Telangana High Court
Shriram General Insurance Company ... vs Busarapu Sampath on 10 January, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
MACMA NO.499 of 2019
AND
MACMA NO.47 OF 2019
COMMON JUDGMENT:
Being aggrieved by the order dated 19-10-2018 in
MVOP.No.435 of 2012 on the file of III Addl. District Judge,
Karimnagar, who was also acting as Chairman, Motor
Accidents Claims Tribunal, where under, the Tribunal awarded
an amount of Rs.6,27,962/- as compensation in favour of the
petitioner in the above referred OP, the petitioner/claimant as
well as the 3rd respondent-insurance company have filed
these two Civil Miscellaneous Appeals under Section 173 of
Motor Vehicles Act (for short 'M.V. Act').
2. The petitioner/claimant has filed MACMA.No.47 of
2019 on the ground that the Court below awarded less
compensation and he is entitled to another sum of
Rs.17,32,038/- while seeking enhancement of the
compensation, filed the appeal on the following grounds.
3. The Tribunal ought to have considered that he
was working as tractor driver and was earning Rs.6,000/- per
month. But in view of the fractures to his right hand, he 2 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
cannot work as driver of the two wheeler or a four wheeler
which is evident from the record marked as Ex.A11 Disability
Certificate and evidence of Medical Officer would show he is
suffering from 75% disability, therefore, the Court below
ought to have awarded more compensation than the amount
awarded. The Tribunal committed an error in not considering
the monthly income of the petitioner as Rs.6,000/- but
considered a meager amount of Rs.3,000/- as his monthly
income, thereby, the said finding is contrary to the judgments
of the Hon'ble Apex Court. The Tribunal committed an error
in not considering the medical bills which were marked as A5,
A6 and A9. The Court below awarded meager amount of
Rs.50,000/- towards pain and sufferance ignoring the fact
that the petitioner suffered four fractures to the right hand
and he had undergone two surgeries. Therefore, the Court
below ought to have awarded more compensation, thereby,
sought for enhancement.
4. Whereas, the 3rd respondent in the said petition
namely Shriram General Insurance Company Limited has filed
MACMA.No.499 of 2019 on the ground that the Tribunal
awarded excess compensation, thereby, sought for setting
aside the order on the following grounds.
3 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
5. The Court below failed to consider that the
accident took place due to the negligence of the
petitioner/claimant. The Tribunal without any basis granted a
sum of Rs.1,29,562/- towards medical expenditure. The Court
below did not consider Ex.A10 the extract of driving license
shows that the petitioner can drive the vehicle, thereby, he
did not suffer any disability. Thereby, ought not to have
added 40% of the notional income of the petitioner towards
future prospects. The 3rd respondent further claimed that the
tribunal applied an incorrect multiplier which is on higher side
and considered 50% disability without any proper basis,
therefore, sought for reduction of the compensation.
6. Since both the appeals are against the same
judgment and the contentions raised by the parties before the
trial Court and the appeals are one and the same, both the
appeals can be disposed by a common judgment.
7. Before adverting to the respective contentions of
the above stated appellants, it is necessary to see what was
the case of petitioner before the Court below and how it was
dealt with by the Tribunal. The petitioner who filed
MVOP.No.435 of 2012 has claimed that on 02-10-2011 at
about 8.00 p.m., he and other persons boarded one Tata 4 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
Magic auto bearing No.AP 15 TA 7511, Peddapalli and was
proceeding towards Kachapur Village and at about 8.40 p.m.,
when the auto reached outskirts of Venkatraopalli, the first
respondent who was driving the auto, drove it in a rash and
negligent manner, lost control, thereby, the auto overturned.
The petitioner has claimed that he received four fractures to
his right hand and he was shifted to Government Hospital,
Peddapalli. Thereafter, he was taken to Devishetty Hospital,
Karimnagar and later shifted to Devishetty Hospital,
Secunderabad. He has undergone different types of medical
tests and was treated as in-patient from 03-10-2011 to
07-10-2011.
8. The petitioner has claimed that he spent an
amount of Rs.2,20,000/- for treatment, transportation, extra
nourishment and sought for an amount of Rs.8,00,000/- as
compensation. The first respondent opposed the claim and by
filing counter specifically contended that when an old woman
tried to cross the road and on noticing her he had applied
sudden brakes to avoid accident, thereby, the auto turned
turtle, thereby, there was no fault on his part. However, even
if any amount is to be paid as compensation, that has to be 5 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
paid by the insurance company which is shown as respondent
No.3.
9. The owner of the auto remained ex parte.
10. Whereas, the insurance company filed a separate
counter disputing the averments made in the petition and
sought for dismissal of the claim.
11. The tribunal has framed the following three issues.
1. Whether the accident occurred due to the rash and negligent driving by the offending motor vehicle i.e., Tata Ace Magic bearing No.AP 15 TA 7511 driven by its driver?
2. Whether the petition is entitled to compensation, if so, to what amount and from whom ?
3. To what relief?
12. During the enquiry, three witnesses were
examined on behalf of petitioner. Exs.A1 to A11 and Ex.C1
were marked on his behalf. The respondents did not adduce
any oral evidence but respondent No.3 filed and marked the
copy of insurance policy as Ex.B1. The Tribunal having
appreciated the pleadings and also the evidence, allowed the
petition in part granting a sum of Rs.6,27,962/-.
