United India Ins Co Ltd., ... vs K Sathish Reddy, Mahabubnagar ...
2023 Latest Caselaw 3640 Tel

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.NO.123 OF 2015

JUDGMENT:

Heard learned counsel Sri A.V.K.S.Prasad, learned counsel

for the appellant-insurance company and Sri.M.Govind Reddy,

learned standing counsel for respondent No.1/claimant.

2. The present appeal has been filed by the appellant-insurance

company assailing the award passed by Motor Accidents Claims

Tribunal-cum-IX Additional District Judge, Wanaparthy (for short,

'Tribunal') in O.P.No.305 of 2012, dated 03.06.2014 and thereby

for seeking enhancement of compensation.

3. The brief factual matrix of the present appeal is as under:

4. On 09.11.2010 at about 11.00 a.m., while the claimant was

proceeding on his motor cycle bearing registration No.AP-22-B-

0968 along with one Shiva as pillion rider and when they reached

near Gandhi Chowk towards Degree College, Wanaparthy, a tractor

trailer bearing No.AP-22-AB/0743-074 came in rash and negligent

manner and dashed to his motor cycle, as a result, himself and

pillion rider fell down and petitioner sustained multiple injuries.

Immediately, he was shifted to Government Area Hospital, LNA,J MACMA No.123 of 2015

Wanaparthy and thereafter he was shifted to SVS Hospital and

from there he was shifted to Gandhi Hospital, where he was

treated as inpatient and underwent surgery for removal of left

spleen and left kidney. The Police, Wanaparthy Town Police Station

registered a case in Crime No.154/2010 against the driver of

tractor for the offence under Sections 337 and 338 of IPC.

5. The claimant filed claim petition against the owner of the

vehicle and insurance company under Section 166 of Motor

Vehicles Act, 1988 before the MACT claiming compensation of

Rs.15,00,000/- along with interest on account of injuries

sustained by him in a motor vehicle accident.

6. The claimant was aged about 23 years as on the date of

accident, hale and healthy and as a bore-well operator apart from

doing cultivation and was earning an income of Rs.15,000/- per

month and contributing the same for the welfare and maintenance

of the family and due to accident, he was suffering with permanent

disability and thereby, the petitioner was unable to do any work

and lost income source.

7. The respondent No.1, the owner of the crime vehicle

remained ex-parte. The 2nd respondent-Insurance Company filed LNA,J MACMA No.123 of 2015

counter denying the material averments of the claim petition

including the age, occupation and earnings of the claimant, the

manner of accident and a valid driving license of the claimant to

drive the motor vehicle. It was further contended that it was the

claimant who was negligent and having lost control of the motor

cycle fell down and sustained injuries and suppressing the same,

got filed case against the driver of the crime vehicle. Hence, 2nd

respondent is not liable to pay compensation.

8. On the basis of the pleadings, the MACT has framed the

following issues:

i) Whether the accident dated 09.11.2010 near Jammichettu at Gandhi Chowk of Wanaparthy village was due to the rash and negligent driving of the tractor/trolley bearing registration No.AP-22-AB/0743-074 by its driver and that the petitioner has suffered injuries in that accident ?

ii) Whether the petitioner is entitled to any compensation from the respondents and if so, to what extent and from whom ?

iii) Whether the petitioner/rider himself was negligent in riding the motor cycle and as such he was responsible for the accident ?

iv) To what relief ?

LNA,J MACMA No.123 of 2015

9. In order to substantiate the case, on behalf of the claimant,

P.Ws.1 to 4 were examined and Exs.A1 to A15 and Exs.X1 to X3

were marked. The 2nd respondent-insurance company did not

choose to examine any witness, but copy of policy was marked as

Ex.B1.

10. The MACT, on due consideration of the evidence and

material placed on record, came to conclusion that the accident

took place due to the rash and negligent driving of the tractor

trailer and awarded compensation of Rs.13,41,000/- to the

claimant along with interest @ 7.5% per annum. The owner of the

vehicle and the Insurance company i.e., respondents 1 and 2 were

held to be jointly and severally liable to pay the said compensation.

