Telangana High Court
Reliance General Insurance Co Ltd., Hyd vs B.Babu, Hyd Two Others on 18 July, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
M.A.C.M.A. NO.2584 OF 2017
AND
M.A.C.M.A. NO.2680 OF 2017
COMMON JUDGMENT
M.A.C.M.A.No.2584 of 2017 is filed by the injured/claimant, while M.A.C.M.A.No.2680 of 2017 is filed by the insurance company.
2. Brief facts leading to the filing of these appeals are that on 20.03.2015, the injured while he was proceeding on his motor cycle bearing registration No.AP 11H 8954 from Gajwel towards Pragnapur side slowly on the extreme left side and when he reached near a gas godown on the outskirts of Pragnapur, it is stated that another motor cycle was coming in opposite direction and in order to avoid collision, the claimant suddenly applied brakes, due to which his motor cycle skidded on the road and the claimant fell down from the motor cycle resulting in the lorry bearing registration No. AP 15V 3339 driven by its driver in high speed running over the left hand of the claimant and due to that, the claimant sustained crush injury of left hand, which ultimately resulted in amputation of left hand above elbow. It is stated that he has MACMA Nos.2584 & 2680 of 2017 2 also sustained fracture of right hand, fracture of right fingers, fracture of left ankle, fracture of left knee and other injuries all over the body. A case in Crime No.84 of 2015 under Section 337 of IPC was registered against the driver of the lorry at Gajwel Police Station. The claimant was immediately taken to the Government Hospital, Gajwel and later treated at various private hospitals and due to the crush injury of left hand, amputation of left hand above elbow was done.
3. The claimant filed O.P.No.915 of 2015 on the file of the Motor Accident Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad (for short "the Tribunal") seeking a compensation of Rs.25,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 20.03.2015. The Tribunal has granted a compensation of Rs.15,30,600/-. Against the award granting the said compensation to the claimant/injured, the insurance company is in appeal in M.A.C.M.A.No.2680 of 2017 and while seeking enhancement of the compensation, the claimant/injured is in appeal in M.A.C.M.A.No.2584 of 2017 before this Court.
4. The insurance company is challenging the award on the ground that the Tribunal has not considered that the accident has occurred due MACMA Nos.2584 & 2680 of 2017 3 to the rash and negligent driving on the part of the claimant himself as he was driving his motor cycle and while avoiding collision with another motor cycle coming in opposite direction, he had applied sudden brakes, due to which the motor cycle skidded on the road and thus the accident has taken place.
5. The learned Standing Counsel for the insurance company, Sri T. Mahendra Rao drew the attention of this Court to the narration of sequence of incidents by the claimant as recorded in the order of the Tribunal and submitted that it was due to the negligent driving of the claimant himself that the accident has occurred and therefore, there was no negligence on the part of the driver of the lorry and hence no compensation ought to have been awarded by the Tribunal. He submitted that even if some part of the accident is attributed to the claimant, contributory negligence by the claimant should have been considered by the Tribunal and compensation should be reduced accordingly. In support of his contention, he placed reliance upon the judgment of this Court in the case of Agnuru Jaya Ramulu Vs. Mohammed Afzal Miyan and another1.
1 2006 ACJ 855 MACMA Nos.2584 & 2680 of 2017 4
6. The learned counsel for the claimant, Sri P. Ramakrishna Reddy, on the other hand, submitted that there was no negligence on the part of the injured and further that the driver of the lorry had admitted before the police that he was guilty of the crime. He submitted that in such circumstances, it cannot be said that the claimant was negligent, due to which the accident has occurred. In support of his contentions, he placed reliance upon the following decisions.
(1) G.Munirathnam Vs. Natwarlal Odhvaji Thakkar and another2.
(2) Karri Nagapadma Sridevi and others Vs. Oriental Fire and General Insurance Company Ltd. and others3. (3) Repaka Rajya Laxmi and others Vs. Poldasari Komuraiah and others4.
(4) Bimla Devi and others Vs. Himachal Road Trans. Corpn. and others5.
2
2017 ACJ 904 3 2002 (1) ALT 44 (D.B.) 4 2009 ACJ 138 5 2009 ACJ 1725 MACMA Nos.2584 & 2680 of 2017 5
7. Having regard to the rival contentions and the material on record, it is noticed that the Tribunal has framed issue No.1 as to whether the accident took place due to the rash and negligent driving of the lorry bearing registration No.AP 15V 3339 causing injuries to the claimant. It is seen that after going through the copy of the FIR in Crime No.84 of 2015 of Gajwel Police Station and also the charge sheet, the Tribunal has come to the conclusion that the accident has occurred due to the rash and negligent driving on the part of the driver of the crime vehicle lorry. It is noticed that before the Tribunal also, the insurance company had taken the ground that the accident has occurred due to the fault and negligence of the claimant himself and the Tribunal has taken into consideration the contents of the charge sheet filed by the investigation officer before the Tribunal after due investigation and also further the copy of the judgment in C.C.No.299 of 2015 passed by the Judicial Magistrate of First Class, Special Mobile Court at Medak that the driver of the said lorry had admitted the charges framed against him and that he was convicted for the offence under Section 338 IPC, to hold that the accident was due to the rash and negligent driving on the part of the driver of the crime vehicle. Though the learned counsel for the insurance company vehemently argued and placed reliance upon the judgment of MACMA Nos.2584 & 2680 of 2017 6 this Court in the case of Agnuru Jaya Ramulu Vs. Mohammed Afzal Miyan and another (1 supra), he has not been able to place any evidence on record contrary to the findings of the Tribunal.
