Andhra Pradesh High Court - Amravati
V.Jayageetha vs Apsrtc 2 Others on 31 October, 2022
BVLNC, J MACMA No.2203 of 2016
Page 1 of 44 dt.31.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CIVIL MISCELLANEOUS APPEAL No.2203 OF 2016
JUDGMENT:
This appeal is preferred by the claimant challenging the award dated 14.06.2016 passed in M.V.O.P.No.261 of 2012 on the file of Motor Accidents Claims Tribunal-cum-IV Addl. District Judge, Tirupati, wherein the Tribunal while allowing the petition, awarded a compensation of Rs.9,13,740/- with interest @ 7.5% p.a., from the date of petition till the date of deposit for the injuries sustained by her in the motor vehicle accident.
2. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the lower Court.
3. As seen from the record, originally the petitioner filed an application U/s 166 (1) (a) of Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.12,00,000/- on account of the permanent disability and injuries sustained by the petitioner in a motor vehicle accident occurred on 09.03.2012 while the petitioner was travelling in APSRTC hire bus bearing No.AP 03Y 8996 from Appalayagunta to Tirupati and at Krishna Stone Crusher on Puttur - BVLNC, J MACMA No.2203 of 2016 Page 2 of 44 dt.31.10.2022 Tirupati road the petitioner fell down from the running bus at a curve, under the jurisdiction of Vadamalapet Police Station.
4. The facts of the case show that on 09.03.2012 at about 11.00 a.m., while the petitioner was travelling in the APSRTC hire bus bearing No.AP 03Y 8996 from Appalayagunta to Tirupati, and when the said bus reached near Krishna Stone Crusher, the driver of the bus drove the same in a rash and negligent manner, due to which the petitioner fell down from the running bus and sustained crush injury on her left chest. Immediately she was taken to SVRRGG Hospital, Tirupati by 108 Ambulance.
On receipt of the statement of the injured, a case in Cr.No.12/2012 under Section 338 of IPC was registered by Vadamalapet P.S., against the driver of the bus and subsequently, after conducting investigation, the police filed the charge sheet against him on the file of Addl. Judicial Magistrate of I Class, Puttur.
The injured was aged about 43 years and she was hale and healthy prior to the accident. The petitioner is a house wife and she was doing tailoring work and earning Rs.3,000/- p.m., and contributing the same to her family. From 09.03.2012 to 22.03.2012 she was treated in the said hospital and again on 29.03.2022 she was admitted in the same BVLNC, J MACMA No.2203 of 2016 Page 3 of 44 dt.31.10.2022 hospital as the injury to upper left chest was not healed. Subsequently, on the advice of doctors, she was admitted in C.M.C. Hospital, Vellore on 03.04.2012, where on examination the doctors found that there was a large irregular ulcer measuring about 30 x 10 cm., in the anterior chest wall extending from the midline to the left anterior chest wall laterally, supero inferiorly from left infraclavicular region to the supramammary region. There was dusky discoloration around the circumference of the ulcer. The margins were clearly demarcated and necrotic material with purulent discharge. On palpation, there was increased warmth and tenderness. The base was indurated extending from the infra mammary, supraclavicular regions and to the shoulder. The doctors at C.M.C. Hospital operated the petitioner viz., (1) Anterior chest wall debridement and left mastectomy on 03.04.2012; (2) Redebridement of the anterior chest wall on 08.04.2012 and emergency tracheostomy was done on 09.05.2012 and she was there in the I.C.U. for three days. Later, her wound was found to have fungal growth in few areas of the debrided wound, fungal culture had grown Mucormycosis. The wound became unhealthy and she needed a redebridment. The petitioner was receiving nebulisations for persistent wheeze. The petitioner became tachypnoea with respiratory alkalosis. Further, there was sudden onset upper airway obstruction secondary to the generalized oedema with laryngeal oedema BVLNC, J MACMA No.2203 of 2016 Page 4 of 44 dt.31.10.2022 she developed probably due to hypoalbuminemia. Her saturation again dropped and she was shifted back to SICU for ventilation. She was given frequent nebulisations and then the respiratory symptoms improved. Portex tracheostomy tube was converted into a metallic one. Finally, she was discharged on 01.06.2012 with a plan for STSG on the anterior chest wall. The doctors advised the petitioner to take protein diet and also advised her to take plastic surgery for her chest as totally her left chest was removed. The petitioner spent huge amount for her treatment. On 22.06.2012 the petitioner was admitted in Prasanth Nursing Home, Tirupati and on 23.06.2012 plastic surgery was done.
Due to the injuries the left breast of the petitioner was removed, left shoulder got infected and flesh and skin were removed, due to which she is not able to lift the shoulder, movements restricted, she cannot lift the hand and she cannot do the work like prior to the accident, which is a permanent disability.
The accident occurred due to the rash and negligent driving by the driver of the bus, which was hired by the 2nd respondent with the 1st respondent and the 2nd respondent insured the said bus with the 3rd respondent and the policy of insurance was in force on the date of accident. Hence, the claim for compensation.
