Andhra Pradesh High Court - Amravati
United India Ins Co., Ltd., Eluru, ... vs Yalamanchi Subrahmayeswara Rao, ... on 6 February, 2025
MACMA No.2702 of 2016
THE HON'BLE SRI JUSTICE A. HARI HARANADHA SARMA
M.A.C.M.A.No.2702 of 2016
JUDGMENT:
1. Heard Smt. A. Malathi, learned counsel for the Appellant and Sri Kambhampati Ramesh Babu, learned counsel for the Respondents. Perused the record.
2. Award dated 28.07.2015 passed by the Motor Accident Claims Tribunal-cum-XV Addl. District Judge, Nuzvid(for short "the MACT") in M.V.O.P.No.89 of 2014 (New) M.V.O.P.No.1083 of 2007 (old) is under challenge in this Appeal. The Appellant herein is Respondent No.3 and suffered the Decree. Respondent No.1 herein is the claimant, claimed a compensation of Rs.4,00,000/- for the injuries suffered by him in the motor vehicle accident and learned MACT granted Rs.2,12,000/-.
3. The driver of the crime vehicle is shown as Respondent No.1 and owner is shown as Respondent No.2. Insurer is shown as Respondent No.3 before the MACT.
Case of the Claimant:
4. On 22.09.2007 at about 08:30 P.M. when the claimant was proceeding on a Scooter bearing No.AP 16 S 5956 as pillion rider MACMA No.2702 of 2016 2 near Hanuman Junction, an Auto bearing AP 07 TT 3421 (herein after referred to as "offending vehicle") driven by Respondent No.1 came in a rash and negligent manner and dashed the scooter, whereby the petitioner fell down and sustained multiple injuries all over the body and he was shifted to HELP Hospital, Vijayawada for treatment where he was operated.
4(ii). A case in Crime No.120 of 2007 for the offence under 338 of IPC was registered against Respondent No.1 / driver and subsequently he was charge sheeted. The claimant suffered severe injuries, mental agony, permanent disability and hence he is entitled for compensation. Respondent No.2 being the owner and Respondent No.3 being the insurer with whom the offending vehicle was insured are liable to pay the compensation.
5. Respondent Nos.1 and 2 i.e. Driver and Owner of the offending vehicle Auto remained ex parte before the MACT. Respondent No.3 alone contested the case.
Case of Respondent No.3 / Insurance Company (Appellant):
5 (i). The petitioner shall prove the pleaded accident and negligence of the driver of the offending vehicle, ownership of MACMA No.2702 of 2016 3 Respondent No.2 over the offending vehicle and insuring the same with Respondent No.3.
6(ii). Claimant shall prove his age, occupation and income by the date of accident, nature and effect of injuries resulting in disability to the petitioner and loss of income etc. strictly. 6(iii). Further the claimant shall prove compliance of conditions of policy including holding of valid and effective driving licence by Respondent No.1 and that in any event the quantum of compensation claimed is excessive and that Respondent No.3 is not liable to pay any compensation.
6. Considering the rival contentions the learned MACT settled the issues touching the accident, claimant sustaining injuries, negligent driving of offending vehicle Auto bearing No.AP 07 TT 3421, nature and effect of injuries and entitlement for petitioner for compensation, quantum and liability thereof.
7. Issues settled by the learned MACT are as follows:
1) Whether the petitioner is sustained injuries in a motor vehicle accident on 22.09.2007 due to rash and negligent driving of auto bearing No.AP 07 TT 3421 by its driver?MACMA No.2702 of 2016
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2) If so, whether the petitioner is entitled to the compensation as prayed for? If so, from whom?
3) To what relief?
Evidence:
8. Claimant got examined himself as PW-1 and one Dr. K. Vara Prasad as PW2. Further, the petitioner claimant relied on the documents 1) FIR, 2) Wound Certificate, 3) MVI Report, 4) Charge Sheet, 5) Medical bills and 6)Prescription, 7) decree passed in M.V.O.P.No.89 of 2014 (old M.V.O.P.No.1083 of 2007), 8) X-ray films,Ex.A1-A8 respectively and case sheet as Ex-X1. 8(ii) On behalf of Respondent No.3 One Sri Y. Narasimha Rao, Assistant Manager of the Insurance Company is examined as RW-1. Copy of policy Ex-B1 was got marked.
Findings of the Tribunal:
9. On issue No.1 the learned MACT found that evidence of PW-1, the claimant / petitioner who was pillion rider and suffered injuries in the accident, is sufficient to believe occurrence of the accident and negligence of Respondent No.1.Crime record vide FIR, MACMA No.2702 of 2016 5 charge sheet, MVI Report etc. corroborates the same. Accordingly, the accident and negligence as stands proved. 9(ii). With regard to entitlement of petitioner for compensation, learned MACT found that evidence of petitioner PW1 coupled with evidence of the Doctor / PW2 and medical record as to fractures and treatment given, operation undergone, medical bills etc. are sufficient to believe the nature and effect of injuries and entitlement of petitioner for compensation.
