Telangana High Court

T Ratnam Ch Ratnam, Hyderabad vs O Narasimha, Hyderabad on 29 March, 2023

Bench: M.G.Priyadarsini

           HONOURABLE JUSTICE M.G. PRIYADARSINI

          M.A.C.M.A.Nos.2751 of 2016 and 3007 of 2016

COMMON JUDGMENT:


      These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.2751 of 2016 filed by the

Insurance Company and M.A.C.M.A.No.3007 of 2016 filed by

the claimant-injured assailing the quantum of compensation,

are directed against the very same order and decree, dated

16.06.2016 made in M.V.O.P.No.680 of 2011 on the file of the

Chairman,          Motor   Accidents     Claims   Tribunal-cum-XIV

Additional Chief Judge (FTC), 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.38,00,000/- for the injuries sustained by her in the motor

vehicle accident that occurred on 29.04.2010. According to her,

on the fateful day, at 10:30 a.m., she was proceeding on her

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scooty bearing No. AP 10 AP 4950 from her residence to work

place i.e., Oris Banjara hotel and when she reached near

Narayana college, Hyderabad, one lorry tipper bearing No. AP 12

U 9957, owned by respondent No. 1, insured with respondent

No. 2, being driven by its driver in rash and negligent manner,

dashed the claimant from back side. As a result, the claimant

fell down and sustained grievous injuries to Abdomen, fracture

to pelvis, head injury and other injuries at sensitive parts below

Abdomin and blunt injuries all over the body. Immediately, she

was admitted in Global hospital for treatment. Due to the said

accident, the claimant sustained permanent disability, lost her

income, amenities and social status, her marriage life also

affected and experiencing mental agony. Thus, the claimant

laid the claim against the respondents for Rs.38.00 lakhs.

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

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

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

avocation and income of the claimant. The issuance of policy in

respect of the crime vehicle is also disputed. It is also

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contended that the compensation claimed is excessive and

prayed to dismiss the claim-petition.

5. Considering the oral and documentary evidence on

record, the tribunal has partly allowed the O.P. and awarded

total compensation of Rs.17,84,000/- with interest @ 7.5% per

annum to be paid by the respondent Nos.1 & 2 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 Standing Counsel appearing on behalf of

Insurance Company (appellant in MACMA No. 2751 of 2016)

submits that the driver of the lorry tipper was not holding any

valid driving licence to drive the lorry tipper and therefore, there

is clear violation of terms and conditions of the policy. In view

of the violation of terms and conditions of policy, the respondent

No. 1 alone is liable to pay the compensation and no liability

can be fastened on the insurance company. The learned

Standing Counsel further contended that there is contributory

negligence on the part of the injured, who contributed to the

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said accident which has also not been considered by the

Tribunal. It is lastly contended that even according to the

claimant, she was working in a Hotel apart from doing Catering

business, and therefore, as her avocation is not permanent in

nature, the Tribunal should have restricted the future prospects

to the extent of 40%.

8. On the other hand, the learned counsel for the claimant

(appellant in MACMA No. 3007 of 2016) has contended that the

medical evidence adduced by the claimant has not been

properly appreciated by the Tribunal while awarding the

compensation. Ex.A.9 is the original disability certificate issued

by P.W.3, plastic surgeon. P.W.3 deposed that the claimant

sustained abdominal disability at 30% due to large incisional

hernia and the total disability comes at 90%. Further, Ex.A.11

is the original disability certificate issued by P.W.2, orthopedic

surgeon and member of medical board of Osmania General

Hospital and MGM, Warangal. P.W.2 deposed that the claimant

had sustained 60% partial disability. It is contended that

though P.W.2 assessed the disability at 60%, there is 100%

functional disability as the claimant has lost her earning

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capacity due to the injuries suffered in the accident. Basing

reliance on the said medical evidence, the learned counsel

submits that the claimant has sufficiently established that the

claimant has sustained permanent disability and lost her 100%

earning capacity, however, the Tribunal has estimated the

disability at 60% thereby awarded meager amount towards loss

of income due to disability.

