by the policy
by virtue only of this sub-section shall be recoverable by the insurer
from that person.
(5) If the amount which an insurer becomes liable under this section
to pay in respect of a liability incurred by a person insured by a
policy exceeds the amount for which the insurer would apart from the
BVLNC, J MACMA No.2203 of 2016
Page 29 of 44 dt.31.10.2022
provisions of this section be liable under the policy in respect of that
liability, the insurer shall be entitled to recover the excess from that
person.
(6) In this section the expression "material fact" and "material
particular" means, respectively a fact or particular of such a nature
as to influence the judgment of a prudent insurer in determining
whether he will take the risk and, if so, at what premium and on
what conditions, and the expression "liability covered by the terms of
the policy" means a liability which is covered by the policy or which
would be so covered but for the fact that the insurer is entitled to
avoid or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in Sub-section (2) or sub-
section (3) has been given shall be entitled to avoid his liability to any
person entitled to the benefit of any such judgment or award as is
referred to in sub-section (1) or in such judgment as is referred to in
sub-section (3) otherwise than in the manner provided for in
Subsection (2) or in the corresponding law of the reciprocating
country, as the case may be.
Explanation.--For the purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under section 165 and "award"
means an award made by that Tribunal under section 168."
None of the provisions contained in both the above Sections refers to
route permit. Under the circumstances, we are not inclined to accede
to the submissions of learned counsel for the appellant, and further,
no such plea was ever taken in the written statement before the
Tribunal." (para 5)
BVLNC, J MACMA No.2203 of 2016
Page 30 of 44 dt.31.10.2022
After considering sub-section (2) of Section 31 and Section
149(2) of the M.V.Act further held that,
"In the instant case, route permit had not been brought on record.
The above-cited case law shows that there, is no requirement of law,
to possess a route permit. Section 2(31) of the Motor Vehicles Act
talks about "Permit" only. Section 149 of the Act is also silent about
route permit."
27. In the case on hand, insurance company did not place any
evidence about the route permit relating to the accident. Sub-section (2)
of Section 31 of M.V.Act talks about permit only, not about route permit.
Section 149 of the Act is also silent about route permit. In the said
circumstances, the contention of the 3rd respondent insurance company
that terms and conditions of the policy were violated by the 2nd
respondent as the vehicle plied without route permit cannot be accepted.
Therefore, 3rd respondent/insurance company is jointly and severally
liable for the compensation amount in view of Ex.B1 agreement, and
Ex.B2 insurance policy was in force as on the date of accident. Hence,
the finding of the Tribunal that 3rd respondent insurance company is not
liable for the compensation shall be set aside. Accordingly, this point is
answered.
BVLNC, J MACMA No.2203 of 2016
Page 31 of 44 dt.31.10.2022
POINT No.2:-
28. The contention of the claimant is that the Tribunal erred in
fixing the annual income of the petitioner at Rs.36,000/-, because even
the wages payable to a servant-maid at lower side is taken into account
that would be not less than Rs.200/- per day on the date of accident.
This contention raised in the appeal is against the pleading and evidence
of the claimant placed before the Tribunal. In the claim petition the
appellant/claimant mentioned that her monthly income was Rs.3,000/-
stating that she is a house-wife and tailor. In her evidence, in the chief-
examination affidavit also she reiterated the same as follows:-
"I further submit that at the time of accident I am aged about 43
years and I was hale and healthy prior to the accident. I am a
housewife, but I was doing tailoring work and was getting an income
of Rs.3,000/- per month and that the same was contributing to my
family members."
29. The Tribunal in its judgment held that there is no definite
proof of income of the petitioner at the time of the accident and since the
petitioner is a house-wife, her annual income at the rate of Rs.36,000/-
can be fixed. Therefore, the Tribunal has accepted the income as claimed
by the claimant and fixed the annual income accordingly. Surprisingly,
the claimant in the appeal, raised the plea, without pleading or evidence.
BVLNC, J MACMA No.2203 of 2016
Page 32 of 44 dt.31.10.2022
Therefore, the contention of the appellant/claimant that the Tribunal
erred in fixing the income at Rs.3000/- per month is devoid of merit.
