The Oriental Insurance Company Limited vs A.Venu Gopal Chary And 2 Others
2024 Latest Caselaw 3494 Tel

Telangana High Court

The Oriental Insurance Company Limited vs A.Venu Gopal Chary And 2 Others on 30 August, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

                  M.A.C.M.A.No.1152 OF 2018
                             AND
               CROSS OBJECTIONS No.12 OF 2018

COMMON JUDGMENT:

1. Aggrieved by the order dated 31.10.2017 passed in

M.V.O.P.No.42 of 2016, on the file of the Motor Vehicles Accidents

Claims Tribunal -cum- XII Additional Chief Judge, City Civil Court,

Secunderabad, the 2nd respondent in M.V.O.P./Insurance

Company filed M.A.C.M.A.No.1152 of 2018 seeking to set-aside the

order of the learned Tribunal. Also, having not satisfied with the

compensation awarded by the learned Tribunal, the claim

petitioner in M.V.O.P. filed Cross Objections No.12 of 2018 seeking

for enhancement of compensation.

2. For the sake of convenience, the parties hereinafter be

referred as they were arrayed before the Tribunal.

3. The brief facts of the case are that the claim petitioner, who

is injured, filed a petition under Section 166 of the Motor Vehicles

Act, 1988 and Section 455 of A.P.Motor Vehicle Rules, 1989 read

with Section 140 (c) of Motor Vehicles Act, 1988, seeking

compensation of Rs.50,00,000/- along with interest @ 12% per

annum for the injuries sustained to him in an accident that

occurred on 01.06.2015 at 11.00 A.M. It is stated by the

petitioner/inured that on 01.06.2015 at about 11.00 A.M., when

the petitioner/injured was proceeding on his motorcycle from

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

Thumukunta to Secunderabad and when reached near Hakimpet

Bus Depot, one TATA Vista Car bearing No.TS-10EC-7060 came at

a high speed in a rash and negligent manner and dashed the

motorcycle of the petitioner, due to which he fell down on the road

and sustained severe multiple fractures to left leg, bleeding injuries

on left hand, bleeding injuries on left side of the chest, deep cut

bleeding injuries on left forearm and deep cut bleeding injuries on

left foot. Immediately, the petitioner was shifted to Sree Balaji

Hospital, Pet Basheerbad, Medchal Road in '108' Ambulance and

later shifted to Kamineni Hospital, where the petitioner underwent

surgery to his left leg and was discharged on 05.06.2015. Police of

Alwal Police Station, registered a case in Crime No.378 of 2015 for

the offence punishable under Section 338 of IPC against the driver

of the Car. It is further stated by the petitioner that he was aged

28 years at the time of accident and was Graduated in Commerce

and joined Coffee Day shop for special training in Bar Food

Technology and Management and was working as Deputy District

Manager in Jubilant Food Works Limited and was getting salary of

Rs.40,000/- per month. He was earning a sum of Rs.15,000/- per

month from Aluminium Work contract. Due to the said accident,

the petitioner was bedridden for four (4) months and was unable to

sit, squat and walk and thus became permanently disabled person

and was put to suffer economically and socially for balance of life

and hence filed the claim petition seeking compensation against

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

the respondent Nos.1 to 3, who are the owner, insurer and driver of

the crime vehicle.

4. Despite service of notices to respondent Nos.1 & 3, they

failed to appear before the Trial Court. As such, they were set ex-

parte.

5. Respondent No.2, who is the insurer of the crime vehicle,

filed counter denying the averments made in the claim petition

including, age, occupation, income, disability of the petitioner and

contended that the accident occurred due to the contributory

negligence of the driver of the crime vehicle. It is also contended

that the concerned police did not forward the relevant documents

to the insurer as required under Section 158(6) of MV Act, 1988. It

is also contended that the 1st respondent, who is the owner of the

crime vehicle, did not furnish the particulars of the policy, date,

time, place of accident, name of the driver and his driving license

as required under Section 134(c) of M.V Act, 1988 and that the

compensation claimed is excess and exorbitant and hence prayed

to dismiss the claim against it.

6. Based on the rival contentions made by both the parties, the

learned Tribunal had framed the following issues for

consideration:-

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

1. Whether the pleaded accident occurred resulting in injury of viz., A Venu Gopal Chary due to rash and negligent driving of the TATA Vista Car bearing No.TS-10EC-7060?

