Andhra Pradesh High Court - Amravati
N.Sangameswara Rao vs P.Lakshmi And Another on 27 December, 2023
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
M.A.C.M.A.No.1450 OF 2012
Between:
N.Sangameswara Rao, S/o.Late Gurulingam,
Aged 59 years, R/o.Chollapadam Village,
Komarada Mandal, Vizianagaram District.
....Appellant/ Claim Petitioner
Versus
1. P.Lakshmi, W/o.Appalaraju,
Aged 42 years, Lorry Owner,
R/o.D.No.58-15-137/1, Santhi Nagar,
NAD Kotha Road, Visakhapatnam.
2. The New India Assurance Company Limited,
Rep. By its Divisional Manager,
Srikakulam.
....Respondents/Respondents
DATE OF JUDGMENT PRONOUNCED : 27.12.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
____________________________
B.V.L.N.CHAKRAVARTHI, J
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
Page 2 of
* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ M.A.C.M.A.No.1450 OF 2012
% 27.12.2023
# Between:
N.Sangameswara Rao, S/o.Late Gurulingam,
Aged 59 years, R/o.Chollapadam Village,
Komarada Mandal, Vizianagaram District.
....Appellant/ Claim Petitioner
Versus
1. P.Lakshmi, W/o.Appalaraju,
Aged 42 years, Lorry Owner,
R/o.D.No.58-15-137/1, Santhi Nagar,
NAD Kotha Road, Visakhapatnam.
2. The New India Assurance Company Limited,
Rep. By its Divisional Manager,
Srikakulam.
....Respondents/Respondents.
! Counsel for the Appellant : Sri G.V.Mehar Kumar
^ Counsel for the
2nd Respondent : Sri T.V.P.Sai Vihari
< Gist:
> Head Note:
? Cases referred:
1. 2011 (1) SCC 343
2. 2019 ACJ 1849 (SC)
3. 2022 LiveLaw (SC) 734
This Court made the following:
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
M.A.C.M.A.No.1450 of 2012
Between: -
N. Sangameswara Rao, S/o.late Guru Lingam,
Aged about 59 years, R/o.Chollapadam
Village, Komarada Mandal, Vizianagaram
District.
...Appellant/Petitioner
And
1. P.Lakshmii, W/o.Appalaraju, Age about
42 years, Lorry Owner, R/o.D.No.58-15-
137/1, Santhinagar, N.A.D.Kotharoad,
Visakhapatnam.
2. New India Assurance Company Limited,
rep. by its Divisional Manager,
Srikakulam, Srikakulam.
...Respondents
JUDGMENT
Heard Sri G.V.Mehar Kumar, learned counsel for the
appellant/claimant and Sri Shaik Rafi, learned counsel
representing Sri T.V.P.Sai Vihari, learned counsel for the
respondent No.2/New India Assurance Company.
2. This appeal directed by the appellant/claimant,
challenging the Order and Decree dated 09.02.2012 passed
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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in M.V.O.P.No.464 of 2010 before Motor Accidents Claims
Tribunal - cum - I Additional District Judge, Vizianagaram.
3. Parties are referred to as they were arrayed in the
proceedings before the learned Tribunal, for the sake of
convenience.
4. The petitioner/claimant filed the petition under
Section 166 of the Motor Vehicles Act, 1939 claiming
compensation of Rs.2,00,000/- for personal injuries
sustained by him in a motor vehicle accident occurred on
07.03.2010.
5. The case of the appellant/claimant is that he was
aged 57 years and working as Archaka in a Sivalayam at
Chollapadam Village, Vizianagaram District; on 07.03.2010
he was going on his bicycle to attend duty at Sivalayam; he
reached a place located opposite to Sivalayam at about
07.00 a.m.; a lorry (offending vehicle) bearing No.AP31
TA2617 came in opposite direction in a rash and negligent
manner; dashed the cycle, as a result, the claimant fell
down and sustained injuries on the head, right hand knee
joint; he was shifted to Area Hospital, Parvathipuram; and
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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later to K.G.Hospital, Visakhapatnam; he was admitted in
the Hospital for about three (03) months as in-patient lying
in coma; he suffered permanent physical disability of 80%
as per the opinion of the doctor who, issued the physical
disability certificate; on account of the permanent physical
disability, the claimant suffered paralyses to both legs and
hands; he is lying on the bed; he lost eye sight; he lost
speech; he lost memory; and also lost control over nature
calls; therefore, he suffered loss of earning capacity; hence,
filed application U/s.166 of Motor Vehicles Act 1988,
claiming compensation for Rs.2,00,000/- under various
heads, including loss of future earnings on account of
physical disability.