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5. Before the Tribunal, the 1st respondent resisted the petition in the counter filed on his behalf and contended that the 2nd respondent drove the said bus with care and caution, there was no rash or negligence on the part of driver of the bus, the 2nd respondent hired the bus to the 1st respondent for a period of four years from 26.06.2011 to 25.06.2015, the said bus was insured with the 3rd respondent and the agreement clearly shows that the respondents 2 and 3 are responsible to pay any claim if arises under the provisions of Motor Vehicles Act, the 2nd respondent paid premium for IMT - 44 to the 3rd respondent and therefore, the 1st respondent is not liable to pay compensation.
6. The 2nd respondent resisted the petition by filing a counter contending that the driver of the bus bearing No.AP 03Y 8996 drove the same with care and caution and there was no rash or negligence on the part of the driver of the bus, the 1st respondent is not liable to pay any compensation as per the terms of the agreement, the driver of the bus was holding valid driving licence at the time of accident and the amount of compensation claimed by the petitioner is excessive.
7. The 3rd respondent/insurance company filed counter resisting while traversing the material averments with regard to proof of age, manner of accident, rash and negligence on the part of the driver of the crime bus, nature of injuries, period of treatment, medical BVLNC, J MACMA No.2203 of 2016 Page 6 of 44 dt.31.10.2022 expenditure, and liability to pay compensation and contended that the 2nd respondent was not having valid driving licence to drive such type of vehicle, the 2nd respondent endorsed the vehicle to the driver who was not having a valid and effective driving licence to drive such type of vehicle at the time of accident, the 3rd respondent insurance company is not liable to pay compensation as the 2nd respondent has violated the terms and conditions of the policy, the vehicle pertaining to the 2nd respondent was not having valid fitness certificate and plying the same in violation of the terms and conditions of the policy and therefore, the 3rd respondent is not liable to pay compensation.
8. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
1. Whether the petitioner received injuries in the motor vehicle accident that took place on 09.03.2012 at about 11.00 a.m., due to rash and negligent driving of the driver of hired APSRTC bus bearing No.AP 03Y 8996 of the 1st respondent as alleged?
2. Whether the petitioner is entitled to compensation and if so what is the quantum of compensation amount and against whom?
3. To what relief?BVLNC, J MACMA No.2203 of 2016
Page 7 of 44 dt.31.10.2022
9. To substantiate her claim, the petitioner examined P.Ws.1 to 5 and got marked Exs.A1 to A16, Ex.X1 and Ex.C1. On behalf of the respondents, R.Ws.1 to 3 were examined and Exs.B1 to B5 were marked.
10. The Tribunal, taking into consideration the evidence of P.Ws.1 to 5, coupled with Exs.A1 to A16, Ex.X1 and Ex.C1 and the evidence of R.Ws.1 to 3 and Exs.B1 to B5, held that the accident took place due to rash and negligent driving of the driver of the offending bus, and awarded a compensation of Rs.9,13,740/- with interest @ 7.5% p.a., from the date of petition till the date of deposit.
11. The contention of the appellant/claimant is that (point No.1) the Tribunal erred in holding that the 2nd respondent i.e., owner of the bus is alone liable to pay compensation and that 3rd respondent insurance company is not liable to indemnify the insured, though insurance policy was valid and in force as on the date of accident. The other contention of the claimant is that (point No.2) the Tribunal failed to appreciate the evidence of doctor (P.W.4), who deposed that permanent disability suffered by the claimant is 80% and that the Tribunal erred in fixing the annual income of the claimant at Rs.36,000/- only, oblivious of the fact that even a servant-maid was earning Rs.200/- per day at the relevant point in time and therefore, the Tribunal would have fixed the BVLNC, J MACMA No.2203 of 2016 Page 8 of 44 dt.31.10.2022 income of the claimant, who is a house-wife at Rs.72,000/- p.a., and by applying the permanent disability as per the evidence of P.W.1. POINT No.1:-
12. The case of the appellant/claimant is that she is a house-wife and also doing tailoring works and on 09.03.2012 at about 11.00 a.m., she boarded APSRTC hired bus bearing No.AP 03Y 8996 at Appalayagunta near Tirupati and when the bus was going towards Tirupati, the driver of the bus drove the bus in a rash and negligent manner in spite of curves and as a result she fell down from the bus near Krishna Stone Crusher and received crush injury on her left chest and police registered Ex.A1 F.I.R., for the offence punishable u/s 337 of IPC against conductor of the bus and later, after investigation filed Ex.A2 police report (charge sheet) against bus driver and also the conductor of the bus for the offence punishable u/s 337 of IPC and Sections 134 (a) and (b) of Motor Vehicles Act and Exs.A3 to A16 and Ex.X1 proved that the petitioner received injuries in the road accident and the respondents did not examine any witness against the evidence of the petitioner about the manner in which the accident was occurred and therefore, the evidence of the petitioner proved that the accident occurred due to rash and negligent driving of the bus by the driver, and the medical evidence produced by the petitioner proved that she spent Rs.3,30,658/- towards BVLNC, J MACMA No.2203 of 2016 Page 9 of 44 dt.31.10.2022 treatment provided at C.M.C. Hospital, Vellore and on account of the injuries sustained in the accident her left breast was removed on 09.05.2012 as proved by Ex.A6 discharge summary and the evidence of P.W.4 proved the same and as per his evidence she sustained permanent disability at 80% and the evidence of P.W.5 proved that she sustained two grievous injuries in the accident and the Medical Board issued Ex.A16 assessing the permanent disability as 52% and in those circumstances, the petitioner claimed a total sum of Rs.12,00,000/- towards compensation under various heads pleading that she is a house-wife and a tailor and her income at relevant point of time was Rs.3,000/- p.m., and age was 43 years at the time of accident, and that the respondent No.1/APSRTC, respondent No.2/owner of hired bus and respondent No.3/insurer of the bus are jointly and severally liable to pay the compensation.