2. Whether the petitioner is entitled to any compensation and if so, at what quantum and what is the liability of the respondents?

3. To what relief?

7. Before the Tribunal, on behalf of the petitioner/injured,

PWs1 to 5 were examined and Exs.A1 to A17 were marked. On

behalf of Respondent No.2/Insurance Company, RW1 was

examined and Ex.B1-Copy of Insurance Policy was marked.

8. After considering the evidence and documents filed by both

sides, the learned Tribunal had allowed the claim petition of the

petitioner/injured by awarding compensation of Rs.22,64,760/-

with simple interest @ 9% per annum from the date of filing of

petition till the date of deposit of amount which is payable by

Respondent No.2 in the first instance, who in turn is entitled to

recover the same from respondent Nos.1 & 3, who are the owner

and driver of the crime vehicle. Aggrieved by the said order, the 2nd

respondent in O.P. preferred M.A.C.M.A.1152 of 2018 and the

claim petitioner had filed Cross Objection petition No.12 of 2018

seeking enhancement of compensation.

9. Heard both sides and perused the material available on

record.

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

10. The contentions of the learned Standing Counsel for

appellant/Insurance Company are that the learned Tribunal erred

in applying pay and recovery policy; failed to observe that the

driver of the crime vehicle do not possess valid driving license to

drive the crime vehicle which is violation of policy conditions and

hence, Insurance Company is not liable to pay any compensation.

It also contended that future prospects should be awarded in a

death case but not in disability case and that the petitioner is

working as a Supervisor even after the accident and hence, he is

not entitled for future prospects and that the medical expenses

paid through Raksha PPA ought not to have been granted to the

petitioner and that the amounts awarded under different heads are

excess. It is also contended that the learned Tribunal awarded

excess interest which is @ 9 % per annum.

11. Per contra, the learned counsel for the Cross-Objector/claim

petitioner contended that the learned Tribunal ought to have fixed

monthly salary @ Rs.40,000/- and Rs.15,000/- towards

Aluminium works and ought to have considered disability @ 25%

as stated by PW5/Doctor who treated the petitioner/injured and

hence, prayed to allow the cross-objection petition by enhancing

the compensation.

12. Now the points that emerges for determination are,

(i) Whether the order passed by the learned Tribunal requires interference of this Court?

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

(ii) Whether the cross-objector/claim petitioner is entitled for enhancement of compensation?

POINTS:-

13. This Court has perused the evidence and documents

available on record. The claim petitioner examined himself as PW1

and got examined PWs 2 to 5 on his behalf and got marked Exs.A1

to A17. A perusal of Ex.A1 shows that Police of Alwal Police

Station, registered a case in Crime No.378 of 2015 under Section

337 IPC against the driver of the crime vehicle and after

conducting thorough investigation, filed charge sheet against the

driver and owner of the crime vehicle under Ex.A2. The said

charge sheet also reveals that the accident occurred due to the

rash and negligent driving of the driver of TATA Vista Car bearing

No.TS-10EC-7060. Ex.A3 is the extract of Medico Legal Case

record issued by Kamineni Hospital wherein the petitioner/injured

sustained abrasion of left patella, abrasion on left mid shaft,

abrasion on left heel postural and fracture of left leg tibia . Ex.A4

is the Discharge Summary of Kamineni Hospital. Ex.A5 is the

Medical Certificates (3 in number) issued by Kamineni Hospitals.

Ex.A6 is the Disability Certificate issued by an Orthopaedic

Surgeon stating that the petitioner/injured sustained 25%

disability. Ex.A7 is the Service Certificate along with Payslips for

the months of December, 2016, January, 2017 and February, 2017

issued by Jubilant Food Works Limited stating that the petitioner

was working as a Guest Delight Manager since 25.03.2011. Ex.A8

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

is the extract of Bank statement of the petitioner/injured. Ex.A9 is

the Aluminium Fitting charges Quotation (6 in number). Exs.A10

to A12 are the medical bills worth Rs.7,951/-, Rs.1,26,839/- and

Rs.5,302/-. Ex.A13 are the Rental bills worth Rs.8,590/-. Ex.A14

are the receipts from personal attendants which comes to

Rs.36,000/-. Ex.A15 is the motorcycle repair bills worth

Rs.31,860/-. Ex.A16 are the Lab reports and Ex.A17 are the

Memorandum of marks.

