Telangana High Court
The National Insurance Company Ltd vs Kum B Madhuri on 25 October, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1435 OF 2019
JUDGMENT:
1. Aggrieved by the Decree and Order dated 06.05.2015 passed
in M.V.O.P.No.271 of 2009, on the file of the XIII Additional District
& Sessions Judge, Ranga Reddy District at L.B.Nagar, the 2nd
respondent therein/Insurance Company preferred the present
Appeal seeking to set-aside the order of the learned Trial Court.
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the Trial Court.
3. The facts of the case in brief are that the claim
petitioner/injured, who is a Tutor-cum-Engineering student, filed
claim petition under Section 166 of the Motor Vehicles Act, 1989
and Rules 475/1B of A.P.M.V.Rules, 1989 seeking compensation of
Rs.8,00,000/- which was subsequently enhanced to
Rs.14,00,000/- for the injuries sustained to her in a Motor Vehicle
Accident that occurred on 17.02.2009. It is stated by the
petitioner/injured that on 17.02.2009 at about 5.00 p.m., when
the petitioner was proceeding towards her house by walk after
getting down from the bus, one bike i.e., Hero Honda Passion Plus
bearing No.AP-11CF-T/R-7481 which was driven by its rider in a
rash and negligent manner at high speed came in the opposite
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direction and got hit the petitioner near telephone colony arch. As
a result, she fell down on the road and received multiple grievous
bleeding injuries all over the body. Immediately after the accident,
she was shifted to Kamineni Hospitals, L.B.Nagar in 108
Ambulance and thereafter shifted to Sai Sanjeevani Hospital,
Dilsukhnagar, Hyderabad, for better treatment. Police of
Saroornagar Police Station registered a case in Crime No.180 of
2009 under Section 337 of IPC which was later altered to 338 IPC
against the rider of the offending vehicle i.e. Hero Honda Passion
Plus bearing No.AP-11-CF/TR-7481, who was charge sheeted
under the above section of law. The petitioner submits that she
suffered Head injury, laceration on scalp, blunt injury to abdomen,
comminuted fracture of both bones of left leg, comminuted fracture
of shaft of right femur, multiple abrasions over back and took
treatment for the said injuries from 17.02.2009 to 08.03.2009 and
had undergone surgery on 21.02.2009 to the right femur and
another surgery on 28.02.2009 for left Tibia with interlocking nail
and was advised for complete bed rest and to take regular medical
treatment and due to the above fractures, she became permanently
disabled and could not sit, stand and walk properly for few
minutes. She also contends that she is unable to do her ordinary
pursuits without the help of an attendant and that she spent huge
amount for her treatment by taking loans from her near and dear.
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The petitioner/injured further contends that she is the elder
member in her family and her father is no more and there is no
other earning member in her family and her mother and younger
sister were totally dependent on her earnings and that she is
studying B.Tech 2nd year at Sri Indu Engineering College,
Ibrahimpatnam and due to the above accident, she lost her
academic year and lost bright future as well as good career and her
marriage prospects were completely vanished and her life became
miserable and that after the accident she is suffering from huge
mental agony and hence filed claim petition seeking compensation
of Rs.14,00,000/- against Respondent No.1, being the owner and
Respondent No.2, being the insurer of the crime vehicle.
4. Respondent No.1, who is owner of the Crime vehicle i.e.,
Hero Honda Passion Plus bearing No.AP-11-CF/TR-7481, remained
ex-parte.
5. Respondent No.2, who is the owner of the crime vehicle, filed
his counter denying the averments made in the claim petition
including, manner of accident, injuries sustained by the petitioner
and contends that the driver of the crime vehicle do not possess
valid and effective driving license at the time of accident and
further contends that the accident occurred due to the
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contributory negligence on part of the petitioner and hence prayed
to dismiss the claim against it.
6. Based on the above pleadings made by both the parties, the
Trial Court had framed the following issues for conducting trial:-
1. Whether the petitioner sustained injuries in a Motor
vehicle accident occurred on 17.02.2009 due to rash
and negligent driving of Hero Honda Passion Plus
bearing No.AP-11-CF-7481 by its driver?
2. Whether the petitioner is entitled to claim compensation
and if so, how much amount and from which of the
respondents?
3. To what relief?
7. Before the Trial Court, on behalf of the petitioner/injured,
PWs1 to 3 are examined and Exs.A1 to A11 were marked. On
behalf of Respondent No.2/Insurance Company, RW1 was
examined and Exs.B1 to B3 were marked.
8. After considering the evidence and documents filed by both
sides, the learned Trial Court had allowed the claim petition of the
petitioner/injured by awarding compensation of Rs.14,00,000/-
with interest @ 7% per annum from the date of petition till the date
of recovery payable by Respondent Nos.1 & 2 jointly and severally.
Aggrieved by the same, the present Appeal is filed by the Insurance
Company, who is arrayed as respondent No.2 in the O.P.
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9. Heard both sides and perused the material available on
record.
10. The contentions of the learned Standing Counsel for
appellant/Insurance Company are that the learned Trial Court
erred in considering Ex.A6-Disability Certificate issued by PW2,
who is a Doctor who examined the petitioner/injured and also
erred in fixing the liability upon the Appellant/Insurance Company
though the driver of the offending vehicle do not possess valid
driving license at the time of accident and was charge sheeted
under Section 181 of M.V.Act and that the learned Trial Court had
awarded excess amount under the head of loss of income based on
the point that she is an Engineering Graduate and hence, prayed
to allow the Appeal by setting aside the order of the learned Trial
Court.
11. On the other hand, learned counsel for the respondent
No.1/claimant contended that the learned Tribunal after
considering all the aspects, had awarded reasonable compensation
for which interference of this Court is unwarranted.