13. The 1st respondent/APSRTC contention is that APSRTC hired the bus from the 2nd respondent from 26.06.2011 to 25.06.2015 for four years and it was insured with 3rd respondent and as per the hire agreement it carries IMT - 44 hire package policy and therefore, the 2nd and 3rd respondents are jointly and severally liable to pay any claim to be arisen under the provisions of Motor Vehicles Act and the 1st respondent is not liable to pay any compensation as per the terms of the agreement BVLNC, J MACMA No.2203 of 2016 Page 10 of 44 dt.31.10.2022 as 2nd respondent paid the premium for IMT - 44 to the 3rd respondent and the same was in force at the time of the accident as the policy was valid from 13.06.2011 to 12.06.2012. The 1st respondent also contended that the accident was not occurred due to the rash or negligent driving of the driver, but it occurred due to the negligence on the part of the petitioner and the claim of the petitioner is excessive and exorbitant.
14. The 2nd respondent contended that he hired the bus with the 1st respondent for a period of four years from 26.06.2011 to 25.06.2015 and it was insured with the 3rd respondent and paid premium for IMT - hirer package also and it was valid on the day of accident and as per the agreement 2nd and 3rd respondents are responsible to pay any claims if arise under the provisions of Motor Vehicles Act and the 3rd respondent is liable to indemnify the same and therefore, the 2nd respondent is not liable to pay any compensation and the driver was having a valid and subsisting driving licence and there is no violation of terms and conditions of the policy and that accident occurred due to the negligence of the claimant and there was no negligence on the part of the driver of the bus and the compensation claimed by the petitioner is exorbitant and excessive.
15. The contention of the 3rd respondent/insurance company is that the petitioner sustained only simple injuries and that accident was BVLNC, J MACMA No.2203 of 2016 Page 11 of 44 dt.31.10.2022 occurred due to the negligence of the petitioner and petitioner was sitting in the bus negligently opposite to the door way without holding properly and while the bus was taking a turn, the petitioner lost control and fell down from the bus and inspite of the best efforts made by the driver, the accident was occurred and that the driver is not having a valid licence to drive the vehicle at relevant point in time and the 2nd respondent entrusted the vehicle to a person who was not having valid driving licence and therefore, the 3rd respondent is not liable to indemnify as per the terms and conditions of the policy. The 3rd respondent further contended that the bus is not having valid fitness certificate on the date of the accident and therefore, the 2nd respondent violated the terms and conditions of the policy and further the bus was not having a valid permit on the date of the alleged accident to ply on the alleged route of the accident and thereby 2nd respondent violated the terms and conditions for plying the vehicle in a non-permit route and the claim of the petitioner is exorbitant and excessive and the 3rd respondent is protected u/s 149 of the Motor Vehicles Act for violation of the terms and conditions of the policy.
16. The petitioner in order to establish her case that the accident occurred due to the rash and negligent driving of the driver of the bus, has examined herself as P.W.1. She filed copies of Ex.A1 F.I.R., and BVLNC, J MACMA No.2203 of 2016 Page 12 of 44 dt.31.10.2022 Ex.A2 police report (charge sheet) laid by the police after conducting investigation about the accident. The evidence of P.W.1 coupled with Ex.A1 F.I.R., and Ex.A2 police report (charge sheet) prima facie show that the accident occurred due to the rash and negligent act of the driver and conductor of the bus. The respondents to contradict the evidence of petitioner who was travelling in the bus at the time of the accident, did not examine either the conductor or the driver of the bus, who are the best witnesses to depose about the manner in which the alleged accident occurred and the role of petitioner in the accident to say that petitioner contributed for the accident. The 2nd respondent was examined as R.W.3, but he is not an eye witness to the incident. R.W.1 is a Legal Officer working in the 3rd respondent company and therefore, he is also not an eye witness to the incident. R.W.3 is the 2nd respondent and he is the owner of the hire bus. He is also not an eye witness to the incident. R.W.2 is a Senior Assistant working in the office of Regional Transport Authority, Tirupati. Therefore, none of the witnesses examined for the respondents are eye witnesses to the incident that occurred on 09.03.2012. In that view of the matter, I do not find any error in the finding of the Tribunal that the accident was occurred due to the rash and negligence of the driver of the bus.
