Telangana High Court

Reliance General Insurance Co ... vs B.Babu, Hyd Two Others on 18 July, 2022

Bench: P.Madhavi Devi

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                    M.A.C.M.A. NO.2584 OF 2017
                                  AND
                    M.A.C.M.A. NO.2680 OF 2017


                       COMMON JUDGMENT


      M.A.C.M.A.No.2584 of 2017 is filed by the injured/claimant,

while M.A.C.M.A.No.2680 of 2017 is filed by the insurance company.


2.    Brief facts leading to the filing of these appeals are that on

20.03.2015

, the injured while he was proceeding on his motor cycle

bearing registration No.AP 11H 8954 from Gajwel towards Pragnapur

side slowly on the extreme left side and when he reached near a gas

godown on the outskirts of Pragnapur, it is stated that another motor

cycle was coming in opposite direction and in order to avoid collision,

the claimant suddenly applied brakes, due to which his motor cycle

skidded on the road and the claimant fell down from the motor cycle

resulting in the lorry bearing registration No. AP 15V 3339 driven by its

driver in high speed running over the left hand of the claimant and due

to that, the claimant sustained crush injury of left hand, which ultimately

resulted in amputation of left hand above elbow. It is stated that he has MACMA Nos.2584 & 2680 of 2017

also sustained fracture of right hand, fracture of right fingers, fracture of

left ankle, fracture of left knee and other injuries all over the body. A

case in Crime No.84 of 2015 under Section 337 of IPC was registered

against the driver of the lorry at Gajwel Police Station. The claimant

was immediately taken to the Government Hospital, Gajwel and later

treated at various private hospitals and due to the crush injury of left

hand, amputation of left hand above elbow was done.

3. The claimant filed O.P.No.915 of 2015 on the file of the Motor

Accident Claims Tribunal-cum-II Additional Chief Judge, City Civil

Court, Hyderabad (for short "the Tribunal") seeking a compensation of

Rs.25,00,000/- for the injuries sustained by him in the motor vehicle

accident that occurred on 20.03.2015. The Tribunal has granted a

compensation of Rs.15,30,600/-. Against the award granting the said

compensation to the claimant/injured, the insurance company is in

appeal in M.A.C.M.A.No.2680 of 2017 and while seeking enhancement

of the compensation, the claimant/injured is in appeal in

M.A.C.M.A.No.2584 of 2017 before this Court.

4. The insurance company is challenging the award on the ground

that the Tribunal has not considered that the accident has occurred due MACMA Nos.2584 & 2680 of 2017

to the rash and negligent driving on the part of the claimant himself as

he was driving his motor cycle and while avoiding collision with

another motor cycle coming in opposite direction, he had applied sudden

brakes, due to which the motor cycle skidded on the road and thus the

accident has taken place.

5. The learned Standing Counsel for the insurance company, Sri T.

Mahendra Rao drew the attention of this Court to the narration of

sequence of incidents by the claimant as recorded in the order of the

Tribunal and submitted that it was due to the negligent driving of the

claimant himself that the accident has occurred and therefore, there was

no negligence on the part of the driver of the lorry and hence no

compensation ought to have been awarded by the Tribunal. He

submitted that even if some part of the accident is attributed to the

claimant, contributory negligence by the claimant should have been

considered by the Tribunal and compensation should be reduced

accordingly. In support of his contention, he placed reliance upon the

judgment of this Court in the case of Agnuru Jaya Ramulu Vs.

Mohammed Afzal Miyan and another1.

2006 ACJ 855 MACMA Nos.2584 & 2680 of 2017

6. The learned counsel for the claimant, Sri P. Ramakrishna Reddy,

on the other hand, submitted that there was no negligence on the part of

the injured and further that the driver of the lorry had admitted before

the police that he was guilty of the crime. He submitted that in such

circumstances, it cannot be said that the claimant was negligent, due to

which the accident has occurred. In support of his contentions, he placed

reliance upon the following decisions.

(1) G.Munirathnam Vs. Natwarlal Odhvaji Thakkar and

another2.

(2) Karri Nagapadma Sridevi and others Vs. Oriental Fire and

General Insurance Company Ltd. and others3.

(3) Repaka Rajya Laxmi and others Vs. Poldasari Komuraiah

and others4.

(4) Bimla Devi and others Vs. Himachal Road Trans. Corpn. and

others5.

2017 ACJ 904

2002 (1) ALT 44 (D.B.)

2009 ACJ 138

2009 ACJ 1725 MACMA Nos.2584 & 2680 of 2017

7. Having regard to the rival contentions and the material on record,

it is noticed that the Tribunal has framed issue No.1 as to whether the

accident took place due to the rash and negligent driving of the lorry

bearing registration No.AP 15V 3339 causing injuries to the claimant. It

is seen that after going through the copy of the FIR in Crime No.84 of

2015 of Gajwel Police Station and also the charge sheet, the Tribunal

has come to the conclusion that the accident has occurred due to the rash

and negligent driving on the part of the driver of the crime vehicle lorry.

