United India Ins Co Ltd., ... vs K Kranti, Nizamabad Anr
2023 Latest Caselaw 1633 Tel

      HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         M.A.C.M.A.Nos.175 of 2017 and 402 of 2017

COMMON JUDGMENT:

      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.175 of 2017 filed by the claimant

and M.A.C.M.A. No. 402 of 2017 filed by the United India

Insurance Company Limited, are directed against the very same

order and decree, dated 23.09.2016 made in O.P.No. 89 of 2008

on the file of the Motor Accident Claims Tribunal-cum-III

Additional District Judge, Nizamabad(for short "the Tribunal").


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

referred to as per their array before the Tribunal.


3.    Brief facts of the case are that the claimant, aged about

19 years, has filed a petition, through his father, under Section

166 of the Motor Vehicles Act, 1994, claiming compensation of

Rs.35,00,000/- for the injuries suffered by him in a motor

vehicle accident occurred on 04.07.2007. According to the

claimant, on 04.07.2007, while he was travelling in the auto

bearing No. AP 23U 5059 from Pregnapur to Gajwel, at about

8:45 p.m., when the auto reached near Gajwel Petrol Pump, the

driver drove the auto in a rash and negligent manner and

dashed against the Tractor bearing No. AP 26Y 6265.          As a
                                2



result, the claimant sustained multiple grievous injuries and

fractures.   He was in coma and was treated at different

hospitals and had incurred Rs.3.00 lakhs towards medical

expenses, nursing and nourishing. At the time of accident, he

was hale and healthy and was pursuing B. Tech course and as a

result of injuries and fractures, he had sustained permanent

disability. Therefore, he laid a claim for Rs.35.00 lakhs against

the respondent No. 1, owner of the auto and respondent No. 2,

Insurance Company of the Auto.

4. Before the Tribunal, while respondent No.1 remained

ex parte, respondent No.2-Insurance Company filed its counter

denying all the averments in the claim-petition, including the

manner in which the accident took place, age, avocation,

earning capacity of the claimant, medical expenditure incurred.

It is the specific contention of the Insurance Company that there

was contributory negligence on the part of the claimant as he

was sitting by the side of the driver of the auto at the time of

accident. It is further contended that the driver was not holding

valid driving license and that the compensation claimed is

excessive and exorbitant.

5. Considering the averments in the claim petition, counter

and both the oral and documentary evidence brought on record,

the Tribunal has allowed the O.P. in part awarding

compensation of Rs.14,31,400/- with costs and interest at 6%

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

realization payable by both the respondents. Challenging the

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

well as the Insurance Company respectively.

6. Heard the learned counsel for the claimant and learned

Standing Counsel for the Insurance Company. Perused the

material available on record.

7. It is contended by the learned counsel for the claimant

(appellant in MACMA No. 175 of 2017) that inasmuch as the

claimant was B. Tech student at the time of accident, the

monthly income fixed by the Tribunal at Rs.5,000/- is very low

and needs to be enhanced to Rs.12,000/- per month. Further,

considering the injuries suffered by the claimant, the Tribunal

ought to have taken the permanent disability at 100% but not

83%. Even the loss of future earnings awarded by the Tribunal

are on lower side. The amount of Rs.1,00,000/- awarded by the

Tribunal under the heads of injuries, shock, pain & suffering is

meagre. Therefore, he prayed to enhance the compensation by

allowing the appeal.

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

Insurance Company (appellant in MACMA No. 402 of 2017) has

contended that the Tribunal ought not to have relied on the

evidence of P.W.1, father of the claimant, as he was not

eyewitness to the accident. There was no record to prove that

the claimant was under Coma for seven months and that the

disability assessed by the Tribunal at 83% is also on higher

side. It is contended that there was contributory negligence on

the part of the claimant as he was sitting by the side of the

driver of the auto at the time of the accident. It is contended

that admittedly, the claimant had taken treatment at Gandhi

Hospital, wherein the treatment is at free of cost and in the

absence of any comprehensive evidence in relation to medical

expenses, the Tribunal ought not to have awarded a lumpsum

amount of Rs.4,35,000/- towards medical treatment. It is lastly

contended that the seating capacity of the auto is 3+1, but at

the time of accident, total six passengers were travelling in the

auto and therefore, as the auto was overloaded, there was

violation of terms and conditions of the policy and the liability

ought to have been fixed on the owner of the auto alone by

exonerating the Insurance Company.

9. A perusal of the impugned order discloses that the

Tribunal having framed Issue No.1 as to whether the accident

occurred on 4.7.2007 at about 8.45 p.m. due to rash and

negligent driving of the driver of auto bearing No. AP-23-U-5059,

and having considered the evidence of P.W.5, another inmate of

the auto, coupled with the documentary evidence, Ex.C.1, copy

of FIR and Ex.C.2, copy of Charge Sheet, has categorically

observed that the accident occurred only due to the rash and

negligent driving of the driver of the Auto and has answered the

issue in favour of the claimant and against the respondents.

