HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No.2455 OF 2013
Date: 29-04-2014
Between:
United India Insurance Company Limited, Rep. by its Divisional Manager, Divisional Office, Near Mayuri Hotel, Godown Road, Nizamabad. - - - Appellant.
And Cheruku Gowtham and another. - - - Respondents.
This Court made the following :
HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No. 2455 OF 2013
JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
The United India Insurance Company, assails the order dated 28.06.2007, passed in O.P. No.1456 of 2001, on the file of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nizamabad, where under, the Tribunal awarded compensation of Rs.11,00,000/- against the original claim of Rs.15,00,00/-, in favour of the petitioner - claimant and against respondents 1 and 2, with subsequent interest at the rate of 7.5% p.a. from the date of petition, till the date of deposit with proportionate costs.
2. The appellant herein was the second respondent and the first respondent herein was the petitioner – claimant and second respondent herein was the first respondent before the Tribunal in O.P. No.1456 of 2001. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. Petitioner – claimant filed the claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (For short, ‘the Act’), claiming compensation of Rs.15,00,000/- for the injuries sustained by him in the road accident that occurred on 08.06.2001, while he was proceeding on his Hero Honda Motorcycle bearing No.AP-28S-8596 from Hitech City to Madapur, Hyderabad, towards Miyapur side, at about 05.00 p.m., and when reached near Shilparamam, a Car bearing No.AP-9AE-78 driven by its driver at high speed in rash and negligent manner, came from opposite direction and dashed against motorcycle, due to which the petitioner fell down along with his motorcycle, front wheel of the Car ran over the left leg, head and other parts of the body. Thus, the petitioner received compound fracture to his left leg, head injury, skull fractured, fracture of parietal bone on the left side, both mandibles fractured, fracture of left maxillary sinus and also sustained injuries on several parts of the body. Immediately, the petitioner was shifted to Apollo Hospital, Hyderabad, where he was treated and surgeries were conducted about 8 times and that he requires further treatment. Thus, the accident occurred due to rash and negligent act of the driver of Car bearing No.AP-9AE-78 and the same was reported to Madhapur Police Station, which was registered as a case in Crime No.86 of 2001, for the offence punishable under Section 338 of I.P.C.
4. The petitioner – claimant was still undergoing treatment, as on the date of filing the claim petition, and not in a position to attend his normal duties. At the time of accident, the petitioner was hale and healthy, working as Software Engineer in Orilliaon India Software Private Limited and earning Rs.15,000/- p.m. Due to the injuries received by him in the road accident, he is not in a position to attend to any work and became permanently disabled. Thus, the petitioner lost his future earning capacity on account of the injuries received by him in the road accident. The first respondent is the owner and the second respondent is the insurer of Car bearing No.AP-9AE-78 and the insurance policy was subsisting as on the date of accident, both the respondents are jointly and severally liable to pay compensation. Hence, the claim.
5. The first respondent filed counter denying material allegations of the petition including the age, employment and income of the petitioner while contending that she never hit the motor cycle of the petitioner, in the manner as alleged in the petition, and the petitioner did not sustain injuries referred in the petition and the petitioner sustained injuries only due to his rash and negligent act, but the first respondent cannot be blamed as he was riding the motor cycle at high speed, at the time of accident. It is further contended that at the time of accident, first respondent stationed her car at Shilparamam of Madapur Mandal, in the meanwhile, the petitioner riding the motorcycle at high speed came in opposite direction of the Car and while negotiating the motor cycle to take turn, at the same speed, hit the Car. Thus, the petitioner himself is rash and negligent in riding the motor cycle and hit the stationed Car, thereby the first respondent cannot be made liable, and prayed to exonerate the first respondent from payment of compensation.
6. The second respondent filed counter denying material allegations of the petition inter-alia contending that the accident not occurred due to rash and negligent act of the first respondent and called upon the petitioner to prove his age, income and employment. The second respondent denied sustaining various injuries all over his body as narrated in the petition, so also the treatment undergone by the petitioner in the hospital o f Dr. Alok Ranjan. The second respondent admitted that the Car bearing No.AP-9AE-78 was insured with them under the Policy No.050503/31/00/06639, covering the risk for the period from 30.03.2001 to 29.03.2002 and the liability is subject to production of certain documents.
7. Second respondent mainly contended that the driver of the Car bearing No.AP-9AE-78 did not possess valid and affective driving license to drive the Car at the time of accident, thereby the insured violated terms and conditions of the policy, the second respondent is not liable to pay any compensation as driving the vehicle without license is fundamental breach of terms and conditions of the policy. The second respondent denied the injuries sustained by the petitioner, so also the amount spent for treatment and finally prayed for dismissal of the petition.