9(iii) The learned Tribunal has quantified the entitlement of petitioner for compensation at Rs.2,12,000/- under various heads like medical expenses, loss of income etc. as against Rs.4,00,000/- claimed.
Arguments in the Appeal:
10. It is argued for appellant that, learned MACT ought have found that the Driver of the offending vehicle Auto did not possess valid and effective driving license and that the insurance company is not liable. Further, the observation of the Tribunal that the insurance company has to establish want of the driving license is incorrect. There shall be positive evidence from the end of the claimants to make the insurance company liable.
MACMA No.2702 of 20166
11. Whereas, the contention of the Respondent / claimant is that the burden lies on the Insurance Company to prove violation of insurance policy conditions particularly when claimants are third parties and that the findings of the Tribunal are well reasoned and sustainable.
12. It is also argued for the claimant that the quantum of compensation can be increased even in the appeal filed by the Insurance Company despite of absence of cross objections or appeal by the claimants.
13. The points that arise for determination in this Appeal are:
1. whether the appellant (Insurance Company) is not liable to pay any compensation and whether the award and decree passed by the learned MACT inM.V.O.P.No.89 of 2014, dated 28.07.2015 imposing liability on the appellant Insurance Company (Respondent No.3 before the MACT ) are sustainable in law on facts?
2. Whether in an appeal filed by an Insurance Company the Appellate Court in M.A.C.M.A. can enhance the compensation amount awarded by the MACT without there being any appeal or cross-objections by the claimants? MACMA No.2702 of 2016 7
3. Whether the compensation awarded by the learned MACT is just and reasonable or require any interference and enhancement, if so, on what grounds and to which extent?
4. What is the result of appeal?
Point No.1: whether the appellant (Insurance Company) is not liable to pay any compensation and whether the award and decree passed by the learned MACT in M.V.O.P.No.89 of 2014, dated 28.07.2015 imposing liability on the appellant Insurance Company (Respondent No.3 before the MACT ) are sustainable in law on facts?
14. The Appellant / Respondent No.3 is disputing the liability on the ground that the claimant should prove proper and valid driving licence of the driver of the vehicle and proper entrustment of vehicle by the owner to such driver.
15. It is relevant to note that the claimant is a third party. Owner and driver of the offending vehicle remained ex parte. Except vaguely suggesting to PW-1 that the driver of the offending vehicle did not possess valid driving licence and that there is violation of policy conditions, no other effort is put in by Respondent No.3 Insurance Company to prove its stand.
MACMA No.2702 of 20168
16. It is not even the case of in the Insurance Company that the driver was charge sheeted for the offenses under Section 180, 181, and 182 of the Motor Vehicles Act, 1988. The charge sheet is silent on those aspects. The oral evidence of RW-1 official of insurance company Sri Y. Narasimha Rao cannot be considered as sufficient or relevant on the point of want of driving licence to the driver of the offending vehicle. The attention of RW-1 was drawn to disposal of another case i.e. M.V.O.P.1083 of 2007 arising out of same accident and its disposal. When it was suggested that the compensation ordered in the said O.P. was deposited ignorance is pleaded by RW-1 in his evidence.
17. Therefore, no tenable ground is found to interfere with the findings of the learned Tribunal as to the liability of the insurance company particularly on the ground of absence of driving licence to the driver of the offending vehicle at relevant time. Admittedly, policy was in force.
18. Therefore, the liability of appellant / Insurance Company to pay the compensation awarded does not require any interference and fit for confirmation. Hence, the point No.1 is answered MACMA No.2702 of 2016 9 accordingly in favour of claimant and against the Respondent accordingly.
Point No.2:Whether in an appeal filed by an Insurance Company the Appellate Court in M.A.C.M.A. can enhance the compensation amount awarded by the MACT without there being any appeal or cross-objections by the claimants?
19. The legal position as to powers of Appellate Court particularly while dealing with an appeal in terms of Section 173 of the Motor Vehicles Act, 1988, where the award passed by the learned MACT under challenge at the instance of the Insurance Company (Respondents) and bar or prohibition if any to enhancing the quantum of compensation and awarding just and reasonable compensation, even in the absence of an appeal or cross objections was considered by the Division Bench of this Court in a case between National Insurance Company Limited vs. E. Suseelamma and others1 in M.A.C.M.A. No.945 of 2013 and while answering point No.3 framed therein vide, para 50 of the judgment, which reads as follows:
50.In our considered view, the claimant/respondents are entitled for just compensation and if on the face of the 1 2023 SCC Online AP 1725 MACMA No.2702 of 2016 10 award or even in the light of the evidence on record, and keeping in view the settled legal position regarding the claimants being entitled to just compensation and it also being the statutory duty of the Court/Tribunal to award just compensation, this Court in the exercise of the appellate powers can enhance the amount of compensation even in the absence of appeal or cross- objection by the claimants.
