Andhra Pradesh High Court - Amravati
Bharti Axa General Insurance Company ... vs Meka Pavan Kumar And Another on 23 January, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
M.A.C.M.A.No.5 of 2018
JUDGMENT:
This appeal is directed against the decree and award in MVOP No.467 of 2014, dated 09.06.2017 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari District at Eluru.
By the above award, a compensation of Rs.14,39,239/- has been granted in favour of the 1st respondent making the appellant as well as the 2nd respondent jointly and severally, liable.
The 2nd respondent is the owner-cum-driver of the car bearing No.AP 37 BP 0099. On 03.02.2014, when the 1st respondent along with his friends was going on a motor cycle bearing No.AP 37S 8835, from Vishnu Engineering College, Bhimavaram to Undi, when this motor cycle was being driven by one Sri Viyyuri Balachandu, the 2nd respondent drove his car in a rash and negligent manner and dashed against the above motor cycle from behind at about 2.30 p.m at N.R.P.Agraharam. As a result, the 1st respondent and others, who were riding the motor cycle, suffered injuries.
Making a claim for compensation under different heads of special damages as well as general damages and in all claiming Rs.13,00,000/-, the 1st respondent filed above O.P. on the file of the Motor Accident Claims Tribunal against the 2nd respondent and the 2 MVR,J MACMA No.5 of 2018 appellant. The appellant is the insurer and on the date of alleged incident, the contract of insurance was subsisting.
The 2nd respondent as well as the appellant resisted the above claim, filing separate written statements. While the 2nd respondent contended that he was not responsible for the alleged incident and that the same occurred on account of negligence on the part of the riders of the motor cycle, who were unable to handle it and control. He further claimed that his vehicle was insured on the date of accident with the appellant and thus sought that the appellant shall indemnify him in this claim.
The appellant while denying the nature of the accident, attributed contributory negligence on the part of the 1st respondent and other riders of the motor cycle, while denying and disputing the nature of injuries suffered by the 1st respondent and extent of compensation claimed by him under different heads. It also contended that since three persons were riding his motor cycle, it amounts to violation of terms of policy and the rider of the motor cycle did not have valid and effective driving licence. Age and income claimed by the 1st respondent were also disputed by the appellant. It also contended that the 2nd respondent had no valid driving licence, while stating that the claim of the 1st respondent is excessive.
Basing on the above pleadings, the Tribunal settled the following issues for trial:
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MVR,J MACMA No.5 of 2018 "
1. Whether the pleaded accident dated 03-02-2014 occurred due to the rash and negligent driving of Car bearing No.AP 37 BP 0099 by 1st respondent and whether the petitioner sustained injuries in the said accident?
2. Whether crime vehicle bearing No.AP 37 BP 0099 was owned by 1st respondent and insured with 2nd respondent as on the date of accident?
3. Whether there are any violations of conditions of policy?
4. Whether the petitioner is entitled for compensation, if so, to what quantum and what is the liability of respondents?
5. To what relief? "
At the trial, the 1st respondent examined as PW.1 apart from PWs.2 and 3, who were the Doctors that treated him for fractures and other injuries, while relying on Exs.A1 to A11. The appellant examined one of its Officers as Rw.1 and another from the College, where the 1st respondent was studying as RW.2, while relying on Exs.B1 to B5 as well as Exs.X1 and X2.
Basing on the material and considering the contentions of the 1st respondent as well as the appellant, the Tribunal arrived at the amount of compensation, as stated above, holding the 2nd respondent as well as the appellant liable jointly and severally. 4
MVR,J MACMA No.5 of 2018 It is, against this decree and award, the present appeal is preferred.
Sri Harinath Reddy, learned counsel for the appellant, essentially, raised the following contentions, assailing the award of the Tribunal:
1. The Tribunal did not properly evaluate the evidence on record in respect of role of the rider of the motor cycle and contributory aspect in respect of the alleged accident.
2. The medical evidence adduced on behalf of the 1st respondent has not been properly appreciated and that the findings of the Tribunal that the 1st respondent suffered a functional disability of 15% is proper.
3. The finding of the Tribunal in considering the notional income of the 1st respondent, who was then a student of 19 years old, studying first year Engineering, at Rs.15,000/- p.m being improper and the manner in which the findings have been recorded under different heads in awarding compensation is not correct.
