S Satyam, Vizianagaram Dist vs P Venkata Rao, Vizianagaram Dist 2 ...
2022 Latest Caselaw 7484 AP

BVLNC, J                                                      MACMA 280 of 2016
Page 1 of 9                                                   Dt: 28.09.2022



         THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


                              M.A.C.M.A. No.280 OF 2016



JUDGMENT:

This appeal is preferred by the Insurance company

challenging the award dated 16.12.2015 passed in M.V.O.P.No.14 of

2013 on the file of Motor Accidents Claims Tribunal-cum-I Addl.

District Judge, Vizianagaram, wherein the Tribunal while partly

allowing the petition, awarded compensation of Rs.59,120/- with

interest @ 9% p.a., from the date of petition till the date of realisation

to the petitioner for the injuries sustained by him in the motor vehicle

accident.

2. For the sake of convenience, the parties are arrayed as

referred in the lower Court.

3. As seen from the record, originally the petitioner filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.2,00,000/- on account of the injuries and

disability sustained by the petitioner in a motor vehicle accident

occurred on 19.12.2009 while the petitioner was travelling on his two

wheeler, by the offending Bolero van bearing No.AP 35V 1256 BVLNC, J MACMA 280 of 2016 Page 2 of 9 Dt: 28.09.2022

belonging to the 2nd respondent, which met with an accident at

Garbham Garividi Junction, under the jurisdiction of Budarayavalasa

Police Station.

4. The facts would show that on 19.12.2009 when the

petitioner was going on his motor cycle bearing No.AP 35E 2827, at

about 8.30 a.m., he reached Garbham Garividi junction and that the

1st respondent, who was driving the Bolero van bearing No.AP 35V

1256 in a rash and negligent manner with high speed hit the

petitioner, as a result of the same, the petitioner fell down and

sustained fracture injury on his left knee. Immediately the injured

was taken to Garividi P.S.N. Raju Hospital in the same Bolero van,

where first aid was given and from there the petitioner was shifted to

Bhardwaj Hospital, Visakhapatnam for better treatment, where the

doctors conducted surgery to his left knee. The petitioner has spent

huge amount towards medical expenses and other expenses. The

S.H.O., Budarayavalasa P.S., registered a case in Cr.No.8/2010 for the

offence punishable U/s 338 of the Indian Penal Code against the 1st

respondent.

5. Before the Tribunal, the 3rd respondent/insurance

company, who is the 3rd respondent in the petition, filed written

statement resisting while traversing the material averments with BVLNC, J MACMA 280 of 2016 Page 3 of 9 Dt: 28.09.2022

regard to proof of age, avocation, monthly earnings of the petitioner,

manner of accident, rash and negligence on the part of the driver of

the crime van, nature of injuries, medical expenditure, alleged

permanent disability and liability to pay compensation and contended

that the offending vehicle was not insured with the 3rd respondent, the

policy was not in force by the date of alleged accident, the 1st

respondent was not having valid and effective driving licence at the

time of accident and the accident was not occurred due to the fault on

the part of driver of Bolero vehicle. The petitioner was not having

driving licence to drive the motor cycle and the alleged accident took

place due to the negligence of petitioner only.

6. On the strength of the pleadings of both parties, the

Tribunal framed the following issues:

1. Whether the accident occurred resulting injuries to the petitioner due to rash and negligent driving of the vehicle (Bolero) bearing No.AP 35V 1256, by its driver?

2. Whether the petitioner is entitled to any compensation and if so, at what quantum and from which of the respondents?

3. To what relief?

 BVLNC, J                                                  MACMA 280 of 2016
Page 4 of 9                                               Dt: 28.09.2022

Later, Issue No.1 was re-casted as follows:-

"Whether the petitioner drove the motor vehicle in a rash and negligent manner or whether the 1st respondent drove the vehicle (Bolero) bearing No.AP 35V 1256, in a rash and negligent manner and caused the accident or both of them contributed for their rash and negligent driving and caused the accident? If so at what percentage?

7. To substantiate his claim, the petitioner examined P.Ws.1

and 2 and got marked Exs.A1 to A6 and Ex.X1. No witness was

examined on behalf of the 3rd respondent, but Ex.B1 policy was

marked by consent.

