Telangana High Court
The Oriental Insurance Company Limited vs Ramisetty Srinivasa Rao And 2 Others on 15 February, 2024
Author: N. Tukaramji
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA,
HYDERABAD
***
M.A.C.M.A.No.443 OF 2020
AND
CROSS OBJECTIONS No.17 of 2022
M.A.C.M.A.No.443 OF 2020
Between:
The Oriental Insurance Co.Ltd. rep. by its B.M.,Khammam
..Appellant/R-3
VERSUS
Ramisetty Srinivas Rao and others
...Respondents
CROSS OBJECTIONS No.17 of 2022
Between:
Ramisetty Srinivasa Rao
..Cross objector/claimant
VERSUS
P.Sanjeeva Rao and others
...Respondents
ORDER PRONOUNCED ON: 15.02.2024
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
____________________
N. TUKARAMJI, J
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* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
+M.A.C.M.A.No.443 OF 2020
AND
CROSS OBJECTIONS No.17 of 2022
% 15.02.2024
M.A.C.M.A.No.443 OF 2020
#Between:
The Oriental Insurance Co.Ltd. rep. by its B.M.,Khammam
..Appellant/R-3
VERSUS
Ramisetty Srinivas Rao and others
...Respondents
CROSS OBJECTIONS No.17 of 2022
#Between:
Ramisetty Srinivasa Rao
..Cross objector/claimant
VERSUS
P.Sanjeeva Rao and others
...Respondents
! Counsel for Appellant/R-3 : Ms. I. Maamu Vani
^Counsel for the respondent/petitioner : Mr.K.Jagathpal Reddy
<GIST:
> HEAD NOTE:
? Cases referred
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HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.443 OF 2020
AND
CROSS OBJECTIONS No.17 of 2022
COMMON JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji)
This appeal has been preferred by the respondent
No.3/insurer disputing the liability and quantum of compensation
and the respondent No.1/petitioner has filed cross objections
seeking enhancement of compensation against the decree and
order dated 02.12.2019 in M.V.O.P.No.560 of 2015 passed by the
Motor Accidents Claims Tribunal-cum-Special Sessions Judge for
Fast Tracking the case relating to Atrocities against women-cum-
VIII Additional District Judge, Khammam.
2. For the sake of facility, the parties are hereinafter referred to
with their rank before the tribunal.
3. The petitioner's case in brief is that, on 22.10.2014 when
himself along with his wife and two other employees
were travelling in a Maruti Swift Car bearing registration
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No.AP-20AM-3636 (for short, 'the car') and on the way the driver
drove the car in rash and negligent manner and dashed a road side
tree resulting in severe injuries all over his body. Thus claiming
physical disability and loss of earnings and earning capacity filed
petition seeking compensation of Rs.1,75,00,000/-.
4. The tribunal on considering the materials on record granted
compensation of Rs.1,25,10,500/- with proportionate costs and
interest at 6% per annum from the date of the petition till
realization.
5. We have heard Ms. I. Mamuvani, learned counsel for the
appellant/respondent No.3/insurer and Mr. K. Jagathpal Reddy,
learned counsel for the respondent No.1/petitioner.
6. In appeal the learned counsel for the respondent
No.3/insurer would contend that the petitioner is the husband of
registered owner of the car. According to the petitioner, his
income is only source for the family including his wife. This
asserted fact is clarifying that the car was purchased by the
petitioner in the name of his wife and even employed the driver.
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In such situation the petitioner squarely stands in the footing of
owner and would be vicariously liable for the acts done by his
employee/driver of the car. Further, the petitioner had paid
certain amount of compensation to the other injured of the car
and this fact is substantiating that the petitioner is the de facto
owner of the car. Hence, the petitioner cannot claim
compensation as third party or as an occupant of the car. That
apart, even according to the petitioner at relevant time they were
proceeding to attend a business and this statement itself is
establishing that the vehicle was used for commercial purpose, in
violation of the policy condition. Therefore, the respondent
No.3/insurer shall be exonerated and at the best the liability shall
be limited to Rs.2 lakhs to the extent of owner's risk as per the
insurance contract.
