The New India Assurance Company ... vs T.Bharbav, Hyd Anr
2023 Latest Caselaw 891 Tel

          HONOURABLE JUSTICE M.G. PRIYADARSINI

          M.A.C.M.A.Nos.1621 of 2019 and 56 of 2017

COMMON JUDGMENT:


      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.1621 of 2019 filed by the

claimant-injured and M.A.C.M.A.No.56 of 2017 filed by the

Insurance Company assailing the quantum of compensation,

are directed against the very same order and decree, dated

18.02.2016 made in M.V.O.P.No.2397 of 2012 on the file of the

Chairman,     Motor    Accidents    Claims    Tribunal-cum-XXIV

Additional Chief Judge, City Civil Court, Hyderabad (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.5,00,000/- for the injuries sustained by him in the motor

vehicle accident that occurred on 30.08.2012. According to

him, on the fateful day, at 04:30 p.m., while he was waiting in

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front of H.P.C.L. Aushapur, the crime vehicle i.e., Car bearing

No.AP 09 T/C 55CM, owned by respondent No. 1 and insured

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

negligent manner, dashed the claimant. Due to the accident,

the claimant sustained closed fracture of both bones of left leg

distal 1/3rd, blunt injury on chest with fracture of right scapula

and other injuries all over the body. He was treated as inpatient

at Spark Hospital, Feerzadiguda, Uppal, Hyderabad, from

30.08.2012 to 03.09.2012, where he also underwent surgery on

01.09.2012 for closed IL nailing of tibia. He incurred

Rs.1,50,000/- towards medical treatment. Thus, the claimant

laid the claim against the respondents for Rs.5.00 lakhs.

4. While the respondent No. 1 remained ex parte,

Respondent No. 2 filed counter disputing the manner of

accident, nature of injuries sustained by the claimant, age,

avocation and income of the claimant and further contended

that the claim is exorbitant and sought for dismissal of the

claim petition.

5. Considering the oral and documentary evidence available

on record, the Tribunal has awarded an amount of

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Rs.2,01,350/- towards compensation to the claimant along

with costs and interest @ 7.5% per annum from the date of filing

the petition till realization against the respondents jointly and

severally.

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

the learned Standing Counsel for the Insurance Company.

Perused the material available on record.

7. The learned counsel for the claimant (appellant in

MACMA No. 1621 of 201) has submitted that although the

claimant, by way of evidence of P.Ws.1 to 3 and Ex.A.10,

disability certificate, established the fact that the claimant

sustained disability due to the injuries received by him in the

accident, the Tribunal did not take into consideration the same

and discarded the evidence produced by the claimant and

awarded very meager amount under various heads.

8. The learned Standing Counsel appearing on behalf of

Insurance Company (appellant in MACMA No. 56 of 2017)

sought to sustain the impugned award of the Tribunal

contending that considering the manner of accident and the

nature of injuries sustained by the claimant, the learned

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Tribunal has awarded reasonable compensation and the same

needs no interference by this Court. Furthermore, he

vehemently contended that even the driver of the Car was not

holding any valid driving licence to drive the Car and since there

was violation of terms of the policy, the respondent No. 1 alone

is liable to pay the compensation and no liability can be

fastened on the insurance company.

9. Admittedly, there is no dispute with regard to the manner

of accident. The Tribunal after evaluating the evidence of PW.1

coupled with the documentary evidence available on record i.e.

Exs.A.1 & A.2, held that the accident occurred due to rash and

negligent driving of the driver of Car bearing No.AP 09 T/C

55CM. Therefore, I see no reason to interfere with the finding of

the Tribunal that the accident occurred due to the rash and

negligent driving of the driver of the offending Car.

