Telangana High Court

Maram Aruna, Mahaboobnagar Dist vs Mohd Nusrath, Hyderabad And Anr on 31 October, 2023

Bench: K.Lakshman, K. Sujana

            THE HON'BLE SRI JUSTICE K.LAKSHMAN
                            AND
             THE HON'BLE SMT JUSTICE K. SUJANA

             M.A.C.M.A.Nos.851 AND 1535 OF 2015



COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)

      Feeling      aggrieved        by    the    order   and    decree    dated

13.01.2015 in O.P.No.296 of 2011 passed by the VIII Additional

District & Sessions Judge, Ranga Reddy District at L.B.Nagar,

the   Reliance      General         Insurance       Company       Ltd.,     filed

M.A.C.M.A.No.1851 of 2015, challenging the liability and also

the          quantum                 of           compensation.             The

appellant/petitioner/claimant               in    the    said    O.P.,      filed

M.A.C.M.A.No.1535 of 2015 seeking enhancement of the

compensation.


2.    For    the     sake      of        convenience,    the    appellant     in

M.A.C.M.A.No.851 of 2015 is referred to as 'Insurance Company

and the appellant in M.A.C.M.A.No.1535 of 2015 is referred to

as 'Claimant'.


3.    M.A.C.M.A.No.851 of 2015 is filed by the Reliance General

Insurance Company Ltd., contending that the court below erred

in holding that the accident occurred due to the rash and
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negligent driving of the driver of the Mini bus bearing No.AP 9V

9670; the court below failed to appreciate that accident

occurred due to the involvement of Innova Car bearing No.AP 9

BX 324 and ought to have atleast held that the accident took

place due to the contributory negligence of the driver of the

Innova car and also the driver of Mini bus and apportioned the

compensation accordingly.       It is further contended that the

court   below    erred   in   awarding    Rs.1,33,079/-        towards

expenditure for hospitalization, medicines, tests etc and the

claimant is entitled only to the actual medical expenses

incurred by her and the court below failed to consider that

under clause 4 (ii) of the 2nd schedule of the Motor Vehicles Act,

1988 medical expenses not exceeding Rs.15,000/- can only be

awarded. The court below erred in awarding Rs.5000/- per

month for a non-earning member and grossly erred in awarding

Rs.2,25,000/- towards compensation for partial and permanent

disability of 25% observing that as per clause 5 (a) & (b) of the

2nd schedule of the Motor Vehicles Act, if the disability is partial,

the compensation awardable would be such percentage of

compensation which would have been payable in the case of

permanent total disablement and failed to see that the claimant

is not entitled for any compensation for partial and permanent
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disability of 25%.   He further contended that the court below

grossly erred in awarding Rs.75,000/- for pain and suffering for

three grievous injuries but entitled for only Rs.15,000/- and

also erred in awarding interest @ 7.5% p.a.


4.    On the other hand, M.A.C.M.A.No.1535 of 2015 is filed by

the claimant contending that the court below awarded only

Rs.4,56,079/- as against the claim of Rs.8,00,000/- erroneously

and also erred in awarding only Rs.75,000/- towards pain and

suffering which is very less.        As such, she is entitled for

enhancement of the compensation.


5.    Heard Sri T. Mahender Rao, learned counsel appearing for

the Reliance General Insurance Co., Ltd., and Sri Putta Krishna

Reddy, learned counsel appearing for the claimant.


6.    Learned counsel for the claimant would submit that due

to the injuries received in the accident, petitioner suffered lot of

mental agony and also spent lot of amount in hospitals, but

without observing the same, the court below awarded only

Rs.4,56,079/-.    Therefore, prayed the Court to enhance the

compensation from Rs.4,56,079/- to Rs.8,00,000/-.


7.    Per contra, learned counsel for the Insurance Company

would submit that there is contributory negligence on the part
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of driver of the Innova Car also and without observing the same,

the court below wrongly put the liability on the driver of Mini

bus only, which is contrary to the evidence. He also relied on

the judgment of the High Court of A.P., in Agnuru Jaya Ramulu

Vs Mohammed Afzal Miyan and another 1 and prayed the

Court to reduce the compensation amount awarded by the court

below and also to apportion the liability between the driver of

the Mini bus and driver of the Innova car.