20. In this judgment the Hon'ble Division Bench of this Court referred to the observations of Hon'ble Apex Court in Helen C. Rebello (Mrs) vs. Maharashtra State Road Transport Corporation2, Nagappa vs. Gurudayal Singh3, Kirti vs. Oriental Insurance Company Limited4, Sharanamma vs. North East Karnataka RTC5, Pannalal vs. State of Bombay6 and Chaya vs. Bapusaheb7 and also concluded that there is no legal interdict or prohibition to consider awarding of just compensation rather there is mandate of law is to award just compensation.
21. Therefore legal position can be considered as the settled and applicable in respect of the present proceedings. The Division bench of this Court has observed that the Order 41 Rule 33 of the Code of Civil Procedure is the normal rule, which applies to appeals before the High Court. Therefore, the point No.2 framed is answered 2 (1999) 1 SCC 90 3 (2003) 2 SCC 274 4 (2021) 2 SCC 166 5 (2013) 11 SCC 517 6 AIR 1963 SC 1516 7 (1994) 2 SCC 41 MACMA No.2702 of 2016 11 in favour of the claimant that the just and reasonable nature of the compensation awarded by the learned MACT can be considered, even in the absence of her/his appeal or cross-objections subject to the sufficiency of evidence justifying the entitlement. Point No.3:Whether the compensation awarded by the learned MACT is just and reasonable or require any interference and enhancement, if so, on what grounds and to which extent?
22. The learned MACT while granting compensation for each injury granted an equivalent additional sum towards pain and suffering. It is not clear as to why Rs.15,000/- for each injury totaling to Rs.60,000/- for four grievous injuries. Rs.10,000/- for each simple injury totaling to Rs.20,000/- per two and equivalent additional sum for pain and suffering is granted. Clarity is missing in the impugned judgment in the process of quantifying the compensation.
23. Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar and Another8, Kazal vs Jagdish Chand & others9 and Baby Sakshi Greola vs. Manzoor Ahmad Simon and Another10. Considered various heads under which the compensation can be awarded for 8 (2011) 1 SCC 343 9 2020 4 SCC 413 10 2025 AIAR Civil I MACMA No.2702 of 2016 12 the personal injuries suffered by the victim in a motor vehicle accident. Depending on the contextof the case, the heads under which compensation can be awarded may vary. But, broadly, the heads under which the compensation is awarded in personal injuries are :
A) 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 earnings during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. B) Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequences of the injuries.
(v) Loss of amenities.
(vi) Loss of expectation of life.
24. Each head under which the compensation can be awarded requires observance of certain parameters and appreciation of relevant evidence thereof.
MACMA No.2702 of 201613 Analysis of Evidence:
25. In the present case, claimant pleaded that he sustained multiple injuries all over the body, he was operated, spent Rs.75,000/- towards medicine. He was attending cultivation work earning Rs.10,000/- per month. He was also attending hotel business. But, due to an accident, he was bed ridden for four months, suffered permanent disability and lost his future. He was aged about 58 by the date of accident. The evidence supporting the nature and effect of injuries is wound certificate which reflecting following injuries:
External injuries:
(i)Swelling (+) over left forearm with abrasions.
(ii) Small lacerated injuries over left hand Internal injuries:
X-Ray (left) Shoulder: crack fracture head of left humerus. X- Ray (left) Forearm: Fracture left radius. X- Ray (left) Hand: Fracture left 2nd and 3rd P.P. MACMA No.2702 of 2016 14
26. Initially, case was registered under Section 337 IPC only. But the charge sheet was laid under Section 338 IPC against the driver of the offending vehicle. Ex-A5/bunch of medical bills are standing for Rs.37,721/- supported by Ex-A6/prescription. The evidence of Doctor examined as PW-2, Dr.K.V.Vara Prasad consultant orthopedic surgeon in HELP hospital shows that the claimant Sri Y. Subrahmanyeswara Rao was admitted in hospital on 22.09.2007 with the history of suffering Road Traffic Accident hit by the Auto and he found the injuries (reflected in the wound certificate).Ex-A2/Wound certificate was issued by him and the patient was discharged on 01.10.2007. Doctor/ PW2 has also spoken about the medical bills, X-Ray, fracture and also stated about removal of implants, expenditure thereof in a sum around Rs.20,000/-. Domiciliary treatment for a period of one and half month was advised to the patient. During cross-examination, it was elicited that the claimant was aged about 58years and he was diabetic. The fracture of humerus was treated conservatively and on that treatment equation was comfortable without inflammation as per recent X-ray fractures are united. Bone length and alignment are adequate and good. However, P.W-2 asserted that removal of implants is necessary. The suggestion given to P.W-2 that removal MACMA No.2702 of 2016 15 of implants is not necessary is denied by him(P.W.-2). From the evidence the following aspects are clear:
1) age of claimant is about 58 years by the time of accident.