Thus stating, it is contended that having regard to the age, and that the 1st respondent was a student, the Tribunal should have considered his income at Rs.12,000/- p.m. Thus, it is requested to re-evaluate the evidence on record and allow the appeal. 5
MVR,J MACMA No.5 of 2018 Smt.M.Radha, learned counsel for the 1st respondent/claimant supported the award, not only for the reasons therein but also contending that the material produced at the trial justified compensation so awarded. It is further contended by the learned counsel for the 1st respondent that the Tribunal did not consider effect of disability, as deposed by the Doctor, of the 1st respondent, who had undergone to replacement of hip bone at such an young age. Thus, failure of the Tribunal to consider the percentage of the disability at 61% and in respect of future prospects, is highlighted.
None represented the 2nd respondent in this appeal, who did not choose to lead any evidence in the Tribunal below, though having had chosen to file a written statement.
In the back drop of such material and contentions advanced in this appeal, the following points arise for determination:
1. Whether the riders of the motor cycle contributed for the alleged incident and if it occurred on account of rash and negligent driving of the car by the 2nd respondent?
2. Whether the compensation so awarded under different heads by the Tribunal is justified and if the grounds now raised on behalf of the 1st respondent, can be considered?
3. To what relief?6
MVR,J MACMA No.5 of 2018 POINT NO.1:
The appellant is the insurer. The 2nd respondent has chosen to contest the application in the Tribunal filing a written statement. Though he did not choose to lead evidence, it shall be taken as disabling factor for the insurer to question the nature of alleged incident, particularly, in respect of rash and negligence being the cause attributed to the 2nd respondent in respect thereof. At the same time, it is well open to consider the effect of contributory factor, attributed to the riders of the motor cycle in respect of this accident. It is not in dispute that the 1st respondent was one among the three, who are on the motor cycle, at the time of alleged accident.
There is evidence on record from PW.1, who is none other than the 1st respondent describing this accident. He, being an injured, his testimony cannot be readily brushed aside. Apart from it, the investigation by the police basing on FIR in Crime No.23 of 2014 of Undi Police Station, a copy of which is Ex.A1, leading to filing a charge sheet-Ex.A4, in the jurisdictional of Court of learned Magistrate. As seen from Ex.A4, it clearly makes out that it was the 2nd respondent, who was responsible for this accident. Contra to such evidence placed by the 1st respondent, neither the 2nd respondent nor the appellant had lead any evidence at the trial. Possibly, the 2nd respondent could have been the best witness in 7 MVR,J MACMA No.5 of 2018 this respect, who has chosen to stay away from the process of trial.
The nature of injuries suffered by the 1st respondent remains an added circumstance in this regard.
However, the main contention of the appellant is that the 1st respondent and two others had chosen to go on a motor cycle, which is impermissible and ipso-facto, it makes out negligence on their part. This circumstance is sought to be considered in evaluating its contention by the appellant as a contributory factor. Repelling such contention, learned counsel for the 1st respondent, rightly relying on a very recent judgment of the Hon'ble Supreme Court in Mohammed Siddique v. National Insurance Company Ltd.1. In somewhat similar factual context, it was observed in para-13 as under, based on the facts:
The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders.
Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have 1 2020 LS SC 39 8 MVR,J MACMA No.5 of 2018 been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle.
The extracted portion above itself explains the effect of three persons riding a motor cycle at the time of the accident, in the absence of any proof of an exception, based on facts, as observed therein. The fact situation in the present case on hand, did not make out such an exception. Therefore, it needs no further elaboration, particularly, in given factual context in this case. Therefore, the ground sought to be made out on behalf of the appellant, in this respect, in the light of what is stated above, cannot stand. Thus, it has to be held that there is no proof as such of contributory negligence on the part of the riders of the motor cycle including the 1st respondent. Nor is there any evidence to show that the accident occurred even though there was no negligence or rashness on the part of the 2nd respondent. Thus, this point is answered.
POINT NO.2:
The evidence of PW.1 being injured has to be given any amount of credence in respect of nature of injuries, he suffered in the accident and also the manner in which, he had endured not only effect of such injuries but also on account of several surgeries, he 9 MVR,J MACMA No.5 of 2018 had. Cross examination of PW.1, on behalf of the appellant, at the trial, did not elicit any material to discredit his version. Evidence of PWs.2 and 3 has any amount of importance in this context.
