Allowed

Chatragadda Mohana Rao, Krishna Dist v. Shaik Basha, Guntur Dist and Anr.

Andhra Pradesh HC28 Feb 2024MACMA/1080/2016

Case brief

AI extract

What is this about?

The Court enhanced compensation from Rs.22,000/- to Rs.59,000/- for injuries sustained in a motor accident. It held that while the claim was filed under Section 163-A, the evidence supported negligence under Section 166. Disability was not established, but pain, suffering, loss of earnings, and medical expenses were increased.

What did the court decide?

Enhanced compensation to Rs.59,000/- plus interest @7.5% p.a.

Chatragadda Mohana Rao, Krishna Dist Vs Shaik… — Motor Accident Claims | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THURSDAY ,THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1080 OF 2016

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Between:

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CHATRAGADDA MOHANA RAO, KRISHNA DIST, S/o Venkata Subbaiah Aged about: 48 Yrs, Occ: Coolie R/o H.No.0-01, Barrankula Village, Ganapeswaram (Post), Nagaya Lanka Mandal Krishna District

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...APPELLANT(S)

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AND

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SHAIK BASHA GUNTUR DIST ANR, S/o Babu Saheb, Aged Major, Owner of Lorry bearing No.AP 07 X 9699) R/o Door No.16-3-24, Jenda Chittu Veedhi, Old Guntur, Guntur District

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The New India Assurance Company Limited, Rep. by its Divisional Manager, Divisional Office, Gunt (Respondent No 1 is not necessary party)

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...RESPONDENTS DATE OF JUDGMENT PRONOUNCED : 29.02.2024 SUBMITTED FOR APPROVAL:

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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

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Whether Reporters of Local Newspapers may be allowed to see the common judgment?

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Yes/No

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Whether the copy of common judgment may be marked to Law Reporters/Journals? Yes/No 3. Whether His Lordship wishes to see the fair copy of the common judgment? Yes/No

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_____________________ A.V.RAVINDRA BABU, J

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THURSDAY ,THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1080 OF 2016

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Between:

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CHATRAGADDA MOHANA RAO, KRISHNA DIST, S/o Venkata Subbaiah Aged about: 48 Yrs, Occ: Coolie R/o H.No.0-01, Barrankula Village, Ganapeswaram (Post), Nagaya Lanka Mandal Krishna District

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...APPELLANT(S)

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AND

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SHAIK BASHA GUNTUR DIST ANR, S/o Babu Saheb, Aged Major, Owner of Lorry bearing No.AP 07 X 9699) R/o Door No.16-3-24, Jenda Chittu Veedhi, Old Guntur, Guntur District

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The New India Assurance Company Limited, Rep. by its Divisional Manager, Divisional Office, Gunt (Respondent No 1 is not necessary party)

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...RESPONDENTS

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Counsel for the Appellants : Sri B.Pramaeswara Rao.

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Counsel for the Respondent : Sri Naresh Byrapaneni

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The Court made the following:

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JUDGMENT:-

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Challenge in this M.A.C.M.A. is to the award, dated 24.09.2014 in M.V.OP.No.510 of 2012, on the file of the Motor Accident Claims Tribunal-cum-III Additional District Judge Guntur, Guntur District („Tribunal‟ for short). Whereunder the Tribunal as against the claim of the claimant under Section

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163(A) of the Motor Vehicles Act, 1988 („M.V.Act‟ for short),

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claiming compensation of Rs.1,00,000/- towards the injuries received by him in a motor vehicle accident which was occurred on 04.10.2011, awarded a sum of Rs.22,000/- towards the compensation.

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The present M.A.C.M.A. is filed by the claimant, felt aggrieved that the compensation so awarded by the Tribunal is not just and reasonable and that it is liable to be enhanced.

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The parties to this M.A.C.M.A. will hereinafter be referred to as described before the learned Tribunal for the sake of convenience.

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The claim before the Tribunal, lodged by the claimant was under Section 163 (A) of M.V.Act.

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The case of claimant, in brief, according to the averments set out in the claim, is that:

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(i) He is resident of Barrankula Village of Nagaya Lanka Mandal, Krishna District. On, 04.01.2011, at about 07.00 a.m., while he was crossing the road near Annapurna Hotel, bypass road, Guntur, a lorry bearing No. AP 07 X 9699 driven by its driver in a rash and negligent manner with high speed, without blowing the horn, came in a wrong side and hit the petitioner. On account of the same, the petitioner fell down with grievous injuries i.e., 1) fracture injury below the knee on the left leg, 2) stitches injury on his right leg fingers and 3) stitches injury on

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chin. Petitioner was taken to Government General Hospital, Guntur for treatment. The accident was occurred within the police limits of Guntur Taluk Police Station. It was occurred due to the rash and negligent driving of the lorry driver.

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(ii) The matter was reported in Guntur Taluk Police Station and the same was registered under Section 337 IPC in Crime No.492 of 2011, against the driver of the lorry bearing No. AP 07 X 9699. The petitioner was aged about 45 years. He was doing coolie work. He was getting Rs.3,000/- per month. He spent Rs.10,000/- towards medical expenses. He cannot do any work now. He lost his earnings and earning capacity. Hence, he is entitled to Rs.1,00,000/- towards compensation. Respondent No.1 is the owner of the lorry bearing No. AP 07 X 9699 and respondent No.2 is the Insurer of the lorry, as such, both of them are jointly and severally liable to pay compensation. Hence, the claim.

