Edunuri Uppal Reddy vs Bathula Ramachandru And 2 Others
2022 Latest Caselaw 1743 Tel

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    M.A.C.M.A. No.227 of 2012

JUDGMENT :

This appeal is filed by the Claimant, aggrieved of the order

and decree dated 30.09.2011 in M.V.O.P.No.490 of 2008 on the

file of Chairman, Motor Accident Claims Tribunal-cum-III

Additional District Judge, Warangal.

2. On 08.02.2007, due to the rash and negligent driving of Auto

trolley bearing No.AP-36-W-7439 and due to application of sudden

brakes by its driver, the appellant/claimant fell down and sustained

grievous injuries to his right thigh and right hip joint.

3. The Tribunal, on examining the oral and documentary

evidence on record, partly allowed the O.P., awarding a total

compensation of Rs.51,900/- along with costs and interest @ 6%

per annum from the date of petition till the date of realization, to be

payable by respondent No.1/owner of the vehicle alone, within a

period of one month from the date of the order. The petition

against respondent Nos.2 and 3/Insurance Company was dismissed.

Aggrieved of exonerating the Insurance Company and Seeking

GAC, J MACMA.No.227 of 2012

enhancement of compensation, the appellant-claimant has filed this

appeal.

4. The main ground for dismissing the petition against

respondent Nos.2 and 3 is that respondent No.2 is the insurer/New

India Assurance Company Ltd., and respondent No.3 is its local

office. The liability against them was dismissed on the ground that

the appellant/claimant was a gratuitous passenger, and therefore,

respondent No.1 alone is liable to pay the compensation.

5. Heard both sides and perused the record.

6. It is contended by the learned counsel for appellant/claimant

that the Tribunal has not properly appreciated the facts of the case

and has erroneously taken the income of the claimant as Rs.3,000/-

per month, though it was the case of the claimant before the

Tribunal that he was earning Rs.5,000/- per month from his

agricultural work. The learned counsel further contended that the

Tribunal did not award any amount for the disability sustained by

the appellant.

GAC, J MACMA.No.227 of 2012

7. On the other hand, it is contended by the learned Standing

Counsel for respondent Nos.2 and 3/Insurance Company that the

injured is a gratuitous passenger, and therefore, the Tribunal has

rightly exonerated the insurance Company from payment of

compensation and therefore, there is no infirmity or irregularity in

the order passed by the Tribunal so as to interfere with the same.

However, he did not dispute the quantum of compensation awarded

by the Tribunal, as the compensation is awarded against the 1st

respondent only.

8. As mentioned above, the Tribunal below directed respondent

No.1/owner of the vehicle alone to pay the entire compensation

amount and exonerated the 2nd respondent/Insurance Company

from its liability by holding that the appellant/claimant is a

gratuitous passenger. In this connection, learned counsel for

appellant has relied upon the judgment of Hon'ble Supreme Court

in Manuara Khatun & others v. Rajesh Kumar Singh &

others1, wherein, it is held that the Insurance Company is liable to

pay compensation even to the gratuitous passengers, but it can

(2017) 4 SCC 796

GAC, J MACMA.No.227 of 2012

recover the said amount from the owner of the vehicle insured. In

para 15 of the said judgment, it is held as under :

"This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P.Paul2 wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment of the High Court, it was held on facts that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"".

9. The learned counsel for appellant has also relied on the

judgment of Hon'ble Supreme Court in the case of National

Insurance Co. Ltd. v. Pranay Sethi & others3, wherein, it is held

that the Insurance Company have to pay the compensation and

(2013) 2 SCC 41

2017 ACJ 2700

GAC, J MACMA.No.227 of 2012

recover the same from the owner of the vehicle. As per the above

said judgment, the Insurance Company is liable to pay

compensation and recover from the owner of the vehicle.

10. The learned counsel for appellant has further relied on the

judgment of Hon'ble Supreme Court in Ramla & others v.

National Insurance Company Limited & others4, wherein, the

Apex Court granted interest at the rate of 8% per annum on the

compensation granted. The above judgment squarely applies to the

facts of the present case.

