The National Insurance Company ... vs Kunapalli Pullaiah,
2023 Latest Caselaw 614 AP

         HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

                     MACMA No.1074 of 2012

JUDGMENT:

1. Aggrieved by the order dated 01.10.2010 in MVOP No.289 of

2009 passed by the Chairman, Motor Accidents Claims

Tribunal-cum-Principal District Judge, Kadapa (for short 'the

Tribunal'), the National Insurance Company Limited rep., by its

Divisional Manager, who is 2nd respondent in MVOP preferred

this appeal questioning the award passed by the Tribunal.

2. The parties will be referred to as arrayed in the MVOP for

convenience.

3. The claimant had filed a petition under section 166 of the Motor

Vehicles Act, claiming compensation of Rs.20,00,000/- for the

injuries sustained by him in a motor vehicle accident that

occurred on 18.12.2007 at 05.00 PM.

4. The claimant's case is that on 18.12.2007 at 5.00 PM, he was

proceeding on his motorcycle to RIMS Hospital, Kadapa. When

he reached the vicinity of the provident fund office at

Yerramukkapalli, Kadapa, the oil tanker of the 1st respondent

bearing No.AP03-U-2169 (hereinafter referred to as 'the

offending vehicle') was driven from the opposite direction by its

MACMA.No.1074 of 2012

driver in a rash and negligent manner and dashed against the

claimant's motorcycle. Due to this, he sustained a compound

fracture of the left leg below the knee with the crushing of the

entire area. Immediately, he was shifted to RIMS Hospital,

Kadapa and from there to Kadapa Poly Clinic and Vijaya Health

Care Hospital, Chennai. Several surgeries were performed on his

left leg. Iron rods and screws were inserted into the injured left

leg of the claimant.

5. The 1st respondent remained exparte.

6. The 2nd respondent filed a written statement and submitted that

the accident occurred due to rash and negligent riding of the

motorcycle by the claimant. The 2nd respondent accorded

permission under Section 170(b) of the MV Act to take up all

defences.

7. Based on the pleadings, the Tribunal has formulated

appropriate issues. On behalf of the claimant, PWs.1 to 3 got

examined and marked Exs.A.1 to A.26 and Ex.X1. On behalf of

the 2nd respondent, RW.1 got examined and marked Exs.B1 and

B2.

8. After evaluating the evidence on record, the Tribunal held that

the accident occurred due to the rash and negligent driving of

MACMA.No.1074 of 2012

the offending vehicle's driver and granted compensation of

Rs.9,24,000/- under various heads together with interest at 6%

per annum from the date of the petition till the date of

realization against respondents 1 and 2, making them jointly

and severally liable to pay the compensation, aggrieved thereby,

the 2nd respondent preferred the appeal.

9. Heard both the learned counsel. Perused the record.

10. The learned counsel for the appellant-Insurance company has

contended that as per F.I.R., while the claimant was going on

his motorcycle and when he reached P.F. office, one auto came

in his opposite direction with high speed and with an intent to

avert the same, he turned his motorcycle to right side and fell

down, in the meanwhile the offending vehicle dashed against

him, resulting the claimant sustained injuries and the claimant

failed to implead the owner and driver of the auto as parties to

the O.P.; the Tribunal was unable to consider the contributory

negligence on the part of the claimant and he has no driving

licence to drive the two wheeler and it was admitted by him in

his cross examination; the Tribunal ought to have seen that the

claimant failed to establish his avocation, in the absence of it,

awarded Rs.1,19,000/- towards loss of income by assessing the

MACMA.No.1074 of 2012

disability cannot be sustained; the Tribunal ought to have seen

that the offending vehicle's owner violated the terms and

conditions of the policy and ought not to have fixed the liability

against the appellant.

11. Learned counsel for the respondents supported the Tribunal's

findings and observations.

12. Now the points for determination are:

I. Whether the Tribunal erred in holding that the accident occurred due to rash and negligent driving of the offending vehicle's driver?

II. Whether the quantum of compensation fixed by the Tribunal just and reasonable and requires modification?

POINT NO.I:

13. The claimant himself got examined as PW.1 to establish his case

and prove the rash and negligent driving of the oil tanker driver

and relied on a certified copy of the F.I.R., i.e., Ex.A1. PW.1

stated in his evidence about the manner of the accident. The 2nd

respondent examined G.Venkateswarlu, Administrative Officer,

as RW.1. It is not the evidence of RW.1 that he witnessed the

accident or that employees of the Insurance company witnessed

MACMA.No.1074 of 2012

the accident in question. It is not in dispute that the 1st

respondent is the owner of the offending vehicle bearing

registration No.AP03-U-2169. Ex.A1 report did not furnish the

registration number of the oil tanker. It is the evidence of RW.1

that the vehicle is bearing registration No. AP03-U-2169 was

insured with the 2nd respondent vide Ex.B1-copy of policy =

Ex.A17. However, it is the evidence of RW.1 that the vehicle is

bearing registration No.AP03-U-2169 was an open-bodied lorry

as per Ex.B2-Authenticated copy of the registration certificate.

