Royal Sundaram Insurance Company ... vs D.R.Shiva Kumar Shiva
2023 Latest Caselaw 4563 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No. 342 of 2014

JUDGMENT:

The appellant is 3rd respondent/Insurance company and the

respondents are claim petitioner and respondent Nos.1 and 2 in

O.P.No.30 of 2010 on the file of the Motor Accident Claims Tribunal-

cum-Additional District Judge, Hindupur. The appellant filed the

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 Sections 140 and

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.6,00,000/- for the injuries sustained by him in a

motor vehicle accident that took place on 14.10.2009.

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

follows:

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On 14.10.2009 the petitioner and his relative, by name,

Aravind went to BITS college side on a motor cycle bearing

registration No.AP 02H 5577 to learn motor cycle driving and while

they were returning on their motor cycle and when they reached

Kotnur, a lorry bearing registration No.AP 02W 8348 being driven by

its driver in a rash and negligent manner at high speed came and

dashed against the motor cycle, as a result, the petitioner and his

relative sustained grievous injuries. At the time of accident, the

petitioner was the rider and his relative was the pillion rider of the

motor cycle. The S.H.O., Hindupur I Town P.S. registered a case in

crime No.138 of 2009 against the driver of the lorry for the offences

punishable under Sections 337 and 338 of IPC. The 1st respondent

is driver, the 2nd respondent is owner and the 3rd respondent is

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

severally liable to pay compensation to the petitioner.

5. Respondent Nos.1 and 2 were set ex parte. The 3rd

respondent/Insurance company filed a counter by denying the

averments made in the petition. It is contended that the driver of the

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offending lorry did not possess valid driving licence, the accident

occurred due to sheer negligence on the part of the petitioner in

riding the motor cycle, and the compensation claimed is excessive.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident had happened on account of the rash and negligent driving of the driver of the offending lorry bearing No.AP 02V 8348?

2) Whether the offending lorry driver was holding valid effective driving licence at the time of accident?

3) Whether the claim of the petitioner is excessive, abnormal and unjust?

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

5) 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.13 and

Exs.X.1 and X.2 were marked. On behalf of the 3rd respondent, no

oral or documentary evidence was adduced.

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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 on account of

rash and negligent driving of the driver of the offending vehicle and

accordingly, allowed the claim petition in part and granted a sum of

Rs.4,80,000/- towards compensation to the petitioner with

proportionate costs and interest at 6% p.a. from the date of petition

till the date of payment against all the respondents and directed the

3rd respondent to pay the compensation amount being the insurer of

the offending vehicle. Being aggrieved by the impugned award, the

3rd respondent/Insurance company has preferred the present appeal.

9. Heard Sri D. Ravi Kiran, learned counsel for the

appellant/Insurance company, 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?

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11. POINT: In order to prove the rash and negligent driving of

the driver of the offending vehicle, the petitioner examined himself

as P.W.1. The petitioner reiterated the contents of the claim petition

in his chief examination affidavit. Nothing was elicited by the 3rd

respondent from the cross-examination of P.W.1 to discredit his

evidence in chief-examination affidavit. The petitioner also relied on

Exs.A.1-first information report and Ex.A.3-charge sheet. Ex.A.1

goes to show that a case was registered against the driver of the

offending vehicle in connection with the accident in question. Ex.A.3

discloses that after completion of investigation into the accident, the

police laid a charge sheet against the driver of the offending vehicle

holding him responsible for the accident. The evidence of P.W.1

coupled with Exs.A.1 and A.3 clinchingly establishes that the

accident occurred on account of rash and negligent driving of the

driver of the offending vehicle. On perusal of the entire material on

record, the Tribunal also came to the same conclusion. Therefore,

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

Tribunal.

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12. Coming to the compensation, the Tribunal awarded a total

compensation of Rs.4,80,000/- to the petitioner. In order to prove

that he sustained injuries in the accident, medical expenses, and the

disability sustained by him, the petitioner relied on the evidence of

P.Ws.2 and 3 and Ex.A.2-wound certificate, Ex.A.9-medical bills,

Ex.A.10-medical certificate, and Exs.X.1 and X.2-case sheets.

P.W.2-doctor deposed in his evidence that the petitioner sustained a

head injury and he issued Ex.A.10-disability certificate, according to

which, the petitioner sustained 60% disability. P.W.3-doctor

deposed that the petitioner was admitted in their hospital on

14.10.2009 and discharged on 13.11.2009 and the petitioner took

treatment for the injuries sustained by him in the accident and

Ex.A.9-medical bills were issued by their hospital. P.W.3 also

deposed that as per their assessment, the petitioner sustained

disability of 55% to 60% which is permanent. As seen from Exs.X.1

and X.2, the petitioner underwent treatment in Malya Hospital,

Bangalore.

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13. On considering that the petitioner took treatment in the

Government Hospital, Hindupur, and thereafter at Malya Hospital,

Bangalore, the Tribunal awarded an amount of Rs.6,000/- towards

transport expenses, damage to clothing and attendant charges. On

considering Ex.A.9-medical bills, the Tribunal also awarded a sum of

Rs.90,000/- towards medical expenses. The compensation

awarded under these two heads, in my view, is just and reasonable,

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

the Tribunal in awarding the quantum of compensation.

14. By giving cogent reasons, the Tribunal fixed the age of the

petitioner as 19 years at the time of accident and also his annual

income as Rs.36,000/- i.e., Rs.3,000/- per month, and on

considering the evidence of P.Ws.2 and 3 and Ex.A.10-disability

certificate, the Tribunal came to the conclusion that the petitioner

sustained 60% disability, and accordingly, awarded an amount of

Rs.3,84,000/- towards loss of earnings under the head of "disability".

On considering the entire material on record and since the law is

well settled that disability to a particular limb cannot be treated as

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disability to whole body, I am of the considered view that the

disability sustained by the petitioner is 40%, and accordingly, a sum

of Rs.2,30,400/- (Rs.36,000/- x disability 40% x multiplier '16') is

awarded towards loss of earnings under the head of 'disability'.

15. Thus, the petitioner is entitled to a total compensation of

Rs.3,26,400/- instead of Rs.4,80,000/- awarded by the Tribunal.

16. The Tribunal in its order held that the offending vehicle was

validly insured with the 3rd respondent by the date of accident under

Ex.A.8-insurance policy and the policy was also in existence on the

date of accident and as per Ex.A.7, the 1st respondent was having

valid driving licence, hence, all the respondents are jointly and

severally liable to pay compensation to the petitioner, but to be

indemnified by the 3rd respondent being the insurer of the offending

vehicle. There is no legal flaw or infirmity in the said finding given

by the Tribunal.

17. In the result, the appeal is partly allowed. The order of the

Tribunal is modified by reducing the compensation of Rs.4,80,000/-

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awarded by the Tribunal to Rs.3,26,400/-. The 3rd

respondent/Insurance company is directed to deposit the balance

amount of compensation, after deducting the deposited amount, if

any, along with proportionate costs and interest at 6% p.a. from the

date of petition till the date of payment, before the Tribunal within

two months from the date of this judgment. 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 27 September, 2023 cbs

VGKR,J MACMA No.342 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 342 of 2014

27th September, 2023 cbs