13. Heard both parties.
14. The following points arose for consideration in
these two appeals :
6 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
1. Whether the petitioner is entitled to more compensation than the compensation that was awarded by the tribunal?
2. Whether the tribunal granted excess compensation? If so, whether the same can be reduced as prayed for by the third respondent?
15. The 3rd respondent - insurance company who filed
MACMA.No.499 of 2019 has contented that the Court below
failed to see that the accident occurred due to the negligence
of the first respondent, thereby, ought not to have granted
compensation. However, as could be seen from the impugned
order, it shows that apart from his oral evidence, the
petitioner has marked the certified copies of FIR lodged
against the accident, copy of the charge sheet filed by the
police against respondent No.1 and other record. The
petitioner himself was the eye witness to the accident and he
categorically deposed before the Court that the above referred
accident took place due to the rash and negligent driving by
the first respondent - driver.
16. Respondent No.1 who filed counter with a specific
contention that having noticed an old woman crossing the
road, he has applied sudden brakes, thereby, auto overturned
etc. did not choose to examine himself to substantiate the
claim. Even if the contents of counter filed by respondent 7 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
No.1 are accepted to be true, it itself shows the rash and
negligent driving by the first respondent. Had there been no
such rash or negligent driving, it could not have been a
difficult task for the driver to stop the vehicle if he noticed a
person crossing the road. Respondent No.1 who is expected to
drive the vehicle in such a way to stop the same when ever it
is required, could not control the vehicle, it is only because of
the high speed or negligent driving.
17. Therefore, the contention of the 3rd respondent
that there was no such rash or negligent driving cannot be
accepted.
18. Respondent No.3 has claimed that the petitioner
had obtained duplicate driving license which is marked as
Ex.A10. Therefore, it shows that the petitioner was not
suffering from any physical disability and there could not have
been any compensation on account of alleged disability.
Simply because the petitioner obtained renewal of the old
driving license, it may not amount to the fitness of the
petitioner to drive the vehicle. The petitioner has been
examined himself as PW.1 and he could examine the Medical
Officers and proved the fractures which he suffered in the
above accident. The observations made by the Chairman in 8 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
the order also indicates that he had an occasion to see the
petitioner at the time of evidence and the petitioner
demonstrated before the Court that he is not able to fold his
right hand because of the above referred fractures.
19. Therefore, this contention of 3rd respondent also
need not be considered. The impugned award clearly shows
that the learned Chairman having considered the details and
other medical record awarded a sum of Rs.1,29,562/-.
Therefore, the grounds raised by the 3rd respondent for
rejection of the compensation are not established, thereby,
appeal preferred by the insurance company is liable to be
dismissed.
20. The petitioner who was not satisfied with the
compensation of Rs.6,27,962/- has filed the appeal and
sought for enhancement on the ground that the Court below
did not consider his actual income while calculating the loss of
income and calculating the compensation. Even though, the
petitioner has claimed that he was a tractor driver and
earning Rs.6,000/- per month, except his oral evidence, there
is no other proof in support of the said claim. In fact, he is
not able to prove the alleged employment as a tractor driver.
However, considering the driving license and age of the 9 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
petitioner, the Court below notionally calculated the income of
the petitioner as Rs.3,000/- and having added Rs.1200/- per
month towards future prospects, considered the contention of
the petitioner that he suffered disability awarded an amount
of Rs.4,28,400/-.
21. It is true, the petitioner has claimed before the
Court below that he suffered 75% of disability, and he is
entitled to more compensation. In support of the claim, the
petitioners tried to rely on a judgment between 'Pappu Deo
Yadav vs. Naresh Kumar and Others' 1. However, the
record placed before the Court clearly shows that the
petitioner suffered four fractures to his right hand and after
he has undergone surgeries, he was discharged from the
Hospital under a stable condition. In the above referred
judgment, where the injured suffered amputation to right
hand, the Court considered the disability as 65%. But in the
case on hand, it is not as if the petitioner lost his arm in the
accident, he suffered major fractures. Even though, he is not
in a position to bend his hand completely, it cannot be treated
as 75% disability. Therefore, the Court below rightly
considered the difficulty as 50% disability and having
1 2020 (6) ALD 198 (SC) 10 SSRN, J MACMA.No.499 of 2019 and MACMA.No.47 of 2019
notionally assessed the income of the injured as Rs.3,000/-
and after adding future prospects, awarded an appropriate
compensation which includes the compensation towards
medical expenditure, extra nourishment, transportation and
also towards pain and sufferance. It is true, the Court below
awarded a sum of Rs.50,000/- towards pain and sufferance.
However, it is also very clear that the Court below granted
separate compensation of Rs.4,28,400/- as compensation for
the disability. Therefore, there are no grounds for
enhancement of the compensation, as such, the appeal is
liable to be dismissed.
22. In the result, both the appeals are dismissed.
Consequently, Miscellaneous applications if any, are
closed. No costs.
________________________ SAMBASIVA RAO NAIDU, J 10th January, 2024.
PLV
