Telangana High Court
S.Kishan Died vs Vemula Krishna on 7 March, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
M.A.C.M.A.No.714 of 2019
JUDGMENT:
Heard Sri K. Hari Mohan Reddy, learned counsel for the
appellant/claimant No.2 and Sri A. Ramakrishna Reddy, learned
standing counsel for respondent No.2/Insurance Company.
Perused the entire record.
2. This is an appeal preferred by the appellant No.2/claimant
No.2 aggrieved by the award dated 03.01.2019 passed by the
learned Chairman, Motor Accidents Claims Tribunal-cum-The
Court of the Chief Judge, City Civil Court, Hyderabad (for short 'the
Tribunal') in M.V.O.P.No.1501 of 2012.
3. The claim petition was filed when the deceased/appellant
No.1 met with an accident on 18.03.2012 at 9.30am while he was
travelling on his motorcycle bearing No.AP 23 R 9212 from Siddipet
to Hyderabad and was hit by another motorcycle bearing No.AP 09
UW T/R 9279 which came to the wrong side of the road and
dashed the motorcycle of the appellant No.1/deceased. The
deceased sustained fracture injuries and was shifted to Gandhi
Hospital for treatment. During pendency of the claim petition, the
appellant No.1/deceased died and his legal heirs were brought on
record as appellant No.2.
4. Upon examining the evidence adduced by both the parties,
the Tribunal awarded compensation of Rs.4,82,000/- with interest
at 7.5% per annum. Aggrieved by the same, the appellant has
preferred this appeal seeking enhancement of compensation.
5. In grounds of appeal, the appellant contended that the
Tribunal has erroneously attributed liability to respondent No.1
who is owner of the vehicle instead of fixing liability against the
Insurance Company/respondent No.2 and directed Insurance
Company to pay and recover the amount. The second ground taken
is that the deceased had income of Rs.20,000/- as a photographer
but the income was taken as Rs.5,000/- per month. The loss of
earnings is to be taken at Rs.1,20,000/- instead of Rs.25,000/-
and Rs.1,00,000/- towards loss of amenities, shock and mental
agony instead of Rs.40,000/-. Lastly, it is claimed that the Doctor
who treated the deceased/appellant No.1 has assessed the
disability at 35% which is partial and permanent and loss of
earning capacity at 70% but the same was not considered by the
Tribunal on the premise that the treated Doctor was not a Member
of Medical Board.
6. For seeking enhancement, learned counsel for the appellant
referred to the judgment of the Hon'ble Supreme Court of India in
case of IFFCO Tokio General Insurance Co. Ltd. Vs. Geeta Devi
and others 1 with regard to the liability to be fastened to the owner
of the vehicle when there is a valid driving licence, but the same
has expired. In the instant case, the respondent No.2/Insurance
company has examined RW1 to RW3 for the purpose of proving
driving licence violation and consequently denied liability to pay
compensation.
7. A perusal of the record shows that RW1 deposed that there
was no registration i.e. there was only temporary registration and
that the rider of the vehicle did not possess valid and effective
driving licence. As per the evidence of PW2/Senior Assistant, RTA
Office, Siddipet, the rider of the motorcycle was issued with a
licence for LMV Non-Transport and MTL transport on 28.03.2009.
As per the said licence, the rider is not entitled to drive a
motorcycle with gear. As on the date of accident, there is no
endorsement of MCWG on the driving licence and therefore, not
competent to drive the offending vehicle. The witness RW3 who is
Senior Assistant in RTA Office, Medchal deposed that the crime
vehicle has only temporary registration. Whenever there is
insurance coverage in spite of any violation of terms and conditions
of policy, the insurer is under obligation to pay the compensation
and then recover the same from the owner of the vehicle i.e. legal
ratio laid down in case of IFFCO (1 supra) is applicable and
respondent No.2 is directed to deposit the compensation amount
and to recover the same from respondent No.1.
