Telangana High Court
Sama Shekar Reddy vs S. Ram Reddy Another on 8 February, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.371 of 2012
JUDGMENT:
This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 03.12.2011 passed in O.P.No.732 of 2005 on the file of the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Ranga Reddy District at L.B.Nagar (for short, the Tribunal).
For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
The claimant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.20,00,000/- for the injuries sustained by him in a motor vehicle accident. It is stated that on 09.07.2005, the claimant and others were boarded Tata Sumo bearing No.AP 29-AD-3399 and when the said vehicle reached near Moinabad Police Station, the driver of the said vehicle drove it in a rash and negligent manner and dashed to a tree, as a result of which, the claimant and other inmates of the vehicle sustained grievous injuries. Immediately after the accident, the claimant was shifted to Apollo Hospital, where he took treatment as in-patient. The claimant filed the claim-petition against the respondents 1 and 2, being the owner and insurer of the said Tata Sumo.
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GSD, J MACMA.No.371_2012 Before the Tribunal, though the 1st respondent appeared through Counsel but no counter has been filed.
The 2nd respondent filed counter denying the averments of the claim petition and contended that the amount claimed is excessive and prayed to dismiss the claim petition.
Basing on the above pleadings, the following issues are framed before the Tribunal:-
1) Whether the accident took place due to rash and negligent driving of the driver of the Sumo vehicle?
2) Whether the petitioner is entitled for compensation as prayed?
3) To what relief?
During trial, on behalf of the claimant, P.Ws.1 to 3 were examined and got marked Exs.A1 to A19. On behalf of the respondents, no oral evidence was adduced but Ex.B1 copy of policy was marked.
After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the Tata Sumo vehicle and accordingly, awarded total compensation of Rs.11,46,125/- along with costs and interest @ 7.5% per annum from the date of petition till the date of realization. Being not satisfied 3 GSD, J MACMA.No.371_2012 with the said amount, the claimant filed the present appeal seeking enhancement of compensation.
Heard both sides and perused the record.
The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged either by the owner or insurer of the vehicle.
Learned counsel for the appellant would submit that while awarding the amount towards permanent disability, the Tribunal ought not to have deducted 1/3rd of the income of the petitioner. If 1/3rd of the income is not deducted, the loss of future earnings on account of permanent disability comes to Rs.5,50,800/- (Rs.36000 x 17 x 90/100).
A perusal of the order would show that though the appellant has not produced any bills towards his future medical expenses, at the time of hearing of the claim petition, but looking into the nature of the injuries received by the petitioner in the accident the Tribunal has given a categorical finding that the petitioner ought to have spent some amount towards treatment and even after disposal of the claim petition, he might have incurred Rs.50,000/- towards subsequent treatment for the injuries caused to him. Hence, the 4 GSD, J MACMA.No.371_2012 claimant is entitled an amount of Rs.50,000/- towards future treatment.
So far as loss of amenities and loss of expectation of life is concerned learned counsel for the appellant relied on the judgment of the Apex Court in Kavita v. Deepak and others1. He submits that the appellant was 26 years old at the time of accident and due to permanent disability, the appellant is unable to lead full life and he is also unable to enjoy the normal amenities, which he would have enjoyed as a normal person. The learned counsel for the 2nd respondent-Insurance Company submitted that the appellant was though said to have been 26 years at the time of accident, but he was only an agriculturist and under this head, the appellant is not entitled any amount for the loss of amenities and loss of expectation of life.
In Kavita v. Deepak (1 supra) the Apex Court held that victims of accident, who are disabled either permanently or temporarily, adequate compensation should be awarded not only for the physical injury and treatment but also for the loss of earning and inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount 1 (2012) 9 SCC 604 5 GSD, J MACMA.No.371_2012 awarded for pain, suffering, loss of enjoyment of life and medical expenses. Relying upon the decision of Nizam's Institute of Medical Sciences v. Prasanth S.Dhananka2, the Apex Court also held that "assuming the claimant's life expectancy to be 55 years, we deem it appropriate to award a sum of Rs.3,00,000/- under the head of loss of amenities and loss of expectation of life".
In the instant case also, since the appellant has already suffered various injuries and he sustained 90% of the disability because of the dislocation of C5 and C6, resulting in paralysis of both lower limbs, and was admitted and treated in the Apollo Hospital, this Court deems it fit to award a sum of Rs.3,00,000/- towards loss of amenities and loss of expectation of life. Hence, apart from the amount i.e., Rs.11,46,125/- as awarded by the Tribunal under various heads, the claimant is also entitled another amount of Rs.3,50,000/- under the heads of future treatment and also loss of amenities and loss of expectation of life.
Insofar as the liability of the 2nd respondent-Insurance Company is concerned, learned Standing Counsel for the 2nd respondent-Insurance Company would submit that the liability of the insurance company will govern by the terms and conditions of the policy basing on the premium paid by the owner of the vehicle. As 2 (2009) 6 SCC 1 6 GSD, J MACMA.No.371_2012 per Ex.B1-policy, the 1st respondent paid an additional premium of Rs.250/- only under the head of "PA to unnamed passengers No.10 amount of Rs.5,000/- per person. By such additional premium, the 1st respondent-owner has agreed that the Insurance Company would be liable to pay only Rs.5,000/- per passenger. Therefore, in terms of such contract of Insurance the Insurance Company is only liable to pay the compensation to the appellant to the extent of Rs.50,000/- only.
Admittedly, even as is evident from the insurance policy (Ex.B1), the 1st respondent had paid an additional premium of Rs.250/- to cover the risk to the unnamed passengers but the liability was limited to Rs.50,000/- per passenger. Therefore, there cannot be any dispute and even the learned Standing Counsel for the Insurance Company fairly conceded that there could be no dispute as far as the liability of the Insurance Company to pay compensation to the appellant to the extent of Rs.50,000/- which is contractually covered by this policy (Ex.B1) in view of payment of an additional premium.
Admittedly, the appellant is a third party. The doctrine of "pay and recover" was considered by the Supreme Court in National 7 GSD, J MACMA.No.371_2012 Insurance Company Ltd. v. Swaran Singh and others3 wherein the Supreme Court held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability vis-a-vis the claims of third parties, the Supreme Court issued detailed guidelines as to how and in what circumstances, "pay and recover" can be ordered.
In view of the law laid down by the Apex Court in Swaran Singh (4 supra) case and also in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others4 wherein, at paragraph No.15 the Apex Court held that under the facts and circumstances has directed the Insurance company to pay the enhanced compensation to the claimant along with accrued interests and the Insurance Company to recover the same from the owner of the vehicle, the same principle of pay and recover is made applicable in this instant case.
Accordingly, the M.A.C.M.A. is partly allowed by enhancing the compensation amount awarded by the Tribunal from Rs.11,46,125/- to Rs.14,96,125/-. The enhanced amount shall carry interest @ 7.5% 3 (2004) 3 SCC 297 4 (2018) 9 SCC 650 8 GSD, J MACMA.No.371_2012 per annum from the date of award i.e., 03.12.2011 till the date of realization. The 2nd respondent is directed to pay the enhanced compensation at the first instance and then recover the same from the 1st respondent. There shall be no order as to costs.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
__________________ JUSTICE G. SRI DEVI 08.02.2022 Mar/gkv