Telangana High Court
Vayalapally Venkat Rao vs Arukala Ramesh Kumar on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.Nos.607 of 2021 and 37 of 2022
COMMON JUDGMENT:
MACMA No.607 of 2021 is an appeal by the claimant and
MACMA No.37 of 2022 is an appeal by the insurance company.
Considering the fact that these two appeals arises out of the
same award dated 04.06.2021 passed in M.V.O.P.No.2371 of
2015 on the file of the Motor Accident Claims Tribunal-cum-
XXVI Additional Chief Judge, City Civil Court, Hyderabad (for
short "the Tribunal"), these two appeals are taken up together
and decided by this common judgment.
2. For the sake of convenience, the parties hereinafter will be
referred to as arrayed before the Tribunal.
3. The facts leading to filing of these two appeals are that
M.V.O.P.No.2371 of 2015 was filed under Section 166 of the
Motor Vehicles Act, 1988 and Rules 475/1B of APMV Rules
1989, r/w Sections 168, 140 (C) of APMV Act, 1988 by the
petitioner, claiming compensation of Rs.18,00,000/- for the
injuries sustained in the motor vehicle accident. It is stated that
on 09.08.2015 at about 11.50 a.m., while the petitioner was
proceeding on his motor cycle to go to his son Prashanth's
hospital at Gandhipeta side and when he reached near APPA
junction, one lorry bearing registration No.AP-29-V-7989 came
across from right side and dashed him, as a result, he fell on
the left side abetting to the road side fencing and sustained
fracture of right leg at hip level and below knee, left leg fracture,
injuries to face, head injury and other injuries. The petitioner
was admitting in Continental Hospital, Gachibowli and was
operated, rods were inserted in leg and advised for six months
bed rest and he was later operated several times and his right
leg was amputated below the knee in the said hospital.
4. On a complaint, the Police, registered a case in Crime
No.957/2015 under Section 337 IPC against the driver of the
crime vehicle.
5. It is contended that at the time of accident, petitioner was
hale and healthy and was earning Rs.80,000/- per month by
working in M/s.NATCO Pharma Limited and used to contribute
to the same for his family, that due to the said accident, he
sustained severe injuries and subjected to huge loss of
earnings.
6. The respondents 1 and 3 remained ex parte. The
respondent No.2-insurance company filed counter denying the
manner in which the accident took place, the age, avocation and
injuries sustained by the petitioner. It is contended that rider of
motor cycle is not having valid and effective driving license and
that the petitioner and the rider were plying the said vehicle in
contravention of the provisions of MV Act and Rules. It is
contended that the quantum of compensation claimed is
excessive and exorbitant and prayed to dismiss the claim
petition.
7. On the basis of the above pleadings, the Tribunal framed
the following issues:-
1. Whether the accident took place due to the rash and
negligent driving of the lorry bearing no.AP-29-V-7989
causing injuries to the petitioner ?
2. Whether the petitioner is entitled to compensation, if so, to
what extent and against whom ?
3. To what relief?
8. In order to substantiate the case, on behalf of the
petitioner/injured, P.Ws.1 to 4 were examined and Exs.A1 to
A28 were marked. On behalf of the respondent-insurance
company, no witness is examined, however, Exs.B1 and B2
were marked.
9. The Tribunal, on conclusion of the pleadings and evidence
placed on record by the parties, vide the impugned award, held
that the accident had occurred due to the rash and negligent
driving of the driver of the lorry and accordingly, awarded an
amount of Rs.35,24,000/- with interest @ 6% per annum from
the date of petition till the date of realization to be paid by the
respondents 1 to 3 jointly and severally. Challenging the same,
the present Appeals came to be filed by the petitioner/injured as
well as the insurance company.
10. Heard Sri C.M.Prakash learned counsel for the
appellant/injured and Sri N.Mohan Krishna, learned Counsel
for the appellant/insurance company. Perused the record.
11. The principal grounds of challenge by the insurance
company in MACMA No.37 of 2022 are that the accident
occurred due to the own negligence of the injured/claimant and
hence, appellant-insurance company is not liable to pay any
compensation; that the insurer and insured of motor cycle on
which the claimant/injured was travelling are proper and
necessary parties for adjudication and non-joinder of the same,
claim of the claimant/injured is liable to be dismissed; that
claimant did not suffer any disability in the said accident; that
the Tribunal failed to see that insurance company already paid
Rs.7 lakhs for the medical expenditure incurred in the hospital
and hence, the said amount has to be deducted from the
amount awarded by the Tribunal and finally, prayed to set aside
the award passed by the Tribunal.
12. MACMA No.607 of 2021 is an appeal filed by the
claimant/injured seeking for enhancement of compensation.
