New India Assurance Co Ltd., ... vs K Satyanarayana, Mahaboobnagar ...
2023 Latest Caselaw 1645 Tel

      THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                   M.A.C.M.A.No.506 of 2017

JUDGMENT:

Assailing the order and decree, dated 29.02.2016

rendered in M.V.O.P.No.263 of 2010 on the file of the Motor

Vehicles Accidents Claims Tribunal-cum-IV Additional

District Judge, Mahabubnagar, (for short 'the Tribunal'),

the New India Assurance Company Limited,

Mahabubnagar, preferred this appeal.

2. The parties in this appeal are referred to as they

stood before the Tribunal.

3. Brief facts of the case are that the petitioner filed a

claim petition under Section 166 of the Motor Vehicles Act,

1988 (for short 'the Act') claiming compensation of

Rs.7,00,000/- for the injuries sustained by him in a motor

vehicle accident that occurred on 10.10.2007. According

to the petitioner, on 10.10.2007, while he was returning to

Mogligidda from Shadnagar in an Auto bearing No.AP 22 V

7640 at about 4.30 PM., in the limits of Elikatta Village,

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the driver of another Auto bearing No.AP 22 V 4503 came

in a rash and negligent manner with high speed and

dashed the Auto bearing No.AP 22 V 7640 wherein the

petitioner was travelling, in opposite direction. As a result,

the petitioner sustained injuries. Immediately, the

petitioner was shifted to a hospital in Kurnool, from there

to Government Hospital, Shadnagar. Thereafter, he was

referred to Osmania General Hospital, Hyderabad. The

petitioner sustained severe fracture injuries and he took

treatment for two months by spending Rs.1,50,000/- and

he required huge amount for his further treatment. He

was permanently disabled to do any work and he was

suffering painful limping of fracture, which led to

shortening of the right lower limb about four inches and

the movement of right ankle, right knee and right hip joint

are restricted and he suffered physical pain and mental

agony due to injuries. It is the further case of the

petitioner that prior to the accident, he was earning

Rs.5,000/- per month by doing coolie work and he lost

such income from the date of accident. Therefore, the

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petitioner is claiming Rs.7,00,000/- under all heads

against the owner and insurer of Auto bearing No.AP 22 V

7640, wherein he was travelling at the time of accident, as

well as against the owner of Auto bearing No.AP 22 V 4503.

4. All the respondents have contested the claim by filing

separate counters. Respondent Nos.1 and 2, who are

owner and insurer of Auto bearing No.AP 22 V 7640,

wherein the claimant was traveling at the time of accident,

disputed the accident contending that the driver of said

Auto had driven his vehicle at a normal speed and there

was no fault on the part of the driver of said Auto and that

the alleged accident occurred due to rash and negligent

driving on the part of the driver of Auto bearing No.AP 22 V

4503, who came in an opposite direction at high speed and

hit the Auto bearing No.AP 22 V 7640. Respondent No.3,

who is owner of Auto bearing No.AP 22 V 7640 contended

that there was no negligence on the part of the driver of his

Auto and that respondent No.1 managed the Police,

Shadnagar and got registered a case against him and,

therefore, he is not liable to pay any compensation.

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5. Before the Tribunal, on behalf of the claimant, PWs 1

to 3 were examined including the claimant as PW-1 and

Dr.H.K.Vasantha Madhava, who issued Disability

Certificate, as PW-2 and Dr.K.Kodandapani, who treated

the claimant in Osmania General Hospital, Hyderabad, as

PW-3 and Exs.A-1 to A-6 were marked. Apart from that

Ex.C-1-original case sheet of the claimant was marked on

behalf of the claimant. On behalf of respondents, RWs 1 to

3 were examined and Exs.B-1 to B-5 were marked.

6. The Tribunal, upon evaluation of pleadings and

evidence, has given a finding that both the vehicles are

responsible for the said accident, because there was a head

on collision between two vehicles and liability for payment

of compensation fixed on respondent Nos.1 to 3 jointly and

severally. The Tribunal has awarded a sum of

Rs.3,78,600/- towards compensation with proportionate

costs and interest at 9% per annum, to be paid by all the

respondents jointly and severally. The Tribunal has

further directed respondent No.2 to pay the said

compensation within a period of 30 days from the date of

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order and recover 50% of compensation from respondent

No.3, since there was collision of two vehicles and both the

drivers of two Autos have driven their vehicles rash and

negligently. Challenging the same, the insurer of Auto

bearing No.AP 22 V 7640 filed the present appeal.

7. Heard both sides and perused the material available

on record.

