Kasim Anuradha vs Naravala Praveen Kumar And 4 Ors
2023 Latest Caselaw 4649 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.614 of 2023

JUDGMENT:

Aggrieved by the award dated 10.03.2014 passed by the

Chairman, Motor Accident Claims Tribunal-cum-Judge, Family

Court-cum-Additional District Judge, Viziangaram, in M.V.O.P.No.49

of 2011, whereby the Tribunal awarded a total compensation of

Rs.1,38,000/- to the petitioner as against her claim of Rs.2,50,000/-,

this instant appeal is preferred by the petitioner for enhancement of

the compensation.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim petition.

3. The claim petitioner filed the claim petition under Section 166

of the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V.

Rules, 1989 against the respondents praying the Tribunal to award

an amount of Rs.2,50,000/- towards compensation for the injuries

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sustained by her in a motor vehicle accident that occurred on

29.09.2009.

4. The brief averments of the claim petition are as follows:

On 29.09.2009 the petitioners and others boarded an auto

bearing registration No.AP 31TT 8670 at old bus stand,

Simhachalam to go to Prahladapuram and upwards and when the

auto reached near Gosala junction at about 2.30 p.m., the driver of

the said auto drove the auto in a rash and negligent manner with

high speed and dashed against a lorry bearing No.AP 32TT 323,

which was wrongly parked to the right side of the road without taking

proper precautions and signal lights, as a result, the petitioner fell

down from the auto and sustained grievous injuries. The S.H.O.,

Gopalapatnam Traffic P.S. registered a case in crime No.168 of

2009 against the drivers of both the vehicles for the offence

punishable under Section 338 of IPC. The 1st respondent is driver

and the 2nd respondent is owner of the auto, the 3rd respondent is

driver, the 4th respondent is owner and the 5th respondent is insurer

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of the stationed lorry, hence, all the respondents are jointly and

severally liable to pay compensation to the petitioner.

5. Respondent Nos.1 to 3 were set ex parte. Respondent Nos.4

and 5 filed counters separately by denying the material averments

made in the claim petition.

i) It is pleaded by the 4th respondent that the offending lorry was

insured with the 5th respondent and the policy was also in force by

the date of accident, as such, the 5th respondent alone is liable to

pay the compensation, but not the 4th respondent.

ii) It is pleaded by the 5th respondent that the driver of the

offending auto was responsible for the accident as he drove the auto

in a rash and negligent manner, the driver of the offending lorry was

not at fault in any manner because he parked the vehicle within the

road and far left side of the road, the first information report was

registered against the driver of the offending auto, therefore, the 5th

respondent is not liable to pay any compensation.

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6. Based on the above pleadings, the Tribunal framed the

following issues for trial:

1. Whether the accident occurred on 29.09.2009 at about 14.30 hours near Gosala junction due to rash and negligent driving of auto bearing No.AP 31TT 8670 by its driver resulting in injuries to the petitioner or due to negligent parking of the driver of the lorry driven by the 3rd respondent?

2. Whether the petitioner is entitled for compensation, if so, what amount and from whom?

3. To what relief?

7. During the course of enquiry in the claim petition, on behalf

of the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.14

and Ex.X.1 were marked. On behalf of respondent Nos.4 and 5,

no oral evidence was adduced, but Ex.B.1 was marked.

8. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

came to the conclusion that the accident took place on account of

rash and negligent driving of the drivers of both the auto and the

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lorry involved in the accident, and accordingly, allowed the petition

in part and awarded a sum of Rs.1,38,000/- towards compensation

to the claim petitioner with proportionate costs and interest at 7.5%

p.a. from the date of petition till the date of payment against all the

respondents and directed respondent Nos.1 and 2 to deposit 70% of

the compensation amount and directed respondent Nos.3 to 5 to

deposit the balance 30% of the compensation amount. Being

aggrieved by the said order, the claim petitioner filed the instant

appeal for enhancement of the compensation.

9. Heard Sri Gudapati Venkateswara Rao, learned counsel for

the appellant/petitioner, and Smt. A. Jayanthi, learned counsel for

the 5th respondent/Insurance company, and perused the record.

10. Now, the points for determination are:

1) Whether the claim petitioner is entitled for enhancement of compensation as prayed for? and

2) Whether the order passed by the Tribunal needs any interference, if so, to what extent?

