M/S Shriram Gen Ins Co Ltd., ... vs M Ravinder, Karimnagar Dist Anr
2022 Latest Caselaw 5638 Tel

         HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                  M.A.C.M.A. No.1392 of 2017

JUDGMENT:

This appeal is filed by the Insurance Company aggrieved of

the order and decree dated 06.12.2016 in M.V.O.P.No.1111 of

2014 on the file of the XIII Additional Chief Judge (Fast Track

Court), City Civil Court, Hyderabad.

2. For the sake of convenience, the parties have been referred

to as arrayed before the Tribunal.

3. According to the petitioner, on 12-03-2014 at about 7-00

p.m., the petitioner was proceeding on his motorcycle after

completion of the teaching practice session from Husanabad to

Akkannapet and when he reached Thotapally bus stand, the auto

bearing No. AP.15.TB.2280 being driven by its driver came from

opposite direction in a rash and negligent manner with high speed

and dashed his motorcycle, due to which, he fell down on the road

and sustained grievous injuries and fractures. Immediately he

was shifted to Husnabad Government Hospital by 108 ambulance

for first aid and shifted to Government Hospital, Warangal and

MGP, J MACMA.No.1392 of 2017

again he was shifted to KIMS Hospital, Hyderabad. Thus, he is

claiming compensation of Rs.5,00,000/- under various heads.

4. Respondent No.1 remained ex parte. Respondent No.2 filed

counter disputing the manner of accident, nature of injuries

sustained by the petitioner, age, avocation and income of the

claimant and further contended that the claim is exorbitant and

sought for dismissal of the claim petition.

5. Based on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident took place due to the rash and negligent driving of the driver of Auto bearing no. AP.15.TB.2280?

     2)       Whether the petitioner is entitled to
              compensation and if so, from whom and if so
              to what extent?

     3)       To what relief?

6. In order to prove the issues, on behalf of the petitioner, the

petitioner examined himself as PW-1 and also got examined PWs.2

and 3 and got marked Exs.A1 to A14. On behalf of the respondent

No.2-Insurance Company, RW-1 was examined and Exs.B1 to B4

got marked.

MGP, J MACMA.No.1392 of 2017

7. On considering the oral and documentary evidence available

on record, the Tribunal has awarded an amount of Rs.16,59,000/-

towards compensation along with costs and interest at 9% per

annum from the date of petition till the date of deposit to the

appellant-claimant against the respondent Nos.1 and 2 jointly

and severally.

8. Heard the learned Standing counsel for the appellant-

Insurance Company and the learned Counsel for respondent No.1.

Perused the material available on record.

9. The learned counsel for the appellant-Insurance Company

has submitted that the Tribunal has erred in fastening the liability

on the appellant-Insurance Company; that there is no liability on

the Insurance Company, as the driver of the offending vehicle was

not having valid driving license and that the compensation

awarded by the tribunal is highly excessive. Accordingly, prayed

to set aside the impugned order in the O.P.

10. The learned Counsel appearing on behalf of respondent

No.1 sought to sustain the impugned award of the Tribunal

contending that considering the disability sustained by the

petitioner and the treatment taken by him, the learned Tribunal

MGP, J MACMA.No.1392 of 2017

has awarded reasonable compensation and the same needs no

interference by this Court.

11. With regard to the manner of accident, a perusal of the

impugned judgment shows that the tribunal having considered

the evidence of P.W.1, coupled with the documentary evidence,

has categorically observed that the accident occurred due to the

rash and negligent act of the driver of the offending vehicle and

has rightly answered the issue in favour of the claimant and

against the respondents. Therefore, I see no reason to interfere

with the finding of the Tribunal in this regard.

