The High Court · 2020

Judgment

This appeal is filed by the appellant-Insurance Company under Section 173 of the Motor Vehicles Act, 1988, against the Award and decree passed by the Chairman, Motor Accidents Claims Tribunal- cum-XII Addl. Chief Judge, City Civil Court, Secunderabad, (hereinafter referred to 'learned Tribunal') in M.V.O.P.No.3O5 of 2015, dated 24.O2.2O2O, wherein claimant filed the claim petition seeking compensation of Rs.S,OO,OOOI- for the injuries sustained by the respondents herein in a motor vehicle accident that took place on t6.12.2014.

2. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the learned Tribunal

3. The brief facts of the case are that appellant/claimant filed M.V.O.P.No.3O5 of 20 15 under Section 166 of the M.V.Act, 1988 seeking compensation for the injuries received in bike accident alleged to have caused due to rash and negligent manner by the rider of another bike bearing No.AP-28-M-3280. It is contend.ed that on

16.12.2014, the petitioner while going to Medchal town after completing his work, from Kandlakoya on his bike bearing No.AP-28- BT-7o97. on the way one bike bearing No.AP-28-M-3280 carne in high '/ /a 2 JVIVR.J Ifi.A.C.M.A. No.59a of 2O2O' -. speed in rash and negligent manner and dashed to petitioner's bike, as a result, the petitioner fell down on the ground and sustained fracture and grievous injuries all over the body. The petitioner was taken to Balaji Hospital at Pet Basheerbad, Secunderabad for treatment. The Police registered a case in Crime No.518 of 2Ol4 against the rider of bike bearing No.AP-28-M-3280

4. The contention of the petitioner before the learned Tribunal was prior to the accident, the petitioner was hale and healthy and was working as an operator in INBISCO India Limited Company and was drawing salary of Rs.1O,O00/-. Due to the accident the petitioner was completely bedridden and was unable to do his work and suffered 45oh of disability as per Ex.A7 issued by Medical Board and cannot sit in normal position, sit with cross legs and squat. The petitioner/claimant claimed an €unount of Rs.8,O0,0OO /- as compensation for the said accident under various heads.

5. Before the learned Tribunal, respondent Nos.1-Owner-cum- Driver remained ex-parte. Respondent No.2 - IFFCO Tokyo General Insurance Company Limited, filed counter-affidavit, denying all the averments made in the claim petition, including the ma.nner in which the accident took place, age, avocation and income of the petitioner and contended that the accident occurred due to self negligence of the ,,1- 3 JVJVR.J M,A.C.LI.A. No. 598 ol 2O20 petitioner and the compensation claimed is excessive and prayed to dismiss the claim petition

6. Basing on the pleadings and averments made by both the counsels, the learned Tribunal framed the following issues which reads as under: "i) Whether tlrc injured S.Naga Raju(petitioner) sustained injuies in - S.Naga Raju(petitioner) sustained injuries in motor uehicle accident and whether such accident wa"s occurred due to rash arud negligent diuing of the driuer of the motor bike beartng No.AP-28M 3280? ii) Whether the petitioner is entitled for any compensation? If so, at uthat quantum and what is the liabilitg of the respondents? iii)To what relieft

7. After perusing the oral and documentary evidences and going into the entire record and the evidences placed by both the parties, the learned Tribunal allowed the claim petition and come to a conclusion that the petitioners would be entitled for an compensation award of Rs. 15rO9 ,8241 - along with interest @ 7 .5 o/o pet a.nnum. B. Being aggrieved by the compensation amount awarded by the learned Tribunal, the present appeal is filed by the appellant/[nsurance Company on the ground that claimant did not possess any valid and effective driving license to drive the motor cycle as on the date of accident and the petitioner is responsible for the / / 4 accident and the Tribunal did not consider the contributory negligence on the part of the petitioner. It is further contended that the learned Tribunal failed to consider that after discharge from the hospital the claimant did not take any future treatment as advised by the doctors, and it clearly shows that the fractures/iniuries received by the claimant were cured and the petitioner was doing normal work and is continuing his job without any help.

9. Learned counsel for the appellant/insurance company further contended that as per Ex.A7-Disability Certificate issued by the Medical Board that the claimant sustaine d 45o/o temporaqr disability and recommend for re-assessment of the injuries after two years, however the petitioner id not re-assess the injuries till date and have not filed latest disability certificate to prove that the petitioner has suffered 45% permanent disability, hence the learned Tribunal ought not have taken the 45o/o of disability while calculating the compensation award and further submits that the Ex.A7-Disabilty Certificate is issued for temporary disability and not for permanent disability and the learned Tribunal has also awarded enormous amounts among under other conventional heads, hence prayed this Court to set aside the Tribunal Award and allow the present appeal.