14. It is the case of the Insurance company that the offending

vehicle insured with the 2nd respondent was not an oil tanker,

and it is the case of the claimant that he suffered injuries when

an oil tanker hit the motorcycle. So it disproves the involvement

of the offending vehicle. The 1st respondent, the owner of the

offending vehicle, remained ex parte. He did not dispute the

involvement of the offending vehicle in the accident. In the

absence of evidence from the owner of the offending vehicle, it is

difficult to conclude how to open-bodied lorry covered under

Ex.B2 was converted into an oil tanker. In the facts of the case,

the Tribunal accepted the contention of the claimant's counsel

that the lorry owner converted it into an oil tanker. There was

MACMA.No.1074 of 2012

evidence on record to entertain the involvement of the offending

vehicle in the accident. Based on the submissions made by the

insurance company, it can be concluded that the said vehicle

was not involved in the accident. However, 2nd respondent did

not take steps to examine the owner of the offending vehicle to

prove that the lorry was not converted into an oil tanker. In the

said facts of the case, the finding of the Tribunal that the

offending vehicle was an oil tanker that it bears registration

No.AP03-U-2169 cannot be found fault with.

15. On the other hand, to prove the involvement of the offending

vehicle, the claimant relied on Ex.A3-certified copy of the charge

sheet. As per Ex.A3-charge sheet, the accused S.Surendra, the

offending vehicle's driver, came from the Railway station side,

drove the vehicle rashly and negligently and dashed against the

motorcycle of PW.1, resulting which PW.1 falling and sustaining

injuries. The finding of the investigation officer shows that the

involvement of the oil tanker bearing No.AP03-U-2169 in the

accident.

16. The 2nd respondent placed no evidence to show that the

contents of the charge sheet were incorrect. In a decision

MACMA.No.1074 of 2012

between K.Rajani and V. M.Satyanarayana Goud and others1,

the High Court is pleased to observe that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

17. In the case of Bheemla Devi V. Himachal Road Transport

Corporation2, the Hon'ble Apex Court observed as follows:

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

18. There is nothing on record to suggest that the Investigating

Officer filed a charge sheet against the driver of the offending

vehicle without conducting a proper investigation. Also, it is

difficult to hold that the Police Officer fabricated a case against

the driver of the offending vehicle.

19. In a proceeding under the M.V. Act, where the procedure is a

summary procedure, there is no need to go by strict rules of

pleading or evidence. The document having some probative

value, the genuineness of which is not in doubt, can be looked

2015 ACJ 797

2009 ACJ 1725 (S.C.)

MACMA.No.1074 of 2012

into by the Tribunal for getting preponderance of probable

versions. As such, it is by now well settled that even F.I.R. or

Police Papers, when made part of a claim petition, can be looked

into for giving a finding in respect of the happening of the

accident. The preponderance of probabilities is the touchstone

for concluding rashness and negligence as well as the mode and

manner of happening of the accident.

20. The reading of the documents placed before the Tribunal clearly

shows that the accident occurred due to the rash and negligent

driving of the offending vehicle's driver. When it contends that

the accident occurred due to the claimant's negligence, the 2nd

respondent has to place necessary evidence before the Tribunal,

based on which the Tribunal is expected to give its conclusion.

The Tribunal has accepted the claimant's case regarding the

manner of the accident and also accepted the observations

made by the Investigating Officer in the charge sheet making the

offending vehicle's driver responsible for the accident. As

already observed, the contents of the charge sheet also support

the claimant's case regarding the manner of the accident. There

is no material placed by the appellant to show that the accident

occurred due to the rash and negligent driving of the claimant

and that he contributed to the accident.

MACMA.No.1074 of 2012

21. The offending vehicle's driver is the best person to speak about

the manner of an accident. The 2nd respondent has not taken

steps to prove the manner of the accident by summoning the

offending vehicle's driver to establish that he did not drive the

vehicle rashly and negligently at the time of the accident, as

alleged by the claimant.

22. This Court believes that negligence or contributory negligence

must be proved like any other fact. There are no different

standards for proving negligence or contributory negligence. But

they cannot be decided on suspicion or surprise. The pleas

taken in the counter will remain not substantiated by

acceptable, relevant and legal evidence. There must be cogent

evidence to prove contributory negligence. In the instant case,

there is specific evidence to prove that the accident occurred

due to the rash and negligent driving of the offending vehicle's

driver. In the absence of convincing evidence to prove the plea of

contributory negligence, the common law doctrine cannot be

applied in the present case. There are no details of contributory

negligence in the counter, and no evidence is also put forth

except alleging a stray sentence in the counter. How the

accident happened leaves no doubt that the offending vehicle's

driver was solely negligent in causing the said accident. While

MACMA.No.1074 of 2012

granting relief under the Act, the courts are not to be bound by

mere technicalities but would adopt a liberal approach by giving

the law a more comprehensive construction and meaning that

would favour the victims.