8.       The facts of the case in the petition are that while the

claimant was proceeding from Penimella Village to Hyderabad

along with her family members in an Innova car bearing No.AP

09 BX 324, when they reached Debbaguda gate, Kandukur near

a culvert, one Mini Bus bearing No.AP 9V 9670 proceeding

towards Srisailam side, came in an opposite direction at a high

speed in a rash and negligent manner and dashed the Innova

Car due to which, the claimant had sustained grievous injuries.

Immediately, she was shifted to Yashoda Hospital, Hyderabad

wherein, she underwent surgeries and is still undergoing

treatment. The claimant is a housewife and had an income of




1
    2006 ACJ 855
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Rs.30,000/- per month and the same is contributed towards

maintenance of her family.


9.    With regard to the accident, a case in Cr.No.184 of 2010

was registered under Section 304-A and 337 of the IPC in

Kandukur Police Station against the driver of Mini bus.


10.   In the said O.P., the driver of Mini bus was set ex parte

and the Insurance Company filed counter stating that the

alleged accident occurred due to the contributory negligence of

the driver of Innova Car bearing No.AP 9 BX 324. It is further

contended that the claim is not maintainable, as the driver of

Innova Car was not made as a party. It is also contended that

the Mini bus is not insured with the company and policy was

not in existence on the date of accident; the driver of the Mini

bus was not having valid driving license and though the owner

of Mini bus had knowledge about the said fact, he entrusted the

vehicle to him in violation of the provisions of the Motor Vehicles

Act and therefore, the Insurance Company is not liable to pay

the compensation and prayed the Court to dismiss the O.P.,

against the Insurance Company.


11.   To prove the claim the appellant/claimant herself got

examined as Pw.1, and on her behalf Pw.2-Dr.S. Narsing Rao,
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Orthopaedic Surgeon, Padmaja Hospital and Pw.3-Dr.S.Srinivas

Reddy, Orthopaedic Surgeon, Osmania Hospital were examined

and Exs.A.1 to A.7 and Ex.C.1-original case sheet are marked.

On behalf of the Insurance Company, one Syed Rehmathullah,

Senior Executive of the Insurance Company was examined as

Rw.1 and Ex.B.1-Policy was marked.


12.   Basing on the evidence on record, the court below opined

that the accident occurred due to the negligent driving of the

driver of Mini bus.    Against the said decision, the Insurance

Company filed M.A.C.M.A.No.851 of 2015 contending that there

is contributory negligence on the part of the driver of Innova

Car. Except examining the employee of Insurance Company no

other eye witness was examined to support its contention.


13.   On the other hand, the claimant who is an injured and

eye witness filed Ex.A.1-certified copy of the FIR, Ex.A.2-

certified copy of charge sheet, Ex.A.3-certified copy of the scene

of offence panchanama, Ex.A.4-certified copy of the MLC report,

Ex.A.5-Medical    bills,   Ex.A.6-disability   certificate,    Ex.A.7-

X-rays and Ex.C.1 original case sheet.


14.   Now, the points for consideration are :
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1.

Whether the accident occurred on 7.11.2010 due to the contributory negligence of the driver of the Mini bus and driver of the Innova car ?

2. Whether, the claimant is entitled for enhancement of compensation as prayed for ?

POINT NO.1 :

15. On going through the documents filed by the claimant,

Ex.A.1-FIR is issued immediately after the accident and Ex.A.2

charge sheet, which is filed after due investigation, it is evident

that the driver of Mini bus is responsible for the accident.

Ex.A.3 scene of offence panchanama also shows that accident

occurred due to the negligence of driver of the Mini bus.

Though summons was served on the driver of Mini bus, he has

not contested the claim and not denied the manner in which the

accident occurred. There is no dispute with regard to

occurrence of accident and the injuries received by the

claimant, whereas, the Insurance Company disputed the

liability and claim contending that there is contributory

negligence, whereas, the evidence on record clearly shows that

the accident occurred due to the negligence of the driver of Mini

bus. The Insurance Company relied on the judgment in Agnuru

Jaya Ramulu's case, wherein the date of accident itself was in

dispute though the accident occurred on the intervening night

of 12/13.7.1997, the medical officer evidence would show that KL,J &SKS,J Macmas_851 & 1535_2015

the accident occurred on the intervening night of 11/12.7.1997.