14. It is the contention of the learned counsel for appellant that

the driver of the crime vehicle do not possess valid driving license

to drive the crime vehicle which is violation of policy conditions and

hence, Insurance Company is not liable to pay any compensation.

15. In this regard, it is pertinent to refer the decision of the

Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s

United India Insurance Company and Another 1 wherein,

the Hon'ble Supreme Court held that the Insurance Company is

liable to pay the victim even if the driver was unlicensed so that the

victim should not be deprived of the money due to him. Hence

Insurance Company has full rights to recover their money from the

owner of the vehicle. Further, the owner can make the unlicensed

driver to pay the compensation.

AIR 2013 Supeme Court 2262

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

16. From the above decision, it is clear that the Insurance

Company cannot be exonerated from its liability to pay the

compensation amount. It shall pay the compensation at first and

then recover the same from the owner, who in turn can add the

unlicensed driver to pay the compensation. Hence, the contention

of the learned counsel that the Tribunal erred in applying pay and

recover policy is unsustainable.

17. It also contended by the learned Standing Counsel for

Insurance Company that future prospects should be awarded in a

death case but not in disability case and that the petitioner is

working as a Supervisor even after the accident and hence, he is

not entitled for future prospects.

18. In this regard, it is pertinent to refer to Ex.A7-Service

Certificate along with evidence of PW5, who is an Orthopaedic

Surgeon. A perusal of Ex.A7-Service Certificate along with pay

slips issued by Jubiliant Food Works Limited shows that the

petitioner/injured is working as a Guest Delight Manager even

after the accident and the disability sustained to him is only 25%

and not permanent as per Ex.A6- Disability Certificate issued by

PW5, who is an Orthopaedic Surgeon and that there is no

obstruction/loss to his future monthly earnings. Hence, this Court

by considering the above facts, feels that the petitioner/injured is

not entitled for future prospects and is inclined to interfere with

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

the finding of the learned Tribunal as far as this aspect is

concerned.

19. It is the further contention of the learned Standing Counsel

for Insurance Company that the medical expenses paid through

Raksha PPA ought not to have been granted to the petitioner. In

this regard, it is pertinent to refer to the recent judgment delivered

by Bombay High Court reported in the case between Royal

Sundaram Alliance Insurance Co. Ltd. Vs. Ajit Chandrakant

Rakvi and Ors 2 , wherein, the issue of double benefit has been

decided in a similar manner based on the decision of the Apex

Court in Helen C.Rebello v.Maharashtra State Road Transport

Corporation and Another 3 . It was held by the Court that the

nature of the proceedings under the Act is of relevance and a claim

petition for compensation in regard to motor accident filed by the

injured is neither a suit nor an adversarial lis in the traditional

sense. Thus, the benefits emanating from an independent and

unconnected contract of insurance cannot be considered by the

Tribunal as it besets with variables rooted in contract.

20. Therefore, in view of the above discussion and also based on

the above decision, the petitioner/injured is entitled for medical

expenses even though part of some amount was paid through

medical insurance.

2020 ACJ 691

1999 ACJ 10 (SC)

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

21. It is also the contention of the learned counsel for

appellant/Insurance Company that the amounts awarded by the

Tribunal under different heads are excess and that the learned

Tribunal awarded excess interest @ 9 % per annum.

22. A perusal of Medical bills filed under Ex.A12 shows that the

petitioner had incurred a sum of Rs.1,22,444.36 towards medical

expenses, but not Rs.1,40,092/- as claimed by the

petitioner/injured and awarded by the Tribunal. Further, the

Rent-a-Car receipt filed under Ex.A13 shows that the petitioner

hired a vehicle for rent for an amount of Rs.2,150/-, but not

Rs.8,509/- as alleged by the petitioner. It is also pertinent to

note that though PW2 in his evidence stated that the petitioner

incurred an amount of Rs.31,860/- towards repairing charges for

his motorcycle, but Ex.A15 receipt reveals that the petitioner

incurred a sum of Rs.16,420/- only but not Rs.31,860/- as stated

by PW2. Hence, this Court is of the opinion that the learned

Tribunal, without calculating the expenses incurred properly, had

awarded huge amounts towards compensation for which this Court

is inclined to interfere with the same and hereby reduces the

amounts which are awarded in excess while calculating the

compensation amount.

