Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Limited vs Thota Satish And 5 Others on 29 April, 2024
APHC010907742016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3364]
MONDAY ,THE TWENTY NINETH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
1649/2016
Between:
1. THE ORIENTAL INSURANCE COMPANY LIMITED, REP., BY
ITS DIVISIONAL MANAGER, COURT'S CENTER, TANUKU,
TANUKU, JCJC., REP., BY ITS AUTHORIZED SIGNATORY,
REGIONAL MANAGER, REGIONAL OFFICE, 48-14-111, 2ND
FLOOR, SRI NITYA COMPLEX, OPP: KARNATAKA BANK,
RAMATALKIES ROAD, CBM COMPOUND,
VISAKHAPATNAM - 13
...APPELLANT
AND
1. THOTA SATISH, S/O. VENKATA RAO, D.NO. 13-2-66,
ARUNDHATHI PET, 29TH WARD, NARSAPURAM,
NSPJCJC, DRIVER CUM OWNER OF TROLLEY AUTO, NO.
AP-37-V5752
2. GANTA MOHAN RAO, S/O. VENKATA SWAMY, R/O. D.NO.
12-3-5,LAKSHMANESHWARAM, NARSAPUR MANDAL,
JCJC., W.G.DISTRICT, DRIVER OF TRACTOR CUM
TRIAILER, NO. AP05-K-5356 AND ADW 9765
(R2. DIED)
3. KANCHERLA TRIMURTHULU, S/O. VENKANNA, D.NO. 4-
124, L.B.CHERLA, NARSAPUR, NSP JCJC., OWNER OF
TRACTOR CUM TRAILER, NO. AP 05-K-5356 AND ADW
9765
2
4. CHALLABOINA VENKATA RAMANA, S/O. RAMA, D.NO. 16-
1-22A, RUSTUMBADA, NARSAPURAM, W.G.DISTRICT,
NSP JCJC, DRIVER OF SCHOOL VAN NO. AP-37-V-9161
5. S PERCY PAUL SECRDTARY AND CORRESPONDENT,
J.SIKILE SCHOOL, D.NO. 12-3-124/A, ROYAPET,
NARSAPUR, NSP, JCJC., OWNER OF SCHOOL VAN NO.
AP-37-V-9161
6. THE ORIENTAL INSURANCE COMPANY LIMITED, REP., BY
ITS DIVISIONAL MANAGER COURT'S COMPLEX CENTER,
TANUKU, TANUKU, JCJC.,
( R.NO. 4 TO 6 NOT NECESSARY PARTIES )
...RESPONDENT(S):
The Court made the following:
JUDGMENT:-
Challenge in this M.A.C.M.A. is to the award, dated 28.09.2012, in M.V.O.P.No.982 of 2009, on the file of the Motor Accident Claims Tribunal - cum - VI Additional District Judge (Fast Track Court), Narsapur, West Godavari District („Tribunal‟ for short), whereunder the Tribunal dealing with claim for compensation made by the claimant for a sum of Rs.5,00,000/-, towards compensation, with regard to the injuries sustained by him in a motor vehicle accident, which was occurred on 05.01.2008 at 03.00 a.m., awarded compensation to a tune of Rs.4,80,000/-, along with interest @7.5% per annum from the date of petition, till the date of realization, by allowing the claim against respondent Nos.1 to 3, directing the respondent No.3 to deposit the same within two (02) months from the date of award. The petitioner was permitted to withdraw Rs.2,40,000/- and the remaining amount shall be kept in fixed deposit in any nationalized bank for a period of two (02) years. The claim against respondent Nos. 4 to 6 is dismissed.
32. The parties to this M.A.C.M.A. will hereinafter be referred to as described before the learned Tribunal for the sake of convenience.
3. The case of the claimants before the Tribunal, in brief, according to the averments set out in the Motor Vehicle accident claim, is that:
(i) The petitioner was aged 28 years as on the date of accident. He was hale and healthy. He was working as driver of trolley auto and used to earn Rs.8,000/- per month.
