Kini Rajanna, Nizamabad Dist vs Chakali Bajanna, Nizamabad Dist 3 ...
2022 Latest Caselaw 5251 Tel

           HONOURABLE JUSTICE M.G. PRIYADARSINI

          M.A.C.M.A.Nos.2005 of 2015 and 2027 of 2015

COMMON JUDGMENT:


      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.2005 of 2015 filed by the

claimant-injured and M.A.C.M.A.No.2027 of 2015 filed by the

Insurance Company assailing the quantum of compensation,

are directed against the very same order and decree, dated

08.07.2015 made in M.V.O.P.No.726 of 2010 on the file of the

Motor Accidents Claims Tribunal-cum-Additional District Judge

at Nizamabad (for short "the Tribunal").


2.    For the sake of convenience, the parties hereinafter will be

referred to as arrayed before the Tribunal.


3.    Brief facts of the case are that the claimant filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

against      the   respondents    claiming    compensation      of

Rs.8,00,000/- for the injuries sustained by him in the motor

vehicle accident that occurred on 11.07.2010. According to

him, on the fateful day, at 10:30 a.m., while he was travelling in

auto bearing No. AP 25V 5022 from Nandipet to Donkeshwar,

and when the auto reached near Ashram turning in Shapur

MGP, J Macma_2005_2015 and 2027_2015

Village Shivar, the driver drove the auto in rash and negligent

manner and dashed the auto bearing No. AP 25V 7236, coming

in opposite direction, owned by respondent No. 1 and insured

with respondent No. 2, being driven by its driver in rash and

negligent manner. Due to the accident, the claimant sustained

multiple grievous injuries and his left leg and right foot were

amputated. He was treated as inpatient at Shashank Hospital,

Nizamabad where he was also underwent operation by incuring

Rs.3.00 lakhs. Respondent Nos. 1 & 2 are the owner and

insurer of auto bearing No. AP 25V 7236 and respondent Nos. 3

& 4 are the owner and insurer of the auto bearing No. AP 25V

5022. Claiming that both the drivers were rash and negligent in

driving the autos which resulted in causing the accident, the

claimant laid the claim against the respondents for Rs.8.00

lakhs.

4. Before the tribunal, while the owners of the autos

remained ex parte, the Reliance General Insurance Company,

which happened to be the same insurance company for both the

autos, being respondent Nos. 2 & 4, filed written statement

resisting the claim petition. Considering the claim and the

written statement filed by the insurance company, and on

MGP, J Macma_2005_2015 and 2027_2015

evaluation of the evidence, both oral and documentary, the

learned Tribunal has allowed the O.P. awarding compensation of

Rs.9,92,340/- with 7.5% interest per annum to be paid by the

respondent Nos. 1 to 4 jointly and severally. Challenging the

same, the present appeals came to be filed by the claimant and

the insurance company respectively.

5. The main contention of the learned counsel for the

appellant-claimant is that the claimant had suffered head

injury, crush injury to both the legs, grievous injuries on other

parts of the body and left leg was amputated as a result of

which, he had suffered permanent disability at 80%. He further

submits that the evidence of PW.2, doctor, coupled with Ex.A.4,

disability certificate, issued by the Medical Board, amply

established that the claimant sustained 80% permanent

disability as his left leg was amputated below the knee and it is

very difficult for him to do any work. Therefore, the learned

counsel for the claimant contends that the tribunal ought to

have awarded Rs.15.00 lakhs towards compensation. It is

further contended that as the claimant had lost his left leg

below knee level and became permanently disabled, the tribunal

MGP, J Macma_2005_2015 and 2027_2015

ought to have awarded certain amount under the head of loss of

amineties to life.

6. On the other hand, learned Standing Counsel for the

insurnace company would contend that the tribunal grossly

erred in fastening the liability on the insurer, even when there

was no valid and effective driving licence possessed by the driver

of respondent No. 1. It is further contended that the auto

bearing No. AP 25V 5022 was transport vehicle and as its driver

was possesssing license for only non-transport vehicle but not

transport vehicle, the tribunal ought not to have fastened

liability upon the insurance company to pay the compensation.

It is further contended that the amounts awarded by the

tribunal towards medical expenditure, transport charges and

pain & suffering are abnormal.

7. Heard the learned counsel for the claimant and the

learned Standing Counsel for the insurance company. Perused

the material available on record.

8. As seen from the impugned order, the tribunal while

considering the issue No. 1 "whether the accident occurred due

to contributory negligence of both drivers of autos", duly

MGP, J Macma_2005_2015 and 2027_2015

analysing the evidence of P.W.1, eyewitness, who is also an

injured, coupled with documentary evidence, Exs.A.1, FIR, and

Ex.A.2, Charge Sheet, and as there was no rebuttal evidence by

the insurance company, came to the conclusion that the

accident was occurred due to rash and negligent driving of both

the auto drivers. Therefore, I see no reason to interfere with the

finding of the Tribunal that the accident was occurred due to

the rash and negligent driving of both the drivers of the autos.