6. The 1st respondent/owner of the offending vehicle
remained exparte.
7. The 2nd respondent/Insurance Company filed counter
traversing the material averments with regard to manner of
accident; rash and negligence on the part of the driver of
the crime vehicle; nature of injuries; medical expenditure;
age and avocation of the claimant; alleged permanent
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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disability; liability to pay compensation, and contended that
the accident was occurred due to the negligence of the
claimant; driver of the offending vehicle is not having valid
driving licence at the time of accident; and the
compensation claimed by the claimant is on higher side.
8. Basing on the above pleadings, the learned Tribunal
framed the following issues for trial:
1. Whether the accident occurred resulting in
injuries to the petitioner, due to the rash and
negligent driving of the vehicle (lorry) bearing
No.AP 31 TA 2617 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?
9. To substantiate claim, the claimant examined three
witnesses as P.Ws-1 to 3 and during their evidence marked
Exs.A-1 to A-7. No oral or documentary evidence was
adduced on behalf of the 2nd respondent/Insurance
Company.
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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10. The learned Tribunal basing on the evidence placed
before it, on issue No.1 held that the accident was occurred
due to rash and negligent driving of the offending vehicle by
the driver of the lorry. This finding is not challenged either
by the owner of the vehicle or the insurer of the vehicle i.e.,
Insurance Company. In that view of the matter, there is no
necessity to go into the merit of the finding of the learned
Tribunal on the said issue.
11. The learned Tribunal considering the evidence of
P.W-1 (wife of the claimant), and the evidence of the doctor
(P.W-3), who treated the petitioner/claimant and also
issued Ex.A-6-disability certificate, awarded a sum of
Rs.1,70,000/- under various heads towards just
compensation as under:
Sl.No. Description of the head Amount awarded in
Rs.
1 Compensation for transport 1,000-00
expenses
2 Compensation towards 10,000-00
medicines, extra nourishment
and attendant charges
3 Compensation towards shock, 50,000-00
pain, suffering and for receipt
of serious head injury
4 Compensation for loss of past 84,000-00
earnings, loss of earning
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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power, and for partial and
permanent disability
5 Compensation for depression 15,000-00
and mental stress in life
6 Compensation for future care 10,000-00
and attendance expenses
TOTAL = Rs. 1,70,000-00
12. Sri G.V.Mehar Kumar, learned counsel for the
appellant would submit that the evidence of the doctor
(P.W-3) would disclose that on account of the serious head
injury; the petitioner/claimant suffered paralysis to the
limbs; lost voice; lost memory; and unable to move from the
bed; he also lost of eye sight; and he has no control over
nature calls; and he confined to bed living like a vegetable;
as a result, he is unable to do work, which he was doing
prior to the accident; and it is the case of 100% loss of
earning capacity on account of permanent disability
suffered by the petitioner/claimant, but the learned
Tribunal erroneously confined the loss of earning capacity
to 80%; further, the learned Tribunal inspite of evidence of
wife of the injured that the injured was working as Archaka
in a temple, and earning Rs.6,000/- per month,
erroneously fixed the income of the injured at Rs.15,000/-
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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per annum treating him as a non-earning member as per
Schedule-II of the Motor Vehicles Act 1939, though
application is filed U/s.166 of Motor Vehicles Act, and
awarded loss of future earnings on a lower side, and
therefore, the compensation awarded by the learned
Tribunal is not a just compensation; and it requires
interference by this Court.
13. The learned counsel appearing for the
2nd respondent/Insurance Company would submit that the
learned Tribunal considered the evidence of P.W-1, opined
that there is no evidence to establish that the injured was
working as purohith in a temple prior to the date of
accident, and earning Rs.6,000/- per month; In the said
circumstances, fixed his income at Rs.15,000/- per annum
as per Schedule-II of the Motor Vehicles Act, 1939; and in
the said circumstances, there are no grounds to interfere
with the finding of the learned Tribunal. He would further
submit that the learned Tribunal rightly considered the age
of the injured at 62 years, though he claimed it as 57 years,
as the age of the injured mentioned as 62 years in the FIR
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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presented by the son of the injured; and therefore, the
learned Tribunal awarded just compensation, and it does
not require any modification.
14. In the light of above rival contentions, the points that
would arise for consideration in this appeal are as under:
1. Whether the compensation awarded by the learned
Tribunal is not a just compensation?
2. To what relief?
15. POINT No.1:
It is an admitted fact that the petitioner/claimant
sustained head injury in the motor accident occurred on
07.03.2010 involving the offending vehicle. The
petitioner/claimant in order to establish the nature of
injuries suffered by him, as well as physical disability on
account of the injuries, examined the doctor, who treated
him in K.G.Hospital, Visakhapatnam, and issued Ex.A-
6/physical disability certificate.