12. Now the point that emerges for determination is,
Whether the order passed by the Trial Court requires
interference of this Court?
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POINT:-
13. This Court has perused the entire evidence and documents
available on record. The petitioner/injured herself was examined
as PW1 and reiterated the contents described in the claim petition
and deposed about the injuries sustained by her in the said
accident viz., multiple grievous bleeding injuries all over the body,
fractured shaft of right femur and fracture of both ones of left leg
by interlocking nailing. In support of her evidence, she also got
examined PWs 2 & 3, who are the Medical officer, who conducted
surgery to the petitioner at the time of accident and Billing
incharge, who deposed about admission of petitioner/injured in
their Hospital for treatment of the injuries sustained to her.
14. PW2, who is a Medical officer who conducted surgery to the
petitioner at the time of accident, deposed that the petitioner has
sustained fracture of femur, comminuted fracture of both bones of
left leg and scalp deep lacerated Head injury. He also stated that
the petitioner was again readmitted after 3 years of the accident
due to broken implant of right femur and surgery was conducted
by him and also told that the petitioner/injured requires another
surgery for implant removal and assessed the disability of the
petitioner @ 45% as the petitioner was limping and is not active as
girl of 22 years. Though PW2 was cross-examined by the
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respondent No.2/Insurance Company, nothing adverse was elicited
from him to disbelieve his testimony. Hence, his evidence may be
considered. On behalf of the petitioner/injured, Exs.A1 to A11 were
marked. A perusal of Ex.A1 shows that Police of Saroornager
Police Station registered a case in Crime No.180 of 2009 under
Section 338 IPC against the rider of the offending vehicle and filed
charge sheet under Ex.A2. Ex.A3 is the Medico Legal Certificate.
Exs.A4 & A5 are the Discharge Summaries issued by Sai
Sanjeevini Hospital. Ex.A6 is the Disability Certificate issued by
the said Hospital. Ex.A7 is the estimation for implants removal.
Ex.A8 are the medical bills for an amount of Rs.2,26,000/- Ex.A9
is the X-ray and CT scan. Ex.A10 is the bunch of medical bills.
Ex.A11 is the Provisional Certificate of the petitioner/injured.
15. Hence from the evidence of PWs 1 to 3 coupled with the
exhibits marked under Exs.A1 to A11, it is clear that there
occurred accident on 17.02.2009 and the petitioner/injured
sustained grievous injuries in the said accident and had undergone
treatment in Sai Sanjeevani Hospital.
16. On the other hand, though the 2nd respondent/Insurance
Company got examined RW1, who is an Assistant Manager working
in the Insurance Company, but it did not lead any cogent evidence
to show that the driver of the offending vehicle is not having valid
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driving license at the time of accident except relying upon the
charge sheet filed against the driver of the offending vehicle which
cannot be taken into consideration for exonerating the Insurance
Company from its liability.
17. Coming to the aspect of compensation, the learned Trial
Court, by considering the educational qualification of the
petitioner/injured as an Engineering Graduate, fixed the monthly
earnings @ Rs.10,000/- and fixed disability @ 45% as assessed by
PW2 who treated the petitioner/injured. This Court, by
considering the date of accident, injuries sustained to the
petitioner and educational qualification of the petitioner, is inclined
to interfere with the finding of the learned Trial Court and hereby
fix the monthly income of the petitioner @ Rs.8,000/- per month by
relying upon the judgment of the Kerala High Court in the case
between Ranjeev EA. v. Road Carrier of India 1 and considering
the disability @ 45% as per the disability certificate issued by PW2
under Ex.A6 and by applying multiplier '18' as per the guidelines
laid down by the Hon'ble Apex Court in Sarla Verma v. Delhi
Transport Corporation 2 as the age of the petitioner is 19 at the
time of accident, the total loss of income incurred by the
petitioner/injured due to said disability comes to Rs.7,77,600/-
2014 SCC Online Ker 19147
2009 ACJ 1298 (SC)
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(Rs.8,000 x 12 x 18 x 45%). Also, considering the nature of
injuries suffered by the petitioner/injured and the period of
treatment undergone by her, the learned Trial Court had awarded
an amount of Rs.1,00,000/- towards fracture of three major
bones, Rs.25,000/- towards loss of marriage opportunities as the
petitioner is limping due to the acquired disability, Rs.25,000/- for
loss of comfort due to the injuries sustained to her for attending
duties as an upcoming Software Engineer, Rs.25,000/- for pain
and suffering, Rs.2,20,000/- towards the expenditure incurred for
hospitalization, treatment, medicines and incidental charges,
Rs.15,000/- for extra nourishment and attendant charges,
Rs.15,000/- for transportation charges and Rs.3,000/- for the
damage caused to clothing which in total comes to Rs.12,05,600/-
for which the petitioner/injured is entitled.
18. Insofar as the interest awarded by the Trial Court is
concerned, this Court by relying upon the decision of the Hon'ble
Apex Court in Rajesh and others v. Rajbir Singh and others 3
enhances the rate of interest awarded by the Trial Court from 7%
per annum to 7.5% per annum.
3 2013 ACJ 1403 = 2013 (4) ALT 35
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19. In the result, M.A.C.M.A.No.1435 of 2019 filed by the
Insurance Company is partly-allowed by reducing the
compensation awarded by the learned Trial Court from
Rs.14,00,000/- to Rs.12,05,600/- which shall carry interest at
7.5% p.a. from the date of petition till the date of realization,
payable by respondent Nos. 1 and 2 jointly and severally within a
period of two months from the date of receipt of a copy of this
order. On such deposit, the 1st respondent/claimant is entitled to
withdraw the same as per the apportionment made by the Trial
Court. There shall be no order as to costs.
20. Miscellaneous petitions, if any, pending shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.25.10.2024
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