8. This Court finds that in the case of Agnuru Jaya Ramulu Vs. Mohammed Afzal Miyan and another (1 supra), there was a mention of the date of accident as intervening night of 12/13.07.1997, whereas the evidence of a Professor at Government Hospital, Kurnool has stated that he treated the injured on 12.07.1997 which created a doubt about the date of the accident. The scene of accident panchanama was also not produced and there was a head-on collision between the two vehicles and therefore, the Court held that when there is head-on collision between the two vehicles, the drivers of both the vehicles involved in the accident are negligent. However, in the case before this Court, there was no doubt with regard to the date of the accident or the nature of the accident and it is not the case of head-on collision.
9. In the judgments cited by the learned counsel for the claimant/injured, a Single Judge of this Court in the case of G. Munirathnam Vs. Natwarlal Odhvaji Thakkar and another (2 supra) in similar circumstances, has taken note of the fact that the FIR MACMA Nos.2584 & 2680 of 2017 7 was lodged against the driver of the offending vehicle and also that the charge sheet was filed against him and convicting him on his admission of guilt and sentencing him to pay fine, all proved that the driver of the offending truck was solely responsible for the accident.
10. The Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Trans. Corpn. and others (5 supra) has held that strict proof of accident caused by a particular bus in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt could not have been applied and therefore, there was no reason to falsely implicate the driver and the conductor of the bus and accordingly it was held that the driver of the bus was negligent and responsible for the accident therein.
11. In the case of Karri Nagapadma Sridevi and others Vs. Oriental Fire and General Insurance Company Ltd. and others (3 supra), it was held that the eye witness to the occurrence testified that the accident occurred due to driving of lorry in a rash and negligent manner by the driver of the lorry and when there was no rebuttal MACMA Nos.2584 & 2680 of 2017 8 evidence, the negligence of the lorry driver is proved and contributory negligence recorded by the Tribunal is merely based on assumption as against the cogent evidence of the eye witness.
12. In the case of Repaka Rajya Laxmi and others Vs. Poldasari Komuraiah and others (4 supra), a scooterist could not notice stationed vehicle in the dark and dashed against it from behind and sustained fatal injuries. When the eye witness corroborated the claimants' version and driver of the tractor-trailer, who is the best person to speak of circumstances under which the accident occurred, did not appear in witness box to contradict the testimony of the eye witness, it was held that non-mentioning of name of the eye witness in the charge sheet cannot be a ground to reject his testimony and the finding that the accident has occurred due to the negligence of the driver of the tractor- trailor is to be upheld.
13. In view of the above judgments and in the absence of any evidence to the contrary, the contentions of the insurance company cannot be accepted and the argument of the insurance company is thus rejected.
MACMA Nos.2584 & 2680 of 2017 9
14. The other grounds raised in the appeal filed by the insurance company are in relation to the compensation awarded to the claimant, i.e., adopting Rs.6,000/- per month as the monthly income of the claimant in the absence of any evidence to substantiate the same and for awarding a sum of Rs.11,52,000/- towards loss of earning capacity due to physical disability and awarding Rs.50,000/- towards compensation for pain and suffering and awarding of Rs.1,00,000/- towards future medical expenses and awarding interest at 7.5% per annum from the date of the claim petition till the date of decree. Since the claimant is also seeking enhancement of the compensation in his appeal, these grounds will be dealt with along with the claimant's appeal.
15. The claimant is also seeking enhancement of the compensation by adopting his monthly income at a higher figure of Rs.12,000/- per month before the Tribunal. The learned counsel for the claimant herein submitted that the injured was 35 years of age at the time of the accident and was hale and healthy and he was working as maistry and earning Rs.20,000/- per month. He submitted that due to the said accident, the claimant became permanently disabled as he has lost his ability of doing of work as maistry and due to various fractures sustained by him, he had been bedridden for almost a year and got a permanent disability of MACMA Nos.2584 & 2680 of 2017 10 limping in walking and therefore, he has lost all his amenities and enjoyment in life. He therefore sought increase of compensation by adopting Rs.20,000/- as the monthly income of the claimant.
16. The claimant is also seeking compensation towards 100% permanent disability and also for loss of earnings for further period as he had to be bedridden for long time. The learned counsel for the claimant also stated that the Tribunal has granted less compensation towards medical bills and treatment expenses and also towards future medical and treatment expenses. He also sought enhancement of compensation towards pain and suffering, extra nourishment, attendant charges, transportation, etc. He is also seeking application of multiplier 17 as against 16 adopted by the Tribunal, as according to him, the claimant was aged between 26 to 30 years and not 35 years as held by the Tribunal.