(ii) On 05.01.2008 at 03.00 a.m., he went to the old tyres shop situated near locks at Narsapur. He loaded the old tyres and tubes in the auto trolley. He started at 03.45 p.m., on 05.01.2008.
When he was proceeding towards railway station, he overtook a Van belong to Sikile School and proceeded further. At that time, a tractor-cum-trailer bearing Nos. AP 05 K 5336 and A.D.W. 9765 („offending vehicle‟ for short), being driven by the respondent No.1/driver in a rash and negligent manner dashed against the trolley of the petitioner from opposite direction. At the same time, school van(AP 37 V 9161) also dashed auto from behind, as a result of the same, petitioner sustained fracture of left clavicle, fractures of right side of the ribs 2 to 7, fracture of left femur bone, commuted fracture of right femur bone and other parts of the body. Chest of the petitioner was crushed in the auto due to impact of the tractor as well as school van. Ribs were fractured and right cheeks sustained bleeding injury.
(iii) Neighbours informed to 108. 108-ambulance took the petitioner to a private hospital Seshadri, Palakol. After first aid, he was taken to Bhimavaram Hospital, Bhimavaram. He took treatment up to 21.01.2008. He spent huge amount towards operations, treatment, medicines and other incidental expenses. He spent 2,11,000/-, till date. He is still undergoing treatment.
4(iv) Station House Officer, Narsapur Town police station registered a case in Crime No.3 of 2008, under Section 338 of I.P.C. and after investigation, they filed charge sheet against respondent No.1. Respondent No.1 is the driver of tractor-cum-trailer, respondent No.2 is the owner. Respondent No.3 is Insurance Company with which the offending vehicle is insured. Respondent No.4 is the driver of school van. Respondent No.5 is the owner and respondent No.6 is the Insurance Company with which the school van is insured. Hence, all the respondents are jointly and severally liable to pay compensation. Hence, the claim for Rs.5,00,000/-.
4. Respondent Nos.1, 2, 4 and 5 remained exparte. Respondents Nos.3 and 6 got filed a common written statement. Their contention is that the contention petitioner is false. They are not admitting the age and the manner of accident. The claimant has to prove the manner of the accident and his income. Hence, the claim is liable to be dismissed
5. Basing on the above pleadings, the Tribunal settled the following issue for trial:
(1) Whether the accident, dated 05.01.2008 at 03.45 p.m., at Railway Station road, Narsapur, was occurred due to the rash and negligent driving of the Tractor-cum-trailer bearing No.AP 05 K 5336 and A.D.W. 9765 by respondent No.1 and at the same time driving of the school van bearing No.AP 37 V 9161 by the respondent No.4?
(2) Whether the petitioner, who was proceeding on his trolley auto bearing No.AP 37 V 5752, sustained injuries in the said accident?
(3) Whether the petitioner is entitled for compensation and if so, what amount and from which of the respondents?
(4) To what relief?
56. During the course of trial, before the Tribunal, on behalf of the petitioners, PWs.1 to 5 were examined. Exs.A1 to A11 were marked. On behalf of the contesting respondent Nos.3 and 6, RWs.1 was examined. Ex.B1 and B2 were marked.
7. The Tribunal on hearing both sides and on considering the oral as well as documentary evidence, answered the issues to the effect that the accident occurred was on account of the rash and negligent driving made by the driver of the tractor-cum-trailer bearing No. AP 05 K 5336 and A.D.W. 9765 and awarded a sum of Rs.4,80,000/-, towards compensation as above.
8. Felt aggrieved of the aforesaid award, the unsuccessful respondent No.6, filed the present M.A.C.M.A.
9. Now, in deciding the present M.A.C.M.A., the point determination is as follows:
"Whether the award, dated 28.09.2012, in M.V.O.P.No.982 of 2009, on the file of the Motor Accident Claims Tribunal - cum - VI Additional District Judge (Fast Track Court), Narsapur, West Godavari District, is sustainable under law and facts and whether there are any grounds to interfere with the same?"
