The National Insurance Company ... vs Singareddy Pulla Reddy,
2023 Latest Caselaw 4077 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                       M.A.C.M.A.No. 72 of 2015

JUDGMENT:

Aggrieved by the award dated 01.10.2014 passed by the

Chairman, Motor Accident Claims Tribunal-cum-XIII Additional

District Judge, Gajuwaka, in M.V.O.P.No.1596 of 2012, the 2nd

respondent/Insurance company preferred the instant appeal

questioning the legal validity of the order of the Tribunal.

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 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 claiming compensation of

Rs.18,00,000/- for the injuries sustained by him in a motor vehicle

accident which took place on 21.08.2012.

4. The brief averments in the petition filed by the petitioner are as

follows:

VGKR,J MACMA No.72 of 2015

On 21.08.2012 at about 10.30 p.m. the petitioner was going to

New Gajuwaka on his friend's bike as a pillion rider while his friend

by name Bada Prasada Rao was driving the bike. While so, the

slipper of the petitioner fell down on the road and the petitioner got

down the bike to take his slipper, at that time, a gas tanker lorry

bearing registration No.AP 13T 5598 being driven by its driver in a

rash and negligent manner at high speed came from

Kurmannapalem side and hit the petitioner, as a result, the

petitioner's left leg was fully crushed and he also sustained facial

fractures. The S.H.O., Gajuwaka Traffic P.S. registered a case in

crime No.328 of 2012 against the driver of the offending lorry. The

1st respondent is owner and the 2nd respondent is insurer of the

offending lorry, hence, both the respondents are jointly and severally

liable to pay the compensation.

5. The 1st respondent was set ex parte. The 2nd

respondent/Insurance company filed a counter by denying the

material allegations in the petition. It is pleaded that the driver of the

offending lorry was not holding valid and effective driving licence on

VGKR,J MACMA No.72 of 2015

the date of accident, the 1st respondent intentionally violated the

conditions of the policy by allowing his driver to drive the offending

lorry, as such, the Insurance company is not liable to pay any

compensation.

6. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the injured Singareddy Pulla Reddy got injured in the motor accident on 21.8.2012 occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP 13T 5598?

2) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

3) To what relief?

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

the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.11

and Exs.X.1 and X.2 were marked. On behalf of the 2nd respondent,

R.Ws.1 and 2 were marked and Exs.B.1 to B.3 and Exs.X.3 and X.4

were marked.

VGKR,J MACMA No.72 of 2015

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 occurred due to rash and

negligent driving of the driver of the offending lorry and accordingly,

allowed the claim petition and granted a sum of Rs.19,62,400/-

towards compensation to the petitioner with costs and interest at 7.5%

p.a. from the date of petition till the date of deposit against both the

respondents. Being aggrieved by the impugned award, the 2nd

respondent/Insurance company has preferred the present appeal.

9. Heard Sri T.S. Rayalu, learned counsel for the appellant/2 nd

respondent-Insurance company, and Sri A. Srinath, learned counsel

for the 1st respondent/petitioner, and perused the record.

10. Now, the point for determination is:

Whether the order of the Tribunal needs any interference, if so, to what extent?

11. POINT: The case of the petitioner is that on 21.08.2012 at

about 10.30 p.m. he was going to New Gajuwaka on his friend's

VGKR,J MACMA No.72 of 2015

bike as a pillion rider while his friend by name Bada Prasada Rao

was driving the bike, while so, his slipper fell down on the road and

he got down the bike to take his slipper, at that time, a gas tanker

lorry bearing registration No.AP 13T 5598 being driven by its driver

in a rash and negligent manner at high speed came from

Kurmannapalem side and hit him, as a result, his left leg was fully

crushed and he also sustained facial fractures. In order to prove the

rash and negligent driving of the driver of the offending lorry, the

petitioner relied on his self testimony as P.W.1. P.W.1 in his

evidence reiterated the contents of the petition and also denied the

contra suggestions put to him. The petitioner also relied on Ex.A.1

and Ex.A.2. Ex.A.1-attested copy of first information report goes to

show that a case in crime No.328 of 2012 was registered against

the driver of the offending lorry by the Police, Gajuwaka Traffic P.S.