17. Having regard to the rival contentions and the material on record, it is noticed that the Hon'ble Supreme Court in the case of Shivakumar M. Vs. Managing Director, Bengaluru Metropolitan Transport Corporation6 has considered the possible income of a painter and has 6 (2017) 5 SCC 79 MACMA Nos.2584 & 2680 of 2017 11 held Rs.15,000/- per month as reasonable income. The petitioner therein was 45 years of age. In the case before this Court, he was 35 years of age and was a maistry. However, from the said judgment, the date of the accident is not known and therefore, in the present case, it is deemed fit and proper to adopt Rs.10,000/- as the monthly income of the claimant and the compensation to be computed accordingly.
18. As regards the correct multiplier to be applied, it is seen that the claimant has filed his identity card, i.e., Ex.A12, according to which, his date of birth is mentioned as 20.04.1985. According to the said exhibit, the claimant would be 29 years of age as on the date of accident, i.e., 20.03.2015 and therefore he would be falling within the age group of 26 to 30 and the correct multiplier to be used is 17.
19. The claimant has lost future prospects because of amputation of his left hand above elbow and also limping in walking and therefore, the compensation towards loss of future prospects is to be awarded at 40% of his earnings as per the judgment of National Insurance Co. Ltd. Vs. Pranay Sethi and others7. It is ordered accordingly. 7 2017 ACJ 2700 MACMA Nos.2584 & 2680 of 2017 12
20. As regards the medical bills and hospitalisation, the sum of Rs.30,600/- and Rs.50,000/- have been allowed. However, considering that the claimant has incurred grievous injuries including amputation of hand and fractures of both legs, the compensation awarded under these heads is increased by a further sum of Rs.40,000/- (Rs.20,000/- + Rs.20,000/-).
21. The Tribunal has awarded loss of income for three months, whereas it is noticed that the claimant would have been under rest for more than 3 months. Therefore, the compensation to be awarded under this head is for 6 months.
22. Towards loss of amenities and ability to lead normal life and loss of enjoyment of life, the compensation is further increased by a further sum of Rs.25,000/- under each of the heads.
23. The appeals of the claimant/injured as well as the insurance company are accordingly disposed of and the compensation shall be paid by the insurance company to the claimant with interest at 7.5% per annum from the date of the claim petition till the date of payment.
24. In the light of the abovementioned discussion, the claimant is entitled to the following amounts:
MACMA Nos.2584 & 2680 of 2017 13 Head Compensation awarded (1) Income Rs.10,000/- per month (2) Future prospects Rs.4,000/- (40% of the income) (3) Multiplier 17 (4) Loss of future earnings due to permanent disability Rs.28,56,000/- (14,000x12x17) (5) Expenditure for hospitalisation medicines, etc. Rs.50,600/-
(6) Expenditure for better nourishment, travel to and fro between home and hospital, attendance in hospital, etc. Rs.70,000/-
(7) Loss of income for 6 months Rs.84,000/- (14,000x6)
(8) Loss of amenities and ability
to lead normal life Rs.75,000/-
(9) Loss of enjoyment of life Rs.75,000/-
(10) For pain and suffering
on account of grievous
injuries as awarded by
the Tribunal Rs.50,000/-
(11) For pain and suffering
on account of simple
injuries as awarded by
the Tribunal Rs.30,000/-
(12) Future medical
expenses as awarded by
the Tribunal Rs.1,00,000/-
MACMA Nos.2584 & 2680 of 2017
14
Total compensation awarded Rs.33,90,600/- along with interest
@ 7.5% per annum from the date
of filing of the claim petition till
payment.
25. In the result, the award dt.08.05.2017 in O.P.No.915 of 2015 on the file of the Motor Accident Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad is modified by awarding a total compensation of Rs.33,90,600/- (Rupees thirty three lakhs ninety thousand and six hundred only) with costs and interest thereon at 7.5% per annum from the date of the claim petition till the date of realisation against both the insurance company and owner of the crime lorry jointly and severally. As the compensation payable to the claimant as per law was found to be higher than the original claim of Rs.25,00,000/-, the enhanced compensation of Rs.8,90,600/- is granted subject to payment of Court fee on such enhanced compensation. The insurance company is directed to deposit the compensation amount awarded within 90 days from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the same without furnishing any security.
26. In the result, MACMA Nos.2584 & 2680 of 2017 15
(i) M.A.C.M.A.No.2584 of 2017 filed by the claimant is accordingly allowed.
(ii)M.A.C.M.A.No.2680 of 2017 filed by the insurance company is dismissed.
27. Pending miscellaneous petitions, if any, in these appeals shall stand closed. No order as to costs in both these appeals.
___________________________ JUSTICE P. MADHAVI DEVI Date: 18.07.2022 Svv