8. Basing on the above pleadings, the Tribunal framed the following issues :
1. Whether the motor vehicle accident occurred due to the rash and negligent driving of the Car bearing No.AP- 9AE-78 by its driver resulting in injuries to the petitioner?
2. Whether the petitioner is entitled for compensation? If so, what amount and from which of the respondents?
3. To what relief?
9. During course of enquiry, on behalf of the petitioner - claimant, PWs.1 to 3 were examined and Exs.A-1 to A-19 were marked, on behalf of the respondents, none were examined but got marked Ex.B- 1, certified copy of the Insurance Policy,
10. Upon hearing argument of both the counsel, considering oral and documentary available on record, the Tribunal passed the order granting compensation of Rs.11,00,000/- holding both the respondents jointly and severally liable to pay compensation, together with interest at the rate of 7.5% p.a. from the date of petition, till the date of deposit, with proportionate costs.
11. Aggrieved by the impugned order and decretal order passed by the Tribunal, second respondent – Insurance Company preferred this Appeal, under Section 173 of the Motor Vehicles Act, on various grounds mainly questioning the quantum of compensation awarded by the Tribunal; so also, the negligence attributed to the first respondent before the Tribunal. It is further contended that the accident occurred only due to skid of wheels but not due to hit of the Car by the first respondent, thereby no negligence is attributable to the first respondent – insurer of the Car, finally prayed to allow the Appeal setting aside the impugned order and decretal passed by the Tribunal, and prayed to dismiss the petition against the second respondent.
12. Learned counsel for the appellant – Insurance Company mainly questioned the quantum of compensation awarded by the Tribunal both in the grounds of Appeal and during course of argument and no other ground is urged. However, learned counsel for the petitioner – claimant and the second respondent herein argued totally in support of the findings recorded by the Tribunal and prayed to dismiss the Appeal.
13. Considering rival contentions, perusing material available on record, the points that arise for consideration in this Appeal are :
1. Whether the accident occurred due to rash and negligent act of the driver of Car bearing No.AP-9AE- 78?
2. Whether the second respondent – Insurance Company can challenge the awarded amount? If so, whether the Insurance Company is liable to pay compensation?
14. POINT No.1: Admittedly, the petitioner sustained injuries in the road accident and the accident occurred while the petitioner was proceeding on his motor cycle. The petitioner explained the circumstances which led to the accident and attributed 100% negligence to the driver of Car bearing No.AP-9AE-78. However, the first respondent denied occurrence of accident due to rash and negligent act of the driver of Car bearing No.AP-9AE-78 and contended that when the Car was parked near Shilparamam, Madapur, the motorcyclist while negotiating the car, hit the Car, fell down and sustained injuries. If really the manner of accident stated by the first respondent is accepted, the question of sustaining such grievous injury to the head does not arise. Moreover, the first respondent was not examined as witness in support of the specific pleading. On the other hand, nothing could be elicited in the cross- examination of PW.1, who is the injured petitioner. In those circumstances, the Tribunal rightly believed the oral evidence of PW.1 and concluded that the accident occurred only due to rash and negligent act of the driver of Car bearing No.AP-9AE-78.
15. In the instant case on hand, though the appellant – second respondent denied the manner of accident, did not adduce any iota of evidence to substantiate its contention, despite giving opportunity to adduce evidence. In those circumstances, the Tribunal rightly concluded that the accident occurred only due to rash and negligent act of the driver of Car bearing No.AP-9AE-78, believing the evidence of the petitioner, who is the best person, who can explain the circumstances which lead to the accident. Hence, we find no infirmity or perversity in the finding recorded by the Tribunal. Accordingly, we hold that the accident occurred only due to rash and negligent act of the driver of Car bearing No.AP-9AE-78, but not due to the act of the petitioner. Accordingly, the point is answered in favour of the petitioner – claimant and against the respondents.
16. POINT No.2: Admittedly, the Tribunal awarded total compensation of Rs.11,00,000/- under various heads. Now, the second respondent – Insurance Company questioned the quantum of compensation contending that it is exorbitant and excessive. The first contention of the respondents herein is that the appellant – Insurance Company is incompetent to prefer an Appeal challenging the quantum of compensation, unless permission was obtained under Section 170(2) of Motor Vehicles Act, but here no material is available to prove that the appellant - Insurance Company obtained any permission to take all pleas that are available to the insured by filing any application under Section 170 of the Motor Vehicles Act. In the absence of any such permission, the Insurance Company is incompetent to question the quantum of compensation.
