Telangana High Court

Chola Ms General Insurance Co. Ltd., vs Guguloth Veeranna on 12 February, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.No.1010 of 2023

JUDGMENT:

Heard Sri A.Ramakrishna Reddy, learned standing counsel

for the appellant-insurance company, and Ms. T.Swetcha, learned

counsel for respondent No.2.

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

company challenging the Award passed by the Motor Accident

Claims Tribunal-cum-I Additional District Judge, Kothagudem (for

short, 'Tribunal') in MVOP No.86 of 2018, dated 17.03.2023, and

thereby to set aside the said Award.

3. The brief factual matrix of the case is as under:-

On 22.09.2017 at about 20:00 hours, the claim petitioner-

respondent No.1 herein and one Bhukya shiva went to Bodu

village for taking treatment on Bhukya Siva's Motorcycle bearing

No.TS04-EE-7443 and after treatment, they were returning to their

village, and when they reached Bodu Sub-station, the driver of the

Motorcycle bearing No.TS04 EK1226 coming from Tekulapally to

Bodu village, in opposite direction, drove the said vehicle in a rash LNA,J

and negligent manner in high speed and dashed the above said

Bhukya Shiva's Motorcycle. As a result, the claim petitioner, who

is the pillion rider and the said Shiva fell on the road and the claim

petitioner sustained grievous injury i.e., laceration of the right

knee, many fractures over the right leg and multiple injuries all

over the body.

3.1. On receipt of complaint, the Police, Bodu P.S registered a

case in Crime No.27/2017 under Sections 337 and 338 IPC against

the driver of the Crime Vehicle i.e., Motorcycle bearing No.TS 04

EK 1226 and after completion of the investigation, the police filed

a charge sheet before the Magistrate concerned.

3.2. It was averred that the claim petitioner was aged about 32

years by the date of the accident and he was hale, healthy, and

energetic before the accident. The petitioner worked as a mason

and was getting a salary of Rs.10,000/- per month.

3.3. It was further averred that for treatment of the said injuries,

the claim petitioner was shifted to Yashoda Hospital, Hyderabad,

wherein major surgeries were done and his right leg above the knee

was amputated, and skin and bone grafting was done to other LNA,J

fractures. He took treatment as an inpatient for a period of 30 days

under the supervision of Orthopedic surgeons.

3.4. It was also averred that due to the amputation of the right

leg above the knee, the claim petitioner is unable to move from the

bed and even unable to attend his normal duties and had to suffer

from the same for the entire life. Hence, the claim petition against

the owner and the insurer of the crime vehicle, seeking to grant

compensation of Rs.25,00,000/- (Rupees Twenty Five lakhs only),

for the injuries sustained by the claim petitioner in the motor

vehicle accident, along with costs and interest @18% per annum

from the date of the accident till realization.

4. Before the Tribunal, the owner and the insurer of the crime

vehicle filed a counter contending inter alia denying the manner of

the accident as narrated in the claim petition, the age, avocation

and the income of the petitioner, nature of treatment and the

medical expenses incurred by him. It was further stated that the

driver of the Motorcycle bearing No.TS 04 EK 1226 was not

having a valid driving licence. The claim of compensation is highly LNA,J

excessive and hence, prayed to dismiss the claim petition in limine

with costs.

5. Based on the pleadings of both sides, the following issues

were framed:-

"1. Whether the petitioner sustained injuries in the motor vehicle accident? If so, whether the accident occurred due to the rash and negligent driving of the Motorcycle bearing No.TS 04 EK 1226?

2.Whether the petitioner is entitled to claim compensation? If so to what amount and from whom?

3. To what relief?"

6. During the trial, on behalf of the claim petitioner, P.Ws.1 to

4 were examined, and Exs.A-1 to A-12 were marked. On behalf of

the appellant-insurance company, none were examined, but

Ex.B-1-Attested copy of the insurance policy was marked.

7. The Tribunal, on due consideration of evidence and material

placed on record, came to a conclusion that the accident took place

due to rash and negligent driving of the crime vehicle and awarded

compensation of Rs.29,56,270/- along with costs and interest

@ 7.5% per annum from the date of petition till the date of deposit.

LNA,J

The owner and insurer of the crime vehicle were directed to deposit

the compensation amount within one month from the date of the

said Award.

8. The contentions of the learned Standing Counsel for the

appellant is mainly two fold; firstly, that there was a head on

collision between the two motor cycles, but the Tribunal failed to

take note of the said fact and held that the accident occurred due to

the rash and negligent driving by the driver of motor cycle bearing

No.TS04 EK 1226; and secondly, that the Tribunal erred in taking

the monthly income of the claim petitioner at Rs.12,000/-.

9. On the other hand, Ms. T.Swetcha, learned counsel for

respondent No.2-owner of the crime vehicle, submitted on the

same lines as that of the learned Standing Counsel for the

appellant i.e., with regard to denial of rash and negligent driving by

the driver of the motor cycle bearing No.TS04 EK 1226 in causing

the accident and further, also disputed the avocation and earnings

of the claim petitioner.

LNA,J

10.Consideration :

A perusal of the record shows that the claimant-injured

examined himself as P.W-1 and narrated the manner in which the

accident occurred reiterating his version made in the claim petition.

