Khaneez Fathima vs Syed Asif Pasha
2023 Latest Caselaw 1637 Tel

     HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

             M.A.C.M.A.Nos.2031 and 2063 of 2018

COMMON JUDGMENT:
      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.2031 of 2018 filed by the claimant

seeking enhancement of compensation and M.A.C.M.A.No.2063 of

2018 filed by the United India Insurance Company Limited

challenging the quantum of compensation, are directed against the

very same award and decree, dated 04.05.2018 made in

M.V.O.P.No.2478 of 2013 on the file of the Chairman, Motor

Vehicle Accident Claims Tribunal-cum-XXVI Additional Chief

Judge, City Civil Courts, Hyderabad (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.    The facts, in issue, are as under:

      The claimant filed a petition under Section 166 of the Motor

Vehicles Act, 1988 against the respondents 1 and 2, who are owner

and insurer of the car bearing No. AP 09 TV 3805 claiming

compensation of Rs.10,00,000/- for the injuries sustained by him in

the accident. According to the claimant, on 27.05.2013 while the

claimant along with her relatives was travelling in an auto bearing

No. AP 28 TE 4213 from 9 No. X road side towards Kishan bagh,

one Indica car bearing No. AP 09 TV 3805 being driven by its

driver came in rash and negligent manner and dashed the said auto,

as a result, the claimant and her relatives sustained grievous

injuries and she sustained fracture of shaft femur, head injury and

blunt injuries all over her body. Immediate after the accident, she

was shifted to Osmania General Hospital, Hyderabad, where she

was admitted as inpatient and still she is undergoing treatment.

According to the petitioner, she was a Tailor and earning

Rs.10,000/- per month. Due to the injuries sustained by her in the

said accident, she was completely bed ridden and she is not in a

position to attend any work and lost her earnings. She spent huge

expenditure towards her treatment and medical expenses etc. Hence

the claim.

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

counter disputing the manner in which the accident took place,

nature of injuries sustained by the petitioner and the treatment

taken by him. It is further contended that the driver of the

offending vehicle was not having valid driving license at the time

of accident and the compensation claimed by him is excessive and

exorbitant and therefore, prayed to dismiss the claim petition.

5. After considering the oral and documentary evidence

available on record, the Tribunal held that the accident occurred

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

car and awarded the total compensation of Rs.7,18,000/- with costs

and interest at 9% per annum from the date of petition till the date

of realization with a direction to the respondent No.2 to deposit the

said compensation amount within one month from the date of order

with interest and costs and to recover the same from respondent

No.1.

6. Heard the learned counsel for the claimant and the learned

Standing Counsel for the respondent No.2-Insurance Company and

perused the material available on record.

7. Learned Counsel for the claimant has submitted that though

the claimant established that she has sustained permanent disability

due to the injuries caused in the accident, the Tribunal has taken the

income of the claimant very less and awarded meager amount.

8. The learned Standing Counsel for the respondent No.2-

Insurance Company contended that the tribunal failed to appreciate

the fact that the driver of the offending vehicle was not having

driving license at the time of accident and the compensation

awarded by the Tribunal is excessive and therefore, prays to set

aside the Order passed by the Tribunal.

9. With regard to the manner of accident, there is no dispute.

However, considering the evidence of PW-1 coupled with the

documentary evidence available on record, the Tribunal rightly

held that the accident occurred due to the rash and negligent

driving of the driver of the offending vehicle i.e., car bearing

No.AP 09 TV 3805.

