Telangana High Court

M/S. Cholamandalam Ms. General ... vs S. Nishanth Reddy And 2 Others on 10 November, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

           M.A.C.M.A. Nos.1557 of 2011 and 676 of 2021

COMMON JUDGMENT:


      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.676 of 2021 filed by the claimant

seeking enhancement of the compensation and M.A.C.M.A.No.1557

of 2011 filed by Insurance Company, are directed against the very

same award and decree, dated 03.05.2011, passed in M.V.O.P.No.166

of 2008 on the file of the Special Judge for Trial of Offences under

S.Cs. & S.Ts. (POA) Act-cum-V-Additional District and Sessions

Judge, Medak at Sangareddy.


      For the sake of convenience, the parties will hereinafter be

referred to as arrayed before the Tribunal.


      The facts, in issue, are as under:


      The claimant filed a petition under Sections 166 of the Motor

Vehicles Act claiming compensation of Rs.15,00,000/- for the injuries

sustained by him in a road accident that occurred on 31.03.2007 at

about 15.00 hours. It is stated that on 31.03.2007 at about 15.00 hours

while the claimant was proceeding on his Pulsar motorcycle bearing

No.AP-28-AL-2915 from ODF to K.P.H.B. on project work and when

he reached near Kirby at Pashamailaram village, he gave lift to a

person on his motorcycle and thereafter when he reached near

Reliance Petrol Pump at ICRISAT, the Car bearing No.AP-09-TV-
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4413 driven by its driver in a rash and negligent manner at high

speed dashed the bike of the claimant, due to which, the claimant

and the pillion rider fell on the road and in the meanwhile, the RTC

bus bearing No.AP-11-Z-2739, which was coming in the same

direction ran over the pillion rider and the claimant and the pillion

rider received grievous injuries. The claimant and the pillion rider

of the motor cycle were shifted to Remedy Hospital, where they took

treatment. In respect of the said incident, a case in Crime No.114 of

2007 of R.C. Puram Police Station came to be registered against the

driver of the Car. Since the accident took place due to rash and

negligent driving by the driver of the Car and the driver of the

R.T.C. bus and the 1st respondent is the owner and 2nd respondent is

the insurer of the Car and the 3rd respondent is the owner bus, the

claim petition came to be filed making both of them jointly and

severally liable to pay compensation.

The 1st respondent remained ex parte. The 2nd respondent

filed counter stating that there was no negligence on the part of the

driver of the Car and on the other hand, the negligence was on the

part of the driver of the R.T.C. bus, as such, the insurance company

of the Car is not liable to pay any compensation. It is also stated that

the claimant was not having valid driving licence to drive the

motorcycle and due to his own negligent driving, the accident took

place and thereby he contributed to the accident. It is further stated

that the person, who drove the Car at the time of accident was not

having valid driving licence and the vehicle was not in road worthy

condition, as such the insurance company is not liable to pay the

compensation and prayed to dismiss the claim-petition.

The 3rd respondent, owner of the R.T.C. bus also filed counter

denying all the allegations made in the claim-petition and stated that

since the bus belonging to the 3rd respondent was not met with the

accident, the 3rd respondent is not liable to pay the compensation

and prayed to dismiss the claim-petition.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident occurred due to the rash and negligent driving of the driver of the crime vehicle?

2) Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?

3) To what relief?

During trial, on behalf of the claimant, P.Ws.1 and 2 were

examined and Exs.A1 to A17 were marked. On behalf of the 2nd

respondent, no evidence was adduced, but Exs.B1 to B3 were

marked. On behalf of the 3rd respondent, R.W.1 was examined, but

no documents were marked.

After analyzing the evidence available on record, the Tribunal

held that the claimant has received grievous injuries only due to the

negligent driving of the Car by it's driver and not by the driver of

the bus and hence respondents 1 and 2, who are the owner and

insurer of the car, are liable to pay the compensation to the claimant

and not the 3rd respondent, who is the owner of the bus and

accordingly awarded an amount of Rs.9,66,000/- as compensation.

Challenging the same, M.A.C.M.A.No.676 of 2011 was filed by the

claimant seeking enhancement of compensation and

M.A.C.M.A.No.1557 of 2011 was filed by the Insurance Company

questioning its liability to pay the compensation.

Learned Counsel for the claimant mainly submits that the

quantum of compensation awarded by the Tribunal is on lower side

and seeks enhancement of the same. He further submits that the

Tribunal failed to award any amount under the head of pain and

suffering and also loss of marriage prospects as the claimant is an

Engineering Student, aged about 21 years at the time of accident,

and, therefore, prayed to enhance the compensation.

