HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.Nos.2025 of 2006 and 3347 of 2012
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2025 of 2006 filed by the claimant
seeking enhancement of compensation and M.A.C.M.A.No.3347 of
2012 filed by the New India Insurance Company Limited, are
directed against the very same judgment and decree, dated
30.01.2006, passed in O.P.No.1664 of 2001 on the file of the Motor
Accidents Claims Tribunal (District Judge), Nizamabad.
For the sake of convenience, the parties will hereinafter be
referred to as arrayed before the Tribunal.
The brief facts of the case are that on 29.03.2001 at about 5.30
P.M., the claimant, one Dr.Ashok Reddy and Bhooma Reddy were
traveling in the Fiat Car bearing No.DL-2/CE-4245 from Hyderabad
to Nizamabad and when they reached Market Yard, Ramayampet
Village, one lorry came from opposite direction and in order to
avoid the accident, the claimant, who drove the Car, turned the Car
to the left side and hit to a tamarind tree situated adjacent to the
road, due to which, the claimant and other inmates of the Car
sustained injuries. The claimant sustained fracture injuries to left
thigh, left leg and injuries to hands, head and multiple and grievous
injuries on various parts of the body. He spent Rs.90,000/- for his
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treatment. Therefore, the claimant filed the above O.P. under
Section 166 of the Motor Vehicles Act, claiming compensation of
Rs.5,00,000/-.
The 1st respondent-owner of the Car filed written statement
denying the averments in the petition including the mode and
manner of the accident, age, income and vocation of the claimant
and also the treatment taken by him. It is further stated that the
person, who drove the Car, was holding valid driving licence, the
said Car was insured with the 2nd respondent and that there is no
liability on the part of the 1st respondent as per the terms and
conditions of the policy. It is also stated that the claim is highly
excessive, arbitrary and out of all proportions and prayed to dismiss
the same.
The 2nd respondent-Insurance Company filed written
statement denying the averments of the claim-petition, involvement
of the Car in the accident, manner in which the accident took place,
age, occupation and income of the claimant, nature of injuries
sustained by him and also the expenditure incurred for his
treatment. It is further denied that claimant, who drove the Car, was
holding valid driving licence at the time of accident. It is also denied
that the Car was insured with the Insurance Company covering the
risk of the passengers involved in the accident and contended that 3
Macma_2025_2006 and 3347_2012
the owner of the Car has not intimated the Insurance Company
about the accident. It is further contended that unless it is proved
that the claimant was involved in the accident and the said Car was
insured with the Insurance Company and the person, who drove the
vehicle at the time of accident, was holding valid driving licence, the
Insurance Company is not liable to pay compensation and prayed to
dismiss the petition.
Basing on the above pleadings, the Tribunal framed the
following issues:
1) Whether the accident has taken place due to rash and negligent driving of the vehicle bearing No.DL-2/CE-4245 by its driver?
2) Whether the claimant is entitled for compensation? If so, to what just amount and against whom?
3) To what relief?
During trial, on behalf of the claimant, P.Ws.1 and 2 were
examined and Exs.A1 to A10 and Ex.C1 were marked. On behalf of
the respondents, no oral evidence was adduced, but Exs.B1 to B5
were marked.
After considering both oral and documentary evidence
available on record, the Tribunal came to the conclusion that the
accident occurred due to the rash and negligent driving of the driver
of the Car and accordingly awarded total compensation of 4
Macma_2025_2006 and 3347_2012
Rs.1,07,505/- under various heads, with interest @ 7.5% per annum.
Challenging the same, the present Appeals came to be filed by the
claimant and the Insurance Company.
Heard the learned Counsel appearing on either side and
perused the material available on record.
The main ground urged by the learned Counsel for the
claimant is that the compensation awarded by the Tribunal is on
lower side. Though the claimant has spent Rs.90,000/- towards
medical treatment, the Tribunal has awarded only a sum of
Rs.77,505/-. It is also contended that though P.W.2 has stated that
the claimant has sustained 50% disability, without considering the
same, the Tribunal has awarded only Rs.25,000/- towards disability.
It is further contended that amount awarded under the head of pain
and suffering at Rs.5,000/- is meager as the claimant took treatment
for a period of four days. It is also contended that the Tribunal
ought to have awarded adequate amount for future treatment as the
claimant has to undergo another operation for removal of the plates
and screws. Therefore, he prayed to enhance the compensation
awarded by the Tribunal.
Per contra, learned Counsel appearing for the Insurance
Company submits that the claimant was an inmate of a private car
and the risk of such person is not covered by the policy since it is an 5
Macma_2025_2006 and 3347_2012
'Act Policy'. In order to substantiate the said fact, he relied upon
the decision of the Apex Court in Ramkhiladi and another v. United
India Insurance Co. Ltd. And another1. It is further contended that
the claimant is not a third party, but he was an inmate of the car and
as the policy is an 'Act Policy', the insurer is not liable to indemnify
the owner of the vehicle. Therefore, prayed to allow the appeal
filed by the Insurance Company by exonerating its liability.