12. As per the evidence available on record, the evidence of

claimant/PW-1 and PW-2 coupled with the documentary evidence

shows that the petitioner sustained fracture of femur and 5 x 7 cm

boneless with grievous injuries over right forearm. PW-2 deposed

that he found that right knee of the petitioner has broken injury

measuring 7 x 3 cms. On the outer side of the knee and there was

one more open wound on the right leg measuring 3 x 1 cm. There

was a lot of condemnation on the thigh and leg wounds. Fracture

of femur was fixed with ilizarov ring fixation + corticotomy right

femur + debridment of the right thigh and right forearm. He

MGP, J MACMA.No.1392 of 2017

further stated that the petitioner sustained disability of 45% to

65%. Further he needs re-surgery for removal of plate, which may

costs Rs.80,000/- to Rs.1,00,000/-. Thus, considering the

evidence of PWs.1 and 2 coupled with the documentary evidence,

the tribunal rightly taken the disability sustained by PW-1 at 60%.

13. According to the petitioner, he was an M.B.A. student, B.Ed.

Teacher and taking up home tuitions and earning Rs.8,000/- per

month. Therefore, considering the age and avocation of the

petitioner, the tribunal rightly taken the income of petitioner at

Rs.8,000/- per month while calculating the compensation towards

the disability. As per the records, the claimant was aged about 29

years at the time of accident. Then the appropriate multiplier in

light of the judgment of the Apex Court in Sarla Verma v. Delhi

Transport Corporation1 would be "17". Thus, the future loss of

income due to 60% disability comes to Rs.8,000 x 12 x 17 x

60/100 = Rs.9,79,200/-, which the petitioner/claimant is entitled.

Thus the tribunal rightly awarded an amount of Rs.9,79,000/-

towards loss of income.

2009 ACJ 1298 (SC)

MGP, J MACMA.No.1392 of 2017

14. With regard to the medical expenses, PW-3 the doctor who

treated the petitioner deposed that the petitioner paid

Rs.1,32,000/- and Rs.1,76,489/- and also supported the bills,

which are in total for Rs.4,34,000/-. However, considering the

treatment taken by the petitioner and the amount spent by him,

the tribunal rightly awarded an amount of Rs.3,50,000/- towards

medical expenses, which is not disturbed. Further the tribunal

has also awarded Rs.50,000/- towards pain and sufferance and

mental agony and Rs.50,000/-towards extra nourishment,

traveling and attendant charges, which is very excessive and as

such, they are restricted to Rs.50,000/- towards pain and

sufferance, extra nourishment and transport charges. The

tribunal also awarded an amount of Rs.1,50,000/- for the past

and present and future loss of earnings, which is not considered

by this Court, since the tribunal already awarded Rs.9,79,000/-

towards loss of income. Therefore, in view of the above

calculation, in total, the claimant is entitled for Rs.13,79,000/-.

15. Learned counsel for the appellant-Insurance Company

submitted that the driver of the offending vehicle was not having

valid driving license and as such, they are not liable to pay

MGP, J MACMA.No.1392 of 2017

compensation to the petitioner. Except examining RW-1, there is

no rebuttal evidence produced by the respondents to show that

the driver of the offending vehicle was not having valid driving

license. Further Ex.A2 charge sheet discloses that the driver of

the offending vehicle was charged under Section 338 of Indian

Penal Code only and he was not charged for not having valid

driving license. Hence, the tribunal rightly held that the

respondents 1 and 2 are jointly and severally liable to pay

compensation to the petitioner.

16. Coming to the aspect of interest, the interest awarded by the

Tribunal is very excessive and as such, the rate of interest as

awarded by the tribunal at 9% is reduced to 7.5%.

17. In the result, the M.A.C.M.A. is partly allowed by reducing

the compensation amount awarded by the Tribunal from

Rs.16,59,000/- to Rs.13,79,000/-. The rate of interest awarded

by the tribunal at 9% is reduced to 7.5% p.a. from the date of

petition till the date of realization against the respondent Nos.1

and 2. The amount shall be deposited within a period of one

month from the date of receipt of a copy of this order. On such

deposit of compensation amount by the respondents, the claimant

MGP, J MACMA.No.1392 of 2017

is at liberty to withdraw the same without furnishing any security.

No costs.

Miscellaneous petitions, if any pending, shall stand closed.

______________________ M.G.PRIYADARSINI,J 04.11.2022 pgp