8. The Tribunal, taking into consideration the evidence of

P.Ws.1 and 2, coupled with Exs.A1 to A6, Ex.X1 and Ex.B1, held that

the accident took place due to rash and negligent driving of 1st

respondent, who was the driver of Bolero vehicle, and awarded a

compensation of Rs.59,120/- with interest @ 9% p.a., from the date of

petition till the date of realisation, with proportionate costs.

10. The appellant-claimant contended that the Tribunal has

not considered the disability certificate filed by him (Ex.A5) while

awarding compensation and even no amount is awarded under the BVLNC, J MACMA 280 of 2016 Page 5 of 9 Dt: 28.09.2022

head loss of amenities or loss of expectation of life and further the

Tribunal did not grant any amount towards loss of partial earnings or

future earnings.

11. The Tribunal considered the evidence of the victim, who

was examined as P.W.1, regarding his functional disability and found

that the victim is able to attend normal duties and there is no loss of

income on account of the partial permanent disability of 20% as found

in Ex.A5. Therefore, I do not find any reason or ground to interfere

with the finding of the Tribunal on that aspect. The Tribunal did not

award anything under the head loss of amenities on account of the

partial permanent disability suffered by the victim. The Tribunal in its

judgment while considering the functional disability and loss of

earnings, referred the judgment of the Hon'ble Apex Court in Raj

Kumar v. Ajay Kumar and another, reported in 2011 ACJ 1.

12. The Hon'ble Apex Court in Raj Kumar v. Ajay Kumar and

another held that ascertainment of the effect of the permanent

disability on the actual earning capacity involves three steps. The

Tribunal has to first ascertain what activities the claimant could carry

on inspite of the permanent disability and what he could not do as a

result of the permanent ability. The second step is to ascertain his

avocation, profession and nature of work before the accident, as also BVLNC, J MACMA 280 of 2016 Page 6 of 9 Dt: 28.09.2022

his age. The third step is to find out whether (i) the claimant is totally

disabled from earning any kind of livelihood, or (ii) whether inspite of

the permanent disability, the claimant could still effectively carry on

the activities and functions, which he was earlier carrying on, or (iii)

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. The Hon'ble Apex Court further observed that

the need to award compensation separately under the head of loss of

amenities or loss of expectation of life may be disappeared when

compensation is awarded by keeping the loss of future earning

capacity as 100% (or even more than 50%) only a token or nominal

amount may have to be awarded under the head loss of amenities or

loss of expectation of life, or otherwise there may be a duplication in

the award of compensation.

13. In the case on hand, admittedly, the Tribunal after

considering the evidence of P.W.1, the partial permanent disability

suffered by him and his nature of income held that there is no

functional disability since he is attending the normal works and did

not award any amount under the head loss of earnings. The Tribunal

did not award anything under the head of loss of amenities or loss of BVLNC, J MACMA 280 of 2016 Page 7 of 9 Dt: 28.09.2022

expectation of life, while refusing to award amount under the head loss

of earnings. P.W.1 in his evidence deposed that he is unable to stand

firmly and walk for a long distance on account of the partial

permanent disability suffered by him due to the accident and as per

Ex.A5 disability certificate proved by P.W.2, who is a member of

Medical Board and issued the disability certificate, P.W.1 suffered

partial permanent disability of 20%. In that view of the matter, I am of

the considered opinion that a sum of Rs.50,000/- can be awarded

under the head towards loss of amenities to the petitioner in addition

to the compensation amount awarded by the Tribunal.

14. In the above facts and circumstances, I hold that the

finding of the Tribunal in refusing any amount under the head loss of

amenities or loss of expectation of life is liable to be set aside and a

sum of Rs.50,000/- is awarded under the head towards loss of

amenities to the petitioner.

15. In the result, the Civil Miscellaneous Appeal is partly

allowed by modifying the award passed on 16.12.2015 passed in

M.V.O.P.No.14 of 2013 on the file of Motor Accidents Claims Tribunal-

cum-I Addl. District Judge, Vizianagaram, by awarding total

compensation of Rs.1,09,120/- with interest at 9% p.a., from the date

of petition till realization and with proportionate costs.

 BVLNC, J                                                MACMA 280 of 2016
Page 8 of 9                                             Dt: 28.09.2022

Rest of the directions in the operative portion of order of

the Tribunal are confirmed.

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
28.09.2022
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 BVLNC, J                                         MACMA 280 of 2016
Page 9 of 9                                      Dt: 28.09.2022




              HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                      M.A.C.M.A.No.280 OF 2016




                         28th September, 2022


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