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17. Coming to the main contention of the claimant/appellant is that the Tribunal erroneously exonerated the 3rd respondent/ insurance company from liability and awarded compensation against the 2nd respondent only, who is the owner of the bus hired with the 1st respondent APSRTC at the relevant point in time inspite of the 2nd respondent paid premium for IMT-44 hirer - package policy, and there is no violation of terms and conditions of the policy. The learned counsel for the claimant vehemently argued that the Tribunal erred in holding that the ratio laid down by the Hon‟ble Apex Court in Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others reported in (2011) 8 SCC 142; a Full Bench judgment of High Court of Andhra Pradesh at Hyderabad in APSRTC, Hyderabad and another Vs. B.Kanakaratnabai and others reported in 2013 (1) ALD 644 (FB); and also the judgment of the Punjab and Haryana High Court in Motiram Vs. ICICI Lombard and others (MANU/PH/3042/2014). The learned counsel for the 3rd respondent/insurance company submitted arguments that the owner has violated the terms and conditions of the policy and therefore, u/s 149 (2) of the Motor Vehicles Act the insurance company was exonerated by the Tribunal, and there are no grounds to interfere with the findings of the Tribunal on this aspect. The learned counsel for the 1st respondent/APSRTC and 2nd respondent/owner of the bus submitted that BVLNC, J MACMA No.2203 of 2016 Page 14 of 44 dt.31.10.2022 the Tribunal erred in holding that the owner violated the terms and conditions of the insurance policy, and that route permit is not a condition covered by the policy and it will not be covered by the word „permit‟ as mentioned in the policy as well as under the provisions of the Motor Vehicles Act as laid down in Moti Ram's case, and therefore, there is no violation of the terms and conditions of the policy and as such the 3rd respondent/insurance company shall indemnify the insured to pay compensation as per the terms of the hire agreement.
18. Ex.B1 is the true copy of hire agreement between the 1st and 2nd respondents dt.29.06.2011. Ex.B1 shows that the owner shall keep the bus road-worthy in terms of Chapter-VI of the M.V.Act, 1988 from time to time, by carrying out necessary maintenance and repairs at his own cost and the owner shall keep the vehicle duly insured comprehensively duly incorporating the APSRTC as the hirer of the vehicle in the insurance policy against the column "Owner" to cover all risks and the Proposal Form shall be signed by both the owner and the hirer and the insurance policy certificate of the vehicle shall carry "IMT-44 Indemnity to hirer-package policy-negligence of the owner or hirer"
endorsement; and the owner shall also pay other taxes and levies payable as a consequence of the operation of the above vehicle to all the authorities concerned and further, the owner shall be liable for all claims BVLNC, J MACMA No.2203 of 2016 Page 15 of 44 dt.31.10.2022 that may arise due to statutory violations out of the operations, like claim due to accidents payable under the provisions of M.V.Act, 1988 and APSRTC shall under no circumstances be made liable or responsible to pay compensation that may be awarded by Motor Accidents Claims Tribunal or Tribunals in respect of accidents and that in the event of payment of compensation by APSRTC to the injured persons/dependents of deceased persons or to the owners of the property damaged, by any Award of the Motor Vehicle Accidents Tribunal / Order of the Court in cases involving accident to hire buses, the APSRTC shall have right to recover the said compensation from the hire bus owner and the hire bus owner hereby agreed that he shall not dispute the said recovery. The agreement also says that owner shall depute the driver engaged on hire bus for imparting requisite training programmes and that the owner shall provide a driver with a valid driving licence having validity of not less than five years experience to drive the vehicle and the driver employed by the owner shall undergo medical examination by a Medical Officer of the APSRTC and the owner shall furnish photo copy of the driving licence and the corporation shall provide the conductor for operation of the service with necessary equipment for issuing tickets.
19. Ex.B2 is the copy of the certificate-cum-policy schedule issued by the 3rd respondent. It shows that the policy was issued on BVLNC, J MACMA No.2203 of 2016 Page 16 of 44 dt.31.10.2022 13.06.2011 and it is valid till mid night of 12.06.2012. Admittedly, the accident was occurred on 09.03.2012. Therefore, the policy was in force as on the date of accident, and it further discloses that IMT-44 endorsement was attached to the policy and that a sum of Rs.125/- was paid towards indemnity to hire - IMT-44. Therefore, it establishes that the agreement of hire was within the knowledge of the 3rd respondent and there is no violation of any condition of the policy in this regard and thus admittedly the policy also does not prohibit the hire of the bus by the 2nd respondent with the 1st respondent. In that view of the matter, the 2nd respondent is vicariously liable for the negligent acts committed by the driver deputed by him to drive the bus hired to the 1st respondent Corporation. The 3rd respondent is liable to indemnify the same as per the terms of the policy.
20. On this aspect Hon‟ble Apex Court in Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others1, held that, .....Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company cannot escape its liability to pay the amount of compensation...." 1 (2011) 8 SCC 142.
BVLNC, J MACMA No.2203 of 2016Page 17 of 44 dt.31.10.2022
".....Thus, it can safely be inferred that effective control and command of the bus was that of the Appellant."
" .....If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the Insurance Policy in existence to the Corporation and thus Insurance Company would not be able to escape its liability to pay the amount of compensation."
".....The liability to pay compensation in respect of death of or injury caused to the person or property of a third party undoubtedly arises when such injury is caused when the insured is using the vehicle in a public place. It also arises when the insured has caused or allowed any other person (including an independent contractor) to use his vehicle in a public place and the death of or injury to the person or property of a third party is caused on account of the use of the said vehicle during such period, unless such other person has himself taken out a policy of insurance to cover the liability arising out of such an accident."