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11. POINT Nos.1 and 2: In order to prove the occurrence of the

accident, the petitioner relied on her self testimony as P.W.1 and

Ex.A.4-charge sheet. The evidence of P.W.1 as well as Ex.A.4

clearly goes to show that the accident took place on account of rash

and negligent driving of the driver of the auto and contributory

negligence of the driver of the lorry in parking the lorry to the right

side of the road. On appreciation of the entire material on record,

the Tribunal also came to the same conclusion. No appeal is filed by

the respondents against the said finding given by the Tribunal.

Therefore, there is no need to interfere with the said finding given by

the Tribunal.

12. Coming to the compensation, in order to prove the injuries

sustained in the accident, treatment taken in the hospital and the

disability sustained by her, the petitioner relied on her self testimony

as P.W.1, P.W.2-doctor and Exs.A.2, A.8 to A.12 and A.14. P.W.2-

doctor, who treated the petitioner, deposed that he examined the

petitioner on 29.09.2009 and found a lacerated wound of 5" over the

VGKR,J MACMA No.614 of 2023

upper 3rd of the left leg, fracture of left leg bones and fracture of

femur left, out of which, injury Nos.2 and 3 are grievous in nature

and injury No.1 is simple in nature. He issued Ex.B.2-wound

certificate. He also deposed that the petitioner was operated for the

said injuries and she was discharged on 15.10.2010, she undergone

skin grafting for injury on the left leg for which she was admitted on

04.11.2009 and discharged on 14.11.2009, she cannot stand for

long time and walk long distance and he assessed the disability of

the petitioner at 25% and he issued Ex.A.11 disability certificate to

that effect.

13. On considering the evidence of P.W.2, Ex.A.2-wound

certificate and the period of treatment taken by the petitioner in the

hospital, a sum of Rs.40,000/- is granted for two grievous injuries @

Rs.20,000/- for each grievous injury, Rs.5,000/- is granted for one

simple injury, Rs.25,000/- towards medical expenses, Rs.25,000/-

towards loss of earnings during the period of treatment, attending

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charges and nutrition of food, Rs.5,000/- towards transport charges

and Rs.20,000/- towards loss of comfort.

14. Coming to the disability, as per Ex.A.11-diability certificate

issued by P.W.2-doctor, the petitioner sustained 25% disability. The

accident occurred in the year 2009. In those days, an ordinary

coolie can easily earn Rs.3,000/- per month. Therefore, the monthly

income of the deceased is taken as Rs.3,000/- i.e., Rs.36,000/- per

annum. According to the petitioner, she was aged about 44 years at

the time of accident. As per the decision of the Hon'ble Supreme

Court in Sarla Varma Vs. Delhi Transport Corporation 1 , the

appropriate multiplier applicable to the age group of the petitioner is

'14'. Accordingly, a sum of Rs.1,26,000/- (Rs.36,000/- x disability

25% x multiplier '14') is granted towards loss of future earnings

under the head of '25% disability'.

2009 (4) SCJ 91

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15. Thus, the petitioner is entitled to a sum of Rs.2,46,000/-

towards total compensation for the injuries sustained by her in the

accident instead of Rs.1,38,000/- granted by the Tribunal.

16. As stated supra, it is proved that the accident took place on

account of rash and negligent driving of the driver of the auto and

contributory negligence of the driver of the lorry in parking the lorry

to the right side of the road. By giving cogent reasons, the Tribunal

in its order rightly held that all the respondents are jointly and

severally liable to pay the compensation to the petitioner and

directed respondent Nos.1 and 2 to pay 70% of total compensation

amount and also directed respondent Nos.3 to 5 to pay the balance

30% of total compensation amount to the petitioner. I do not find

any illegality in the said finding given by the Tribunal.

17. In the result, the appeal is partly allowed enhancing the

compensation of 1,38,000/- awarded by the Tribunal to

Rs.2,46,000/-. The petitioner is entitled to the enhanced

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compensation of Rs.1,08,000/- with interest at 7.5% p.a. from the

date of petition till the date of payment. Respondent Nos.1 and 2 are

directed to deposit 70% of the enhanced compensation amount i.e.,

Rs.75,600/- and respondent Nos.3 to 5 are directed to deposit the

balance 30% of compensation amount i.e., Rs.32,400/-, with interest

at 7.5% p.a. from the date of petition till the date of payment, before

the Tribunal within two months from the date of this judgment. On

such deposit, the petitioner is entitled to withdraw the entire

enhanced compensation amount along with interest accrued

thereon. The order of the Tribunal is modified to the extent

indicated above and the order of the Tribunal in other respects shall

stand undisturbed. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO,J th 4 October, 2023 cbs

VGKR,J MACMA No.614 of 2023

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.614 of 2023

4thOctober, 2023 cbs