Learned Counsel appearing for the Insurance Company

would submit that the Tribunal wrongly fastened the entire liability

on the Insurance company and also on the owner of the Car and that

the Tribunal failed to see that the charge sheet clearly show that both

the drivers of the Car and R.T.C. bus are equally liable for the

accident. He further submits that the Tribunal passed the award

excessively and out of all proportions. He also submits that the

Tribunal failed to see that even under Section 168 of the M.V. Act,

the liability has to be apportioned among the respondents and since

this is a case of joint tort feasors, it has to be specifically apportioned

between the owners and insurer of both the vehicles.

In spite of service of notice, there is no representation on

behalf of the 3rd respondent.

After hearing both the parties and after perusal of the

materials available on record, including the impugned judgment

and award passed by the Tribunal, the points that arise for our

consideration is:

(i) Whether the liability fastened by the Tribunal on R1 and R2 is sustainable in law?

(ii) Whether the compensation awarded by the Tribunal is just and reasonable?

POINT No.1:

As seen from the record, though the charge sheet was filed

against the drivers of both the Car and the R.,T.C. Bus, the contents

of the charge sheet would disclose that when the motor cycle

reached near Reliance Petrol Pump at Patancheru, the driver of the

Car drove it in a rash and negligent manner and dashed against the

motorcycle, due to which, the claimant and the pillion rider of the

motorcycle fell on the road and in the meanwhile, the R.T.C. bus ran

over the pillion rider, which was corroborated by the evidence of

P.W.1. P.W.1 in his evidence categorically deposed that on

31.03.2007 at about 3.00 P.M. he left from ODF on his Pulsar

Motorcycle bearing No.AP-28-AL-2915 to go to KPHB on his project

work and on the way he has given lift to one Kumar and when the

motorcycle reached ICRISAT company on N.H.No.9 road, the Car

bearing No.AP-09-TV-4413 came in a rash and negligent manner in

opposite direction and dashed against his bike, due to which, he and

the pillion rider fell on the ground and in the meanwhile, the RTC

bus bearing No.AP-11Z-2739, which was coming in the same

direction, ran over the pillion rider and both of them received

injuries. Therefore, the Tribunal has rightly held that the driver of

the Car was responsible for the injuries sustained by the claimant.

As such, there is no force in the argument of the learned Counsel for

the Insurance Company that the 3rd respondent-Corporation, the

owner of the Bus, is also liable to pay the compensation along with

the Insurance Company.

POINT No.2:

Insofar as the quantum of compensation is concerned, relying

upon the evidence of P.W.2 coupled with Ex.A17, the Tribunal has

rightly held that the claimant has sustained 50% disability and

accordingly awarded Rs.9,00,000/- under the head of loss of

earnings on account of disability sustained by the claimant;

Rs.60,000/- towards treatment; Rs.4,000/- towards extra

nourishment and Rs.2,000/- towards transportation charges, which

appears to be reasonable.

It is the submission of the learned Counsel for the claimant

that Tribunal failed to award any compensation towards pain and

suffering, loss of marriage prospects and loss of education for one

year and therefore, it needs to be awarded reasonably.

Admittedly, on account of the injuries sustained by the

claimant, he has taken treatment as an impatient for about one and

half month in different hospitals and during the time of treatment,

the left leg below the knee was amputated and implants were

inserted. During the period of treatment, he would have spent

considerable amount towards conveyance, nourishing food and

attendant charges and that he had lost his studies as he could not

attended his classes regularly. Further it can be seen that on account

of the injuries sustained by him, he has suffered permanent

disability. To prove the same he has examined the Doctor as P.W.2,

who deposed that the injuries sustained by the claimant are grievous

in nature and in spite of treatment he has deformity of right foot and

his wearing on Orthosis to walk and in future he will require

corrective surgery to the right foot. The claimant has also produced

Ex.A17-Disability Certificate which shows that the claimant is

having 50% disability due to amputation of left lower limb at below

knee level. To meet the ends of justice, the Tribunal has rightly

assessed the disability at 50%. Having regard to his age,

qualification and the year of accident, the Tribunal assessed his

income at 10,000/- per month and awarded Rs.9,00,000/- under the

head of loss of earnings on account of the disability, which appears

to be reasonable and warrants no interference.

Admittedly, the Tribunal has not awarded any amount

towards pain and suffering and also towards loss of marriage

prospects.

In order to award compensation in case of personal injuries

the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as

under:

"5. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i),

(ii)(a) and (iv). It is only in serious cases of injury, where

MACD 2011 (SC) 33

there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."

Admittedly, the claimant has sustained 50% disability on

account of amputation of his left lower limb at below knee level.

Discomforts and unhappiness persists through out his life, it would

affect his marriage prospects. Further, as per the evidence of the

Doctor-P.W.2, for considerable period, the claimant was in the

hospital for the injuries sustained by him, for the surgery to his left

lower limb and also for removal of 2K wires and Steinman pin from

right foot and as such the claimant must have suffered

inconvenience and pain. Having regard to the principles laid down

by the Apex Court in Raj Kumar case (1 supra) and taking into

consideration the all the above said factors, it would be appropriate

to award a sum of Rs.50,000/- towards pain and suffering and