".....wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle....."BVLNC, J MACMA No.2203 of 2016
Page 18 of 44 dt.31.10.2022
21. In APSRTC, Hyderabad and another Vs. B.Kanaka Ratnabai and others2, a Full Bench of the High Court of Andhra Pradesh, at Hyderabad held that, ".....We find force in this contention. Given the similarities of the facts in Kulsum MANU/SC/0846/2011 = (2011) 8 SCC 142 and the cases arising in our State, the ratio laid down in the said judgment would squarely apply in so far as cases arising under the Act of 1988 are concerned."
"On principle, it is not open to the Insurance Company to absolve themselves of liability towards passengers/third party risks on the short ground that the insured vehicle has been given on hire without following the prescribed procedure....."
".....we hold that mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of the Insurance Companies, be it under the Act of 1088 or the Act of 1939, to honour passengers/third party risks covered by the Insurance Policies issued by them in favour of the owners. Notwithstanding the hiring of insured buses by the owners to the APSRTC, the Insurance Companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims unless any of the grounds in Section 149 (2) of the Act of 1988/Section 96 (2) of the Act of 1939 are made out......"
2 2013 (1) ALD 644 (FB).
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22. In Managing Director, K.S.R.T.C. and Others Vs. New India Assurance Company Ltd. And Others3 the Hon‟ble Apex Court held that, ".....It has not been shown that owner could not have given bus on hire as per any provision of policy....."
".....The insurance company admittedly has insured the vehicle and taken the requisite premium and it is not a case set up by the insurer that intimation was not given to the insurance company of the hiring arrangement....."
".....As such, insurer is liable to make indemnification and cannot escape the liability so incurred by the KSRTC."
".....It was held that the UPSRTC have become the owner of the vehicle during the specified period and vehicle having been insured at the instance of the original owner, it would be deemed that vehicle was transferred along with insurance policy to UPSRTC. The insurer cannot escape the liability to pay the compensation. The appeal preferred by UPSRTC was allowed. The instant cases are more or less the same and the decision of this Court in UPSRTC v. Kulsum (supra) also buttress the submission raised by KSRTC......"
In Uttar Pradesh State Road Transport Corporation Vs. National Insurance Co. Ltd., and Others (MANU/SC/0569/2021)4 the Hon‟ble Apex Court held that, 3 2015 ACJ 2849.
42021 0 Supreme (SC) 891.
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".....that the person supervising the driver is liable to pay the compensation to the victim. During such time, however, it will be deemed that vehicle was transferred along with the insurance policy, even if it were insured at the instance of the original owner. Thus, the Insurance Company would not be able to escape its liability to pay the amount of compensation."
23. The Tribunal considered the judgments of the High court of Andhra Pradesh at Hyderabad in B.Kanakaratnabai case, and also the judgment of the Hon‟ble Apex Court in Kulsum case, and held that 1st respondent is not liable to pay compensation, and 2nd respondent being owner of the bus is liable to pay compensation, but erred in holding that insurance company is not liable to indemnify the 2nd respondent the insured in the case. The claimant relied upon the judgment of Punjab and Haryana High Court in Moti Ram Vs. ICICI Lombard and others (MANU/PH/3042/2014), but the Tribunal without considering the law properly, simply observed that the above judgment is not applicable to the facts of the case on hand. The insurance company in their counter, as already stated supra, has taken a plea that the owner has violated the terms of the policy on the ground the driver was not having valid driving licence at the time of the accident. But the insurance company did not produce any evidence showing that the driver of the bus was not having valid licence at the time of accident. The burden is on the insurance BVLNC, J MACMA No.2203 of 2016 Page 21 of 44 dt.31.10.2022 company to prove the same as per Section 149 (2) of the Motor Vehicles Act since insurance company has taken the plea that the terms and conditions of the policy were violated. The Hon‟ble Supreme Court in Singh Ram Vs. Nirmala and others5 held that, "In Swaran Singh (supra), this Court held that the holder of a driving licence has a period of thirty days on its expiry, to renew it:
"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.
46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty 5 AIR 2018 SC 1290.BVLNC, J MACMA No.2203 of 2016
Page 22 of 44 dt.31.10.2022
days after its expiry." The following conclusion has been recorded in summation in the judgment::
"(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-
section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches BVLNC, J MACMA No.2203 of 2016 Page 23 of 44 dt.31.10.2022 on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case".
24. In the case on hand, the insurance company though has taken a plea that the driver of the bus was not having valid licence, did not adduce any evidence, much less cogent evidence to prove the said plea taken by the insurance company under Section 149(2) of the Motor Vehicles Act.