8. Coming to the quantum of compensation, the
deceased/appellant No.1 sustained fracture of right thigh, fracture
of right hand shoulder, fracture of right foot and finger, fracture of
carcaneum right, amputation of right great toe and other injuries.
The claim of the appellant is that the deceased was a photographer
with income of Rs.20,000/- per month. As per the Final Report filed
under Ex.A2, the deceased/appellant No.1 is shown to be a
photographer, aged 56 years. Likewise, the FIR which is filed within
four days of the accident shows the deceased as a photographer.
However, there is no proof of income. The Tribunal has taken the
income as Rs.5,000/- per month. The deceased was a skilled
worker i.e. photographer by profession. Generally, the skills in
photography increase with age and experience. Therefore, the
notional income of the deceased/appellant No.1 can be taken at
Rs.9,000/- per month which is double the income of an unskilled
labourer at Rs.4,500/- per month as was taken in case of Court in
case of Ramachandrappa Vs. Manager, Royal Sundaram
Alliance 2. As per the evidence of PW2 who treated the
deceased/appellant No.1, the deceased has undergone operation
twice on 24.03.2012 and 08.04.2012. Since the deceased sustained
four fracture injuries, it might have taken at least eight months for
healing and therefore, he is entitled to payment of loss of earnings
at Rs.72,000/- (Rs.9,000 X 8) instead of Rs.25,000/- awarded by
the Tribunal.
9. The deceased/appellant No.1 sustained fracture of calcaneum
of right shoulder and the same would affect his profession.
Therefore, though the physical disability was issued at 30%, the
functional disability can be taken at 50% for computing the
compensation towards loss of earnings due to disability.
10. Since this court is inclined to take the disability at 50% and
monthly income at Rs.9,000/-, as per the age of appellant
No.1/deceased i.e. 56 years as on the date of accident, if 10%
towards future prospects is added as per the decision of the
Hon'ble Supreme Court of India in National Insurance Company
Limited v. Pranay Sethi and others 3, the annual income would
come to Rs.1,18,800/- (Rs.9,000+900X12). If the appropriate
(2011) 13 SCC 236
2017 ACJ 2700
multiplier of '9' is applied and disability @ 50% is considered, the
appellant No.1 is entitled for Rs.5,34,600/-
(Rs.1,18,800X9X50/100) under the head of loss of future income
due to disability.
11. The Tribunal has granted an amount of Rs.1,25,000/- for
injuries, Rs.2,20,914/- for medical expenses, Rs.40,000/- for pain
and sufferance, Rs.40,000/- for loss of amenities, Rs.30,000/- for
transportation and extra nourishment and Rs.2,000/- for damages
of clothing and this court is not inclined to interfere with the said
findings.
12. In the light of the above discussion, the appellant No.2 is
entitled for the following compensation under different heads:
Head Compensation awarded
(1) Loss of earnings due to disability Rs.72,000/-
(2) Loss of future income Rs.5,34,600/-
(3) Injuries Rs.1,25,000/-
(4) Medical expenses Rs.2,20,914/-
(5) Pain and sufferance Rs.40,000/-
(6) Loss of amenities Rs.40,000/-
(7) Transportation and extra nourishment Rs.30,000/-
(8) Damages of clothing Rs.2,000/-
Total compensation awarded Rs.10,64,514/-
13. In the result, the Motor Accident Miscellaneous Appeal is
allowed enhancing the compensation amount awarded by the
Tribunal from Rs.4,82,000/- to Rs.10,64,514/- as hereunder:
(a) The compensation amount shall carry interest at 7.5% p.a.
from the date of petition till the date of realization.
(b) The appellant No.2 shall pay the court fee on the enhanced
amount of compensation.
(c) The respondent No.2/Insurance company shall deposit the
amount within a period of (8) weeks from the date of receipt of
copy of judgment and recover the same from the owner of the
vehicle. On such deposit, appellant No.2 is permitted to
withdraw entire amount without furnishing the security.
Pending miscellaneous petitions, if any, shall stand closed. No
order as to costs.
___________________
RENUKA YARA, J
Date: 07.03.2025
gvl