10. Learned counsel for the claimant /respondent No.1 submits that after considering the entire evidence available on record, the learned \ \ ii ) 5 JVAIR.J LLA.C.M.A. No. 59 8 of 2O2O Tribunal has awarded just compensation, which needs no interference. 1 1. Heard, Sri Kondqdi Nog Krtmar, learned counsel for the appellant and Sri S.Sudarshan Reddy, learned counsel for the respondent No.1. None appeared for respondent No.2. Perused the entire material on record.

12. Admittedly, the claimant has not filed cross-appeal against the order passed by the Tribunal. As such, the claimant appear to be satisfied with the Award and decree and the compensation awarded by the Tribunal. Basing on the pleadings and material on record and considering the submission made by the counsels, the only point arose before 'this Court in this appeal is that: .ti wtrctner the learned. Tribunal has ightlg f,xed the liability on the appellant to pag the compensation ii) Whether the Tribunal had rightly consider the claimant petition filed under Section 166 (A) Motor Vehicle Act, 19BB and awarded just compensation to the claimant." Point No.l & 2:

13. Admittedly, the petitioner suffered fracture and grievous injuries all over the body due to accident occurred on 16. L2.2Ol4 and he was admitted in the hospital from 16.12.2014 to 23.12.2024. PW.3- Dr.Sharath Chandra, an Orthopedic Surgeon and consultant in Balaji TP / 6 /v tR.J M,A.C.M.A. No.59a of 2O2O Multi Specialty Hospital, submits that the petitioner was found to have fractures of 1) Lt.Tiba (2)Lt.Fibula(3) Lacerated wound Lt.hand and under went the following surgeries: (1) Inter Locking Nailing of Lt.Tibia (2) Rush Naiiing of Fibula (3) Suturing of wound and the petitioner was admitted on 16.12.2O14 and was discharged on 23.12.2014 in stable condition and had come for follow-up regularly and was advised rest for a period of three months after surgeries.

14. PW2-Dr.P.Madhusudan, Orthopedic Surgeon had categorically stated that petitioner was clinically and radiologicalty examined and found injuries to the left Lower Limb, impaired Reach (post Traumatic Sequel Limbs). Due to the injuries, the petitioner would be in difficulty in sitting, squatting and sitting with cross legs. Ei.A1-FIR and Ex.A2- Charge Sheet would clearly show that due to rash and negligent driving of the crime vehicle i.e., AP-28-M-3280, the petitioner met r,vith an accident and suffered the above injuries. Hence, the respondent No.l-Driver of the Crime Vehicle and respondent No.2-lnsurance Company cannot be exonerated from liability. Accordingly, point No.1 is answered in favour of claimant and against the respondents.

15. As far as compensation is concerned, the petitioner claimed that he was earning Rs.12,OO0/- per month. The petitioner examined PW4- B.Murali Reddy, HR Admn., in GST Contractors Pvt. Limited, Bowenpally and his testimony shows that the petitioner is their 7 u.,e. c. a. & No. s g e offo z o employee as machine operator working since 2013. Ex.X3 is the Identity Card of the petitioner, Ex.X4 is Bank Statement, Ex.AS is salary slip. The learned Tribunal after considering the evidence placed by the petitioner and basing on Ex.AS i.e., Salary Certificate of the petitioner has taken the monthly income of the petitioner AS Rs.1O.1 15/- which appears to be reasonable and needs no interference

16. The learned Tribunal has considered the disability of the petitioner @ a1o/o and calculate the loss of future earning on account of permanent disability by considering Ex.A7-Disability certificate, but on keen perusal of the Ex.A7, this Court finds that the Medical Board has stated in the disability certificate is issued in relatioh to disability of Left Lower Limb, Impaired reach, Post Traumatic Serqual-Limbs and not for whole body and further stated that petitioner can perform or discharge the following duties L. ut. iu. U. ui. uii. F-can perform work bg manipulating withfingers, PP - can perform work bg pulling and pushing, L-can perfurm utork bg lifting, S-can perforrn work by sitting, ST-can performwork by standing, V-can perform work bg utalking, RW-can perform work by reading .-.' er''' writing. 7nd , B AI,IVR.J M.A.C.M.A. No, 598 ol 2O2O

17. It is pertinent to mention that in the Disability Certificate(Ex.A7), dated 12.08.2016, the Medical Board has recommended for re- assessment of the disability after a period of two years and issued the said 'Temporary Disability Certificate', however the learned Tribunal missed the said observation and taken the disability as permanent disability and compute the compensation. The petitioner has also not reassess the disability even after two years and not produced any disability certificate after reassessment before the learned Tribunal or in the Court.