11. The owner and insurer of the alleged crime vehicle though

filed counter before the Tribunal denying the contents of the claim

petition as regards the manner of occurrence of the accident, did

not take any steps to examine the driver of the alleged crime

vehicle to disprove the version of the claim petitioner. Further, the

police concerned after investigation, filed Ex.A-2-charge sheet

before the Magistrate concerned against the driver of the alleged

crime vehicle.

12. Therefore, in the absence of any rebuttal evidence adduced

on behalf of the owner and insurer of the alleged crime vehicle as

regards the manner of occurrence of the accident, due credence has

to be given to the evidence of P.W-1.

13. In the light of the above, this Court is of the considered

opinion that the Tribunal rightly held that the accident occurred

due to the rash and negligent driving by the driver of the crime LNA,J

vehicle i.e., TS04 EK-1226 and fastened the liability on the owner

and insurer of the said vehicle to pay the compensation to the claim

petitioner.

14. Coming to the earnings of the claim petitioner, he produced

Ex.A-9-Identity Card to show that he used work as a Mason and

also examined P.W-2 who stated that the claim petitioner used to

earn Rs.10,000/- to Rs.15,000/- per month by working as a Mason.

However, the claim petitioner did not file any salary certificate to

prove his earnings. Hence, it can be reasonably presumed that the

earnings of the claim petitioner would be Rs.10,000/- per month.

15. In order to assess the loss of earnings, it is pertinent to note

that the claim petitioner adduced ample evidence in proof of the

injuries sustained by him, the treatment and the surgeries

undergone by him and the disability suffered by him. He also got

marked Ex.A-10-Disability Certificate issued by the Medical

Board, Kothagudem District, which shows that he suffered 75%

functional disability due to amputation of the right leg above the

knee. Therefore, this Court is of the considered view that the claim

petitioner is entitled to compensation under the head 'loss of LNA,J

earnings' for a period of six months, which comes to

Rs.10,000/- x 6 = Rs.60,000/-.

16. Insofar as addition of income of the deceased towards

future prospects, since the claim petitioner was self-employed and

was aged about 32 years as on the date of accident, in view of

paragraph-59.4 of the judgment of the Hon'ble Supreme Court in

National Insurance Co. Ltd., vs. Pranay Sethi and others 1, he is

entitled to future prospects by addition of 40% of the income.

Therefore, in the considered opinion of this Court, the Tribunal

erred in not awarding any amount towards loss of future prospects.

17. Further, it is established from the evidence of P.W-2 that the

claim petitioner was self-employed i.e., working as a mason and as

per Ex.A-9-Identity card, he was aged about 32 years as on the date

of the accident. Therefore, the claim petitioner is entitled to future

prospects of 40% of 10,000/- per month, which comes to

Rs.4,000/- per month. Thus, the income of the claim petitioner

including the future prospects comes to Rs.1,68,000/- per annum.

As there is no dispute regarding the age of the claim petitioner-

injured, by applying the ratio laid down in Sarla Verma Vs. Delhi

(2017) 16 SCC 680 LNA,J

Transport Corporation and another 2, the appropriate multiplier to

be applied is '16'.

18. It is to be noted that the claim petitioner has adduced

evidence which clinchingly prove that he suffered 75% functional

disability due to the injuries sustained by him in the accident.

19. Thus, in view of the above discussion, the compensation

amount to be awarded to respondent No.1 herein-claim petitioner

under the head 'loss of future prospects' is recalculated as 75% of

Rs.1,68,000/- which comes to Rs.1,26,000/-. By applying the

appropriate multiplier of '16', having regard to the age of the claim

petitioner-injured as 32 years as on the date of the accident, he is

entitled to a sum of Rs.20,16,000/- under the head 'loss of future

prospects'.

20. Except the modification of the Award of the Tribunal as

regards the loss of earnings and the permanent disability of the

claim petitioner, the compensation awarded by the Tribunal under

the other heads i.e., Transportation to hospital, extra nourishment,

medical expenses and pain and suffering remains unaltered.

(2009) 6 SCC 121 LNA,J

21. Accordingly, the claim petitioner is entitled to compensation

under different heads which is as under:-

Sl.No.     Head                              Compensation awarded

1.         Income                            Rs.1,20,000/- per annum (Rs.10,000/-
                                             per month)
2.         Future prospectus                 Rs.48,000/- (40% of the annual
                                             income i.e.,1,20,000/-)
3.         Total income                      Rs.1,68,000/- per annum

4. Percentage of functional disability 75%

6. Permanent disability Rs.20,16,000/-

(75% x Rs.1,68,000/- x 16)

7. Loss of earnings Rs.10,000/- x 6 = Rs.60,000/-

8. Transportation to hospital Rs.15,000/-

9. Extra nourishment Rs.10,000/-

10. Medical expenses Rs.3,15,068/-

11. Pain and Suffering Rs.1,25,000/-

12. Total compensation Rs.25,41,068/-

22. In the result, the Appeal is partly allowed and the impugned

Award, dated 17.03.2023, passed by the Tribunal insofar as

compensation amount is concerned is modified by reducing the