POINT:
10. Sri P.Venkata Subbaiah, learned counsel, representing Sri S.Agasthya Sharma, learned counsel for the appellant would contend that though the claimant approached the Court alleging rash and negligent driving against the driver of the tractor-cum- trailer as well as the driver of the school van, but the Tribunal fixed up the responsibility against the driver of tractor-cum-trailer erroneously. The Tribunal ought to have considered contributory negligence. He would further submit that the Tribunal without there being basis, considered the income of the injured as that of Rs.5,000/-, per month. The Tribunal granted compensation excessively. The petitioner himself contributed to the accident by 6 overtaking the school van and dashed the opposite vehicle and he was caught between the school van and opposite vehicle. The Tribunal ought to have fixed up contributory negligence. Viewing from any angle, award of the Tribunal is not sustainable, as such, it needs interference, so as to reduce the compensation.
11. Sri P.Samuel Sanjay Kumar, learned counsel representing Sri K.V.L.Narasimha Rao, learned counsel for the respondent No.1, would contend that, it is a case where the petitioner could successfully over take the school van and when the petitioner was moving rightly on the left side, offending vehicle dashed auto trolley of the petitioner and later the school van hit the auto from behind. However, as firstly the tractor-cum-trailer hit the vehicle of the petitioner, the Tribunal fix up the responsibility rightly against the offending vehicle. Compensation that was awarded was on sufficient reasons, which needs no interference.
12. As seen from the evidence of PW.1, he in his chief examination, put forth the facts in tune with the pleadings. Through his examination, Exs.A1 to A11 were marked. Ex.A1 was the attested copy of F.I.R. in Crime No.3 of 2008 of Narsapur Town police station. Ex.A2 was the attested copy of M.V.I. report. Ex.A3 was the attested copy of wound certificate. Ex.A4 ws the attested copy of charge sheet. Ex.A5 were the bunch of medical bills (98) for Rs.1,24,232/-. Ex.A6 were the bunch of X-ray films (19). Ex.A7 was the discharge summary issued by Bhimavaram hospitals, Bhimavaram. Ex.A8 was the discharge summary issued by Bhimavaram hospitals, Bhimavaram. Ex.A9 was the disability certificate. Ex.A10 was the case sheet relating to petition. Ex.A11 were the X-ray films (02).
13. During the course of cross-examination, he denied that the accident occurred was on account of his rash and negligent act. It is to be noticed that the driver and owner of the offending vehicle 7 remained exparte. Even the owner of driver of the school van remained exparte. It is a case where the police registered F.I.R. in Crime No.3 of 2008 and investigated the matter and filed charge sheet under Ex.A4. RW.1 who was examined on behalf of the respondent was only a representative of the respondent and he was not a witness to the occurrence. So, even the police laid the charge sheet against the driver of the offending vehicle alone. So, with regard to the evidence of PW.1, who was no other than the injured, coupled with documentary evidence, there was no proper rebuttal evidence. The Insurance Company did not take any steps to examine the owner and driver of the school van. The contention of the Insurance Company that there was contributory negligence was not substantiated. Hence, the Tribunal rightly held that the accident was occurred on account of rash and negligent driving made by the driver of the offending vehicle. The factum of receipt of multiple fractures on vital parts of the body is quietly evident from Ex.A3-wound certificate and further the nature of the treatment under Exs.A7 and A8-discharge summaries. Fractures are evident from Ex.A11-Xray films. So, the petitioner was able to prove further that in the accident, he received multiple fractures.
14. As seen from the evidence of PW.2, he spoke of the surgical treatment given to the claimant. According to him, PW.1 was admitted in the hospital on 05.01.2008 and he was treated in the hospital till 21.01.2008. He underwent surgery on 07.01.2008, as per the case sheet. Again he was re-admitted on 02.04.2008 and he was discharged on 09.04.2008 and Ex.A10 is the copy of case sheet. The petitioner received four (04) grievous injuries. PW.3- biling manager, Bhimavaram hospital, spoke of the bunch of medical bills issued under Ex.A5. Further the petitioner examined PW.4-Orthopedic Surgeon, who spoke of about the treatment. PW.5 8 is the person who examined PW.1 and issued Ex.A9-disability certificate, stating that he sustained 40% of the disability.