30. It is pertinent to refer the well settled guidelines as laidown
by the Hon‟ble Apex Court in Raj Kumar Vs. Ajay Kumar and another6,
and also in G.Ravindranath @ R Chowdary Vs E Srinivas & another7
on the heads under which compensation is awarded in personal injury
cases. These guidelines have to be kept in mind by the Tribunals while
awarding compensation in personal injury cases under Motor Vehicles
Act. They are as under;
1. Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made
had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
2011 (1) SCC 343.
2013 (2) SCC 455.
BVLNC, J MACMA No.2203 of 2016
Page 33 of 44 dt.31.10.2022
2. Non-pecuniary damages (General Damages
(iv) Damages for pain, suffering and trauma as a consequence of the
injuries,
(v) Loss of amenities (and/or loss of Prospects of marriage.)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating the evidence of the
claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities (and/ or loss of
prospects of marriage) and loss of expectation of life. Assessment of
pecuniary damages under item (i) and under item (ii)(a) do not pose much
difficulty as they involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the head of future medical
expenses - item (iii)- depends upon specific medical evidence regarding
need for further treatment and cost thereof. Assessment of non-pecuniary
damages items (iv), (v) and (vi) - involves determination of lumpsum
amounts with reference to circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant and the effect
thereof on the future life of the claimant.
BVLNC, J MACMA No.2203 of 2016
Page 34 of 44 dt.31.10.2022
31. The Tribunal after considering the evidence of the claimant,
P.W.2, Senior Accountant from C.M.C., Hospital, Vellore regarding Ex.C1
and Exs.A7 and A8 bills issued by C.M.C. Vellore, awarded Rs.3,30,658/-
towards medical expenditure and also awarded Rs.5,000/- towards
assistant and Rs.10,000/- towards special diet. So, the Tribunal has
awarded a sum of Rs.3,45,658/- under the head pecuniary damages
(Special Damages) towards expenses relating to the treatment,
hospitalisation, medicines, transportation and nourishing food.
32. Coming to loss of earnings on account of permanent
disability, the Tribunal considered Ex.A16 issued by Medical Board -
S.V.Medical College Hospital, Tirupati wherein it was stated that the
claimant suffered permanent disability of 52% on account of the removal
of left side breast. The contention of the appellant/claimant is that P.W.4
who treated her for skin grafting on 21.06.2012 in Prasanth Hospital,
Tirupati described the removal of the breast is a permanent disability of
80% and therefore, the percentage of disability shall be considered as
80%, but not 52% as believed by the Tribunal.
33. It is relevant to note down the guidelines laid down by the
Hon‟ble Apex Court in Raj Kumar's case on Assessment of future loss of
earnings due to permanent disability,
BVLNC, J MACMA No.2203 of 2016
Page 35 of 44 dt.31.10.2022
"The Tribunal should also act with caution, if it proposed to accept
the expert evidence of doctors who did not treat the injured but who
give `ready to use' disability certificates, without proper medical
assessment. There are several instances of unscrupulous doctors
who without treating the injured, readily giving liberal disability
certificates to help the claimants. But where the disability certificates
are given by duly constituted Medical Boards, they may be accepted
subject to evidence regarding the genuineness of such certificates.
The Tribunal may invariably make it a point to require the evidence of
the Doctor who treated the injured or who assessed the permanent
disability. Mere production of a disability certificate or Discharge
Certificate will not be proof of the extent of disability stated therein
unless the Doctor who treated the claimant or who medically
examined and assessed the extent of disability of claimant, is
tendered for cross- examination with reference to the certificate......"
34. In the case on hand, P.W.4 deposed that he is a consultant
plastic surgeon in Prasanth Hospital, Tirupati and he knows the
petitioner and she was admitted in their hospital for treatment of wound
over chest in left side and he has done skin grafting and she was admitted
in their hospital on 21.06.2012 and discharged on 30.06.2012.
According to his evidence, the removal of breast is a permanent disability
and if she opted for breast reconstruction, result may be up to 80%, and
the cost of the operation may be Rs.2 to 3 lakhs and in the cross-
examination by the insurance company he deposed that the patient has
to bear the expenditure of implants, though operation may be conducted
BVLNC, J MACMA No.2203 of 2016
Page 36 of 44 dt.31.10.2022
on free of cost in the Government Hospital. It is pertinent to mention that
in his evidence he did not state that disability percentage is 80%.