The grounds seeking for enhancement of compensation was that
the Tribunal had not considered the Ex.A22-disability certificate
issued by the Medical Board, however, the Tribunal accepted
only 30% disability, which is bad in law. The learned counsel for
claimant/injured submitted that Tribunal erred in taking the
salary of the injured as Rs.40,000/-. He submitted that injured
is working as Production Manager in M/s.NATCO Pharma Ltd.,
and if he is continued in service, he would have get salary of
Rs.80,000/- per month. He further submitted that the Tribunal
erred in awarding meager amounts of compensation under the
heads i.e., transportation, extra nourishment, medical
expenses, pain and suffering etc; that Tribunal also erred in not
considering Ex.A25, which is the purchase bill of prosthesis of
right leg amounting to Rs.4,41,000/-. He further submitted
that the Tribunal erred in deducting amount awarded for
C.M.relief fund. He further submitted that claimant/injured is
entitled interest more than 12% per annum as per the decision
of Magma General Insurance Co. Ltd., vs. Nanuram [2018
ACJ 2782 SC), however, the Tribunal only awarded interest at
6% p.a., which is contrary to the above decision and finally
prayed to enhance the compensation amount.
13. In support of the contention, learned counsel for the
claimant/injured relied on the following decisions:
i) Anthony @ Anthony Swamy v. K.S. RTC. 1;
ii) Oriential Insurance Co. Ltd., v. Khaloon @ Jasmai Singh
Khaloon 2;
iii) ICICI Lombard General Insure vs. Ajay Kumar
Mohanty 3;
iv) Dantamoni Sankar @ Sankariaah v. T.Rajaiah and
another 4;
v) Divisional Controller KSRTC v. Mahadeva Shetty and
another 5;
vi) Mohd. Sabeer v. Regional Manager, UP. State Road
Trans. Corpn., 6
14. As regards the contention of the appellant-insurance
company in MACMA No.37 of 2022, it has been submitted that
2020 (4) ALD 220 (SC)
2021 (5) ALD 118 SC
2018 ACJ 1020 SC
2020 (6) ALD 57 (TS)
(2003) 7 SCC 197
2023 ACJ 1
the injured/claimant did not suffer any fracture injuries in the
said accident and Tribunal failed to see that the injured
claimant was continued in employment and was paid salary
even after his retirement and that he himself resigned from job
on his own and therefore, there was no loss of earnings from the
accident.
15. Coming to the grounds raised by the appellant-insurance
company, as per the evidence and material placed on record,
the Tribunal had come to conclusion that accident occurred due
to rash and negligent driving of the crime vehicle, in which the
injured sustained severe injuries and his right leg was
amputated above the knee, which is evident from Ex.A15-
discharge summary.
16. The insurance company that insurance company further
contended that the employer company paid Rs.7 lakhs for the
medical expenditure incurred in Continental hospital, however,
the insurance company failed to show any receipt showing that
it paid Rs.7 lakhs to the injured towards his medical
expenditure.
17. In view of the above, this Court is of the opinion that
appellant-insurance company has failed to discharge its
obligations so far as proving the contention raised by it by
placing cogent, substantial material and evidence on record.
Further, the insurance company failed to let in any witness in
support of it contention.
18. In the absence of any material on the part of appellant-
insurance company, the contentions raised by the appellant-
insurance company thus stands answered in the negative.
19. Coming to the appeal in MACMA No.607 of 2021 filed by
the claimant/injured, on perusal of the entire award, the
injured claimed that he was earning Rs.80,000/- per month by
working in M/s.NATCO Pharma Limited, however, according to
the evidence of injured as P.W.1, he was earning Rs.40,000/-
per month and he did not produce any evidence to prove his
income apart from salary, therefore, the Tribunal had rightly
assessed the income of the injured as Rs.40,000/- per month.
20. Insofar as the other contention raised by the learned
counsel for appellant/injured with regard to the disability
suffered by him is concerned, as per the evidence of P.W.4-
Doctor, who assessed the disability and issued Ex.A22-disability
certificate, the injured sustained 75% disability and he cannot
walk without support and also cannot work. On due
consideration of the medical evidence and disability suffered by
the injured, the Tribunal observed that injured himself resigned
from NATCO Pharma and was not terminated by his employer
on account of disability and that as injured educated he can do
some or other job for his livelihood, his functional disability as
75% cannot be the same for his loss of earning capacity and by
following the decision in Raj Kumar Vs. Ajay Kumar and
another 7, the disability in relation to the whole body is scaled
downed to 30% and with regard to loss of earning capacity, the
Tribunal had rightly assessed the loss of 30% out of the
earnings of petitioner.