Seeking exoneration of liability from the payment of

compensation, the learned Standing Counsel for the Insurance

Company firstly contends that as per Ex.C.2, Charge Sheet, the

auto was overloaded than the permitted seating capacity and

therefore, there is violation of terms and conditions of the policy

by the owner of the Auto. Secondly, it is contended that the

driver of the Auto was not holding any valid driving licence as

on the date of accident. However, no evidence in this regard is

let in by the Insurance Company except examining its employee

as R.W.1. During the course of cross-examination, R.W.1

admitted that that the charge sheet does not reflect that the

accident was caused due to the overload of the Auto. Therefore,

this Court finds no force in the above contentions advanced by

the learned Standing Counsel. Even as regards the contributory

negligence, the evidence of P.W.5, eyewitness to the accident,

clearly discloses that the accident occurred only due to the rash

and negligent driving of the Auto by its driver. Though he was

cross-examined at length, no contra evidence was elicited to

discredit his testimony. Therefore, I see no reason to interfere

with the findings of the Tribunal that the accident occurred due

to the rash and negligent driving of the driver of the offending

vehicle.

10. As regards the quantum of compensation, Ex.C.3, injury

certificate, discloses that the claimant suffered one laceration,

fracture of frontal bone and one crush injury at right ankle.

Ex.C.4, Inpatient Record issued by Gandhi Hospital, discloses

that the claimant was admitted in Gandhi Hospital on

05.07.2007 for head injury and was discharged on 22.08.2007.

The medical record further discloses that there was loss of

consciousness and nasal bleeding, fracture of left frontal bone

with cerebral edema for which he was operated. P.W.2, Dr. Sib

Kumar @ Sohel, the then Neurosurgeon at Gandhi Hospital,

deposed that "on 5-7-2007 patient by name K. Kranthi (petitioner)

was admitted with history of loss of consciousness and on

examination he found Glasgow Coma scale (GCS) was E1 M2 Vi

bilateral pupils 1.5 mm sluggishly reacting to right white stable

and CT scan of brain showed compound fracture of left frontal

bone, cerebral edema and diffused axenil injury to brain...". He

further deposed that the treatment was uneventful. Ex.C.6 is

the disability certificate issued by District Medical Board,

Nizamabad, showing 83% disability suffered by claimant

because of mental illness caused by the accident. To prove

Ex.C.6, P.W.4, the member of Medical Board, who is a signatory

to Ex.C.6, was also examined. Considering Ex.C.6 and the

evidence of P.W.4, this court is of the view that the Tribunal has

rightly accepted the disability of the claimant at 83%. The

evidence of P.W.3, Physiotherapist, is to the effect that he

treated the claimant from March 2010 to June 2010 and Ex.C.9

is the bill issued by him. P.W.6 deposed that he was being paid

Rs.100/- per day for engaging his auto for taking the claimant

to Sanjeevani Hospital, Nizamabad for treatment since 2010 till

11.03.2016. Considering the said evidence and the medical

bills covered by Exs.C.8 and C.9, this Court is of the view that

the amount of Rs.4,35,000/- awarded by the Tribunal towards

hospital & medical expenses, transportation, extra nourishment

and attendant expenses is reasonable and needs no

interference. Even the amount of Rs.1,00,000/- awarded by the

Tribunal under the heads 'injury, shock, pain & suffering' is

reasonable and needs no interference. Considering the age of

the claimant as 19, considering his educational qualifications as

reflected under Ex.C.11, certificate of ECE; Ex.C.12, TC from

the Institute of Aeronautical Engineering and Ex.C.13, E-Cet

Rank Card, the fixation of income of the claimant at Rs.5,000/-

per month by the Tribunal is on lower side and needs to be

enhanced. This Court, taking into account the educational

qualifications of the claimant, is inclined to fix his monthly

salary at Rs.8,000/-. Therefore, by applying multiplier '18', the

loss of future earnings of the claimant comes to Rs.14,34,240/-

(Rs.8,000 x 12 x 18 x 83/100). Thus, the total loss of future

earnings due to disability of the claimant is enhanced from

Rs.8,96,400/- to Rs.14,34,240/-. Hence, the total

compensation payable to the claimant comes to Rs.19,69,240/-.

11. Accordingly, M.A.C.M.A.No.175 of 2017 filed by the

claimant is allowed in part enhancing the quantum of

compensation from Rs.14,31,400/- to Rs.19,69,240/- payable

by the respondent Nos. 1 & 2 jointly and severally. The MACMA

No.402 of 2017 filed by the Insurance Company is dismissed.

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

date of filing of the O.P. till the date of realization. Respondents

are directed to deposit the said amount within two months from

the date of receipt of a copy of this judgment. On such deposit,

the claimant is permitted to withdraw the entire compensation

amount. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________ M.G.PRIYADARSINI,J 13.04.2023 Tsr

HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A.Nos.175 of 2017 and 402 of 2017

DATE: -04-2023