10. Coming to the aspect of quantum of compensation, as per

the medical evidence available on record, the claimant sustained

closed fracture of both bones of left leg distal 1/3rd, blunt injury

on chest with fracture of right scapula and other injuries all

over the body due to the said accident. Immediately after the

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accident, he was shifted to Spark Hospital, Feerzadiguda,

Uppal, Hyderabad, for treatment, where he was treated as

inpatient from 30.08.2012 to 03.09.2012 and underwent

surgery on 01.09.2012. For the said treatment, he spent

Rs.1,50,000/- towards his treatment and medical expenses,

Rs.3,000/- per month towards private attendant charges.

Further, PW.3 deposed that the claimant has developed

temporary disability in the form of limping for a period of four

months and after that he recovered and engaged in daily

activities. PW.2 also admitted that he is not a member of the

medical board and that at the time of discharge from Spark

Hospital, the claimant condition is stable and satisfactory. As

such, Ex.A10, disability certificate issued by PW.2 showing

partial and permanent disability of 30% cannot be taken into

consideration in view of the admission of PW.2 as observed

above. Moreover, the claimant filed Ex.A10, disability certificate

issued by PW.2 showing the partial and permanent disability of

30% but the same was not considered by the Tribunal as PW.2,

who is consultant surgeon at Doctors Hospital, Dilsukhnagar,

deposed that he was not the member of Medical Board. PW.3,

the Orthopedic Surgeon, Spark Hospitals, Hyderabad, deposed

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that the claimant developed temporary disability in the form of

limping for a period of four months and after that he recovered

and engaged in normal daily activities. In the light of said

evidence, the tribunal was right in not taking into consideration

the disability pleaded by the claimant.

11. Insofar as other heads are concerned, according to the

claimant, he was 23 years old and studying polytechnic diploma

II year from Civil branch from Princeton College of Engineering

and Technology, Ankushapur, Ghatkesar Mandal, Rangareddy

District and lost his academic year due to the said accident. In

order to prove his claim, he filed Exs.A8 & A9, certificates

issued by Principal, Princeton College of Engineering and

Technology. Considering the fact that the claimant is standby

polytechnic diploma II year and suffered loss of academic year

due to the accident, this Court is inclined to award Rs.50,000/-

towards loss of one academic year. Considering the nature of

injuries sustained by the claimant and in the light of evidence of

P.W.4, billing manager of Spark Hospital, the tribunal rightly

awarded an amount of Rs.71,350/- towards medical expenses

and treatment and the same is not disturbed. That apart, the

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claimant is entitled to Rs.70,000/- towards two grievous

fractures, Rs.30,000/- towards future medical expenses,

Rs.30,000/- towards pain and sufferings, Rs.20,000/- towards

extra nourishment, transport and attendant charges. Thus, in

all, the claimant is entitled to Rs.2,71,350/-.

12. With regard to the liability, the tribunal has rightly held

that there is insurance coverage to the Car which covers the risk

of the claimant and the insurance company is liable to pay

compensation. Although it is pleaded that the driver of the

offending vehicle was not holding valid driving licence, the

Insurance Company did not lead any evidence in this regard

before the tribunal and therefore, the said plea, at this stage,

cannot be entertained in the absence of any evidence let in by

the Insurance Company.

13. In the result, while dismissing M.A.C.M.A.No.56 of 2017

filed by the insurance company, the M.A.C.M.A.No.1621 of 2019

filed by the claimant is partly allowed by enhancing the

compensation awarded by the Tribunal from Rs.2,01,350/- to

Rs.2,71,350/-. The enhanced amount shall carry interest at

7.5% p.a. from the date of petition till the date of realization,

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payable by respondent Nos. 1 and 2 jointly and severally. Time

to deposit the amount is one month from the date of receipt of a

copy of this order. On such deposit, the claimant is entitled to

withdraw the amount without furnishing any security. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G.PRIYADARSINI

22.02.2023 gms/rev

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THE HONOURABLE SMT JUSTICE M.G. PRIYADARSINI

M.A.C.M.A.Nos.1621 of 2019 and 56 of 2017

22.02.2023

gms/rev

MGP, J Macma_1621_2019 and 56_2017