11. It is relevant to mention here that the owner of the vehicle

i.e. the insured has not filed any appeal against the order of the

Tribunal. As far as application of multiplier is concerned, the age

of the injured was 62 years at the time of accident and as per the

judgment of Hon'ble Supreme Court in Smt. Sarla Varma v.

Delhi Transport Corporation5, the multiplier to be applied is 7.

It is further held in the said judgment that the income of a

non-earning member can be taken as Rs.100/- per day, thus, the

(2019) 2 SCC 192

2009 (6) SCC 121

GAC, J MACMA.No.227 of 2012

monthly income of appellant comes to Rs.3,000/-, and Rs.36,000/-

per annum as has been rightly taken by the Tribunal. By applying

multiplier 7, it comes to Rs.2,52,000/-. Ex.A-7 is the disability

certificate, which discloses that the injured sustained 40%

disability, but the Tribunal has not awarded any amount towards

disability. Thus, the disability comes to Rs.1,00,800/-

[2,52,000X40/100]. The Tribunal has rightly awarded Rs.15,000/-

towards pain and suffering, Rs.20,000/- towards loss of amenities

and Rs.2,000/- towards transportation, thus, the total amount comes

to Rs.1,37,800/- [1,00,800+15,000+20,000+2,000].

12. Admittedly, as per Ex.A-3/wound certificate, the appellant

sustained two grievous injuries, namely, fracture to Acetabulam

and fracture of head of femur, but the Tribunal has not awarded

any compensation for those grievous injuries. This Court is of the

considered view that the appellant is entitled for Rs.6,000/- per

each grievous injury and therefore, Rs.12,000/- for both the

grievous injuries. The Tribunal has awarded an amount of

Rs.12,000/- towards loss of earnings during the period of

treatment, which, according to this Court, is reasonable amount.

GAC, J MACMA.No.227 of 2012

The appellant claimed an amount of Rs.35,000/- towards medical

expenses, but the Tribunal has granted Rs.2,964/- only, on the

ground that bills to that effect were not produced by the

appellant/claimant. The Tribunal has further recorded a finding

that the claimant was treated in MGM hospital, Warangal, where

treatment is provided on free of cost. It is relevant to mention here

that though treatment is provided on free of cost, the patients will

be asked to purchase medicines with their own money, when such

medicines are not available in the hospital, and therefore, in view

of the grievous injuries sustained in the accident, the appellant

might have incurred some amount for purchasing medicines.

Further, the evidence of PW-2, who is none other than the Doctor

who treated the appellant, discloses that he prescribed medicines to

the appellant as mentioned under Ex.A-6/prescriptions. In view of

the same, even in the absence of bills, this Court can construe that

the appellant might have incurred some medical expenses, and

hence, a further sum of Rs.10,000/- can be awarded towards

medical expenses, totalling to Rs.12,964/-. Further, the Tribunal

has not awarded any amount towards extra-nourishment and this

GAC, J MACMA.No.227 of 2012

Court is of the considered view that a reasonable sum of Rs.5,000/-

can be granted towards extra-nourishment charges. Thus, the total

compensation amount comes to Rs.1,79,764/- [1,37,800+12,000+

12,000+12,964+5,000] and the same is rounded off to

Rs.1,80,000/-. Admittedly, there is no dispute as far as the

Insurance Policy is concerned, however, the Court did not fix

liability on the Insurance Company, holding that the appellant is a

gratuitous passenger.

13. Accordingly, the appeal is partly allowed with costs,

granting a total compensation of Rs.1,80,000/- with interest at the

rate of 8% per annum from the date of filing of original petition till

the date of realisation, payable by respondent Nos.1 and 2 jointly

and severally within a period of two months from the date of

receipt of a copy of this order. It is further directed that the 2nd

respondent/Insurance Company shall first pay the total

compensation as directed above, to the appellant and later can

recover the same from the 1st respondent/owner of the vehicle by

applying the principle of "pay and recover".

GAC, J MACMA.No.227 of 2012

14. Pending miscellaneous applications, if any, shall stand

closed.

_________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 06.04.2022

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