Therefore, he did not state about the percentage of disability in his
evidence. P.W.5 is another doctor, who is working as Associate Professor
in SVRRGG Hospital, Tirupati, who deposed about the treatment given to
the claimant on 09.03.2012 and as per his evidence and as per Ex.X1 the
petitioner/claimant suffered two grievous injuries and in the cross-
examination he stated that as per Ex.A3 issued by C.M.O. of the same
hospital, the claimant sustained simple injuries. The claimant in her
evidence filed Ex.A16 certificate for personal disability issued by Medical
Board, S.V. College Hospital, Tirupati, which says that the petitioner
suffered chest injury with post traumatic contracture of neck and
percentage of disability in her case is 52%, and the disability is in relation
to her trunk and impaired reach and post traumatic sequel-Limbs. The
Tribunal basing on Ex.A16 considered the permanent disability as 52%
and accepted the same.
35. Hon‟ble Apex Court in Raj Kumar's case also laid down
several guidelines regarding the effect of the permanent disability on the
earning capacity of the injured, and assessing the loss of earning capacity
in terms of a percentage of the income as under:
BVLNC, J MACMA No.2203 of 2016
Page 37 of 44 dt.31.10.2022
(i) The Tribunal has to first decide whether there is any
permanent disability and if so the extent of the permanent
disability. The tribunal should consider and decide whether the
disablement is permanent or temporary and if the disablement is
permanent, whether it is permanent total disablement or
permanent partial disablement, and if the disablement percent has
been expressed with reference to any specific limb, then the effect of
such disablement of the limb on the functioning of the entire body
and that is the permanent disability suffered by the person, and if
the Tribunal concludes that there is no permanent disability, then
there is no question of proceeding further and determining the loss
of future earning capacity. If the Tribunal concludes that there is
permanent disability, then it will proceed to ascertain its extent,
and after the Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence, it has to
determine whether such permanent disability has affected or will
affect his earning capacity.
(ii) The Tribunal has to ascertain what activities the claimant
could carry on in spite of the permanent disability, and what he
could not do as a result of the permanent disability, and this is
also relevant for awarding compensation under the head of loss of
BVLNC, J MACMA No.2203 of 2016
Page 38 of 44 dt.31.10.2022
amenities of life, and the second step is to ascertain his avocation,
profession, and nature of work before the accident, as also his age
and to find out whether the claimant totally disabled from earning
any kind of livelihood or whether in spite of the permanent
disability the claimant could effectively carry on the activities and
functions, which he was earlier carrying on or whether he was
prevented or restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale of
activities and functions so that he continues to earn or can
continue to earn his livelihood and further held that for example, if
the left hand of a claimant was amputated, the permanent
physical or functional disablement can be assessed around 60%,
and if the claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be a hundred percent, if he neither
able to drive nor do carpentry.
(iii) On the other hand, if the claimant was a clerk in
Government service, the loss of his left hand may not result in loss
of employment, and he may still be continued as a clerk as he could
perform his clerical functions and in that event the loss of earning
capacity will not be a hundred percent as in the case of driver or
carpenter, nor 60% which is the actual physical disability, but far
BVLNC, J MACMA No.2203 of 2016
Page 39 of 44 dt.31.10.2022
less and in fact there may not be any need to award any
compensation under the head of loss of future earnings and if the
claimant continues in Government service, though he may be
awarded compensation under the head of loss of amenities as a
consequence of losing his hand and sometimes the injured claimant
will be continued in service, but may not be found suitable for
discharging the duties attached to the post or job which he was
earlier holding, on account of his disability, and may therefore, be
shifted to some other suitable but lesser post with lesser
emoluments, in which case there should be a limited award under
the head of loss of future earning capacity, and it may be noted that
when compensation awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%), the need to
award compensation separately under the head of loss of amenities
or loss of expectation of life may disappear and as a result, only a
token or nominal amount may have to be awarded under the head
of loss of amenities or loss of expectation of life, as otherwise there
may be duplication in the award of compensation.
(iv) The Tribunal should not be a silent spectator when medical
evidence tendered in regard to the injuries and their effect, in
particular the extent of permanent disability. Sections
BVLNC, J MACMA No.2203 of 2016
Page 40 of 44 dt.31.10.2022
168 and 169 of the Act make it evident that the Tribunal does not
function as a neutral umpire as in a civil suit, but as an active
explorer and seeker of truth who is required to `hold an enquiry
into the claim' for determining the `just compensation' and the
Tribunal should therefore take an active role to ascertain the true
and correct position so that it can assess the `just compensation'.
