Telangana High Court
M/S.Oriental Insurance Company ... vs Mohd.Abdul Moiz on 10 January, 2025
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1613 of 2017
JUDGMENT
1. Aggrieved by the Award passed by the learned Motor
Accident Claims Tribunal - cum - Principal District Judge,
Karimnagar, in M.V.O.P.No.545 of 2015, dated 30.01.2017, the 3rd
respondent in the said M.V.O.P./Insurance Company preferred the
present Appeal seeking to allow the Appeal by setting aside the
order of the learned Tribunal.
2. For the sake of convenience, the parties are referred as they
were arrayed before the learned Tribunal.
3. The brief facts of the case are that the petitioner/injured filed
a petition under Section 166 (1)(a) of the Motor Vehicles Act, 1988
seeking compensation of Rs.27,50,000/- from the respondent
Nos.1 to 3 on account of the injuries sustained by him in a road
traffic accident that occurred on 18.03.2009 at 11.30 A.M. at the
outskirts of Girnibavi, near Mubarak Rice Mill, Warangal-
Narsampet Road. It is stated by the petitioner/injured that on
18.03.2009 at 10.00 A.M., when he, along with Md.Awais Ahmed
Khan as pillion rider, went to Jayamukhi Engineering College,
Narsampet, on Motorcycle bearing No.AP-15-AC-6922 for booking
the said College to conduct Annual function and while they were
returning to Warangal on the said motorcycle and when reached
near Girnibavi Village after passing Mubarak Rice Mill, Warangal-
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Narsampet Road, at about 11.30 hours, one Tata Sumo bearing
No.AP-25U-2289 coming from Warangal side and proceeding
towards Narsampet and which was driven by its driver in a rash
and negligent manner at high speed, dashed the motorcycle of the
petitioner from the opposite direction. As a result, the motorcycle
hit a bullock cart resulting in injuries to the petitioner and the
pillion rider and the petitioner's right leg was fractured i.e., both
bones of right leg were totally broken in three places. The said
accident was witnessed by two persons i.e., Bokka Srinu and
ChekkaVajramma of Maheshwaram Village. Immediately after the
accident, the pillion rider who travelled along with the petitioner on
the alleged motorcycle called 108 Ambulance and the petitioner
was shifted to Orthocare Hospital, Karimnagar, for treatment.
4. Based on a complaint given by the pillion rider at about
16.00 hours on the same day of accident, Police of Duggondi Police
Station, Warangal District, registered a case under Section 337 IPC
initially against respondent No.1/driver of crime vehicle, which was
subsequently altered to Section 338 IPC after conducting
investigation and the same was numbered as C.C.No.440 of 2009.
5. It is stated by the petitioner/injured that after the accident,
he was shifted to Ortho care Hospital, Karimnagar, underwent
surgery to right leg as both bones of the right leg were broken at
three places. He also suffered with fracture of tibia right mid third
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on right leg, PCL avulsion injury on right knee and fracture of right
femur segmental split on right thigh and all the injuries sustained
by the petitioner are grievous in nature and the petitioner was
discharged from the Hospital on 02.04.2009 with advice of
complete bed rest for six months. Due to severe pain, the
petitioner/injured was again admitted into the Hospital and after
complete investigation, he underwent surgery for the second time
for fracture of tibia right mid third closed injury and PCL avulsion
injury right knee and was discharged on 18.04.2009. Again on
03.08.2010, in Emergency condition, he had to undergo surgery for
third time at Bhoom Reddy's Hospital for non-union of distal
fracture of right femur. Again on 04.08.2010, he underwent
surgery by way of bone grafting procedure and was discharged on
06.08.2010. The petitioner was admitted in Ortho Care Hospital,
Karimnagar, for periodical checkup and underwent diagnostic tests
for segmental fracture right femur with IM nail in situ and mal-
union distal fracture site debridement irritation and was
discharged on 20.08.2010. Inspite of undergoing three major
operations, the petitioner's right leg could not be cured completely
and he is unable to walk and is compelled to take rest due to
surgeries and had suffered lot of pain and difficulty in walking for
the past 6 years.
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6. It is further stated by the petitioner on 23.03.2015, he was
admitted at Yashoda Hospital, Secunderabad, for diagnosis of non-
union with implant (nail) in situ right femur and surgery was
performed for removal of implants and he incurred a sum of
Rs.1,66,676/- for operation and pharmacy bills at Yashoda
Hospital, Secunderabad and he was advised to non-weight bearing
walking with walker support.
7. Upon examination of the petitioner, on 23.11.2011, the
Medical Board of Government of A.P. issued Disability Certificate to
the petitioner assessing the percentage of disability @ 82% and
also stated that the petitioner is suffering with permanent
disability of left lower limb, postal traumatic sequel limbs due to
post traumatic stiffness of right lower limb.