18. In similar case, i.e., Rcj Kumar a. Ajag Kumq.rr, the Honble Supreme Court held that the Tribunal must distinguish between medical and functional disability. Even if a doctor certifies 45oh disability, the Tribunal may reduce or increase the functional disability if the person can still perform gainful work and the relevant paragraph is extracted for ready reference hereunder: "The Tribunal has proceeded on the basis that the permanent disability o.f the injured-claimant v,as 45?'o and the loss of his future earning capacity tvas also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disohiltty u,ith reference to left lower limb and not in regard to the entire body. The .said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capocity, as the disability would not have prevented him from carrying oqlis avocation as a cheese vendor, though it might imtrtede in his smooth functioning. Normally, the absence of clear and 1 1zor11 1 scc 343 ,'1 m.*c.w.a.xo.sga o,&Jmz| 9 'sltfficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two decades, on the facts and circumstances, lo do complete justice, we propose to 4ss'ess the permanent functional disability of the body as 25o% and the loss of Juture earning capacity as 20%o."

19. Considering the decision of Honble Supreme Court in Rqi Kumar's ccrse (cited. aboue) and for the reasons stated in above paragraphs, the disabitity can be taken as 'temporary disability'and as such, this Court is inclined to reduced the disability of the petitioner from '45o/o' to '2Oo/o'for calculating loss of future earning on account of disability. The learned Tribunal has awarded an compensation under 'Medical Bills', 'Future Treatment', 'Pain q.nd Sufferance',. 'Extra- Nourishment', Transportation Charges, Mental AQong,'Attendant Charges' and. 'Damages to Ctothes'appears to be reasonable and needs no interference.

20. As per the decision of Honble Supreme Court in No:tiono'l Insurance ComPang Limited Vs. Pranay Sethi and othersz and considering the age of the petitioner as 25 years which is not disputed by either of the parties, additional 4Oo/o of the income has to be added towards future prospect to the monthly income of the petitioner. Therefore, the monthly income of the petitioner would come to 22otl tc)2loo / 10 JVJI'R.J M,A.C.M.A. No. 59a of 2O2O Rs.14,L6Ll- (Rs.10,1i5/- + Rs.4,046/-). The annual income of the petitioner would come to Rs.1,69,932/- (Rs.14,16I l- X 12). Thus the loss of future income of the petitioner on account of disability of 20o/o would come to Rs.33 ,986 / - (1,69,932 x 2oo/ol.

21. As per the column No.4 of schedute fixed in the judgment of the Apex Court in Sarlq Verma u. Dethi Transport Corporations, and. considering the age of the petitioner as 25 years, the appropriate multiplier applicable for the petitioner aged group between 2I-25 years is '18'. Thus, the tota-l loss of future income would come to Rs.6,Ll,748l- (33,986 x 18).

22. On overall re-appreciation of the pleadings, material on record and the law laid down by the Hon'ble Supreme Court in the aforesaid cited decision. This Court is of the opinion that the petitioner is entitled to enhancement of compensation as modified and recalculated for the reasons stated above and given in the table below for easy reference. Head Amount arrived at by the Tribunal Amount arrived at by this Court Loss of future earning on account of disability Rs.13,76,449 /- (14,161 xL2x 45%x 18) Rs.6,11,755/- (14,161 x 12 x2Ooh x L8l Medical Biils Future treatment Pain and suflerance 1,3751- 25,000/- 25,OOOl- L,3751- 25,OOOl- 25,OOOl- 3 2oo9 ACr 1298 (sc) Extra-Nourishment Transportation Charges Mental Agony Attendant Charges Damage to Clothes 11 10,000/- 10,000/- 50,000/- 10,000/- 2,OOOl- tvl\tR.J M,A.C,M.A. No. 59a of 2O2O 10,000/- 10,000/- s0,000/- 10,000/- 2,0001- Total Rs. 15,09,824l- Rs. 7,45,13O/-

23. Accordingly, the M.A.C.M.A is allowed in part, by reducing the compensation from Rs. 1 5,O9,824 I - to Rs.7,45r 13O/- (Rupees Seven Lakh Forty Five Thousand and One Hundred and Thirty Rupees only| with 7.5 % p.a. inertest from the date of petition till the date of realization. The respondents therein are directed to deposit the said amount together with costs and interest after giving due credit to the amount already deposited, if any, within a period of two months from the receipt of a copy of this judgment. On such, deposit the claimant is permitted to withdraw the compensation amount without furnishing any sur6ty. It is made clear if the claimant has already withdrawn the excess compensation amount, the respondents therein are not liable to recover the same from the claimant.