25. The other plea taken by the insurance company as could be seen from the counter is that the bus was not having a route permit to travel in the route where the alleged accident was occurred on 09.03.2012. The insurance company‟s case is that as per Ex.B1 policy there are limitations as to the use of the vehicle and the policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 or such carriage falling under sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. The 3rd respondent in support of its case filed Exs.B4 BVLNC, J MACMA No.2203 of 2016 Page 24 of 44 dt.31.10.2022 and B5 in the evidence of R.W.2, who is working as Senior Assistant in Regional Transport Authority Office, Tirupati. He deposed that he brought particulars of the vehicle bearing No.AP 03Y 8996 and as per Ex.B5 on 09.03.2012 the vehicle had no permit to ply. In the cross- examination he deposed that he is giving evidence as per the record of their office in Chittore District only with regard to renewal of the permit. Therefore, his evidence makes out that information in Ex.B5 is only limited to his office records. The insurance company did not produce any other cogent evidence to prove that the vehicle was not having permit to ply at the time of the accident. The Tribunal in its judgment observed that the 2nd respondent has violated the terms and conditions of the insurance policy by allowing the vehicle on road without route permit at the time of the accident, and that the evidence of R.W.3, who is owner of the vehicle cannot be considered because no such documentary evidence is placed before the Tribunal to show that route permit was renewed to ply the bus from Appalayagunta towards Tirupati.
26. Therefore, it appears that the Tribunal has wrongly placed the burden of proof on the owner instead of the insurance company. The question is whether route permit pleaded by the insurance company will come within the definition of „permit‟ as per sub-section (2) of Section 31 and Section 149(2) of the M.V.Act? The learned counsel for the BVLNC, J MACMA No.2203 of 2016 Page 25 of 44 dt.31.10.2022 appellant/claimant relied upon a judgment of High Court of Punjab and Haryana in Moti Ram case, and contended that none of the provisions contained in both Sections refers to route permit, and therefore, there is no violation of the terms and conditions of Ex.B2 policy and as such insurance company cannot be exonerated, and hence, it is jointly and severally liable for the compensation amount along with the owner of the bus. Hon‟ble Punjab and Haryana High Court in the above judgment held that, "A Division Bench of this Court while deciding FAO No. 3726 of 2006 titled as "United India Insurance Company Limited v. Subhash Chander and others" on 18.8.2006, considered the case of "Challa Bharathamma (supra)" has dealt with a question of route permit and held as under:--
"We have carefully perused the judgment and we find that, in the said case, there was no permit at all in terms of definition of permit, as contained in Section 2(31) of the Motor Vehicles Act, 1988 (for short 'the Act'). The said definition, on reproduction, reads as under:--
"2(31) "Permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle."
We have also perused Section 149 of the Act which relates to insurer's liability and it is reproduced as under:-- BVLNC, J MACMA No.2203 of 2016 Page 26 of 44 dt.31.10.2022
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-
(1) If, after a certificate of insurance has been issued under sub-
section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub- section (1) of Section 147 (being a liability covered by the terms of the policy) (or under the provisions of Section 163A) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had noticed through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and ah insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely.-
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(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-- (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in Sub-section (i) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is BVLNC, J MACMA No.2203 of 2016 Page 28 of 44 dt.31.10.2022 registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a Court in India:
Provided that no sum shall be payable by' the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-
section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of Sub- section (1) of section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the BVLNC, J MACMA No.2203 of 2016 Page 29 of 44 dt.31.10.2022 provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in Sub-section (2) or sub-
section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in Subsection (2) or in the corresponding law of the reciprocating country, as the case may be.
Explanation.--For the purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under section 165 and "award"
means an award made by that Tribunal under section 168." None of the provisions contained in both the above Sections refers to route permit. Under the circumstances, we are not inclined to accede to the submissions of learned counsel for the appellant, and further, no such plea was ever taken in the written statement before the Tribunal." (para 5) BVLNC, J MACMA No.2203 of 2016 Page 30 of 44 dt.31.10.2022 After considering sub-section (2) of Section 31 and Section 149(2) of the M.V.Act further held that, "In the instant case, route permit had not been brought on record. The above-cited case law shows that there, is no requirement of law, to possess a route permit. Section 2(31) of the Motor Vehicles Act talks about "Permit" only. Section 149 of the Act is also silent about route permit."
27. In the case on hand, insurance company did not place any evidence about the route permit relating to the accident. Sub-section (2) of Section 31 of M.V.Act talks about permit only, not about route permit. Section 149 of the Act is also silent about route permit. In the said circumstances, the contention of the 3rd respondent insurance company that terms and conditions of the policy were violated by the 2nd respondent as the vehicle plied without route permit cannot be accepted. Therefore, 3rd respondent/insurance company is jointly and severally liable for the compensation amount in view of Ex.B1 agreement, and Ex.B2 insurance policy was in force as on the date of accident. Hence, the finding of the Tribunal that 3rd respondent insurance company is not liable for the compensation shall be set aside. Accordingly, this point is answered.
BVLNC, J MACMA No.2203 of 2016Page 31 of 44 dt.31.10.2022 POINT No.2:-
28. The contention of the claimant is that the Tribunal erred in fixing the annual income of the petitioner at Rs.36,000/-, because even the wages payable to a servant-maid at lower side is taken into account that would be not less than Rs.200/- per day on the date of accident. This contention raised in the appeal is against the pleading and evidence of the claimant placed before the Tribunal. In the claim petition the appellant/claimant mentioned that her monthly income was Rs.3,000/- stating that she is a house-wife and tailor. In her evidence, in the chief- examination affidavit also she reiterated the same as follows:-
"I further submit that at the time of accident I am aged about 43 years and I was hale and healthy prior to the accident. I am a housewife, but I was doing tailoring work and was getting an income of Rs.3,000/- per month and that the same was contributing to my family members."