9. As regards the manner of accident, it is the main

contention of the learned Standing Counsel for the Insurance

Company (appellant in MACMA No. 2751 of 2016) that the

accident occurred due to the contributory negligence even on

the part of the claimant as per Ex.B.1, scene of offence, which

discloses that the claimant came on the road riding her scooty

from by lane to the main road and took right turn without

observing the moving traffic on the main road and therefore, the

Tribunal should have apportioned contributory negligence. In

light of the said contention, it is to be seen whether there was

any contributory negligence on the part of the claimant. As

seen from the record, Ex.A.1, FIR, was registered against the

driver of the crime vehicle. Further, after due investigation into

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the crime, police laid the charge sheet, Ex.A.2, against the

driver of the offending vehicle stating that the accident occurred

due to the rash and negligent driving of the offending vehicle

and the driver was charged for the offence under Sections 304-A

IPC. That apart, P.W.1 clearly stated that the accident occurred

only due to the rash and negligent driving of the Lorry tipper by

its driver. Though it is the case of the Insurance Company that

there was contributory negligence on the part of the deceased,

for the reasons best known to it, the Insurance Company did

not take any steps to summon the driver of the offending Tipper

to prove that there was contributory negligence on the part of

the injured, who is the best person to speak in this regard.

Further, no contra evidence was elicited in the cross-

examination of P.W. 1, to discredit her testimony. Therefore,

considering the evidence of P.W.1 and Exs.A.1 & A.2, FIR and

charge sheet, the Tribunal has rightly held that the accident

occurred only due to the rash and negligent driving of the Lorry

tipper by its driver. Hence, this Court is not inclined to interfere

with the said findings of the Tribunal which are based on

appreciation of evidence in proper perspective. Thus, the only

MGP, J Macma_2751_2016 and 3007_2016

dispute in the present appeal is with regard to the quantum of

compensation.

10. As per the medical evidence available on record, the

claimant sustained polytrauma with abnormal injury plus pelvis

fracture, grievous injuries on abdomen and other multiple

grievous injuries all over the body due to the said accident.

Immediately after the accident, she was admitted in Global

hospital for treatment and she spent Rs.1,10,344/- towards her

treatment. Ex.A3, Injury certificate shows that the claimant has

sustained polytrauma with abnormal injury plus pelvis fracture,

grievous injuries on abdomen and other multiple grievous

injuries all over the body. Considering the nature of injuries

sustained by the claimant, considering the evidence of P.W.4,

R.M.O. of Global Hospital, who deposed that the claimant had

spent Rs.56,402/- as reflected under Ex.A.14, bunch of medical

bills, the tribunal rightly awarded an amount of Rs.1,15,000/-

towards medical expenses and extra nourishment which need

no interference by this court. Further, the claimant filed Exs.A.9

& A.11, Disability Certificates issued by P.Ws. 3 & 2

respectively. As per Ex.A.11 issued by P.W.2, member of

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Medical Board of Osmania General Hospital and MGM,

Waranagal, the claimant sustained 60% permanent disability on

account of the injuries sustained by her. In light of the said

evidence, the Tribunal has rightly accepted the disability

sustained by the claimant at 60%.

11. As regards the income, according to the claimant, she was

28 years old at the time of accident and earning Rs.18,000/- to

Rs.20,000/- per month working in Oris Banjara Hotel apart

from undertaking catering orders for small functions. However,

no document is produced in order to prove the same. Hence,

the tribunal took the monthly income of the claimant at

Rs.6,000/-. However, considering the avocation claimed and

the age of the claimant, this Court is inclined to fix the monthly

income of the claimant at Rs.7,000/-. However, the Tribunal

has erroneously added 50% towards future prospects. In this

regard, it is to be seen that the nature of the job as pleaded by

the claimant is cook/catering business which cannot be termed

as permanent nature. Therefore, the Tribunal was not right in

adding future prospects at 50%. As the age of the claimant at

the time of accident was 28 years, she is entitled to addition of

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40% towards future prospects to the established income, as per

the decision of the Hon'ble Supreme Court in National

Insurance Company Limited Vs. Pranay Sethi and others1.