23. Per contra, it is the contention of the Cross-objector/claim

petitioner (injured) that though PW5, who is an Orthopaedic

Surgeon, stated that the petitioner/injured sustained 25%

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

disability, but the learned Tribunal took disability @ 20% which is

very meagre. This Court, by considering the evidence of PW5 and

Ex.A6-Disability Certificate, is inclined to interfere with the finding

of the learned Tribunal and hereby fix the disability @ 25% instead

of 20%. It is also the contention of the learned counsel for the

cross-objector that the learned Tribunal ought to have fixed the

monthly salary of the petitioner/injured @ Rs.40,000/- and

Rs.15,000/- respectively. In this regard, it is pertinent to refer to

the evidence of PW4, Manager of the Jubilant Food Works under

whom the petitioner/injured is working, who deposed that the

petitioner is working in their company on a salary of Rs.31,650/-

per month. A perusal of Ex.A9-Bills issued to Platinum properties

private limited reveals that they are self-made bills and the

petitioner/injured failed to examine the concerned person to prove

that he worked as an Aluminium Work Contractor. Therefore, this

Court is of the considered opinion that the Tribunal had rightly

taken the income of the petitioner/injured @ Rs.31,650/- which

needs no interference by this Court.

24. Now, coming to quantum of compensation, this Court, in

view of the above changes made, is inclined to interfere with the

findings of the learned Tribunal and hereby calculate the

compensation as mentioned below:

25. As per evidence of PW4, it is evident that the

petitioner/injured was earning a sum of Rs.31,650/- as salary per

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

month. Hence, the same is taken as his monthly income for

calculating compensation. This Court, by considering the evidence

of PW5 along with Ex.A6-Disability Certificate, is inclined to fix the

disability @ 25% and by applying relevant multiplier '17' as per the

guidelines laid down by the Apex Court in Sarla Verma v. Delhi

Transport Corporation 4, the total annual loss of income due to

the said disability comes to Rs.16,14,150/- (31,650 x 12 x 17 x

25%). Apart from this, the petitioner was also awarded an amount

of Rs.94,950/- towards loss of earnings for three months; an

amount of Rs.2,150/- towards transport charges; an amount of

Rs.1,22,444.36 towards medical expenses; an amount of

Rs.10,000/- towards extra nourishment; an amount of

Rs.25,000/-towards pain and suffering ; an amount of

Rs.18,000/- towards attendant charges; an amount of

Rs.16,420/- towards damages to motor-cycle . Thus in all, the

petitioner/injured is entitled for a total compensation of

Rs.19,03,114.36/-

26. With regard to interest awarded by the learned Tribunal, this

Court, by relying upon the decision of the Hon'ble Apex Court in

Rajesh and others v. Rajbir Singh and others 5, reduces the rate

of interest from 9% per annum to 7.5% per annum.

2009 ACJ 1298 (SC) 5 2013 ACJ 1403 = 2013 (4) ALT 35

MGP,J MACMA.No.1152 of 2018 & Cross-Objections No.12 of 2018

27. In the result, M.A.C.M.A.No.1152 of 2018 filed by the

Insurance Company is partly-allowed reducing the compensation

awarded by the Tribunal from Rs.22,64,760/- to

Rs.19,03,114.36/- and the Cross-Objections petition filed by the

petitioner/injured is also partly-allowed by considering the

disability @ 25% instead of 20% as awarded by the Tribunal. The

compensation so awarded shall carry interest @ 7.5% per annum

from the date of filing of petition till the date of realization payable

by the appellant/Insurance Company in the first instance within a

period of two months from the date of receipt of a copy of this order

and is entitled to recover the same from the respondent Nos.2 & 3,

who are the owner and driver of the crime vehicle. On such

deposit, the claim petitioner/X-objector is entitled to withdraw the

same without furnishing any security. There shall be no order as

to costs.

28. Miscellaneous petitions, if any, pending shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI Dt.30.08.2024 ysk