29. The Tribunal in its judgment held that there is no definite proof of income of the petitioner at the time of the accident and since the petitioner is a house-wife, her annual income at the rate of Rs.36,000/- can be fixed. Therefore, the Tribunal has accepted the income as claimed by the claimant and fixed the annual income accordingly. Surprisingly, the claimant in the appeal, raised the plea, without pleading or evidence. BVLNC, J MACMA No.2203 of 2016 Page 32 of 44 dt.31.10.2022 Therefore, the contention of the appellant/claimant that the Tribunal erred in fixing the income at Rs.3000/- per month is devoid of merit.
30. It is pertinent to refer the well settled guidelines as laidown by the Hon‟ble Apex Court in Raj Kumar Vs. Ajay Kumar and another6, and also in G.Ravindranath @ R Chowdary Vs E Srinivas & another7 on the heads under which compensation is awarded in personal injury cases. These guidelines have to be kept in mind by the Tribunals while awarding compensation in personal injury cases under Motor Vehicles Act. They are as under;
1. Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
6
2011 (1) SCC 343.
72013 (2) SCC 455.
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2. Non-pecuniary damages (General Damages
(iv) Damages for pain, suffering and trauma as a consequence of the injuries,
(v) Loss of amenities (and/or loss of Prospects of marriage.)
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/ or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii)- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages items (iv), (v) and (vi) - involves determination of lumpsum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.
BVLNC, J MACMA No.2203 of 2016Page 34 of 44 dt.31.10.2022
31. The Tribunal after considering the evidence of the claimant, P.W.2, Senior Accountant from C.M.C., Hospital, Vellore regarding Ex.C1 and Exs.A7 and A8 bills issued by C.M.C. Vellore, awarded Rs.3,30,658/- towards medical expenditure and also awarded Rs.5,000/- towards assistant and Rs.10,000/- towards special diet. So, the Tribunal has awarded a sum of Rs.3,45,658/- under the head pecuniary damages (Special Damages) towards expenses relating to the treatment, hospitalisation, medicines, transportation and nourishing food.
32. Coming to loss of earnings on account of permanent disability, the Tribunal considered Ex.A16 issued by Medical Board - S.V.Medical College Hospital, Tirupati wherein it was stated that the claimant suffered permanent disability of 52% on account of the removal of left side breast. The contention of the appellant/claimant is that P.W.4 who treated her for skin grafting on 21.06.2012 in Prasanth Hospital, Tirupati described the removal of the breast is a permanent disability of 80% and therefore, the percentage of disability shall be considered as 80%, but not 52% as believed by the Tribunal.
33. It is relevant to note down the guidelines laid down by the Hon‟ble Apex Court in Raj Kumar's case on Assessment of future loss of earnings due to permanent disability, BVLNC, J MACMA No.2203 of 2016 Page 35 of 44 dt.31.10.2022 "The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate......"
34. In the case on hand, P.W.4 deposed that he is a consultant plastic surgeon in Prasanth Hospital, Tirupati and he knows the petitioner and she was admitted in their hospital for treatment of wound over chest in left side and he has done skin grafting and she was admitted in their hospital on 21.06.2012 and discharged on 30.06.2012. According to his evidence, the removal of breast is a permanent disability and if she opted for breast reconstruction, result may be up to 80%, and the cost of the operation may be Rs.2 to 3 lakhs and in the cross- examination by the insurance company he deposed that the patient has to bear the expenditure of implants, though operation may be conducted BVLNC, J MACMA No.2203 of 2016 Page 36 of 44 dt.31.10.2022 on free of cost in the Government Hospital. It is pertinent to mention that in his evidence he did not state that disability percentage is 80%. Therefore, he did not state about the percentage of disability in his evidence. P.W.5 is another doctor, who is working as Associate Professor in SVRRGG Hospital, Tirupati, who deposed about the treatment given to the claimant on 09.03.2012 and as per his evidence and as per Ex.X1 the petitioner/claimant suffered two grievous injuries and in the cross- examination he stated that as per Ex.A3 issued by C.M.O. of the same hospital, the claimant sustained simple injuries. The claimant in her evidence filed Ex.A16 certificate for personal disability issued by Medical Board, S.V. College Hospital, Tirupati, which says that the petitioner suffered chest injury with post traumatic contracture of neck and percentage of disability in her case is 52%, and the disability is in relation to her trunk and impaired reach and post traumatic sequel-Limbs. The Tribunal basing on Ex.A16 considered the permanent disability as 52% and accepted the same.