10. With regard to the quantum of compensation, according to

the petitioner, she sustained Grade II compound fracture of shaft

femur, head injury and multiple injuries all over her body and was

shifted to Osmania General Hospital, Hyderabad, where she took

treatment as inpatient from 27.5.2013 to 21.6.2013 and that on

5.6.2013 she underwent surgery and incurred more than

Rs.25,000/- for treatment. Due to the accident, she sustained

permanent disability to an extent of 52%. In support of her case, an

Associate Professor in Osmania General Hospital was examined as

PW-2 and he deposed that she came to the hospital on 27.5.2013

and took treatment till 21.6.2013 and she was operated for the

fracture of femur with interlocking nail. Ex.A6 discharge

summary. PW-2 further deposed that PW-1 needs medical

treatment in future also. Further an Assistant Professor in Osmania

General Hospital was examined as PW-3 and he deposed that he

examined PW-1 on 2.5.2014 clinically and assessed her disability

@ 52% which is partial and permanent and they issued Ex.A7

disability certificate which contains his signature. He further

deposed that the patient cannot do normal works like hard manual

labour works as prior to the accident and she cannot sit and squat

on ground and cannot stand long time. Therefore, the evidence of

PWs.1 to 3 coupled with the documentary evidence shows that the

petitioner has sustained 52% partial and permanent disability due to

fracture of femur. Hence considering the injuries sustained by the

petitioner and the disability sustained by her, the tribunal awarded

an amount of Rs.50,000/- is awarded for the disability sustained by

her, Rs.1,00,000/- towards future medical expenses and

Rs.1,00,000/- towards pain and sufferance, which are just and

reasonable and as such, the same are not disturbed.

11. Coming to the future loss of earnings due to the disability

sustained by her, learned counsel for the claimant submitted that

though the claimant has sustained 52% partial and permanent

disability, she is unable to attend her tailoring work, which she was

doing previously and as such, her functional disability can be taken

at 100%. Admittedly, she is a tailor and she sustained fracture

injury to her right femur. Definitely there is difficulty in attending

tailoring work to a disabled person. However, she can attend the

tailoring work with the help of latest sewing machine for which

peddling is not required. Therefore, considering the profession of

the claimant as a tailor, her functional disability can be taken at

52% as assessed by PW-3 who issued disability certificate.

12. According to the petitioner, she is a tailor and was earning

Rs.10,000/- per month. However, as there was no income proof

and the accident is of the year 2013, the Tribunal has rightly taken

the income of claimant at Rs.5,000/- per month. Further, in light of

the principles laid down by the Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others1, the claimant is

also entitled to the future prospects and since the petitioner was

aged about 36 years at the time of accident, 40% of the income is

added towards future prospects. Then it comes to Rs.7,000/-

(5,000 + 2,000 = 7,000). As the claimant was aged about 36 years

at the time of accident, the appropriate multiplier in light of the

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

Corporation2 would be "15". Thus, the future loss of income due

to 52% disability comes to Rs.7,000 x 12 x 15 x 52/100 =

Rs.6,55,200/-, which the petitioner/claimant is entitled. In total,

the claimant is entitled to Rs.9,05,200/-.

13. Coming to the liability, the learned counsel for the

respondent No.2-Insurance Company submitted that the driver of

2017 ACJ 2700

2009 ACJ 1298 (SC)

the offending vehicle has no driving license as on the date of

accident, and as such, they are not liable to pay compensation to

the petitioner. In support of their contention, Junior Assistant in

the office of Regional Transport Authority, South Zone, Hyderabad

was examined as RW-1 and he deposed that Ex.X2 is the attested

copy of driving license of one Shaik Mohasoor S/o Accer and it

was issued on 21.11.1991 and valid up to 20.11.1994 and Ex.X2

was not issued in the name of Feroz Khan S/o Mohammed Jamal

Khan. RW-2 who is the Deputy Manager in respondent No.2-

Insurance Company deposed that on enquiry, the RTA, Hyderabad

South Zone officials confirmed that the driver of the crime vehicle

was not having valid license and then they issued notice to the

owner of the car and having received the same, he failed to issue

any reply and did not furnish driving license particulars of the

driver of the crime vehicle. Admittedly, respondent No.1 is owner

and respondent No.2 is insurer of the crime vehicle and Ex.B1 copy

of insurance policy establishes that the crime vehicle was insured

with respondent No.2 and the policy was in force as on the date of

accident. Therefore, in the above circumstances, the tribunal

rightly directed the respondent No.2 to deposit the compensation

amount within one month from the date of order with interest and

costs and later to recover the same from respondent No.1.

Therefore, there are no grounds to interfere with the findings of the

tribunal in this aspect.

14. In the result, the M.A.C.M.A. No.2031 of 2018 is partly

allowed by enhancing the compensation amount awarded by the

Tribunal from Rs.7,18,000/- to Rs.9,05,200/-. The enhanced

amount shall carry interest at 7.5% p.a. from the date of petition till

the date of realization. Respondent No.2 is directed deposit the

compensation amount within one month from the date of receipt of

a copy of this order and later recover the same from respondent

No.1. On such deposit, she is entitled to withdraw the

compensation amount without furnishing any security.

M.A.C.M.A.No.2063 of 2018 shall stands dismissed. No costs.

15. Miscellaneous petitions, if any, pending shall stand closed.

______________________ M.G.PRIYADARSINI,J

13.04.2023.

pgp