Telangana High Court

Marri Sunitha Reddy, Hyderabad 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.857 AND 1543 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.294 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.857       of   2015,          challenging    the   liability    and

quantum of compensation. The appellant/petitioner/claimant in

the said O.P., filed M.A.C.M.A.No.1543 of 2015 seeking

enhancement of the compensation.


2.    For    the     sake      of        convenience,    the    appellant      in

M.A.C.M.A.No.857 of 2015 is referred to as 'Insurance Company

and the appellant in M.A.C.M.A.No.1543 of 2015 is referred to

as 'Claimant'.


3.    M.A.C.M.A.No.857 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

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
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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.3,24,062/-       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.1,80,000/-

towards compensation for partial and permanent disability

which she is not entitled to. The court below also erred in

awarding Rs.1,00,000/- towards pain and suffering but only

entitled to Rs.20,000/-.        The court below awarded interest @

7.5% p.a., erroneously, which is on higher side.              Therefore,

prayed the Court to set aside the impugned order.




4.      On the other hand, M.A.C.M.A.No.1543 of 2015 is filed by

the     claimant    contending      that    against   the     claim      of

Rs.10,00,000/- the court below awarded Rs.6,32,062/- which

is unjust and awarding only Rs.1,80,000/- under the head
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permanent disability is not sufficient. As such, prayed the Court

to enhance 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.6,32,062/-.     Therefore, prayed the Court to enhance the

compensation from Rs.6,32,062/- to Rs.10,00,000/-.


7.       Per contra, learned counsel for the Insurance Company

would submit that there is contributory negligence on the part

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




1
    2006 ACJ 855
                                                    KL,J &SKS,J
                                                Macmas_857 & 1543_2015



                               4

below and also to apportion the liability between the driver of

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

Rs.5,000/- 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
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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.Praveen K Rao

Ortho    Surgeon,   Yashoda   hospital   and   Pw.3-Dr.S.Srinivas

Reddy, Orthopaedic Surgeon, Osmania Hospital were examined

and Exs.A.1 to A.9 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.857 of 2015 contending that there
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                                   6

is contributory negligence on the part of 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-Discharge summary, Ex.A.6-Final Bills, Ex.A.7, Medical

bills,       Ex.A.8-Disability         certificate   and         Ex.A.9

X-rays.


14.      Now, the points for consideration are :


1.

Whether the accident occurred on 07.11.2010 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.

KL,J &SKS,J Macmas_857 & 1543_2015

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

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 KL,J &SKS,J Macmas_857 & 1543_2015

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.4 to A.7, the court below

awarded total compensation of an amount of Rs.6,32,062/-, and

the same is disputed by the claimant. As per Ex.A.4-certified

copy of MLC the claimant has suffered four fracture injuries and

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

to Rs.1,00,000/- 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 20.11.2010 and Rs.3,24,062/-

towards hospitalization, medicines tests etc., as evident from

Exs.A.5 to A.7-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 KL,J &SKS,J Macmas_857 & 1543_2015

Manager, United India Insurance Co., Ltd and another 2 and

Sriram General Insurance Vs Bhagat Singh Rawat in SLP (C)

Nos.11669-11671/202.

17. As seen from the record, the claimant is a housewife and

no document is filed by her to prove her income. To prove the

disability, the claimant has filed Ex.A.8-disability certificate and

as per Ex.A.8, the physical disability is estimated at 20%. As

the claimant has not filed any document 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

40 years as on the date of determining the compensation, the

appropriate multiplier applicable is '15'. Hence, the claimant is

entitled to Rs.1,80,000/- (Rs.60,000/-X 15 multiplier X 20%

disability) towards partial permanent disability.

18. Thus, in all the claimant is entitled to Rs.6,84,062/- as

compensation under the following heads :

Pain & Suffering                      :      Rs.1,00,000/-

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

Hospitalization, medicines and        :      Rs.3,24,062/-
Tests etc.,




    2022 Livelaw (SC) 968
                                                                    KL,J &SKS,J
                                                                Macmas_857 & 1543_2015





Litigation charges                               :       Rs.50,000/-

Permanent disability                             :       Rs.1,80,000/-

Damage to clothing                               :       Rs.5,000/-

                                                       ___________________
                    Total                        :       Rs. 6,84,062/-
                                                        ___________________

19. 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.,

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."