24. Miscellaneous petitions, if any are pending, shall stand closed. SD/. M. JAWAHAR REDDY ASSISTANT REGISTRAR 6 ,/TRUE COPY/ SECTION OFFICER The Chairman, Motor Accidents Claims Tribunalcum-Xll Addl. Chief Judge, City Civil Court, Secunderabad. (With records, if any) One CC to SRl. KONDADI AJAY KUMAR Advocate IOPUC] One CC to SRl. SUBBAGARI SUDARSHAN REDDY Advocate IOPUC] Two CD Copies E/PSL \ To,

2. o1 HIGH COURT DATED:0810912025 t, I JUDGMENT MACMA.No.S98 of 2O2O ff"!3 STATE o \t \\\ Ntt T -k * PARTLY ALLOWING THE MACMA WITHOUT COSTS IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY,THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA Between: IFFICO-TOKIO General lnsurance Co. Ltd, 2nd Floor,'Uma Chambers, Banjara Hills Road, Panjagutta, Hyderabad. AND ...AppELLANT/Resp.No.2

1. s. N.agaraju, s/o Narasimha, Aged.25 years occ. private Employee, R/o 1-4-49, Bholakpur, Secunderabad. .... RespondenUPetitioner 2. !. -Qev9q{er,-s/o..Y. .Bikshapath!, Agg. Not known, /occ. owner-cum-Driver, R/0 ..RESpONDENTS/Respondent No.1 H.No. 1-53, Kandlaykoya, Medchal, R.R..District. ' lA NO: 1 OF 2021 Between: !. Nagqraju-, s/o Narasimha, Aged.25 years occ. private Employee, R/o 1-44g, Bholakpur, Secunderabad. AND

1. IFFICO-TOKIO General lnsurancg Co. Ltd, 2nd Floor, Uma Chambers, Banjara Hills Road, Panjagutta, Hyderabad. RespondenUAppellant 2. Y.-P"rgq{eq,-s/o.1. Bikshapathi, Agg.Not known, /occ. owner-cum-Driver, R/o ' H.No. 1-53, Kandlaykoya, Medchal, R.R: District. Appeal filed under Section 173 of M.V.Act, against Order and Decree dated 24t0212O20 passed in MVOP No..305 ol 2015 on the file the court of the Chairman, Motor Accidents Claims Tribunalcum-Xll Addl. Chief Judge, City Civil Court, Secunderabad. This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and the material papers in the case and upon hearing the argument of SRI KONDADI AJAY KUMAR, Advocate for the Appellant and SUBBAGARI SUDARSHAN REDDY, Advocate appeared for Respondent No.1 and none appeared for Respondent No.2. This Court doth Order and Decree as foltows:

1. That the Motor Accident Civil Miscellaneous Appeal be and is hereby parly Allowed.

2. That the compensation be and is hereby reduced from Rs.15,0g,g24l_ to Rs.7,45,1301- (Rupees Seven Lakh Forty Five Thousand and one Hundred and Thirty Rupees only) with 7.5 o/o p.a. inertest from the date of petition till the date of realization.

3. That the respondents therein are directed to deposit the said amount together with costs and interest after giving due credit to the amount already deposited, if any, within a period of two months from the receipt of a copy oi this judgment.

4. That on such deposit by the respondents, the claimant be and is hereby permitted to withdraw the compensation amount without furnishing, any surety and that it is made clear if the claimant has already withdrawn-ttre'excess compensation amount, the respondents therein are not liabte to recover the same from the claimant.

5. That there shall be no order as to costs in this appeal. llTrue Copyll SD/. M. JAWAHAR REDDY ASSISTANT REGISTRAR 6 SECTION OFFICER To

1. I!" 9!',eiqnan, Motor Accidents Claims Tribunalcum-Xll Addl. Chief Judge, _ 9ity Civil Court, Secunderabad. With records, it anyl 2. Two CD Copies. E/PSL a I HIGH COURT DATED:0810912025 DECREE MACMA.No.598 ol2020 PARTLY ALLOWING THE MACMA WITHOUT COSTS ,l t I*i \ s