9. Coming to the contention of the learned Standing Counsel

for the insurance company that one of the drivers did not

possess any valid driving licence, as rightly observed by the

tribunal, no iota of evidence, except R.W.2, in this regard was

adduced by the insurance company and therefore, the tribunal

has rightly not considered the said claim. The other contention

of the insurance company is that the other driver i.e., driver of

the respondent No. 3 was holding license only to drive non-

transport vehicle and whereas the vehicle involved is a transpot

vehicle and therefore, the insurance company is not liable to

pay the compensation. The question as to whether the driver of

the vehicle holding licence to drive non-transport vehicle was

authorised to drive transport vehicle, is no longer res integra in

MGP, J Macma_2005_2015 and 2027_2015

view of the judgment in the case of Mukund Dewangan vs.

Oriental Insurance Company Limited and others1, wherein

the Apex Court held that "the mere fact that the driver who

possessed a licence to drive the light motor vehicle did not

possess a licence to drive heavy transport vehicle by itself would

not be sufficient to hold that the insurance company would be

absolved of its liability to pay compensation". In view of the

above clarification by the Apex Court, the said contention of the

learned Standing Counsel regarding non-possessing of transport

driving licence by the driver of respondent No. 3 and therefore, it

is not liable to pay the compensation does not merit

consideration and the same is rejected.

10. As regards the quantum of compensation, Ex.A.7, the

medical bills, reflect that the claimant had to purchase

medicines for the treatment by incuring Rs.1,47,340/-, which

has been rightly awarded by the tribunal. As regards the

disability sustaind by the claimant, as seen from Ex.A.3,

medical certifificate, the claimant's left leg was amputated upto

knee level. Ex.A.4 is the Disability Certificate issued by the

District Medical Board, which shows that due to the amputation

(2016) 4 SCC 298

MGP, J Macma_2005_2015 and 2027_2015

of left leg, the claimant had sustained 80% disability. Although

the claimant had claimed that he was getting annual income of

Rs.1,20,000/- from agricultural source, the tribunal has rightly

held that there was no actual loss from his agriculture source,

as it is only a supervisory loss. By placing Ex.A.10, salary

certificate, the claimant has claimed that he used to get

Rs.3,520/- per month as Village Revenue Assistant and he had

lost his job. Considering all these aspects, more particularly

medical evidence i.e., P.W.2, doctor and Ex.A.4, disability

certificate, the tribunal has awarded a sum of Rs.8.00 lakhs

towards permanent disability in lumpsum, which is just and

reasonable in the circumstances of the case. That apart, the

tribunal has adequately awarded a sum of Rs.20,000/- towards

transport charges; Rs.10,000/- towards pain and suffering and

Rs.15,000/- towards extra-nourishment. Thus, in all, the

tribunal has rightly awarded Rs.9,92,340/-, which is just and

reasonable compensation. However, in this case, the claimant

had lost his left left leg upto knee level and suffered 80%

disability. As far as loss of amenities and loss of expectation of

life is concerned, in Kavita v. Deepak and others2, the Apex

Court has held that victims of accident, who are disabled, either

(2012) 9 SCC 604

MGP, J Macma_2005_2015 and 2027_2015

permanently or temporarily, adequate compensation should be

awarded not only for the physical injury and treatment but also

for the loss of earning and inability to lead a normal life and

enjoy amenities, which one would have enjoyed had it not been

for the disability. The Supreme Court further held that the

amount awarded under the head of loss of earning capacity is

distinct and does not overlap with amount awarded for pain,

suffering, loss of enjoyment of life and medical expenses.

11. In the instant case, since the claimant has already

suffered various injuries and has sustained 80% disability

because of the amputation of left leg upto knee level, this Court

deems it fit to award a sum of Rs.1,00,000/- towards loss of

amenities and loss of expectation of life.

12. Accordingly, while dismising M.A.C.M.A.No.2027 of 2015

filed by the insurance company, the M.A.C.M.A.No.2005 of 2015

filed by the claimant is allowed in part by enhancing the

compensation awarded by the tribunal from Rs.9,92,340/- to

Rs.10,92,340/-. The enhanced amount shall carry interest at

7.5% p.a. from the date of the order passed by the Tribunal till

the date of realization, payable by respondent Nos. 1 to 4 in the

O.P. jointly and severally. Time to depoist the amount is two

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

deposit, the claimant is entitled to withdraw the amount without

depositing any security. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G.PRIYADARSINI .10.2022 tsr