It is noticed that before the Tribunal also, the insurance company had

taken the ground that the accident has occurred due to the fault and

negligence of the claimant himself and the Tribunal has taken into

consideration the contents of the charge sheet filed by the investigation

officer before the Tribunal after due investigation and also further the

copy of the judgment in C.C.No.299 of 2015 passed by the Judicial

Magistrate of First Class, Special Mobile Court at Medak that the driver

of the said lorry had admitted the charges framed against him and that

he was convicted for the offence under Section 338 IPC, to hold that the

accident was due to the rash and negligent driving on the part of the

driver of the crime vehicle. Though the learned counsel for the insurance

company vehemently argued and placed reliance upon the judgment of MACMA Nos.2584 & 2680 of 2017

this Court in the case of Agnuru Jaya Ramulu Vs. Mohammed Afzal

Miyan and another (1 supra), he has not been able to place any

evidence on record contrary to the findings of the Tribunal.

8. This Court finds that in the case of Agnuru Jaya Ramulu Vs.

Mohammed Afzal Miyan and another (1 supra), there was a mention

of the date of accident as intervening night of 12/13.07.1997, whereas

the evidence of a Professor at Government Hospital, Kurnool has stated

that he treated the injured on 12.07.1997 which created a doubt about

the date of the accident. The scene of accident panchanama was also not

produced and there was a head-on collision between the two vehicles

and therefore, the Court held that when there is head-on collision

between the two vehicles, the drivers of both the vehicles involved in

the accident are negligent. However, in the case before this Court, there

was no doubt with regard to the date of the accident or the nature of the

accident and it is not the case of head-on collision.

9. In the judgments cited by the learned counsel for the

claimant/injured, a Single Judge of this Court in the case of G.

Munirathnam Vs. Natwarlal Odhvaji Thakkar and another (2

supra) in similar circumstances, has taken note of the fact that the FIR MACMA Nos.2584 & 2680 of 2017

was lodged against the driver of the offending vehicle and also that the

charge sheet was filed against him and convicting him on his admission

of guilt and sentencing him to pay fine, all proved that the driver of the

offending truck was solely responsible for the accident.

10. The Hon'ble Supreme Court in the case of Bimla Devi and

others Vs. Himachal Road Trans. Corpn. and others (5 supra) has

held that strict proof of accident caused by a particular bus in a

particular manner may not be possible to be done by the claimants and

the claimants were merely to establish their case on the touchstone of

preponderance of probability and standard of proof beyond reasonable

doubt could not have been applied and therefore, there was no reason to

falsely implicate the driver and the conductor of the bus and accordingly

it was held that the driver of the bus was negligent and responsible for

the accident therein.

11. In the case of Karri Nagapadma Sridevi and others Vs.

Oriental Fire and General Insurance Company Ltd. and others (3

supra), it was held that the eye witness to the occurrence testified that

the accident occurred due to driving of lorry in a rash and negligent

manner by the driver of the lorry and when there was no rebuttal MACMA Nos.2584 & 2680 of 2017

evidence, the negligence of the lorry driver is proved and contributory

negligence recorded by the Tribunal is merely based on assumption as

against the cogent evidence of the eye witness.

12. In the case of Repaka Rajya Laxmi and others Vs. Poldasari

Komuraiah and others (4 supra), a scooterist could not notice stationed

vehicle in the dark and dashed against it from behind and sustained fatal

injuries. When the eye witness corroborated the claimants' version and

driver of the tractor-trailer, who is the best person to speak of

circumstances under which the accident occurred, did not appear in

witness box to contradict the testimony of the eye witness, it was held

that non-mentioning of name of the eye witness in the charge sheet

cannot be a ground to reject his testimony and the finding that the

accident has occurred due to the negligence of the driver of the tractor-

trailor is to be upheld.

13. In view of the above judgments and in the absence of any

evidence to the contrary, the contentions of the insurance company

cannot be accepted and the argument of the insurance company is thus

rejected.

MACMA Nos.2584 & 2680 of 2017

14. The other grounds raised in the appeal filed by the insurance

company are in relation to the compensation awarded to the claimant,

i.e., adopting Rs.6,000/- per month as the monthly income of the

claimant in the absence of any evidence to substantiate the same and for

awarding a sum of Rs.11,52,000/- towards loss of earning capacity due

to physical disability and awarding Rs.50,000/- towards compensation

for pain and suffering and awarding of Rs.1,00,000/- towards future

medical expenses and awarding interest at 7.5% per annum from the

date of the claim petition till the date of decree. Since the claimant is

also seeking enhancement of the compensation in his appeal, these

grounds will be dealt with along with the claimant's appeal.

15. The claimant is also seeking enhancement of the compensation by

adopting his monthly income at a higher figure of Rs.12,000/- per month

before the Tribunal. The learned counsel for the claimant herein

submitted that the injured was 35 years of age at the time of the accident

and was hale and healthy and he was working as maistry and earning

Rs.20,000/- per month. He submitted that due to the said accident, the

claimant became permanently disabled as he has lost his ability of doing

of work as maistry and due to various fractures sustained by him, he had

been bedridden for almost a year and got a permanent disability of MACMA Nos.2584 & 2680 of 2017

limping in walking and therefore, he has lost all his amenities and

enjoyment in life. He therefore sought increase of compensation by

adopting Rs.20,000/- as the monthly income of the claimant.