7. On the other hand contested that, the doctor/PW-10,
Member of Medical Board, who issued Ex.A-12/disability
certificate is showing 70% of temporary disability, whereas
another doctor of the Medical Board/PW-12 after about four
years had rated the disability as permanent and at 75%, this
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variation on its own is explaining the fallacy. Further the income
tax returns filed by the petitioner are indicating clear rise in
income defying the claim of disability effecting the occupational
abilities and earnings, hence assessment of occupational disability
at 55% is erroneous. That apart, the tribunal ought not have
granted huge amounts towards loss of earnings during treatment
and the other non pecuniary heads. Thus prayed for
reconsideration and to allow the appeal.
8. In cross-objections and in reply the petitioner pleaded that
though the liability of the respondents has been appropriately
confirmed, tribunal had erred in properly considering the
materials placed on record in appreciating his income and should
have taken the gross earnings as income. Further contended that,
though the permanent physical disability was certified by the
doctors at 75%, restricting the same at 55% is unreasonable. In
addition explained that the income in the tax returns/Exs:A-14 to
A-17, especially of the year 2015-16 is reflecting the receipts of
earlier transactions. After everything, due to the disability he
could not run the establishment. Therefore pleaded that the
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occupational disability shall be considered at 100%. In addition
implored for granting compensation for loss of amenities and
marital sufferings. Hence, prayed for reconsideration and for
enhancement of the compensation.
9. In support of the pleadings, the learned counsel for the
petitioner cited authorities in (i) Raj Kumar v. Ajay Kumar and
another - 2011 ACJ 1, (ii) Charan Singh v. Vittal Reddy and
another - 2003 (4) ALD 183, (iii) A. Prakash v. Claims Manager,
IFFCO-TOKIO General Insurance Company Limited and others
- 2023 ACJ 593, (iv) Lakshmana Gowda B.N. v. Oriental
Insurance Co.Ltd. and another - 2023 ACJ 1481, (v) Jithendran v.
New India Assurance Co. Ltd. and another - 2022 (1) ALD 235
(SC), (vi) Ramesh v. Karan Singh and another - 2022 ACJ 2658,
(vii) Dixit Kumar and another v. Om Prakash Goel - (2017) 15
Supreme Court Cases 546, (viii) Nakka Ram Babu v. O. Akka Rao
and another - 2015 (4) ALD 50, (ix) Jakir Hussein v. Sabir and
others - 2015 (3) ALD 115 (SC) and (x) Rajan v. Soly Sebastian
and another - 2015 ACJ 2418 and pleaded that the disability
estimated by the qualified doctor is only guiding factor and by
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considering the petitioner's physical condition and by
distinguishing the loss of earning capacity to that of physical
disability, the disability of the petitioner should be considered at
100% .
10. In these rival claims, the issues arise for determination are:
(a) Whether the respondent No.3/insurer has made out tenable
ground to absolve its liability?
(b) Whether the tribunal had awarded just compensation to the
petitioner in the given facts and circumstances of the case?
POINT (a):
11. The factum of accident and the injuries suffered by the
petitioner are not in dispute. The evidence of claimant/PW-1 and
the statements of doctors/Pws.2, 3, 5, 10 and 12 are confirming
the treatment undergone by the claimant.
12. The contest of the insurer is in two fold, firstly, the
petitioner is the de facto owner of the car hence he shall not be
considered as third party. To validate this plea, the respondent
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No.3/insurer has pointed to the statement of petitioner as PW-1
that he is only the income earning member and all his family
members are dependants. Therefore pleaded for deducing the
fact that the petitioner's wife has no income and the petitioner
would have purchased the car and employed the driver.
13. Upon consideration, this theory appears to be far fetched
and an abstract pitch as the PW-1's statement cannot be a
conclusive proof to accept the facts propounded by the
respondent No.3/insurer. Admittedly, the wife of the
petitioner/respondent No.2 is de jure owner of the car and the
respondent No.3/insurer issued insurance policy in her name
covering the risk of the passengers. In this factual position, the
claim of respondent No.3/insurer to consider the petitioner as
owner appears to be speculative and proposed only to somehow
absolve its liability. Further it is settled position that the term,
third party implies to any person other than insurer and the
insured, who are not parties to the insurance contract. That being
so, merely the insured of the car being the wife of the petitioner,
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and taking one plea that he is only the bread winner, treating him
as owner of the car would be preposterous and unjustified.
14. Secondly, the contention that the car was used for
commercial purpose as admittedly the petitioner along with the
others were proceeding in the car to attend a business. Equating
use of vehicle for commercial purpose, when the passengers
travelling in that vehicle for their business, is ex facie irrational and
beyond logic. Therefore, no reasonableness is found in the aspects
urged by the respondent No.3/insurer.