11. During the course of hearing of appeal, learned counsel for

appellant submitted that the MACT committed error in taking the

monthly income of the claimant as Rs.5,000/- in the absence of

any cogent evidence. The MACT also erred in taking 50% disability

for assessing the loss of earning in the absence of any evidence. He

further submitted that MACT erroneously granted further sum of

Rs.7,50,000/- towards loss of kidney and spleen and finally prayed

to allow the appeal setting aside the award passed by MACT.

LNA,J MACMA No.123 of 2015

Consideration:

12. The main contention raised by the learned counsel for

appellant is that the MACT grossly erred in taking the monthly

income of the claimant as Rs.5000/-. Perusal of record would show

that on due consideration of documentary evidence i.e., Exs.A10

and A11, which are the pahani and pattadar pass books, which

shows that claimant owns Acs.5.00 agricultural land, the MACT

had assessed the monthly income of the claimant at Rs.5,000/-.

In considered opinion of this Court, the MACT has rightly assessed

the income of the claimant in the light of Exs.A10 and A11 and no

ground has been made out to interfere with the assessment of

monthly income of the claimant by MACT.

13. The other contention of the learned counsel for appellant is

that the MACT erred in taking 50% disability for assessing the loss

of earnings capacity at Rs.5,40,000/- and erred in granting further

sum of Rs.7,50,000/- towards loss of kidney and spleen. In

support of the disability, the claimant got examined P.W.4-

Dr.Geetha, who has produced case-sheet of the claimant along

with its attested Xerox copy, which was marked as Ex.X3. P.W.4

deposed that claimant was admitted in Osmania General Hospital LNA,J MACMA No.123 of 2015

on 09.11.2010 at 10.26 p.m., with history of road traffic accident

and on examination he was found to have sustained great-III

spleenic laceration thrombosis of left renal artery and suspected

fracture of left wrist joint and that claimant was operated on

10.11.2010 splanectomy left nephrectomy was done and on

12.10.2010 fracture of left wrist below elbow stab was applied,

treatment was given for 10 days.

14. It is further revealed from the evidence of P.W.4 and the

contents of Ex.X3 that spleen was removed in splenectomy and left

kidney was also removed. Considering the evidence of P.W.4 and

material placed on record, the MACT has assessed that claimant

has sustained 50% disability and considering the medical evidence

on record that removal of kidney, petitioner cannot live like a

normal person having chances of infection for rest of his life and

awarded Rs.7,50,000/- for loss of vital organs i.e., removal of

kidney and spleen and awarded total compensation of

Rs.13,41,000/-.

15. The Tribunal has recorded elaborate reasons for awarding

Rs.7,50,000/- towards loss of vital organs. It is admitted fact that

the claimant sustained grievous, internal injuries and two vital LNA,J MACMA No.123 of 2015

organs i.e., kidney and spleen were removed because of the

injuries sustained by the claimant. In the light of above, in

considered opinion of this Court, the MACT has not committed any

error in awarding Rs.7,50,000/- towards loss of vital organs.

16. Further, with regard to award of 50% disability, the MACT

has considered that in view of removal of removal of vital organs

and also injuries sustained by him in the accident, the claimant

cannot live like a normal person and the claimant also been on

regular medication. Therefore, in considered opinion of this Court,

the Tribunal has justified in awarding 50% disability to the

claimant. No ground is made out by the appellant warranting this

Court to interfere with the said finding of the MACT.

Conclusion:

17. In the light of factual matrix of the case, in considered

opinion of this Court, there is no irregularity in the award passed

by the MACT and further, the appellant-insurance company failed

to make out any ground warranting this Court to interfere with the

award passed by the MACT. Therefore, the appeal fails and is

accordingly dismissed, affirming the award passed by the MACT.

The appellant-insurance company is directed to deposit the entire LNA,J MACMA No.123 of 2015

compensation amount within a period of six weeks from the date of

receipt of copy of this order, duly adjusting the amount, if any,

already deposited. There shall be no order as to costs.

Pending miscellaneous applications if any shall stand closed.

____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07.11.2023 kkm