17. Section 149 of the Motor Vehicles Act deals with such pleas. However, in certain circumstances, Insurance Company is also entitled to raise several pleas after obtaining permission under Section 170(2) of the Motor Vehicles Act, but absolutely no material is available to prove that the appellant – Insurance Company was accorded permission under Section 170(2) of the Motor Vehicles Act, to deny all pleas that are available to the owner i.e., insurer of Car bearing No.AP-9AE-78.
18. Strictly speaking, in the absence of any permission obtained under Section 170(2) of the Motor Vehicles Act, the Insurance Company is not entitled to prefer the Appeal and as such the Appeal is liable to be dismissed on that ground alone.
19. As per the principles laid down by the Apex Court in United
[1]
India Insurance Company Limited Vs. Shila Datta and others , when the Insurance Company is impleaded as party to the claim petition, even without obtaining any permission from the Court, as required under Section 170(2) of the Act, the Insurance Company is competent to raise all pleas that are available to the owner-cum- insured notwithstanding the bar contained under Section 149 of the Motor Vehicles Act.
20. In view of the principle laid down by the Apex Court in the decision cited supra, the same is squarely applicable to the present facts of the case. Though, no permission, as required under Section 170(2) of the Act, was obtained by the Insurance Company, since it is impleaded as a party to the claim petition, the appellant – Insurance Company is competent to question the quantum of compensation. Hence, we find no substance in the contention of learned counsel for the respondents herein, in view of the special law laid down by the Apex Court. Hence, the Appeal cannot be dismissed solely on the ground that no permission, as required under Section 170(2) of the Act, was obtained by the Insurance Company to take all the pleas that are available to the owner-cum-insurer. Hence, the contention of learned counsel for the respondents herein is turned down.
21. The compensation awarded by the Tribunal under various heads is as follows :
22. The quantum of compensation awarded by the Tribunal was questioned before this Court and in view of the challenge, we must necessarily reappraise the entire material to come to an independent conclusion and decide as to what amount of compensation the injured petitioner is entitled to.
23. In injury claims, unless the petitioner proves that he became permanently disabled and such disability reduces his future earning capacity, the petitioner is not entitled to claim compensation under the head of loss of earning capacity due to permanent disability. Therefore, it is incumbent upon the petitioner to prove that he sustained injuries in the road accident, which reduced his future earning capacity, after exhausting all medical remedies.
24. In the instant case on hand, the petitioner sustained several injuries which got mention in medico legal case register, marked as Ex.A-3, which are as follows :
1. Head injury with unconscious condition ;
2. Bleeding from ear ;
3. Fracture of left thigh ;
4. Laceration right jaw 2” x 1/2” ;
5. Laceration lower lip 3” x 2”
6. Abrasion left shoulder ;
7. Multiple abrasion right foot.
25. The petitioner when examined before the Tribunal testified about the injuries sustained by him in the road accident and that he became permanently disabled on account of those injuries and was not in a position to attend his normal duties, as Software Professional. If the same is accepted, certainly the future earning capacity of the petitioner is reduced to a maximum extent. Whatever injuries suffered by the petitioner are proved by examining Dr. A.V. Guruva Reddy, PW.3, who treated the petitioner in Apollo Hospital on 08.06.2001, with the following injuries :
1. Head injury ;
2. Nasal bleeding ;
3. Fracture of left femur ;
4. Laceration right jaw ;
5. Laceration lower lip ;
6. Abrasion left shoulder ;
7. Abrasion right foot.
26. PW.3, Dr. A.V. Guruva Reddy, conducted several operations including interlocking nailing of left femur and the petitioner was treated by Neuro surgeon of the Hospital and later shifted to KIMS, Hyderabad, for removal of nail from left femur and that the petitioner was walking well without any major limp and the Civil Assistant Surgeon, District Medical Board, Nizamabad, issued disability certificate, marked as Ex.A-15, which is countersigned by the concerned Medical Superintendent, wherein the percentage of disability was assessed as 50% permanent partial. The oral evidence of PW.3 was supported by Ex.A-3 medico legal case register, issued b y Apollo Hospital and Ex.A-4, discharge summary issued by KIMS, Hyderabad. Thus, the petitioner proved sustaining grievous injuries referred above and those injuries resulted in creating disability to the petitioner.