15. There is no dispute the offending vehicle was insured with the appellant-Insurance Company. Driver and the owner remained exparte. Hence, respondent Nos.1 to 3 are jointly and severally liable to pay compensation.
16. Coming to the quantum of compensation, the Tribunal took into consideration the fact that the petitioner received four (04) fracture injuries, which were intervened with surgical procedure, as such, granted a sum of Rs.25,000/-, to each fracture, thereby granted Rs.1,00,000/- towards compensation, which is reasonable.
17. Further the Tribunal rightly awarded Rs.2,11,000/-, towards medical expenditure, which is quietly evident from the bunch of medical bills under Ex.A5. Further the Tribunal awarded a sum of Rs.4,000/-, towards transportation charges, which is reasonable. The Tribunal awarded Rs.5,000/-, towards pain and suffering. The Tribunal awarded a sum of Rs.1,00,000/-, towards the future loss, though the claimant claimed a sum of Rs.2,19,000/-. It is to be noted that as the so called disability of the claimant, which is evident from the evidence of PWs.3 and 4, coupled with Ex.A9, is not such that it is coming in any away with regard to the earnings, the Tribunal considered to award a sum of Rs.1,00,000/-. Claimant received multiple fractures of ribs, as well as other parts. Though they are united, but he will have lifelong discomfort. So, the Tribunal wanted to award a sum of Rs.1,00,000/- towards the disability.
18. It is to be noted that, the Tribunal considered loss of earnings as Rs.5,000/- per month, for a period of one (01) year, which is not justified. It is to be noted that the injured/claimant was admitted in the hospital in two spells. At best, the petitioner would have taken bed rest for a period of three (03) months. Without there being any basis, the Tribunal awarded loss of earnings for a period of one (01) 9 year, instead of three (03) months. The Tribunal considered notional income of Rs.5,000/- and awarded loss of earnings as that of Rs.60,000/- [Rs.5,000/- X 12 months = Rs.60,000/-], which needs to be interfered. Except the loss of earnings for a period of nine (09) months, the rest of the compensation awarded by the Tribunal needs no interference.
19. Hence, the compensation which can be awarded to the claimant can be summarized as follows:
Sl.No. Name of the head under which Amount awarded in compensation is granted Rs.
1. For four (04) fractures 1,00,000/-
2. Medical expenses 2,11,000/-
3. Transportation charges 4,000/-
4. Loss of earnings for three (03) 15,000/-
months. [Rs.5,000/- X 3 = Rs.15,000]
5. Pain and suffering 5,000/-
6. Loss of future earnings, on account 1,00,000/-
of disability Total: Rs.4,35,000/-
Under the circumstances, the petitioner is entitled to receive compensation of Rs.4,35,000/-.
20. In the light of the above, the award, 28.09.2012, in M.V.O.P.No.982 of 2009, on the file of the Motor Accident Claims Tribunal - cum - VI Additional District Judge (Fast Track Court), Narsapur, West Godavari District, needs interference.
21. In the result, the M.A.C.M.A. is allowed in part, with proportionate costs, reducing the compensation from that of Rs.4,80,000/- to Rs.4,35,000/-, with interest @ 7.5 % per annum, to be paid from the date of petition till the date of deposit. Appellant shall deposit the rest of the compensation, if any, within a period of one month from the date of this judgment and on such deposit, the 10 claimant is at liberty to withdraw the same, in terms of the award of the Tribunal.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ JUSTICE A.V. RAVINDRA BABU Dt.29.04.2024.
Vnb 11 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU M.A.C.M.A.No.1649 of 2016 Date:29.04.2024 Vnb