B Venkataeshwar Reddy vs Golla Parameshwar Rao Another
2022 Latest Caselaw 7017 Tel

     HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                 M.A.C.M.A. No.4243 of 2014

JUDGMENT:

Being not satisfied with the quantum of

compensation awarded in the order and decree, dated

12.08.2014, made in M.V.O.P.No.2850 of 2011 on the file

of the Motor Accidents Claims Tribunal-cum-XIII

Additional Chief Judge (Fast Track Court), City Civil Court,

Hyderabad (for short "the Tribunal"), the appellant/

claimant preferred the present appeal seeking

enhancement of the compensation.

2. The facts, in issue, are as under:

The appellant filed a petition under Section 166 of the

Motor Vehicles Act claiming compensation of

Rs.10,00,000/- for the injuries sustained by him in a road

accident that occurred on 04.09.2011. According to the

appellant, on the fateful day, while he was proceeding in

the offending vehicle i.e., Auto bearing No.AP 07Y 6075,

owned by respondent No.1 and insured with respondent

No.2, from Rudravaram village to Dulipala and when the

auto reached the outskirts of Dulipala, the driver drove the

auto in a rash and negligent manner at high speed, lost

control over the auto, as a result, the auto turned turtle.

The appellant sustained grievous injuries and he was

shifted to Government Hospital, Sattenapally. According to

the appellant, due to the injuries sustained by him, he

suffered permanent disability and he is unable to carry on

his regular duties. Therefore, the appellant laid the claim

against the respondents, seeking compensation.

3. After considering the claim and the counter filed by

respondent No.2, and on evaluation of the evidence, both

oral and documentary, the learned Tribunal has partly

allowed the O.P. and awarded compensation of

Rs.6,00,000/- with interest at 7.5% per annum. However,

as there was violation of terms and conditions of the policy,

the Tribunal invoking the doctrine of pay and recover

directed respondent No.2 to pay the compensation amount

at the first instance and then recover the same from

respondent No.1. Challenging the quantum of

compensation awarded, the present appeal is filed by the

appellant/claimant.

4. Heard learned counsel for the appellant and learned

Standing Counsel for respondent No.2.

5. Learned counsel for the appellant mainly submits

that the quantum of compensation awarded by the

Tribunal is on lower side and seeks enhancement of the

same as he suffered 89% permanent disability due to

spinal injury, the Tribunal ought to have accepted the

same considering the evidence of P.Ws.2 and 3 and

Ex.A14, disability certificate, issued by the Medical Board,

Guntur. Therefore, prayed to enhance the compensation

duly taking the disability at 89%.

6. Per contra, the learned Standing Counsel for the

Insurance Company submits that the quantum of

compensation awarded by the Tribunal is based on

evidence and the same needs no interference.

7. The finding of the Tribunal with regard to the manner

in which the accident took place has become final as the

same is not challenged either by the owner or insurer of

the vehicle.

8. The short question that arises for consideration is

"whether the compensation awarded by the Tribunal is just

and equitable"?

9. In order to establish his case, the appellant examined

himself as PW.1 and the Doctors, who treated him, as

P.Ws.2 and 3. In support of the injuries as well as the

disability sustained by him, the appellant got marked

Ex.A.14, disability certificate, issued by the Medical Board,

Guntur. P.W.2, the Orthopedic Surgeon, deposed that the

appellant was admitted in their hospital for spinal card

injury, that he was operated on 06.09.2008 and was

discharged on 15.09.2008. The evidence of P.W.3, the

doctor E.Rajendra Kumar, is that the appellant was

diagnosed with C5, C6, traumatic Disc Prelapse with

neurological injury. He further deposed that the appellant

underwent surgical management in Vijaya Health and was

referred to him for rehabilitation and physiotherapy for two

months. He further deposed that due to the injuries, the

appellant was unable to do any hard work, including

agriculture work. As seen from Ex.A14, disability

certificate, issued by the Medical Board, Guntur, the

appellant suffered 89% permanent disability due to the

injuries suffered to the spinal card. Merely because non-

examination of the member of the Medical Board, who

issued the Ex.A14, disability certificate, the Tribunal ought

not to have brushed aside the same. Therefore,

considering the evidence of P.Ws.1 to 3 and Ex.A14, this

Court is inclined to accept the disability suffered by the

appellant at 89%.

10. As regard the income, according to the appellant, he

was 54 years and was agriculturist. Therefore, considering

the age and avocation of the appellant, this Court is

inclined to fix the income of the appellant at Rs.60,000/-

per annum. As the age of the appellant at the time of

accident was about 54 years, the appropriate multiplier in

view of the judgment of Sarla Verma Vs. Delhi Transport

Corporation1, is '11'. Therefore, adopting the said

multiplier the loss of earnings on account of the disability

comes to Rs.60,000/- x 11 x 89/100 = Rs.5,87,400/-.

Further, the amount of Rs.1,00,000/- awarded for injuries;

Rs.30,000/- towards pain and suffering, mental agony;

Rs.1,00,000/- towards extra nourishment, travelling and

attendant charges and Rs.2,20,000/- towards medical

expenses are not interfered with. Thus, in all the appellant

is entitled to a sum of Rs.10,37,400/- as compensation.

2009 ACJ 1298

11. At this stage, the learned Counsel for the Insurance

company submits that the appellant claimed only a sum of

Rs.10,00,000/- as compensation and the quantum of

compensation which is now awarded would go beyond the

claim made which is impermissible under law.

12. In view of the Judgments of the Apex Court in

Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another2 and

Nagappa Vs. Gurudayal Singh3 the appellant is entitled

to get just compensation even if it is more than the amount

what was claimed by the claimant.

13. Insofar as the liability is concerned, as per the charge

sheet, Ex.A2, the driver of the offending vehicle was

chargesheeted for the offence punishable under Section

181 of the M.V.Act and that the auto was overloaded than

the permitted seating capacity and therefore, there was

clear violation of terms and conditions of the policy. It is

well settled law that even if, passenger vehicle is

overloaded, the Insurance Company is not totally absolved

of its liability to indemnify the owner. In United India

(2011) 10 SCC 756

2003 ACJ 12 (SC)

Insurance Co. Ltd. v. K.M. Poonam and others4, and

National Insurance Co. Ltd. v. Tulna Devi and others5,

though the vehicle was carrying passengers in excess of the

number of passengers permitted, which was beyond the

terms of the contract, the Supreme Court had applied the

principle of pay and recover. Therefore, in the light of the

judgments of the Apex Court referred to above, the

Tribunal has rightly invoked the doctrine of pay and

recover and rightly directed the insurance company to pay

the compensation amount at the first instance and then

recover the same from the owner of the vehicle, which

needs no interference by this Court.

14. Accordingly, the appeal is allowed by enhancing the

compensation from Rs.6,00,000/- to Rs.10,37,400/- . The

enhanced amount shall carry interest at 7.5% p.a. from the

date of petition till the date of realization. The appellant is

directed to pay Deficit Court Fee on the enhanced amount.

However, following the doctrine 'pay and recover', the

Insurance Company is directed to pay the compensation

amount to the appellant, at the first instance and

thereafter recover the same from the owner of the offending

2011 ACJ 917

2009 ACJ 581

vehicle i.e., the respondent No.1 without initiating any

separate proceedings, as was directed by the tribunal. Time

to deposit the compensation is two months from the date of

receipt of a copy of this judgment. There shall be no order

as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

27.12.2022 tsr

HONOURABLE JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.4243 of 2014

DATE: -12-2022