35. Hon‟ble Apex Court in Raj Kumar's case also laid down several guidelines regarding the effect of the permanent disability on the earning capacity of the injured, and assessing the loss of earning capacity in terms of a percentage of the income as under:
BVLNC, J MACMA No.2203 of 2016Page 37 of 44 dt.31.10.2022
(i) The Tribunal has to first decide whether there is any permanent disability and if so the extent of the permanent disability. The tribunal should consider and decide whether the disablement is permanent or temporary and if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, and if the disablement percent has been expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body and that is the permanent disability suffered by the person, and if the Tribunal concludes that there is no permanent disability, then there is no question of proceeding further and determining the loss of future earning capacity. If the Tribunal concludes that there is permanent disability, then it will proceed to ascertain its extent, and after the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
(ii) The Tribunal has to ascertain what activities the claimant could carry on in spite of the permanent disability, and what he could not do as a result of the permanent disability, and this is also relevant for awarding compensation under the head of loss of BVLNC, J MACMA No.2203 of 2016 Page 38 of 44 dt.31.10.2022 amenities of life, and the second step is to ascertain his avocation, profession, and nature of work before the accident, as also his age and to find out whether the claimant totally disabled from earning any kind of livelihood or whether in spite of the permanent disability the claimant could effectively carry on the activities and functions, which he was earlier carrying on or whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood and further held that for example, if the left hand of a claimant was amputated, the permanent physical or functional disablement can be assessed around 60%, and if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be a hundred percent, if he neither able to drive nor do carpentry.
(iii) On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment, and he may still be continued as a clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be a hundred percent as in the case of driver or carpenter, nor 60% which is the actual physical disability, but far BVLNC, J MACMA No.2203 of 2016 Page 39 of 44 dt.31.10.2022 less and in fact there may not be any need to award any compensation under the head of loss of future earnings and if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand and sometimes the injured claimant will be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, and it may be noted that when compensation awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be duplication in the award of compensation.
(iv) The Tribunal should not be a silent spectator when medical evidence tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections BVLNC, J MACMA No.2203 of 2016 Page 40 of 44 dt.31.10.2022 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation' and the Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'.
While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment for understanding the medical evidence and assessing the physical and functional disability. The first schedule to the Workmen‟s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If the doctor is giving evidence using technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature, and the effect of the injury. If the doctor is giving evidence on the percentage of permanent disability, the Tribunal has to seek clarification, whether such percentage of disability is the functional disability with reference whole body, or whether it is only with reference to a limb.
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(v) The Tribunal will have to seek the doctor‟s opinion, whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body, and if so the percentage, The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give disability certificates, without proper medical assessment, and there are several instances of doctors who without treating the injured, liberally giving disability certificates to help the claimants, and where the disability certificates given by duly constituted Medical Boards, they may be accepted subject to evidence regarding genuineness of such certificates.
36. The Tribunals have to keep the above-cited guidelines in mind while assessing future loss of earnings due to permanent disability, in the claims filed under Motor vehicles Act.
37. In the case on hand, the Tribunal considered Ex.A16 permanent disability certificate issued by the Medical Board of S.V. College Hospital, Tirupati, which is a Government organization and as not disputed by respondents, considered the removal of breast as deposed by P.W.4 as a permanent disability and also in view of evidence of claimant about functional difficulties in her daily life due to injury, treated it as 52% functional disability, and applied multiplier „14‟ as per the judgment BVLNC, J MACMA No.2203 of 2016 Page 42 of 44 dt.31.10.2022 in Sarla Verma and others Vs. Delhi Transport Corporation and others (2009 ACJ 1298) of the Hon‟ble Apex Court considering her age at 45 years, and awarded Rs.2,62,080/-, and also awarded a sum of Rs.2,00,000/- towards loss of amenities on the ground that claimant is not fit for marital life because of dis-figuration as she lost one breast. So, the Tribunal has awarded a total sum of Rs.4,62,080/- towards loss of future earnings on account of permanent disability, and also towards loss of amenities covered under the heads pecuniary damages (Special Damages), and non-pecuniary damages (General Damages) receptively. The Tribunal also awarded Rs.5,000/- towards transportation charges; and Rs.1,000/- towards loss of clothe; and also awarded Rs.1,00,000/- towards pain and suffering as she sustained two grievous injuries, and rightly awarded an amount of Rs.9,13,740/-, against the claim amount of Rs.12,00,000/-.
38. In the light of the above discussion, I do not find any grounds to enhance the compensation awarded under the heads permanent disability, and loss of amenities as claimed by the appellant in the appeal.
39. In the result, the Civil Miscellaneous Appeal is partly allowed, the finding of the Tribunal that 3rd Respondent is not liable to pay the compensation is set aside. Consequently it is held that the 3rd respondent is jointly and severally liable along with the 2nd respondent/owner of the BVLNC, J MACMA No.2203 of 2016 Page 43 of 44 dt.31.10.2022 bus for the compensation amount awarded by the Tribunal. Therefore, the 3rd respondent is directed to deposit an amount of Rs.9,13,740/- awarded by the Tribunal, with interest at 7.5% p.a., from the date of petition till the date of deposit, within one month from the date of this judgment, and on such deposit, the petitioner is at liberty to withdraw the same. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ B.V.L.N.CHAKRAVARTHI, J 31.10.2022 dvsn BVLNC, J MACMA No.2203 of 2016 Page 44 of 44 dt.31.10.2022 HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI M.A.C.M.A.No.2203 OF 2016 31st October, 2022 dvsn