Therefore, the Court came to the conclusion that the documents

filed by the claimants are not reliable. As such, the appeal was

decided stating that there is contributory negligence on the part

of claimant also. Whereas, in the present case, the documents

filed by the claimant clearly proves that the accident occurred

due to the negligent driving of the driver of Mini bus, as such,

the observation made in the above judgment is not applicable to

this case. Apart from that the Insurance Company failed to

examine any eye witness on their behalf to prove the negligence

of driver of Innova Car whereas Pw.1 is injured eye witness

deposed about the manner in which the accident occurred.

Therefore, there is no force in the contention of the Insurance

Company that accident occurred due to the contributory

negligence on the part of both the drivers. As such, the issue is

decided in favour of the claimant and against the Insurance

Company. Accordingly, this point is answered.

POINT NO.2 :

16. Basing on the evidence on record and relying on the

evidence of Pws.2 and 3, Exs.A.5 to A.7 and Ex.C.1, the court

below awarded an amount of Rs.4,57,079/-, and the same is

disputed by the claimant.

KL,J &SKS,J Macmas_851 & 1535_2015

17. As per Ex.A.4-MLC the claimant has suffered three

grievous injuries and one simple injury in the accident and the

same is also affirmed by Pw.2. Hence, claimant is entitled to

Rs.75,000/- for the grievous injuries and Rs.5000/- for one

simple injury. Therefore, the claimant is entitled to Rs.80,000/-

towards pain and suffering for the injuries suffered by her. The

claimant is also entitled to Rs.25,000/- towards transportation

and extra-nourishment as she was in hospital from 07.11.2010

to 24.11.2010, and Rs.1,33,079/- towards hospitalization,

medicines tests etc., as evident from Ex.A.5-medical bills,

Rs.5000/- towards damage to clothing and Rs.50,000/- towards

litigation charges in view of the judgment of the Apex Court in

Sidram Vs Divisional Manager, United India Insurance Co.,

Ltd and another 2 and Sriram General Insurance Vs Bhagat

Singh Rawat in SLP (C) Nos.11669-11671/202.

18. As seen from the record, the claimant is a housewife. To

prove the disability, the claimant has filed Ex.A.6-disability

certificate and as per to Ex.A.6, the physical disability is

estimated at 25%. No document is filed by the claimant to

prove her income. As the claimant has not filed any document

2022 Livelaw (SC) 968 KL,J &SKS,J Macmas_851 & 1535_2015

in proof of her income, her income is taken at Rs.5000/- per

month. Therefore, the annual income comes to Rs.60,000/-. As

the claimant is aged about 45 years, the appropriate multiplier

applicable is '15'. Hence, the claimant is entitled to

Rs.2,25,000/- (Rs.60,000/-X 15 multiplier X 25% disability)

towards partial permanent disability.

19. Thus, in all the claimant is entitled to Rs.5,18,079/- as

compensation under the following heads :

Pain & Suffering                          :       Rs.80,000/-

Transportation & Extra-nourishment:               Rs.25,000/-

Hospitalization, medicines and            :       Rs.1,33,079/-
Tests etc.,

Litigation charges                        :       Rs.50,000/-

Permanent disability                      :       Rs.2,25,000/-

Damage to clothing                        :       Rs.5,000/-

                                                ___________________
             Total                        :       Rs.5,18,079/-
                                                 ___________________

20. As far as the issue of rate of interest is concerned, the

Insurance Company submitted that 7.5% per annum interest is

high, but 6% is reasonable interest. Whereas, the Apex Court in

Sonal Gupta and another Vs United India Insurance Co., KL,J &SKS,J Macmas_851 & 1535_2015

Ltd. and another 3, in paragraph No.31 it was observed as

under :

"31. As far as issue of rate of interest is concerned, it should be 7.5 per cent in view of the latest decision of the Apex Court in National Insurance Co. Ltd., V Mannat Johal, 2019 ACJ 1849 (SC), wherein the Apex Court has held as under :

"(13) The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12 per cent per annum but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5 per cent per annum and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."