PW.2, Dr.V.B.N.Prasada Rao, was the then Senior Consultant in Sunshine Hospitals, Secunderabad. His deposition is to the effect that the 1st respondent suffered fracture of dislocation of right hip and soft tissue injury of right knee. His evidence further reflects that the 1st respondent was subjected to surgery on 03.02.2014 and 13.02.2014 leading to total replacement of hip on the right side. He further deposed that the 1st respondent eventually recovered and that he was discharged from the hospital on 24.02.2014, while opining that the injuries suffered by 1st respondent have been grievous. He also identified Ex.A3-
wound certificate and Ex.A7-bunch of medical bills and Ex.A9- Discharge Summary. He also refers Ex.A10, X-rays with reference to the injuries suffered by the 1st respondent. Thus medical bills and as per the essentiality certificate issued by this hospital, according to PW2, the 1st respondent had spent Rs.2,19,575/-. The effect of these injuries and post surgery is also deposed by PW.2. On account of the same, the 1st respondent cannot squat nor have cross leg position. He was advised restricted climb stairing activity. The 1st respondent also cannot participate in any sports and games like foot ball, hockey etc. His evidence further 10 MVR,J MACMA No.5 of 2018 makes out that replacement of his hip bone is required once in 15 to 20 years, which may cost Rs.4,00,000/- on each occasion. PW.2 was subjected to searching cross examination on behalf of the appellant. In fact, his cross examination confirmed what this witness deposed in examination-in-chief, particularly, with reference to the expenses which the 1st respondent would incur in future, in case of replacement of hip bone. This witness also refers to Ex.X1, which states as to the cost of replacement of hip bone at Rs.4,00,000/-.
PW.3 was the then a Civil Surgeon in Orthopaedic Department, District Hospital, Eluru. He was also a member of District Medical Board, Eluru. His deposition reflects that on 10.06.2015, the 1st respondent was subjected to examination by Medical Board for assessment of disability. According to this witness, after going through the medical record and physical examination of the 1st respondent, the functional disability of PW.1 was arrived at 45%. He further deposed that this disability was due to fracture of right hip and it is permanent in nature. This witness identified Ex.A8, disability certificate, issued by the Medical Board, bearing his signature.
In cross examination for the appellant, this witness stated that he had never treated the 1st respondent. He too was subjected to searching cross examination on behalf of the appellant and which 11 MVR,J MACMA No.5 of 2018 did not elicit any material to discredit his credibility as an expert, who issued Ex.A8.
The Tribunal considered the evidence of PWs.1 to 3 in this respect, particularly, while referring to the medical expenses and surgeries that the 1st respondent had, while discussing issues 2 and 3. Basing on such material, the Tribunal held that the 1st respondent is entitled for Rs.4,78,239/-, which he had spent for his treatment. The finding so recorded by the Tribunal is appropriate, basing on the material on record. The Tribunal also considered the claim of the 1st respondent towards extra nourishment. Taking into consideration the duration of treatment the 1st respondent had as an in-patient in the hospital, basing on the evidence of PW.2 and that the 1st respondent was advised bed rest for three months, Rs.10,000/- was awarded under this head. On a consideration of the material and particularly, having regard to the nature of fractures suffered by the 1st respondent and type of treatment he had, the findings so recorded by the Tribunal, are quite appropriate. Towards pain and suffering, the Tribunal considered the nature of injuries suffered by the 1st respondent and arrived at distinct amounts for each injury at Rs.40,000/- and Rs.25,000/- and in all Rs.65,000/-. However, the Tribunal failed to consider the continuous effect the injury would have on the 1st respondent. It would be an agonising experience of the 1st respondent to bear 12 MVR,J MACMA No.5 of 2018 with. Particularly when the testimony of PW.2 refererd to supra is taken into consideration. He has to endure with this disability through out his life. Had the Tribunal chosen to award a reasonable amount than what was granted, it would have been more appropriate. The amount so fixed is not commensurate with the impact of after effects, which the 1st respondent should necessarily bear with. However, the hindering factor to enhance compensation under this head is want of challenge to this award by the 1st respondent, either by means of cross objections or a separate appeal for enhancement. Therefore, the amounts awarded under this head should be confirmed.
Similarly, in respect of effect of permanent disability, having regard to the evidence of the 1st respondent as PW.1 and that of PW.3, who had issued Ex.A3 document, the Tribunal had chosen to consider the same only at 15%, at functional level. Though contentions are advanced on behalf of the 1st respondent, assailing this finding, it cannot be considered for the reasons already stated, since there is no cross appeal or cross objections. Any finding to be recorded in this appeal against the award, certainly would effect the decree. While the 1st respondent is entitled to question any finding adverse to him while supporting a decree in terms of Order 41 Rule 22 C.P.C. it is not open for him to question the very decree, in these circumstances.
