Telangana High Court

Maram Jyothi, 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.1544 AND 1559 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.295 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.1544 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.1559 of 2015 seeking enhancement of the

compensation.


2.    For    the     sake      of        convenience,    the    appellant     in

M.A.C.M.A.No.1544 of 2015 is referred to as 'Insurance

Company and the appellant in M.A.C.M.A.No.1559 of 2015 is

referred to as 'Claimant'.


3.    M.A.C.M.A.No.1544 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
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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 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.3,80,000/-        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 and also disputed awarding of Rs.1,35,000/- towards

permanent disability without there being any evidence on record

and also erred in awarding Rs.1,00,000/- towards pain and

suffering and on account of four grievous injuries the claimant

is entitled only for Rs.5000/- for each injury.       It is further

contended that the interest awarded by the court below @ 7.5%

p.a., is high and the claimant is entitled only to 6% p.a.          As

such, prayed the Court to modify the impugned order and to
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apportion the liability equally to the driver of the Mini bus and

also driver of the Innova car.


4.    On the other hand, M.A.C.M.A.No.1559 of 2015 is filed by

the   claimant     contending     that   though      she      claimed

Rs.10,00,000/-, the court below awarded only Rs.6,35,500/-

which is unjust and unsustainable. The court below grossly

erred in taking the income of the claimant as Rs.5000/- per

month, contrary to the evidence and material on record and

awarding an amount of Rs.1,00,000/- for pain and suffering is

not sufficient. Hence, 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.6,35,500/-.    Therefore, prayed the Court to enhance the

compensation from Rs.6,35,500/- to Rs.10,00,000/-.
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7.       Per contra, the 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 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



1
    2006 ACJ 855
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treatment. The claimant is a teacher and earning an amount of

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

examined as Pw.1, and on her behalf Pw.2-Dr.N. Anil Kumar,

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

Reddy, 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 the Mini bus. Against the said decision, the Insurance

Company filed M.A.C.M.A.No.1544 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-discharge summary issued by Yashoda hospital, Ex.A.6-

Final bill, Ex.A.7-Medical Bills for Rs.3,96,500/-, Ex.A.8-

Disability certificate and Ex.A.9-X-rays.
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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.

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 on the part of driver of Innova car. A perusal of the

evidence on record it 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 KL,J &SKS,J Macmas_1544 & 1559_2015

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

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.

KL,J &SKS,J Macmas_1544 & 1559_2015

POINT NO.2 :

16. Basing on the evidence of Pws.2 and 3, Exs.A.4 to A.8, the

court below awarded an amount of Rs.6,35,500/-, whereas the

contention of the claimant is that the court below has granted

very less compensation.

17. According to the claimant, the court below has not taken

her income properly for assessing the disability. To prove the

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

according to Ex.A.8, the physical disability is estimated at 15%.

No document is filed by the claimant to prove her income, 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 about 39

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

compensation towards permanent disability would be

Rs.1,35,000/- (Rs.60,000/-X 15 multiplier X 15% disability).

The claimant is awarded an amount of Rs.1,05,000/- towards

pain and suffering on account of the grievous injuries,

Rs.25,000/- towards transportation and extra-nourishment as

she was in the hospital from 07.11.2010 to 22.11.2010. As the

claimant has incurred Rs.3,80,000/- towards hospitalization,

medicines etc, as evident from Ex.A.6-final bills, she is entitled KL,J &SKS,J Macmas_1544 & 1559_2015

for the same under the head Hospitalization, medicines and

tests etc., Rs.5000/- is awarded 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. Thus, in all the claimant is entitled to Rs.7,00,000/- as

compensation under the following heads :

Pain & Suffering                      :     Rs.1,05,000/-

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

Hospitalization, medicines and        :     Rs.3,80,000/-
Tests etc.,

Litigation charges                    :     Rs.50,000/-

Permanent disability                  :     Rs.1,35,000/-

Damage to clothing                    :     Rs.5,000/-

                                           ___________________
                Total                 :      Rs.7,00,000/-
                                            ___________________

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

2022 Livelaw (SC) 968 KL,J &SKS,J Macmas_1544 & 1559_2015

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."