16. The evidence of Dr.G.Rajasekhar Kennedy would
establish that he is working as Assistant Professor,
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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Neurosurgeon, King Jorge Hospital, Visakhapatnam,
(Government Hospital) and on 07.03.2010 the claimant was
admitted in the hospital with injuries on left frontal, left
temporal region and an abrasion, and those injuries are
grievous in nature, and the patient was in coma on account
of the injuries, and the C.T.Scan revealed fractures in the
skull, and the case sheet relating to the treatment of the
injured was marked as Ex.A-7.
17. The doctor would further depose that on 15.06.2010
the injured attended before him. He was examined
clinically, and it was found that he suffered 80% partial
permanent disability, and an account of the disability, the
patient lost voice, memory and eye sight. He also lost
control to attend nature calls, and suffering with in
continuation of bladder problem, and he is unable to move
from the bed.
18. Hon'ble Apex Court in the case of Raj Kumar Vs.
Ajay Kumar and another1, with regard to compensation on
2011 (1) SCC 343
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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loss of future earnings on account of permanent disability,
held in para 6 as under:
"Disability refers to any restriction or lack of ability to
perform an activity in the manner considered normal
for a human-being. Permanent disability refers to the
residuary incapacity or loss of use of some part of the
body, found existing at the end of the period of
treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is
likely to remain for the remainder life of the injured."
19. The evidence of the doctor, who is working in
Government Hospital, i.e., K.G.Hospital, Visakhapatnam,
and treated the claimant at the time of admitting in the
hospital, and examined him after the claimant was
discharged from the hospital, would show that the
claimant/petitioner cannot attend any work much less the
work of an Archaka. Therefore, the loss of earning capacity
on account of functional disability be fixed as 100%.
Therefore, the compensation shall be awarded accordingly,
treating the loss of future earning capacity as 100%.
20. It is the contention of the claimant that he was
working as Archaka in a temple and earning Rs.6,000/- per
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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month at the time of accident, occurred in the year 2010. It
is an admitted fact that he was not in a position to move
from the bed or speak, and also lost memory, as well as eye
sight on account of the head injury suffered by him in the
motor accident. Hence, question of examining him as
witness before the learned Tribunal is not possible.
Naturally his wife was examined as a witness i.e., P.W-1.
21. P.W-1 on oath deposed that her husband was working
as Archaka in a Sivalayam temple and earning Rs.6,000/-
per month. She was cross-examined by the respondent
No.2/Insurance Company. But nothing was elicited to
disbelieve her statement, except putting usual suggestions
denying everything has false. Therefore, in the absence of
any material to disbelieve her oral statement made on oath
as per Section 3 of the Evidence Act, 1872, and in the
absence of any contra evidence, this Court is of the
considered opinion that the learned Tribunal ignored
established principles on how to appreciate oral evidence,
and erroneously disbelieved the evidence of P.W-1.
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22. In the light of evidence of wife of the injured, and as
there is no contra evidence placed by the 2nd
respondent/Insurance Company, the income of the injured
be considered as Archaka working in a temple, and can be
fixed at Rs.6,000/- per month. The annual income of the
injured is Rs.6,000x12 = Rs.72,000/-.
23. The age of the injured was claimed as 57 years at the
time of accident. It is an admitted fact that FIR i.e., Ex.A-1
was presented by the son of the injured, where under, the
age was mentioned as 62 years, at the earliest point of time.
No evidence was placed to prove the age of the injured as
57 years The learned Tribunal considered the age of the
injured at 62 years. In that view, it does not require any
modification.
24. Multiplier applicable is '7' as the claimant be placed in
the age group of '61 to 65 years'. Hence, the loss of future
earnings on account of permanent disability comes to
Rs.72,000x7 = Rs.5,04,000/-.
25. The learned Tribunal awarded a sum of Rs.1,000/
towards transport expenses, Rs.10,000/- towards medicine,
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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extra nourishment and attendant charges basing on Ex.A-5
medical bills placed by the claimant. The learned Tribunal
also awarded a sum of Rs.50,000/- towards shock, pain,
suffering and for receipt of serious head injury. Considering
the nature of injury i.e., grievous injury, fracture of skull
and consequent trauma, the compensation under above
heads in all, can be enhanced to Rs.1,00,000/-.
26. The learned Tribunal awarded a sum of Rs.10,000/-
towards future care and attendance expenses and also
awarded Rs.15,000/- for depression and mental stress in
the life. It is an admitted fact that on account of the
functional disability suffered by the claimant, he has been
confined to bed due to paralysis, lost eye sight, memory,
speech and also control over attending nature calls. Hence,
he requires treatment throughout his life for the above
problems. Hence, this amount be enhanced to
Rs.1,00,000/-. Therefore, in all the claimant is entitled to
Rs.7,04,000/- as under:
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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Sl.No. Description of the head Amount awarded in
Rs.