16. The claimant is also seeking compensation towards 100%

permanent disability and also for loss of earnings for further period as he

had to be bedridden for long time. The learned counsel for the claimant

also stated that the Tribunal has granted less compensation towards

medical bills and treatment expenses and also towards future medical

and treatment expenses. He also sought enhancement of compensation

towards pain and suffering, extra nourishment, attendant charges,

transportation, etc. He is also seeking application of multiplier 17 as

against 16 adopted by the Tribunal, as according to him, the claimant

was aged between 26 to 30 years and not 35 years as held by the

Tribunal.

17. Having regard to the rival contentions and the material on record,

it is noticed that the Hon'ble Supreme Court in the case of Shivakumar

M. Vs. Managing Director, Bengaluru Metropolitan Transport

Corporation6 has considered the possible income of a painter and has

(2017) 5 SCC 79 MACMA Nos.2584 & 2680 of 2017

held Rs.15,000/- per month as reasonable income. The petitioner therein

was 45 years of age. In the case before this Court, he was 35 years of

age and was a maistry. However, from the said judgment, the date of the

accident is not known and therefore, in the present case, it is deemed fit

and proper to adopt Rs.10,000/- as the monthly income of the claimant

and the compensation to be computed accordingly.

18. As regards the correct multiplier to be applied, it is seen that the

claimant has filed his identity card, i.e., Ex.A12, according to which, his

date of birth is mentioned as 20.04.1985. According to the said exhibit,

the claimant would be 29 years of age as on the date of accident, i.e.,

20.03.2015 and therefore he would be falling within the age group of 26

to 30 and the correct multiplier to be used is 17.

19. The claimant has lost future prospects because of amputation of

his left hand above elbow and also limping in walking and therefore, the

compensation towards loss of future prospects is to be awarded at 40%

of his earnings as per the judgment of National Insurance Co. Ltd. Vs.

Pranay Sethi and others7. It is ordered accordingly.

2017 ACJ 2700 MACMA Nos.2584 & 2680 of 2017

20. As regards the medical bills and hospitalisation, the sum of

Rs.30,600/- and Rs.50,000/- have been allowed. However, considering

that the claimant has incurred grievous injuries including amputation of

hand and fractures of both legs, the compensation awarded under these

heads is increased by a further sum of Rs.40,000/- (Rs.20,000/- +

Rs.20,000/-).

21. The Tribunal has awarded loss of income for three months,

whereas it is noticed that the claimant would have been under rest for

more than 3 months. Therefore, the compensation to be awarded under

this head is for 6 months.

22. Towards loss of amenities and ability to lead normal life and loss

of enjoyment of life, the compensation is further increased by a further

sum of Rs.25,000/- under each of the heads.

23. The appeals of the claimant/injured as well as the insurance

company are accordingly disposed of and the compensation shall be

paid by the insurance company to the claimant with interest at 7.5% per

annum from the date of the claim petition till the date of payment.

24. In the light of the abovementioned discussion, the claimant is

entitled to the following amounts:

MACMA Nos.2584 & 2680 of 2017

Head Compensation awarded

(1) Income Rs.10,000/- per month

(2) Future prospects Rs.4,000/- (40% of the income)

(4) Loss of future earnings due to permanent disability Rs.28,56,000/- (14,000x12x17)

(5) Expenditure for hospitalisation medicines, etc. Rs.50,600/-

(6) Expenditure for better nourishment, travel to and fro between home and hospital, attendance in hospital, etc. Rs.70,000/-

(7) Loss of income for 6 months        Rs.84,000/- (14,000x6)

(8) Loss of amenities and ability
    to lead normal life                Rs.75,000/-

(9) Loss of enjoyment of life          Rs.75,000/-

(10) For pain and suffering
   on account of grievous
   injuries as awarded by
   the Tribunal                        Rs.50,000/-

(11) For pain and suffering
   on account of simple
   injuries as awarded by
   the Tribunal                        Rs.30,000/-

(12) Future medical
   expenses as awarded by
   the Tribunal                        Rs.1,00,000/-
                                                 MACMA Nos.2584 & 2680 of 2017


   Total compensation awarded           Rs.33,90,600/- along with interest
                                        @ 7.5% per annum from the date
                                        of filing of the claim petition till
                                        payment.

25. In the result, the award dt.08.05.2017 in O.P.No.915 of 2015 on

the file of the Motor Accident Claims Tribunal-cum-II Additional Chief

Judge, City Civil Court, Hyderabad is modified by awarding a total

compensation of Rs.33,90,600/- (Rupees thirty three lakhs ninety

thousand and six hundred only) with costs and interest thereon at 7.5%

per annum from the date of the claim petition till the date of realisation

against both the insurance company and owner of the crime lorry jointly

and severally. As the compensation payable to the claimant as per law

was found to be higher than the original claim of Rs.25,00,000/-, the

enhanced compensation of Rs.8,90,600/- is granted subject to payment

of Court fee on such enhanced compensation. The insurance company

is directed to deposit the compensation amount awarded within 90 days