A perusal of the material available on record, the accident in
question is not in dispute, so also the involvement of the offending
vehicle insured with insurer.
In order to award compensation in case of personal injuries,
the Apex Court in Raj Kumar Vs. Ajay Kumar and another2 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)
1 2020 ACJ 27 2 MACD 2011 (SC) 33 6
Macma_2025_2006 and 3347_2012
(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 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)."
In the light of the principles laid down in the aforementioned
case, it is suffice to say that in determining the quantum of
compensation payable to the victims of accident, who are disabled
either permanently or temporarily, efforts should always be made to
award adequate compensation not only for the physical injury and
treatment but also for the loss of earning, inability to lead a normal 7
Macma_2025_2006 and 3347_2012
life and enjoy amenities, which would have been enjoyed but for
disability caused due to the accident.
As could be seen from the impugned judgment, P.W.2-Doctor,
who treated the claimant, deposed that the claimant was admitted in
the Apollo Hospital on 30.03.2001 with dislocation of left hip,
fracture of posterior hip acetabulum, reduction of posterior and
dislocation of left hip and Ex.A3-Wound Certificate and Ex.A4-
discharge summary were issued by Apollo Hospital. He further
deposed that the claimant needs another surgery for the injury for
total hip replacement for which approximate expenditure would be
Rs.1,60,000/-. P.W.2 also assessed the disability to the extent of
50%. Even in the absence of any documentary evidence with regard
to the income of the injured, the Tribunal has to keep in view an
overall consideration of the factors such as the avocation of the
injured, the period of treatment and the wages that were prevalent
during that particular period while determining the notional
income. Since the claimant failed to produce any documentary
evidence to show his earnings, I feel that if the income is taken at the
rate of Rs.3,000/- per month, it would meet the ends of justice.
Insofar as the disability is concerned, P.W.2 has specifically
deposed that because of the fractures suffered by the claimant, he
has suffered partial permanent disability at 50%. If the income is 8
Macma_2025_2006 and 3347_2012
taken at Rs.3,000/- per month, the disability at 50% and the
multiplier of '15' is adopted, the claimant is entitled to an amount of
Rs.2,70,000/- (Rs.3,000/- x 12 x 15 x 50%) towards disability.
Admittedly, the claimant has sustained two fracture injuries and he
took treatment for a period of four days and P.W.2 also supported
the fractures sustained by the claimant and the treatment taken by
him, but the Tribunal did not award any amount towards attendant
charges, extra nourishment and transportation charges etc. The
Tribunal awarded Rs.5,000/- only towards pain and suffering which
appears to be on lower side. In the facts and circumstances of the
case, this Court feels that the claimant is entitled to the following
amount towards compensation under various heads:
Sl. Name of Head Awarded by Awarded by this
No. Tribunal Court
Rs. Ps. Rs. Ps.
1. Towards disability 25,000.00 2,70,000.00
2. Attendant charges -- 2,000.00
3. Extra nourishment -- 5,000.00
4. Transportation --- 5,000.00
5. Pain and suffering 5,000.00 20,000.00
6. Medical Expenses 77,505.00 77,505.00
TOTAL 1,07,505.00 3,79,505.00
The contention of the learned Counsel for the Insurance
Company is that the Tribunal failed to see that the Car involved in
the accident was insured only under Act policy and hence the
Insurance Company is not liable to pay the compensation. 9
Macma_2025_2006 and 3347_2012
A perusal of the written statement filed by the Insurance
Company shows that there is no specific pleading that Ex.B4 is an
Act policy and further no oral evidence has been adduced to prove
that Ex.B4 is an Act policy. Without any pleading, the Insurance
Company cannot succeed in the appeal on the ground that the
policy does not cover the risk of the passengers traveling in the car
and thus, the insurance company miserably failed to prove that
Ex.B4 is an Act policy. Further, the Tribunal has categorically
observed that Ex.B4-copy of policy would show that the Fiat Car
No.DL-2/CE-4245 belonging to M/s. Tata Press Limited, was
insured with the Insurance Company and the policy was valid from
28.02.2001 to 27.02.2002 and since the accident took place on
29.03.2001, the Tribunal has rightly held that as on the date of the
accident, the Fiat Car involved in the accident was insured with the
Insurance Company and the policy was valid and subsisting.
Therefore, in the absence of any pleading in the written statement,
this Court is of the view that the Tribunal has rightly held that both
the insured and insurer are liable to pay the compensation to the
claimants.
Accordingly, M.A.C.M.A.No.3347 of 2012 filed by the
Insurance Company is dismissed and M.A.C.M.A.No.2025 of 2006
filed by the claimant is allowed in part by enhancing the 10
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compensation amount awarded by the Tribunal from Rs.1,07,505/-
to Rs.3,79,505/-. The enhanced amount will carry interest at 7.5%
p.a. from the date of order passed by the Tribunal i.e. 30.01.2006 till
the date of realization, payable by respondents 1 and 2 jointly and
severally. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRI DEVI
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