1 Compensation for loss of 5,04,000-00
future earnings on account
of permanent disability
2 Compensation towards 1,00,000-00
Expenses relating to
treatment, hospitalization,
medicines, transportation,
nourishing food, and
miscellaneous expenditure.
3 Compensation for pain, 1,00,000-00
suffering and trauma as a
consequence of the injuries.
TOTAL = Rs. 7,04,000-00
27. The claimant is entitled to interest on the
compensation amount of Rs.7,04,000/- as per section 171
of M.V.Act, 1988. The learned Tribunal awarded interest at
7.5% p.a. from the date of petition, till the date of deposit.
Considering the date of accident and prevailing rate of
interest, in view of the Apex Court judgement in National
Insurance Company Limited Vs. Mannat Johal 2. this
Court do not find any ground to interfere with the rate of
interest awarded by the Tribunal at 7.5% p.a., from the
date of petition, till the date of deposit.
2019 ACJ 1849 (SC)
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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28. The Hon'ble Apex Court in the case of Mona Baghel
and others Vs. Sajjan Singh Yadaav and others 3, held
that in the matter of compensation, the amount actually
due and payable is to be awarded despite the claimant
having sought for a lesser amount and the claim petition
being valued at a lesser value. The law is well settled that in
the matter of compensation, the amount actually due and
payable is to be awarded despite the claimant having
sought for a lesser amount and the claim petition being
valued at a lesser value. Therefore, though the claimant
sought for a lesser amount, and the claim petition being
valued at lesser value for Rs.2,00,000/-, the amount
actually due and payable to be awarded is Rs.7,04,000/-.
29. In view of the above judgment of the Hon'ble Apex
Court case, the Court shall award just compensation, even
if it exceeds the amount claimed by the claimants, subject
to payment of court fee. In that view of the matter, this
Court is of the considered opinion that the
appellant/claimant is entitled to Rs.7,04,000/- towards
2022 Live Law (SC) 734
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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just compensation. In that view of the matter, the judgment
and decree passed by the learned Tribunal is liable to be set
aside.
30. In the light of above discussion, the appeal filed by
the appellant/claimant be allowed, by setting aside the
judgment and decree passed by the learned Tribunal, in
MVOP 464/2010. Accordingly, the point is answered.
31. POINT No.2: To what relief?
In the light of finding on point No.1, the appeal be
allowed, setting aside the judgment and decree dated
09.02.2012, passed by the learned Tribunal.
32. In the result, the appeal is allowed, setting aside the
judgment and decree dated 09.02.2012 passed in
M.V.O.P.No.464/2010 on the file of Motor Accidents Claims
Tribunal-cum-I Addl.District Judge, Vizianagaram, holding
that the appellant/claimant is entitled to a compensation of
Rs.7,04,000/- (Rupees Seven Lakhs and Four Thousand
only) with interest @ 7.5% p.a. from the date of petition, till
the date of deposit, instead of Rs.1,70,000/- as awarded by
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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the learned Tribunal. The respondents No.1 and 2 are
jointly and severally liable to pay the compensation amount
to the appellant/claimant. There shall be no order as to
costs.
33. The 2nd respondent/Insurance Company is directed to
deposit the compensation amount of Rs.7,04,000/- (Rupees
Seven Lakhs and Four Thousand only), along with accrued
interest thereon, within eight (08) weeks from the date of
judgment. In the event of the 2nd respondent/Insurance
Company had already deposited some amount, the said
amount be excluded, and the balance amount shall be
deposited within eight (08) weeks from the date of
judgment.
34. On such deposit, the Appellant/claimant is entitled to
an amount of Rs.7,04,000/- (Rupees Seven Lakhs and Four
Thousand only), and he is permitted to withdraw the said
amount along with accrued interest thereon.
35. The appellant/claimant is directed to pay the required
court fee before the Tribunal, as per Rule 475(2) of
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A.P.M.V.Rules 1989, within one month from the date of
receipt of certified copy of judgment.
As a sequel, miscellaneous applications pending, if
any, shall stand closed.
JUSTICE B.V.L.N. CHAKRAVARTHI
27th December 2023
Pmk
L.R.Copy is to be marked
B/o. Pmk.
MACMA No.1450 of 2012 BVLNC, J
Date 27.12.2023
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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.1450 OF 2012
Note: Mark L.R.Copy
Pmk
27th December, 2023
Pmk