23. A normal rule is for the claimant to prove the negligence. But in

accident cases, hardship is caused to the claimant as the actual

cause of the accident is not known to him but is solely within

the knowledge of the respondent who caused it. It will then be

for the respondents to establish the accident was due to some

other cause than their negligence. As the respondents did not

choose to examine the offending vehicle's driver who was

involved in the accident, and he did not enter into the box to

explain the manner of the accident, there is no ocular evidence

let in by the respondents.

24. Upon careful reading of the material on record, this Court views

that the Tribunal has correctly appreciated the evidence and

observed that the accident occurred due to rash and negligent

driving of the offending vehicle's driver, which cannot be found

fault with. Since the involvement of the claimant in the accident

is not established. Accordingly, the Point No. I is answered.

MACMA.No.1074 of 2012

POINT NO.II:

25. To prove the injuries sustained by the claimant in the accident,

he relied on an Ex.A2-wound certificate, which shows he

sustained a compound crush injury of the left leg. The doctor

has given the opinion that it is a grievous injury. It is the

evidence of PW.1 that he sustained a permanent disability, and

he is not in a position to sit cross-leg, he is not able to stand,

and he is not even able to answer the calls of nature

comfortably. To establish the disability sustained by the

claimant, he got examined by Dr.Rajasekhar Reddy,

orthopaedician, as PW.2. He stated that the claimant suffered

from partial permanent disability to a tune of 55%. The claimant

cannot attend to work as before, and he found that there was

severe muscle loss and that the claimant continues to suffer

from loss of movement of the knee. He also opined that it would

be difficult for the claimant to walk with full weight over the left

lower limb without support.

26. In a decision between A.Chalapathi Vs. Satyanarayana

N.Nuwal and others3, wherein this Court held that:

The evidence of a qualified orthopaedic surgeon can be accepted unless the Court finds evidence of a doctor not

2010 (4) ALD 217

MACMA.No.1074 of 2012

worthy of acceptance by giving cogent reasons. Opinion of a qualified doctor that the doctor who conducted surgery and treated the patient cannot be discredited.

27. In a Judgment of Raj Kumar Vs. Ajay Kumar4, the Apex Court

held that:

6. 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 treatment period and recuperation after achieving the maximum bodily improvement or recovery which is likely to remain for the remaining life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident. However, he can perform some of them and is still able to engage in some gainful activities. Total permanent disability refers to a person's inability to perform any avocation or employment-related activities due to the accident.

8. Where the claimant suffers a permanent disability due to injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most cases, the percentage of economic loss, that is, the percentage of loss of earning capacity arising from a permanent disability will be different from the percentage of permanent disability.

2011 A.C.J. Page 1

MACMA.No.1074 of 2012

9. Therefore, the Tribunal has first to decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide concerning the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed concerning any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. 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. But if the Tribunal concludes that there is permanent disability, it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of the permanent disability of the claimant based on the medical evidence, it has to determine whether the such permanent disability has affected or will affect his earning capacity.

13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity.

(ii) The percentage of permanent disability concerning the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases where the Tribunal, based on evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal concerning the evidence in its entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in

MACMA.No.1074 of 2012

different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

28. After considering the evidence on record, the Tribunal held that

the functional disability of the claimant is assessed at 20%. As

seen from the order of the Tribunal, it is awarded an amount of

Rs.1,19,000/- towards loss of agricultural income, and it also

assessed an amount of Rs.1,22,000/- towards partial

permanent disability. Thus, the Tribunal has awarded an

amount of Rs.2,41,000/- under the head of loss of income due

to disability.

29. The claimant has relied on Ex.A23-Title deed to show that he

got landed property and cultivated the lands. Ex.A23 shows that

the claimant's father possessed Ac.13.87 cents of dry land and

Ex.A25-Agriculture income certificate issued by the M.R.O.,

shows that the claimant's father used to get an income of

Rs.1,50,000/- from the agricultural lands. To show that the

claimant's family holds agricultural land, Ex.A26-Adangal copy

is relied on. Ex.A26 document shows that the claimant's father

was personally cultivating the land owned by him. The

documents relied on by the claimant establish that his father

has agricultural land to the extent of Ac.13.87 cents. The

Tribunal accepted the case of the claimant that he was assisting

MACMA.No.1074 of 2012

his father in the agricultural operations and that the claimant

and his father suffered on account of incapability of the

claimant and indirectly sustained a loss of Rs.500/- per annum

per acre and calculated that the claimant sustained a loss in the

agricultural income of Rs.7,000/- per month and it is multiplied

with '17' and awarded compensation amount of Rs.1,19,000/-.