27. Now, the question is whether those injuries create any functional disability or reduced future earning capacity of the petitioner. To accept the percentage of disability the petitioner suffered, we feel that it is better to advert to the definition of the word ‘permanent disablement’ as defined under Section 142 of the Motor vehicles Act, which is extracted hereunder for better appreciation:
“142. Permanent disablement:- for the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint ; or
(c) permanent disfiguration of the head or face.”
[2]
28. In Raj Kumar Vs. Ajay Kumar and another , the Hon’ble Apex Court elaborately discussed about the duties of the Presiding Officer of the Tribunal and principles for assessment of compensation for personal injuries and defined the word permanent disability in Para 6, which as follows:
“6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.”
29. From a reading of the definition of the word permanent disablement in the decision cited supra, it is clear that the disability which reduces the future earning capacity of an injured person can be said to be a permanent disablement. To claim compensation under the head of loss of future earning capacity, it is the duty of the petitioner - appellant to establish that he was permanently disabled within the definition of Section 142 of the Motor Vehicles Act, or within the definition of permanent disablement, as laid down by the Apex Court in the decision cited supra.
30. In view of the definition of the word ‘permanent disablement’ the petitioner became permanently disabled which reduced his future earning capacity on account of the injuries, which means a functional disability. Apart from that, the documentary evidence produced before the Tribunal further strengthens the case of the petitioner that he resigned to his employment on account of his inability to discharge his duties. Even if the documents available on record are taken into consideration, coupled with the oral and documentary evidence of PWs.1 to 3, the petitioner became permanently disabled and his earning capacity was reduced substantially on account of the injuries sustained by him.
31. For assessment of compensation in injury claims, the age of the injured, multiplier applicable to the age group of the injured, income of injured and percentage of disability sustained by the injured petitioner are relevant factors. In the instant case on hand, the petitioner was aged 25 years by the date of issue of Ex.A-15 and also produced photostat copy of marks memo issued by State Board of Technical Education and Training, Andhra Pradesh, Hyderabad, marked as Ex.A-11 which shows that the petitioner prosecuted his Diploma in Computer Engineering (3 year Polytechnic course), but none of the documents disclose the actual date of birth of injured petitioner. Though respondents disputed the age of the injured petitioner, did not produce any documentary proof to show that the injured petitioner was aged more than 25 years, as mentioned in Ex.A-15. In almost all the documents, the age of the injured was mentioned as 25 or less than 25 years. Therefore, in the absence of any rebuttal evidence adduced by the second respondent - Insurance Company, the age mentioned in Ex.A-15 is to be accepted. Hence, the age of the injured petitioner is fixed at 25 years as on the date of accident. The relevant multiplier applicable to the age group of injured petitioner i.e., 15 to 25 years is ‘18’, as per the principle laid down by the Apex Court in Sarla Verma
[3]
(Smt) and others Vs. Delhi Transport Corporation and another .
32. The injured petitioner was earning Rs.15,000/- p.m. as per the allegations made in the petition and as per the salary certificate marked as Ex.A-6, and Ex.A-7 is the letter issued by Orillion India Software Private Limited, but no person connected to the company was examined to prove the income of injured. However, the Court may undertake a guess work and decide the salary of an Engineering Diploma Holder. Even according to the principle laid down by a Division Bench of this Court in B. Ramulamma and others Vs. Venkatesh, Bus Union, Rep. by A.M. Velu Mudaliar and
[4]
another , a guess work is required to be undertaken by the Courts to fix the income of injured and fixed therein the income of an Engineering Graduate at Rs.12,000/- p.m. In the instant case on hand, the petitioner is employed and drawing an amount of Rs.15,000/- p.m. which is not disputed anywhere, except in the counter filed by the second respondent. Hence, the un-rebutted evidence of PW.1, coupled with Ex.A-6, we conclude that the injured petitioner was working in Orillion India Software Private Limited earning Rs.15,000/- p.m.. Hence, we fix the salary of the injured petitioner at Rs.15,000/-
p.m. and thereby his annual income would come to Rs.1,80,000/-. So far as the disability is concerned, Ex.A-15 is the disability certificate issued by the District Medical Board, which shows that the petitioner suffered 50% permanent partial disability. Apart from that, the voluminous documentary evidence including medico legal case register, discharge summary, coupled with the evidence of PWs.2 and 3 established that the petitioner was completely disabled to work. However, the disability of the petitioner was assessed at 50% permanent partial in nature and on account of those injuries the petitioner was forced to resign his employment, though he is able to work in normal course of events. Certainly, it is difficult for the petitioner, who received an injury on his head, to undertake the work of computers. Therefore, taking into consideration the nature and gravity of injuries, we find that the disability percentage fixed by the Tribunal is just and reasonable. Hence, the disability fixed under Ex.A-15 is accepted to be true and correct.