8. It is stated by the petitioner/injured that due to the said
disability, he lost happiness of life and is suffering with mental
agony and pain and unable to perform daily activities and lost
healthy life and became dependant on others. It is also stated by
the petitioner/injured that prior to accident, he used to work as
Event Manager and used to organize public gathering events,
political gathering events, marriage functions, etc and was being
paid salary of Rs.12,000/- per month. Due to the said accident, he
lost his bright future and his children were deprived of standard
education and lost his income for a period of six years and was put
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to irreparable loss and earning capacity and is in need of attendant
all the time for doing petty personal works and became totally
dependent on the family. Hence filed claim petition seeking
compensation against the respondent Nos.1 to 3, who are the
driver, owner and insurer of the crime vehicle.
9. Respondent Nos.1 & 2, who are the Driver and owner of
TATA Sumo bearing No.AP-25U-2289, remained ex-parte.
10. Respondent No.3/Insurance Company filed its counter
denying the occurrence of accident, rash and negligent driving by
respondent No.1, injuries sustained by the petitioner, treatment
undergone by the petitioner, expenses incurred, sustenance of
permanent disability and also denied the loss of income, avocation,
insurance coverage to the subject crime vehicle and driving license
of respondent No.1. It also contended that the petitioner/injured,
while trying to overtake the bullock cart, got confused and dashed
the bullock cart with his motorcycle and there is no involvement of
Crime Tata Sumo bearing No.AP-25U-2289 in the accident and
that the compensation claimed is excess and exorbitant and prayed
to dismiss the claim against it.
11. Based on the contentions made by both parties, the learned
Tribunal had framed the following issues for consideration: -
(i) Whether the accident had occurred due to rash and
negligent driving of Tata Sumo bearing No.AP-29U-2289
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by its driver or due to rash and negligent riding of
motorcycle bearing No.AP-15-AC-6922 by its rider?
(ii) Whether the petitioner is entitled for compensation? If
so, to what amount and from which of the respondents?
(iii) To what relief.
12. Before the Tribunal, the petitioner/injured examined himself
as PW1 and got examined PWs 2 to 5 and got marked Exs.A1 to
A27 on his behalf. On behalf of respondent No.3/Insurance
Company, RWs 1 & 2 were examined and Exs.B1 and X1 were
marked.
13. The Tribunal, after considering the evidence adduced and
documents filed by both sides, awarded a sum of Rs.23,61,612/-
towards compensation along with proportionate costs and interest
@ 7.5% per annum payable by respondent No.3 in the first
instance and later recover the same from respondent No.2.
Aggrieved by the same, the respondent No.3 in the said
M.V.O.P./Insurance Company preferred the present Appeal seeking
to allow the Appeal by setting aside the order of the learned
Tribunal.
14. Heard Sri A.V.K.S.Prasad, learned counsel for the
Appellant/Insurance Company, Sri M.A.Rahman, learned counsel
representing respondent No.1 and Sri C.Damodar Reddy, learned
counsel representing respondent Nos.2 & 3.
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15. The grounds raised by the learned Standing Counsel for
Appellant/Insurance Company in the present Appeal are that the
learned Tribunal erred in fixing the income of the deceased @
Rs.12,000/- per month without there being any proof of evidence
and also erred in considering the disability @ 82% and also failed
to consider that the driver of the crime vehicle had no valid driving
license to drive the crime vehicle i.e., TATA SUMO and that there is
an abnormal delay in filing the claim petition and hence prayed to
allow the Appeal by setting aside the order of the learned Tribunal.
16. Per contra, learned Counsel for respondent No.1/injured
filed his written arguments contending that the learned Tribunal
ought to have awarded Future prospects to the established income
by following the judgment of the Hon'ble Apex Court in the case
between National Insurance Company Ltd. Vs.Pranay Sethi and
others 1 and prayed this Court to enhance the compensation
amount by following the judgment of the Hon'ble Apex Court in the
case between Surekha Vs.Santosh 2 wherein it is held that "In the
matter of insurance claim compensation in reference to the motor
accident, the Court should not take hyper technical approach and
ensure that "just compensation" is awarded to the affected person or
the claimants".
2017 ACJ 2700
(2021) 16 Supreme Court Cases 467
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17. After hearing the arguments on both sides, the point that
emerges for determination is,
Whether the order passed by the learned Tribunal
requires interference of this Court?
POINT:-
18. As seen from the grounds of Appeal, there is no dispute
regarding the occurrence of accident and injuries sustained by the
petitioner/injured. Hence, this Court is not inclined to once again
delve into the said aspects. The contentions raised by the learned
Standing Counsel for Appellant/Insurance Company in the
grounds of Appeal are relating to quantum of compensation and
driver of the crime vehicle not having valid driving license to drive
transport vehicle i.e., the subject crime TATA SUMO bearing
No.AP-25U-2289.