Hence, the future monthly income of the deceased comes to

Rs.9,800/- (Rs.7,000/- + Rs.2,800/-). Since the claimant was

28 years old at the time of the accident, as held by the Tribunal,

the appropriate multiplier is '17' as per the guidelines laid down

by the Apex Court in Sarla Verma v. Delhi Transport

Corporation2. Adopting multiplier '17', the total loss of income

due to disability comes to Rs.11,99,520/- (Rs.9,800 x 12 x 17 x

60/100). Considering the nature of injuries suffered by the

claimant and the period of treatment, the amount of

Rs.1,50,000/- awarded by the Tribunal towards pain and

sufferings is also not disturbed. As regards the amount of

Rs.3,50,000/- awarded by the Tribunal towards surgery and

medicines, the same is rightly awarded relying upon the

evidence of P.W.3, who deposed that the claimant was advised

to undergo three operative surgery at a higher center and in

light of Ex.A.8, original estimation certificate issued by Shreshta

2017 ACJ 2700

2009 ACJ 1298 (SC)

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Sushruth Hospital. So also, considering the evidence of P.W.2,

the tribunal has rightly awarded a sum of Rs.42,000/-

(Rs.8,400 x 5 years) towards usage of Abdominal binder lumbo

sacral belt for her entire life and hand stick, which are

reasonable. Insofar as loss of amenities and loss of expectation

of life is concerned, in Kavita v. Deepak and others3, the Apex

Court held that in respect of victims of accident, who are

disabled either 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. Relying upon the decision of

Nizam's Institute of Medical Sciences v. Prasanth

S.Dhananka4, the Apex Court also held that "assuming the

claimant's life expectancy to be 55 years, we deem it appropriate

to award a sum of Rs.3,00,000/- under the head of loss of

(2012) 9 SCC 604

(2009) 6 SCC 1

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amenities and loss of expectation of life". In light of the said

decisions, the amount of Rs.1,50,000/- awarded by the Tribunal

towards loss of amenities considering the disability suffered by

the claimant is reasonable and needs no interference. That

apart, the claimant is entitled to Rs.25,000/- towards grievous

injuries, Rs.10,000/- towards transport and attendant charges.

Thus, in all, the claimant is entitled for the compensation as

under:-


Sl.No.    Amount awarded under   Amount awarded        Amount
               the Head            by Tribunal    awarded/enhanced
                                                    by this Court

1.        Medical expenses & Rs.1,15,000/-        Rs.1,15,000/-
          extra nourishment

2.        Loss of income on Rs.9,72,000/-         Rs.11,99,520/-
          account of disability
          of 60%

3.        Loss of amenities, Rs.1,50,000/-        Rs.1,50,000/-
          happiness         &
          enjoyment of life

4.        Towards       future Rs.3,50,000/-      Rs.3,50,000/-
          surgery/treatment

5.        Towards     cost    of Rs.42,000/-      Rs.42,000/-
          binders for 5 years

6.        Towards     grievous Nil                Rs.25,000/-
          injuries


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                                       Macma_2751_2016 and 3007_2016



7.     Towards             Rs.5,000/-            Rs.10,000/-
       Transportation    &
       attendant charges

8.     TOTAL                   Rs.17,84,000/- Rs.18,91,520/-

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

that there is insurance coverage to the Lorry tipper which covers

the risk of the claimant as Ex.B.2, copy of insurance policy

clearly discloses that policy was in force from 03.12.2009 to

02.12.2010 and the alleged accident occurred on 29.04.2010

i.e., between 03.12.2009 to 02.12.2010, hence, 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.