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MVR,J MACMA No.5 of 2018 One of the main contentions of the appellant is that the Tribunal considered the monthly notional income of the 1st respondent at Rs.15,000/- p.m and that it is on high side. A request is made in the course of hearing to take it at Rs.12,000/- p.m and since the accident occurred during February, 2014. Though this contention appeared attractive at the first blush, on a reconsideration of the material on record, it is found that it is difficult to subscribe. The reason is that the 1st respondent was a youngster of 19 years old at the time of accident and was admittedly, he was in first year Engineering. Future prospects, which an Engineering student would have, cannot be confined to certain circumstances which are available on record. A broader view is required to be taken in this respect. Possibility of an engineering graduate depending on his proficiency either in is educational pursuits or otherwise on account of acquiring further skills cannot be limited to such scale, as he sought to be projected on behalf of the appellant. Judicial notice can also to be taken of the great scope, which engineering students or Graduates or those professionally trained, can have in the present available eco-system.
Therefore, while agreeing with the findings recorded by the Tribunal in considering the possible earnings of the 1st respondent on a notional scale at Rs.15,000/- p.m, in my considered opinion, it could have been considered at an appropriate rate at 14 MVR,J MACMA No.5 of 2018 Rs.25,000/- in the facts and circumstances. Thus, the Tribunal rightly arrived at the compensation that could be awarded under this head. Multiplier '18' was applied having regard to the age of the 1st respondent, at the time of accident and basing on functional disability at 15%, the sum so awarded was arrived at. There are no reasons to differ with the findings, recorded by the Tribunal, though, there could have been a possibility of enhancement.
Whatever paid to the 1st respondent by the College management under a Group Insurance Scheme as is deposed by PW.2, cannot be relied on by the appellant and to contend that the same has to be reduced from the amount awarded by the Tribunal.
Another circumstance seriously canvassed on behalf of the appellant is awarding Rs.4,00,000/- for replacement of hip bone in future. The findings recorded by the Tribunal need not be found fault in this respect. The reason is that there is evidence of an expert namely PW.2, who categorically deposed as to necessity of replacement of hip bone with certain periodicity. Though, the Tribunal has had assumed life span of a human being at 80 years and that such replacement would be on three occasions during the life time of the 1st respondent. Such finding cannot have any effect in considering the amount so awarded. PW.2 estimated the possible expenses that the 1st respondent would incur in future for 15 MVR,J MACMA No.5 of 2018 this purpose. When it is an assessment by an expert in the field, in the absence of any other material to contradict such version from the appellant, it has to be accepted.
Thus, on a overall consideration of the material and the findings recorded by the Tribunal, the inference to draw is that the compensation awarded is just and appropriate. Reappraisal of the material on record leads to only this interference. In terms of Section 166 of the Motor Vehicles Act, it is just compensation, which is to be awarded. It need not be confined to the claims set up by the claimant, when the facts and circumstances justified enhancement than what is claimed. The Tribunal is entitled to award such amounts, which in its considered opinion remains just compensation. Therefore, on this score, the appellant cannot contend that the Tribunal has awarded more than what was sought by the 1st respondent.
Thus, on a careful examination of the entire material, the award of the Tribunal should be confirmed. Appropriate directions in respect of disbursement were also given by the Tribunal.
Thus, this point is answered.
POINT NO.3:
In view of the findings on points 1 and 2, the decree and award of the Tribunal shall be confirmed. There are no reasons or any 16 MVR,J MACMA No.5 of 2018 material placed by the appellant to warrant a different conclusion that what was arrived at by the Tribunal. Consequently, this appeal has to be dismissed.
In the result, appeal is dismissed confirming the decree and judgment of Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari District at Eluru, in MVOP No.467 of 2014, dated 09.06.2017. No costs. Miscellaneous petitions pending if any, shall stand closed.
_____________________ M.VENKATA RAMANA, J Date: 23.01.2020 pab *THE HON'BLE SRI JUSTICE M.VENKATA RAMANA + M.A.C.M.A.No.5 OF 2018 %Dated: 23-01-2020 # Bharti Axa General Insurance Company Ltd., Hyderabad ... appellant/2nd respondent and $ 1. Meka Pavan Kumar, Komadavolu ... Respondent/petitioner
2. Nakka Venkata Simhadri Appanna ... Respondent/1st Respondent ! Counsel for the Petitioner : Sri Harinath Reddy Soma ^ Counsel for the 1st Respondent : Smt.M.Radha < GIST :
> HEAD NOTE :
? Cases referred :
1. 2020 LS SC 39