30. The Tribunal, by considering the fact that the claimant did not

show that he was exclusively supporting his father in the

cultivation of their lands and he especially considered to have

separate income and he determined the notional income of the

claimant at Rs.3,000/- per month and assessed the notional

income of Rs.36,000/- per annum.

31. As far as the prospects are concerned, while considering the

grant of the future prospectus for the deceased child aged about

ten years, in R.K.Malik and others vs Kiran Paul5, the Hon'ble

Apex Court held, in paragraph 31, as follows:

A forceful submission has been made by the learned Counsels appearing for the claimants-appellants that both the Tribunal and the High Court failed to consider the claims of the appellants concerning the prospects of the children. It has been submitted that the evidence concerning the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in the such submission that the Courts below have overlooked that aspect while granting compensation. It is well settled legal principle that in addition

2009 A.C.J. 1924

MACMA.No.1074 of 2012

to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation."

32. It is held in paragraph 32 that denying compensation towards

prospects seems unjustified. Accordingly, the Apex Court

awarded compensation for prospects in a claim under section

163-A of the M.V. Act, 1988.

33. In Gopalappa Vs. Kanduluru Sankara Reddy and another 6 ,

the High Court of Karnataka, in a case relating to disability,

observed as follows:

"in view of the decision of the Apex Court in the case of Pappu Deo Yadav vs Naresh Kumar, 2020 ACJ 2695 (S.C.), the claimant is entitled to an addition of 40% of the assessed income towards future prospects".

34. The finding of the Tribunal that the claimant was about 29

years at the time of the accident as per Ex.A2-wound certificate

is not disputed. The Tribunal applied the multiplier '17' by

following the principles in Sarla Varma and Ors Vs. Delhi

Transport7. As already observed in the preceding paragraphs,

the Tribunal observed that the claimant used to earn

Rs.7,000/- per annum by way of agriculture; in total, the

Tribunal assessed the annual income of the claimant at

Rs.36,000/- + Rs.7,000/- = Rs.43,000/-.

2022 ACJ 1427

2009 A.C.J. Page 1298

MACMA.No.1074 of 2012

20. In the present case, the claimant is aged about 29 years old. In

National Insurance Company Limited Vs. Pranay Sethi and

others8, the Apex Court observed that to assess the future pro-

spectus, in the case of the self-employed or those on a fixed sal-

ary, an additional 40% of the established income should be the

warrant. Given the same, the annual earnings of the claimant,

including a future prospectus, can be assessed at Rs.43,000/- +

40% of Rs.43,000/- = Rs. 60,200/-.

35. By following the principles laid down by the Apex Court, this

Court considers the annual earnings, including prospects, at

Rs.60,200/-. By applying the multiplier '17' and considering

the disability at 20%, the loss of earnings for disability would

arrive at Rs. 2,04,680/- (Rs.60,200/- x 17 x 20%), but the

Tribunal granted Rs.2,41,000/-. Thus, the Tribunal awarded an

excess amount of Rs.36,320/-.

36. The Tribunal awarded an amount of Rs.22,000/- towards pain

and suffering, but this Court views an additional amount of

Rs.8,000/- to be awarded under the head of pain and suffering.

37. The Tribunal also awarded an amount of Rs.5,75,000/- towards

medical expenses and Rs.80,000/- towards transport charges;

the Tribunal has assessed the said amounts based on the

(2017) 16 SCC 680

MACMA.No.1074 of 2012

documents relied on by the claimant. In the facts of the case,

this Court finds that Tribunal awarded a just and reasonable

amount under those heads.

38. Upon considering the nature of injuries sustained by the

claimant and treatment undergone by the claimant, this Court

views that the Tribunal awarded a meagre amount of Rs.6,000/-

towards extra nourishment charges. As such, this Court

considers an additional amount of Rs.14,000/- to be awarded

under the head of extra nourishment.

39. Considering the nature of injuries and treatment undergone by

the claimant, this Court views that an amount of Rs.15,000/- to

be awarded under the head of attendant charges.

40. For the reasons stated above, this Court held that the Tribunal

had awarded the just and reasonable compensation amount to

the claimant by considering the documentary evidence on

record. I do not find any substance in the appeal. I do not see

any reason to interfere with the impugned order in the present

appeal.

41. Accordingly, the appeal is dismissed without costs. The order

dt.01.10.2010 passed by the Tribunal in MVOP.No.289 of 2009

is confirmed.

MACMA.No.1074 of 2012

42. Miscellaneous Petitions, if any, pending in this appeal shall

stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO

Date: 06.02.2023 KGM/SAK

MACMA.No.1074 of 2012

HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

MACMA No.1074 of 2012 Date: 06.02.2023

KGM/SAK