for the offence punishable under Section 338 of IPC. Ex.A.2-

attested copy of M.V.I. report shows that the accident occurred not

due to any mechanical defects in the offending lorry. Though the 2nd

respondent examined R.Ws.1 and 2, admittedly, they are not eye

VGKR,J MACMA No.72 of 2015

witnesses to the accident, therefore, their evidence cannot be

believed. The evidence of P.W.1 coupled with Exs.A.1 and A.2

clearly goes to show that the accident took place due to rash and

negligent driving of the driver of the offending lorry. The Tribunal, on

appreciating the entire material on record, also came to the same

conclusion. I do not find any legal flaw or infirmity in the said finding

given by the Tribunal.

12. In order to prove the injuries sustained by him, the petitioner

deposed in his evidence that he sustained a crush injury on his left

leg and also fracture injuries on his face in the said accident. He

relied on Ex.A.3-attested copy of wound certificate, Ex.A.11-x rays,

and Ex.X.2-case sheet. The petitioner examined the Doctor, who

treated him, as P.W.2. As per the evidence of P.W.2, the injuries

sustained by the petitioner are grievous in nature. The petitioner

also examined the doctor, who is a Consultant Plastic Surgeon in

Care Hospital, as P.W.3. P.W.3 deposed in his evidence that he

found crush injuries on the left leg and fractures on the upper and

lower jaws. The evidence of P.Ws.1 to 3 coupled with Ex.A.3,

VGKR,J MACMA No.72 of 2015

Ex.A.11 and Ex.X.2 clearly goes to show that the petitioner

sustained severe grievous injuries, he lost his left leg upto knee and

he underwent treatment for about four times in the hospital as an

inpatient.

13. The Tribunal, on considering the entire material on record,

awarded Rs.5,000/- towards transportation charges, Rs.10,000/-

towards extra nourishment of food. On considering Ex.A.8-medical

record, Ex.A.10-bunch of medical bills, and Ex.A.11-x rays, the

Tribunal awarded an amount of Rs.72,400/- towards medical

expenses. The Tribunal also awarded Rs.5,000/- towards damage

to clothes and articles. On considering the entire evidence on

record, the Tribunal gave a finding that the petitioner is working as

an ambulance driver and earning Rs.10,000/- per month. On

considering Ex.A.4-salary certificate of the petitioner, the Tribunal

rightly awarded Rs.10,000/- towards loss of earnings during the

period of treatment.

14. As per the evidence of P.W.1, the petitioner sustained a crush

injury to his left leg and he lost his left leg upto knee and amputation

VGKR,J MACMA No.72 of 2015

was also done by the Doctors. Therefore, by considering the entire

material on record, the Tribunal awarded an amount of

Rs.1,00,000/- towards pain and suffering.

15. The material on record clearly goes to show that in the

accident, the petitioner lost his left leg upto knee, amputation was

also done, and the petitioner sustained 70% permanent disability.

On considering the age of the petitioner and Ex.A.4-salary certificate

of the petitioner, the Tribunal awarded an amount of Rs.12,60,000/-

(Rs.10,000/- x 12 months x 70% disability x multiplier '15') towards

70% disability.

16. The compensation awarded by the Tribunal under the above

heads, in my view, is just and proper, hence, there is no need to

interfere with the quantum of compensation awarded under the

above heads.

17. Coming to awarding of damages of Rs.5,00,000/- towards loss

of earning power, there is some justification in the contention of the

learned counsel for the appellant/Insurance company that the

VGKR,J MACMA No.72 of 2015

Tribunal erred in awarding compensation towards loss of earning

power, having considered an identical claim under the head of

permanent disability. As seen from the material on record, the

Tribunal awarded an amount of Rs.12,60,000/- towards permanent

disability and again an amount of Rs.5,00,000/- was awarded as

damages towards earning power. Therefore, the damages towards

loss of earning power includes to the damages towards permanent

disability. Therefore, the petitioner is not entitled to Rs.5,00,000/-

which was awarded by the Tribunal as damages towards loss of

earning power.