2) specific evidence touching his occupation, employment is not there but his oral evidence alone is there.
3) Claimants suffering fractures and injuries reflected inEx-A2 wound certificate is proved.
4) Hospitalization for more than a week and bed rest / domiciliary treatment for a period of one and half of month was advised.
5) There is no specific evidence touching the permanent disability at any particular quantum.
6) P.W.-2 did not specify what is the extent of disability and whether it is functional and contribute for loss of income etc.
27. From the assertion of claimant as to his occupation and also casual reflection of his occupation as business in FIR as well and upon the considering the date and year of accident i.e.22.09.2007.Although, the claimant asserted that his income is Rs.10,000/- per month. His income is taken at Rs.5,000/- notionally as against Rs.3,000/- taken by the learned MACT considering socio economic condition from which claimant came. The loss of income MACMA No.2702 of 2016 16 for a period of four months taken by the learned tribunal is fit for confirmation but in view of taking the income at Rs.5,000/- the same is fit to be enhanced to Rs.20,000/-. For four injuries the learned Tribunal has granted compensation of Rs.15,000/- each under the head of pain and suffering totaling to Rs.60,000/- in all. But, since the injuries are four fractures and grievous in nature under the head of pain and suffering compensation is enhanced to Rs.30,000/- for each grievous injury and for two simple injuries Rs.15,000/- each, making a total of Rs.1,20,000/- under the said head. The medical expenditure is shown at Rs.37,721/- under Ex-A5 which was rounded by learned Tribunal at Rs.40,000/- is maintained as it is.
28. Under the heads of extra nourishment / Attendant Charges and Transportation Charges no amount is awarded by learned MACT. Hence, an amount of Rs.10,000/- is awarded under each head. Towards future medical needs for removal of implants necessity of which is spoken by P.W.-2, no amount is awarded by learned MACT, now an amount of Rs.30,000/- is awarded.
Accordingly, the compensation granted by the learned MACT is enhanced.
29. In the facts and circumstances of the case and in the light of the evidence adduced the learned MACT has granted interest at 9% MACMA No.2702 of 2016 17 which is confirmed. In view of the discussion made above, the compensation that can be awarded under various heads granted by learned MACT is modified by this Court is as follows:
S.No. Head Granted by MACT Granted by the Appellate Court
1. a)Pain and Rs.15,000/-each @Rs.30,000/- each suffering Total Rs.60,000/-
b) Fractures +
&grievous (Rs.60,000/-) Rs.1,20,000/-
injuries
2. Simple injuries Rs.10,000/- each @Rs.15,000/- each
Total Rs.20,000/- Rs.30,000/-
+
(Rs.20,000/-)
3. Medical Rs.40,000/- Rs.40,000/-
Expenditure
4. Future medical Nil Rs.30,000/-
expenditure
5. a)Extra Nil Rs.10,000/-
Nourishment
b)Attendant Nil Rs.10,000/
Charges
c)Transportation Nil Rs.10,000/
charges
6. Loss of Rs.12,000/- Rs.20,000/-
earnings during
treatment etc. @ Rs.3000/- p.m. @Rs.5,000/- p.m.
(4 months) (4months)
7. Permanent Nil Nil
disability
8. Loss of Nil Rs.10,000/-
amenities
9. Loss of Nil Rs.10,000/-
expectation of
life.
Total: Rs.2,12,000/- Rs.2,90,000/-
MACMA No.2702 of 2016
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In view of the reasons stated above, it is found that the compensation awarded by the learned MACT at Rs.2,12,000/-
require modification and enhancement to Rs.2,90,000/- with interest at the rate of 9% per anum. Point No.3 is answered in favour of the claimant accordingly.
Point No.4: What is the result of appeal?
30. (i) In the result the appeal is dismissed.
(ii) However, the quantum of compensation awarded by learned MACT in a sum of Rs.2,12,000/- with interest @ 9% p.a. is modified and enhanced to Rs.2,90,000/- in the light of settled proposition of law laid down by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others reported in 2023 SCC online AP 1725.
(iii) No costs in the appeal.
As Sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.
____________________________ A. HARI HARANADHA SARMA, J 6th February, 2025.
Knr MACMA No.2702 of 2016 19 HON'BLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A.No.2702 of 2016 6th February, 2025 Knr