21. In Anthony (supra), the Hon'ble Apex Court held that
disability of the left leg is 75% amounting to total body disability
of 37.5%, but the High Court considered the physical disability
at 25% of the whole body without giving any reasoning for the
reduction of the percentage and has also not considered the
nature of permanent disability suffered by the appellant.
22. In Raj Kumar, the Hon'ble Supreme Court held that the
assessment of compensation of future earnings would depend
on the effect and impact of such disability on his working
2011 (1) SCC 343
capacity. It has further held that ascertainment to the effect of
permanent disability on the actual earning involves three steps,
i) what activities the claimant could carry in spite of
the permanent disability and what he could not do
ii) to ascertain his avocation, profession and nature of
work before the accident as also his age
iii) a) whether he is totally disabled from earning any kind
of livelihood
b) whether he can still carry out on the activities
effectively which he was carrying on earlier.
c) whether he was restricted from discharging his
previous activities but is able to carry some other
lesser scale of activities to earn for his livelihood.
23. Perusal of the record would show that the claimant was
working as Production Officer in M/s.NATCO Pharma Ltd., at
the time of the accident. The petitioner is working as production
officer before he resigned from NATCO Pharma. Therefore, it
shows that petitioner himself resigned, but he was not
terminated by his employer on account of disability sustained
by him. The petitioner can undertake any other suitable job
since he is educated and qualified and earn his livelihood to
some extent. Therefore, his earning capacity is not affected 75%
due to his physical disability due to amputation. In the light of
above circumstances, the Tribunal has assessed the notional
disability of the claimant as 30% as against 75% mentioned in
the disability certificate. Therefore, this Court is not inclined to
interfere with the said aspect.
24. In Mohd. Sabeer (supra), the Hon'ble Supreme Court in
paragraph-14 held that to assess the quantum of compensation
to be awarded, this Court has to assess whether the permanent
disability caused has any adverse effect on the earning capacity
of the appellant as held in Sandeep Khanuja v. Atul Dande
2017 ACJ 979 (SC). In paragraph-18, it was further held that
it is well settled position of law that in cases of permanent
disablement caused by a motor accident. Claimant is entitled
not only to future loss of income, but also future prospects. Just
compensation must be interpreted in such a manner that the
claimant in the same position as he was before the accident
took place. In paragraph-22 it was held that the cost of the
prosthetic leg itself being Rs.2,60,000/- and the life of the
prosthetic leg is for 5-6 years and also requiring amount for its
maintenance of Rs.15,000/- and Rs.20,000/-; the amount
awarded as compensation by the Hon'ble High Court would only
last the appellant for about 15 years. It has further held that
the purpose of fair compensation is to restore the injured to the
position he was in prior to the accident as best as possible.
Therefore, the Hon'ble Court in paragraph-23 held that the
appellant is to be awarded compensation of Rs.7,80,000/- for
the prosthetic limbs alone and an amount of Rs.5,00,000/- was
awarded for its maintenance.
25. Perusal of record, the Tribunal failed to consider Ex.A25,
which is the purchase bill dated 06.05.2018 for Rs.4,41,000/-
of prosthesis of right leg from Dakshin Rehabilitation Center,
Somajiguda. In view of the above decision, the petitioner is
entitled to compensation for purchase and maintenance of the
prosthetic leg. In considered opinion of this Court, petitioner is
to be awarded compensation of Rs.4,41,000/- and for
maintenance of the same he is to be awarded an additional
amount of Rs.2,20,000/-, totaling Rs.6,61,000/-.
26. Insofar as the other contention raised by the learned
counsel for appellant-injured that the Tribunal erred in
awarding meager amounts under the heads of transportation,
extra nourishment, pain and suffering etc., in considered
opinion of this Court, the Tribunal on considering the evidence
and documents, had rightly awarded the amounts under
various heads and needs no interference by this Court for the
said contention raised by the appellant/injured.
27. Insofar the interest is concerned, the appellant/injured is
entitled to 7.5% per annum instead of 6% per annum awarded
by the Tribunal and the award passed by the Tribunal is to be
modified.
28. In the result, MACMA No.607 of 2021 stands partly
allowed and compensation amount is enhanced from
Rs.35,24,000/- to Rs.41,85,000/- and the interest is awarded
at 7.5% per annum instead of 6% per annum from the date of
the petition till the date of realization and MACMA No.37 of
2022 stands dismissed. The insurance company is directed to
ensure that the entire amount of compensation is deposited
within a period of six weeks from the date of receipt of copy of
this order, duly adjusting the amount, if any, already paid by it.
There shall be no order as to costs.
29. Pending miscellaneous applications, if any, shall stand
closed.
_____________________________________
LAXMI NARAYANA ALISHETTY,J
Date: 28.02.2024
kkm
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.Nos.607 of 2021 and 37 of 2022
Date: 28.02.2024
Kkm