While dealing with personal injury cases, the Tribunal should
preferably equip itself with a Medical Dictionary and a Handbook
for evaluation of permanent physical impairment for understanding
the medical evidence and assessing the physical and functional
disability. The first schedule to the Workmen‟s Compensation Act,
1923 which gives some indication about the extent of permanent
disability in different types of injuries, in the case of workmen. If
the doctor is giving evidence using technical medical terms, the
Tribunal should instruct him to state in addition, in simple non-
medical terms, the nature, and the effect of the injury. If the doctor
is giving evidence on the percentage of permanent disability, the
Tribunal has to seek clarification, whether such percentage of
disability is the functional disability with reference whole body, or
whether it is only with reference to a limb.
BVLNC, J MACMA No.2203 of 2016
Page 41 of 44 dt.31.10.2022
(v) The Tribunal will have to seek the doctor‟s opinion, whether
it is possible to deduce the corresponding functional permanent
disability with reference to the whole body, and if so the percentage,
The Tribunal should also act with caution, if it proposed to accept
the expert evidence of doctors who did not treat the injured but who
give disability certificates, without proper medical assessment, and
there are several instances of doctors who without treating the
injured, liberally giving disability certificates to help the claimants,
and where the disability certificates given by duly constituted
Medical Boards, they may be accepted subject to evidence regarding
genuineness of such certificates.
36. The Tribunals have to keep the above-cited guidelines in
mind while assessing future loss of earnings due to permanent disability,
in the claims filed under Motor vehicles Act.
37. In the case on hand, the Tribunal considered Ex.A16
permanent disability certificate issued by the Medical Board of S.V.
College Hospital, Tirupati, which is a Government organization and as not
disputed by respondents, considered the removal of breast as deposed by
P.W.4 as a permanent disability and also in view of evidence of claimant
about functional difficulties in her daily life due to injury, treated it as
52% functional disability, and applied multiplier „14‟ as per the judgment
BVLNC, J MACMA No.2203 of 2016
Page 42 of 44 dt.31.10.2022
in Sarla Verma and others Vs. Delhi Transport Corporation and
others (2009 ACJ 1298) of the Hon‟ble Apex Court considering her age at
45 years, and awarded Rs.2,62,080/-, and also awarded a sum of
Rs.2,00,000/- towards loss of amenities on the ground that claimant is
not fit for marital life because of dis-figuration as she lost one breast.
So, the Tribunal has awarded a total sum of Rs.4,62,080/- towards loss
of future earnings on account of permanent disability, and also towards
loss of amenities covered under the heads pecuniary damages (Special
Damages), and non-pecuniary damages (General Damages) receptively.
The Tribunal also awarded Rs.5,000/- towards transportation charges;
and Rs.1,000/- towards loss of clothe; and also awarded Rs.1,00,000/-
towards pain and suffering as she sustained two grievous injuries, and
rightly awarded an amount of Rs.9,13,740/-, against the claim amount of
Rs.12,00,000/-.
38. In the light of the above discussion, I do not find any grounds
to enhance the compensation awarded under the heads permanent
disability, and loss of amenities as claimed by the appellant in the appeal.
39. In the result, the Civil Miscellaneous Appeal is partly allowed,
the finding of the Tribunal that 3rd Respondent is not liable to pay the
compensation is set aside. Consequently it is held that the 3rd respondent
is jointly and severally liable along with the 2nd respondent/owner of the
BVLNC, J MACMA No.2203 of 2016
Page 43 of 44 dt.31.10.2022
bus for the compensation amount awarded by the Tribunal. Therefore, the
3rd respondent is directed to deposit an amount of Rs.9,13,740/- awarded
by the Tribunal, with interest at 7.5% p.a., from the date of petition till
the date of deposit, within one month from the date of this judgment, and
on such deposit, the petitioner is at liberty to withdraw the same. There
shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_____________________________
B.V.L.N.CHAKRAVARTHI, J
31.10.2022
dvsn
BVLNC, J MACMA No.2203 of 2016
Page 44 of 44 dt.31.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.2203 OF 2016
31st October, 2022
dvsn