19. As far as first contention is concerned, a perusal of the
impugned judgment shows that the learned Tribunal, taking into
consideration the evidence of PW3, who deposed that the petitioner
worked in their firm-SR Decorators, Event Organizers Pvt.Ltd. as
Event Manager from January 2004 to March 2009 and used to
receive an amount of Rs.12,000/- per month towards his salary as
per Ex.A7-Salary Certificate, fixed the income of the
petitioner/injured as Rs.12,000/- per month. This Court
considers the same to be desirable and is not inclined to interfere
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with the same. As far as disability is concerned, the learned
Tribunal, taking into consideration the evidence of PW4-
Orthopaedic Surgeon, who deposed that he examined the petitioner
at CAIMS and issued Ex.A8-Disability Certificate assessing the
percentage of disability sustained to the petitioner/injured @ 82%,
calculated the loss of future income at Rs.18,89,280/-.
20. Apart from this, the learned Tribunal also awarded an
amount of Rs.75,000/- towards pain and suffering on account of
three fractures, an amount of Rs.20,000/- towards extra
nourishment and an amount of Rs.20,000/- towards
transportation charges. Apart from this, the learned Tribunal,
considering the Hospital expenditure incurred by the
petitioner/injured under Exs.A21 to A26, awarded a sum of
Rs.3,57,332/- towards medical expenses. This Court, upon
calculating the amounts mentioned under Exs.A21 to A26, arrived
at the same amount as awarded by the Tribunal towards medical
bills. Hence, this Court is not inclined to interfere with the finding
of the learned Tribunal as far as medical bills are concerned.
Therefore, the total compensation awarded by the learned Tribunal
to the petitioner/injured comes to Rs.23,61,612/-. The said
compensation amount also carries interest @ 7.5% per annum
from the date of petition till the date of deposit.
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21. As far as liability is concerned, the learned Tribunal, taking
into consideration the cross-examination of RW2, wherein it is
admitted that the subject crime TATA Sumo bearing No.AP-25V-
2289 is a light motor vehicle covered under Ex.A6-Driving license
and respondent No.1 is authorized to drive the same and the policy
was in force as on the date of accident, applied the principle of pay
and recovery by following the judgment of the Hon'ble Supreme
Court in the case between Jayaprakash Agarwal and others
Vs.Mohd. Kaleemulla and another 3 and directed respondent No.3 to
pay compensation at first instance and later recover the same from
respondent No.2 by proving violation. This Court do not find any
reason to interfere with the said conclusion arrived at by the
learned Tribunal.
22. It is the contention of learned counsel for respondent
No.1/injured that the learned Tribunal failed to consider future
prospects on the established income of the petitioner/injured. In
this regard, it is pertinent to refer to the decision of the Hon'ble
Apex Court reported in Pappu Deo Yadav vs.Naresh Kumar and
others 4 wherein it is held that where a claimant suffers from
permanent disability as a result of injuries, the assessment of
compensation under the head of loss of future earnings would
depend upon the effect and impact of such permanent disability on
2012 (3) ALT 494
2020 Law suit (SC) 577
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his earning capacity. In the present case, the petitioner/injured
sustained fracture injuries and is presently walking with the
support of a stick and can also continue his job as Event Manager
by deputing some workers and making them follow his
instructions. If that is impossible, he can also do some other petty
works as he is not a permanent employee in the organization of SR
Decorators and Event Organizers Private Limited. In view of the
above, this Court is not inclined to award future prospects as the
injuries sustained to him do not impact the income generating
capacity of the injured. Hence the contention of the learned
counsel for respondent No.1/injured in this regard is
unsustainable.
23. It is also the contention of the learned counsel for
respondent No.1/injured that the learned Tribunal ought to have
awarded Rs.1,00,000/- towards removal of implant. In this regard,
a perusal of the amounts awarded under different heads shows
that the learned Tribunal awarded an amount of Rs.3,57,332/-
towards medical expenses, an amount of Rs.75,000/- towards pain
and suffering; an amount of Rs.20,000/- towards extra
nourishment and an amount of Rs.20,000/- towards
transportation which this Court finds reasonable and do not
require any further enhancement of the same.
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24. Further, a careful reading of the impugned judgment shows
that the learned Tribunal had rightly dealt with all the aspects and
arrived at a correct finding which requires no further interference
of this Court. Hence, the Appeal is devoid of merits and substance
and is liable to be dismissed.
25. In the result, the Appeal filed by the Insurance Company is
dismissed. There shall be no order as to costs.
_______________________________
JUSTICE M.G. PRIYADARSINI
Dt.10.01.2025
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