8. The learned Standing Counsel for the

appellant/Insurance Company contended that the finding

recorded by the Tribunal on the point of composite

negligence of both the vehicles is not supported by the

evidence brought on record. According to him, there was

negligence on the part of the driver of Auto bearing No.AP

22 V 4503 and he was solely responsible for causing the

accident and, therefore, the entire liability ought to have

been fastened upon the owner of said Auto, who is

respondent No.3. Moreover, the driver of said Auto was

convicted by the criminal Court. He alternatively argued

that in any event, it is a case of head-on-collision between

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the two vehicles and as such, the Tribunal at least ought to

have apportioned the liability between the two vehicles at

the ratio of 50:50. He has further contended that in cases

of head on collision between two vehicles, total liability for

payment of compensation cannot be fastened only on the

insurer of one vehicle. It is a settled position of law that

while imposing the liability of payment of compensation,

both the vehicles should be held equally liable. The

Tribunal has failed to consider this aspect. He has further

contended that the Tribunal had taken the disability and

loss of earning power at 60%, which is excessive and that

the shortening of leg is not disability as held by the Hon'ble

Supreme Court in 2008 (6) ALD SC 82.

9. Learned counsel for the claimant defended the

impugned award and stated the same to be just and

apposite.

10. Points which arise for consideration are:

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(i) Whether the finding reached by the Tribunal on

the issue of composite negligence is supported by the

evidence on record?

(ii) If it is a case of head-on-collision between the

two vehicles, whether the appellant/Insurance Company is

not solely liable to satisfy award?

(iii) Whether the amount of compensation awarded

by the Tribunal having regard to the disability of the

claimant needs any correction?

11. On a perusal of the records, it is clear that the

claimant has travelled in the Auto bearing No.AP 22 V 7640

as a passenger and another Auto bearing No.AP 22 V 4503,

which belonging to respondent No.3, came in the opposite

direction. It is stated in the claim petition that the driver of

Auto bearing No.AP 22 V 4503 came in a rash and

negligent manner and hit against the Auto, in which the

claimant travelled as a passenger. Based on a complaint

lodged by the driver of Auto bearing No.AP 22 V 7640, a

criminal case was preferred against the driver of Auto

bearing No.AP 22 V 4503. Ex.A-1 is the First Information

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Report. Exs.B-2 to B-5 are certified copies of charge-sheet,

Crime Detail Form in Crime No.418 of 2007, Judgment in

C.C.No.448 of 2007 and 251 examination in C.C.No.448 of

2007 respectively. Exs.B-2 to B-5 show that the driver of

Auto bearing No.AP 22 V 4503 was convicted for the

offences under Sections 337, 338 I.P.C. on his plea of guilt.

12. Though Police have registered a case against driver of

Auto bearing No.AP 22 V 4503 and has filed a charge-sheet

and subsequently, he was convicted by the criminal Court,

but the same cannot be said to be conclusive. The method

and manner in which the accident has taken place leaves

no room for doubt that it was a case of composite

negligence of drivers of both the Autos. If the said two

vehicles were driven by both the drivers in a careful and

conscious manner, the accident has not been occurred. It

is very much clear from the records that there was a head

on collision between two Autos, hence, the findings arrived

by the Tribunal by taking into consideration the method

and manner in which the accident has taken place that

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both the drivers are responsible for the accident and fixed

the liability of payment of compensation jointly and

severally is reasonable and proper.

13. Ex.A-2 is wound certificate, it is observed that there

are four grievous injuries. PW-2-Doctor was also examined

before the Tribunal, who assessed the disability at 62%.

The claimant at the time of accident was between the age

group of 30 to 35 years and earning Rs.3,000/- per month

by working as a coolie, the application of multiplier 16 is

proper and by fixing 60% disability, the loss of earning

capacity was assessed at Rs.3,45,600/-. As per the

evidence of PW-3-Doctor, who treated the claimant in

Osmania General Hospital, Hyderabad and basing on Ex.C-

1-case sheet of the claimant, the period of treatment

underwent by the claimant, the Tribunal has awarded

Rs.8,000/- towards pain and suffering, Rs.20,000/-

towards medical expenditure for the past and future and

Rs.5,000/- towards transport charges. Hence, the total

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sum arrived by the Tribunal at Rs.3,78,600/- is very much

reasonable.

14. Insofar as the interest awarded by the Tribunal is

that the petitioner is entitled to interest @ 7.5% per annum

on the compensation awarded by the Tribunal from the

date of petition till realization, as per the decision of the

Apex Court in Rajesh and others v. Rajbir Singh and

others1. Hence, the interest granted by the Tribunal @ 9%

per annum is reduced to 7.5% per annum on the awarded

amount of Rs.3,78,600/- from the date of petition till the

date of realization. Except the said modification, the

remaining operative portion of the impugned order is

confirmed.

15. Accordingly, the M.A.C.M.A. is allowed in part

reducing the interest from 9% to 7.5% per annum on the

awarded amount of Rs.3,78,600/- from the date of petition

till the date of realization. There shall be no order as to

costs.

1 2013 ACJ 1403 = 2013 (4) ALT 35

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Pending miscellaneous application, if any, shall stand

closed.

_____________________________ SMT. M.G.PRIYADARSINI, J Dt.17.04.2023 svl

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THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A. No.506 of 2017

DATE: 17-04-2023

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