15. Admittedly the insurance contract/Ex.B-1 is comprehensive
package policy. A perusal of Schedule of the policy is
demonstrating that the respondent No.3/insurer had collected
Rs.500/- as premium for the unnamed passengers. The petitioner
was travelling in the car as passenger. As a result, his risk is
covered under the insurance policy. Thus the liability of the
insurer/respondent No.3 to indemnify the insured under the
insurance contract, as concluded by the tribunal deserves to be
and is accordingly affirmed.
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POINT (b):
16. In regard to the disability of the petitioner, the doctors
deposed about his injuries, treatment and the physical disability.
As rightly pointed by the respondent No.3/insurer that the
disability certificate issued by the doctors/PWs.10 and 12 had
opined the nature of the disability as temporary and permanent
with a variation of 5 percent. However the treating doctor/PW-2
categorically deposed that the petitioner needs permanent support
for walking throughout his life and he would not be able to run,
walk fast, squat and requires physiotherapy all along for his
walking ability. This evidence of the doctors is making out that
the petitioner would be suffering disability all the time and even
after four years, rating the disability as permanent and higher than
earlier is explicating that the physical disability of the petitioner is
indeed worsened. Nonetheless, it is well settled that while
assessing the compensation, the effect of disability on the income
earning capacity of the injured has to be considered. The
evidence of doctor and assessment of disability by the medical
board gives an insight as to the physical disability of the injured
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and the Court by juxtaposing the occupation with the disability
would evaluate its probable effect on the earnings of the
petitioner. The evidence of treating doctor is that the petitioner is
suffering physical discomfort in certain physical movements and
mobility, as such, the claim of the petitioner that the disability
rated by the doctor has effected total earning capacity is
unacceptable. At the same time, the contention of the respondent
No.3/insurer that in view of discrepancy in rating the physical
disability by the doctors of the Medical Board, and the disclaimer
that the certificate is not valid for medico legal cases, shall not be
a ground to disregard it in measuring the effect of physical
disability in the avocation. In this view, the tribunal had assessed
the petitioner's probable loss in the occupational capabilities at
55%. Having regard to the medical evidence placed and the
occupation pleaded, we find no error in exercising the jurisdiction
by the tribunal on this aspect.
17. In regard to earnings of the petitioner, the tribunal had
taken the average of gross income by deducting the average
income and the tax paid shown in the income tax returns placed
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on record and arrived at Rs.8,27,759/- as annual income besides,
future prospects were also added. As this approach is reasonable,
no reason is found to interfere with this conclusion. In effect, the
compensation granted for loss of earnings due to permanent
disability at Rs.73,98,105/- stands approved.
18. Having regard to the medial evidence, treatment, bills
placed on record and the future medical expenditure stated by the
treating doctor, the amounts granted by the Tribunal under the
heads of medical expenditure at Rs.22,76,718/-, the future medical
expenses at Rs.3,00,000/-, loss of earnings during the period of
treatment at Rs.19,31,440/-, transportation expenses at
Rs.1,16,000/-, Rs.3,00,000/- for pain and suffering, Rs.20,000/-
for extra nourishment and Rs.1,68,000/- towards attendant
charges and by rounding of awarding the amounts at
Rs.1,25,10,500/- are found reasonable, thus these amounts are
affirmed.
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19. In addition, considering the probable effect of physical
disability in enjoyment of life, comforts and convenience, we are
inclined to grant Rs.2,00,000/- for loss of amenities.
20. For the aforesaid, the awarded compensation in the
impugned order stands modified to Rs.1,27,10,500/- (Rupees One
Crore twenty seven lakhs ten thousand and five hundred only)
with interest at 6% per annum from the date of the petition till
realization. The respondent No.3/insurer is directed to deposit
the awarded compensation by setting of the amounts already
paid/deposited, within 4 (four) weeks from the date of receipt of
a copy of this judgment. On such deposit the petitioner is
permitted to withdraw entire awarded amounts.
21. Resultantly, M.A.C.M.A.No.443 of 2020 filed by the
insurer/respondent No.3 is dismissed without costs and Cross
Objections No.17 of 2022 filed by the petitioner is partly allowed
with proportionate costs.
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As a sequel, pending miscellaneous petitions if any, stands
closed.
________________
P. SAM KOSHY, J
________________
N.TUKARAMJI, J
Date:15.02.2024
ccm