33. The Tribunal awarded total compensation of Rs.11,00,000/- under various heads. At best, the petitioner is entitled to claim compensation under the head of loss of future earning capacity due to permanent disablement, pain and suffering and the cost of treatment. In the in instant case on hand, the petitioner is working as Software Engineer in Orillion India Software Private Limited, drawing an amount of Rs.15,000/- p.m. which comes to Rs.1,80,000/- p.a., whereas the multiplier applicable to the age group of injured petitioner is 18 and the disability percentage is 50% permanent partial in nature. In Rajesh
[5]
and others Vs. Rajbir Singh and others , the Apex Court held that future prospects even in case of self employed has to be taken into consideration while assessing compensation and held as follows at Para No.11:
“11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.”
34. In view of the principle laid down by the Apex Court in the decision cited supra, since the injured petitioner is aged below 40 years, 50% of the income is to be added as his future prospects. Therefore, the compensation to be awarded to the injured petitioner under the head of loss of earnings and future prospects would come to Rs.24,30,000/- (1,80,000/- + 90,000/- x 50/100 x 18). Though the injured petitioner is entitled to claim 50% of future prospects by the date of sustaining injuries, the Tribunal did not add the future prospects and just awarded compensation of Rs.5,00,0000/- under the head of loss of bright future. If 50% amount is added towards future prospects, the compensation to be awarded under the head of loss of earning and future prospects would come to Rs.24,30,000/- which would far exceed the compensation awarded by the Tribunal.
35. The trial Court also awarded an amount of Rs.10,000/- for 2 grievous injuries and Rs.8,000/- towards 4 simple injuries without specifying the nature of compensation. However, taking into consideration the nature of injuries and the period of treatment under went by the petitioner, the compensation under both heads needs to be enhanced from Rs.18,000/- to Rs.50,000/- i.e., an amount of Rs.15,000/- for each grievous injury and Rs.5,000/- for each simple injury. The amount awarded by the Tribunal under the head of pain and suffering is on higher side and the same is reduced to Rs.50,000/- The Tribunal also awarded an amount of Rs.4,00,000/- and Rs.26,200/-, towards medical expenses and repairs to motorcycle, which are supported by documentary evidence. Hence, the same are confirmed. The Tribunal awarded an amount of Rs.55,800/- towards transportation and extra nourishment, which is on the higher side and the same is reduced to Rs.30,000/-. Thus, the injured petitioner is entitled to a total compensation of Rs.29,86,000/-, if calculated in terms of the principles laid down by the Apex Court in the decisions cited supra.
36. Learned counsel for the appellant – Insurance Company contended that the compensation awarded by the Tribunal is excessive but the compensation, if calculated in terms of the guidelines laid down by the Apex Court in Sarla Verma (3rd supra) Rajesh and others (5th supra), it far exceeds the compensation than the compensation awarded by the Tribunal. Hence, we find no substance in the contentions of the learned Standing Counsel appearing for the appellant – Insurance Company, as the awarded compensation is just and reasonable. Though the compensation exceeds the claim of first respondent - injured petitioner, the Tribunal can award just and reasonable compensation, as per the guidelines laid down by the Apex Court in Nagappa Vs. Gurudayal Singh and
[6]
others and direct him to pay the Court fee on the increased amount awarded by the Tribunal. Since no Appeal or Cross-objection is preferred by the first respondent - claimant, propriety does not permit us to enhance the compensation. Hence, we are of the considered view that compensation of Rs.11,00,000/- awarded by the Tribunal is just and reasonable and we find no ground to reduce the compensation.
37. On overall consideration of the entire material available on record, we find no grounds to interfere with the impugned order and decretal order dated 28.06.2007 in O.P. No.1456 of 2001, on the file of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nizamabad, and we have no hesitation to concur with the findings recorded by the Tribunal and we find that the Appeal is devoid of merits and liable to be dismissed.
In the result, the Civil Miscellaneous Appeal is dismissed.
In consequence, miscellaneous petitions, if any, pending in this Appeal shall stand dismissed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J Date: 29-04-2014.
Dsh HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No. 2455 OF 2013
(Judgment of the Division Bench delivered by Hon’ble Sri Justice M. Satyanarayana Murthy)
Date. 29-04-2014
DSH
[1] AIR 2012 SC 86
[2] 2011 ACJ 1
[3] (2009) 6 SCC 121
[4] 2009 (6) ALD 684 (DB)
[5] 2013 ACJ 1403
[6] 2003 ACJ 12