18. A reliance has been placed by the learned counsel for the

petitioner on a decision of the Allahabad High Court in Virendra

Kumar Vs. Vijay Kumar1 wherein it is held as under:

"11. In Common Cause, A Registered Society v. Union of India, Hon'ble Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out,

2021 ACJ 205 = 2020 SCC ONLINE ALL 499

VGKR,J MACMA No.72 of 2015

the non-pecuniary loss is not so calculable. Nonpecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.

13. In Divisional Controller, KSRTC v. Mahadeva Shetty, the road accident resulted in paraplegia due to serious injury to the spinal cord. The Supreme Court held that the object of providing compensation is to mitigate the hardship and place the claimant as far as possible in the same position financially as he was before the accident. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The compensation awarded has to be "just" and not a bonanza. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrariness. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. The Supreme Court further held that while fixing compensation, suffering of the mind, shortening of life expectancy, loss of earning capacity, permanence of the disability, loss of amenities of life etc. are to be considered against the backdrop of age, marital status, unusual deprivation one has undertaken in one's life etc."

VGKR,J MACMA No.72 of 2015

19. Since the petitioner lost his left leg upto knee and he

underwent treatment in the hospitals as an inpatient several times

and on considering the aforesaid decision of the Allahabad High

Court, I am of the considered view that it is just and necessary to

award a sum of Rs.1,00,000/- towards loss of amenities and

Rs.50,000/- towards loss of comfort.

20. In total, the petitioner is entitled to a sum of Rs.16,12,400/-

towards compensation.

21. It is the contention of the learned counsel for the

appellant/Insurance company that the offending vehicle is a

hazardous vehicle and the driver of the offending lorry was not

holding hazardous driving licence. In order to prove its contention,

the Insurance company examined R.Ws.1 and 2. R.W.1 is the

Assistant Manager of the 2nd respondent/Insurance company.

R.W.1 deposed in her evidence that the driver of the offending lorry

had HGV driving licence on the date of accident, but he was not

holding hazardous driving licence. R.W.2 is the Junior Assistant in

VGKR,J MACMA No.72 of 2015

R.T.A. Office, Vijayawada. According to R.W.2, the driver of the

offending vehicle had hazardous driving licence till 22.07.2012, he

did not renew his licence thereafter and he had no hazardous

driving licence by the time of accident. As per the evidence of

R.Ws.1 and 2, it is clear that the driver of the offending lorry had

HGV driving licence but he had no hazardous driving licence

endorsement on the said licence. However, on considering that the

offending lorry of the 1st respondent was insured with the 2nd

respondent/Insurance company under Ex.B.1-policy and the policy

was also in force as on the date of accident and on considering the

principle laid down by the Hon'ble Apex Court in National

Insurance Company Limited Vs. Swaran Singh reported in 2004

(1) ACJ Page 1, by giving cogent reasons, the Tribunal in its order

held that as the driver of the offending vehicle in the instant case

was holding HGV driving licence, non-possessing of hazardous

driving licence by him is only a technical defect and because of

technicalities, the claim of the petitioner cannot be rejected and the

2nd respondent/Insurance company cannot be absolved from its

VGKR,J MACMA No.72 of 2015

liability, as such, both the respondents being owner and insurer of

the offending vehicle are jointly and severally liable to pay the

compensation to the petitioner. There is no legal flaw or infirmity in

the said finding given by the Tribunal.

22. In view of the foregoing discussion, the appeal is partly

allowed. The order dated 01.10.2014 passed by the Tribunal in

M.V.O.P.No.1596 of 2012 is modified by reducing the compensation

of Rs.19,62,400/- awarded by the Tribunal to Rs.16,12,400/-. The

order of the Tribunal in all other respects shall remain intact. No

order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 6 September, 2023 cbs

VGKR,J MACMA No.72 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 72 of 2015

6th September, 2023 cbs