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The respondent No.1-the owner of the offending vehicle remained exparte . Respondent No.2-Insurance Company filed written statement denying the averments in the petition and contending in substance that respondent No.2 does not admit the age, avocation and health condition of the petitioner. The vehicle involved in the accident was insured with respondent No.2 vide policy bearing No.62100331110100001478, valid from

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21.09.2011 to 20.09.2012. Respondent No.1 did not intimate the factum of accident, so as to cause loss to the Insurance Company. The driver of the offending vehicle had no valid driving license and it is violation of policy condition. Police who investigated the case, filed charge sheet against the driver of the offending vehicle, for the offence under Section 338 I.P.C. and Section 188 of M.V.Act. The compensation claimed by the claimant is excessive. Hence, the petition is liable to be dismissed.

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On the basis of the above pleadings, the Tribunal settled the following issues for trial:

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(1) Whether the accident occurred was due to the rash and negligent driving of vehicle, i.e. lorry bearing No.AP 07 X 9699?

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(2) Whether the petitioner is entitled to compensation, and if so, to what amount and against whom?

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(3) To what relief?

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During the course of enquiry before the Tribunal, on behalf of the claimant, PWs.1 and 2 were examined and Exs.A1 to A7 were marked. Further Ex.X1 case sheet was marked. On behalf of the respondents, RWs.1 and 2 were examined and Ex.B1copyof Insurance Policy was marked.

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The Tribunal, on hearing both sides and on considering the oral as well as documentary evidence, insofar as the issue No.1 is concerned, gave a finding that the petitioner received injuries

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in the motor vehicle accident occurred on 04.10.2011 out of the user of the lorry of respondent No.1. Insofar as issue No.2, the Tribunal held that the petition is entitled to compensation of Rs.22,000/-.

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Felt aggrieved of the situation that the compensation so awarded by the Tribunal is not just and reasonable, the claimant filed the present M.A.C.M.A.

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Now in deciding the present M.A.C.M.A., the point for determination is as follows:

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“Whether the award, dated 24.09.2014 in M.V.OP.No.510 of 2012, on the file of Motor Accident Claims Tribunalcum-III Additional District Judge Guntur, Guntur District, in awarding compensation of Rs.22,000/-, is sustainable under law and facts and whether there are any grounds to interfere with the same”?

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Point:

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PW.1 before the Tribunal was no other than the petitioner who filed the chief examination affidavit putting forth the facts in tune with the pleadings and through his examination, Exs.A1 to A7 were marked. Further the petitioner examined PW.2 Dr.M.Prasad and he deposed that petitioner was admitted in Government General Hospital, Guntur on 04.10.2011, with fracture of both bones of left leg, compound in nature. Fracture was treated with open reduction and internal fixation, with nailing on 11.10.2011. Later, the fracture was treated with

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wound exploration and debridement on 21.11.2011, and the patient was discharged on 22.11.2011. He further stated that one day prior to his evidence, he examined PW.1 and took X-rays and found stiffness in ankle joint and to some extent in knee joint and he has the disability of 15%. Ex.X1 is the case sheet.

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Turning to the evidence of RW.1, who was the representative of the respondent No.2, he put forth the facts in tune with the written statement. Through his examination, Ex.B1 was marked. Respondent No.2 further examined RW.2 who worked as Inspector in Guntur Taluk Police Station. His evidence is that he investigated the case in Crime No.492 of 2011 of Guntur Taluk Police and filed charge sheet and driver of the offending during investigation stated that he had no driving license, as such he (RW.2) imposed fine of Rs.1,000 /-. 13. Sri B.Parameswara Rao, learned counsel for the appellant would contend that as against the claim of Rs.1,00,000/-, the Tribunal awarded only Rs.22,000/- without there being proper appreciation of the evidence of PWs.1 and 2 and Exs.A1 to A7 and Ex.X1. The Tribunal did not consider multiple injuries received by the petitioner. The petitioner underwent two surgeries, according to the evidence available on record. For the two surgeries, which the petitioner undergone on account of the

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fracture, the Tribunal awarded a meager amount of Rs.15,000/and further Rs.5,000/- towards transportation and attendant charges and Rs.2,000/- towards the loss of earnings during treatment period, which was totally on lower side. The Tribunal ought to have awarded more compensation as such, he seeks to allow the petition.

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Sri Naresh Byrapaneni, learned counsel for respondent No.2 would canvas a contention that the claim was laid under Section 163(A) of M.V.Act. Though the petitioner alleged rash and negligent act against the respondent No.1 in the claim, but did not prove the permanent disability and the Tribunal discussed at length the evidence adduced and made findings that the petitioner did not prove permanent disability and awarded a reasonable sum, as such there are no ground to interfere with the award of the Tribunal.

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Firstly, this Court would like to point out certain facts as born out from the record. Though literally the Section of law before the Tribunal was mentioned as Section 163(A) of the M.V.Act, to claim compensation on the basis of structured formula, but the contents of the petition means that the petitioner sought to claim compensation with averments that the accident occurred was due to rash and negligent act of the respondent No.1 in driving the offending vehicle. It is

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appropriate to point out here that considering the pleadings of the parties only, issues were framed. So, when issue No.1 is such that as to whether the accident was occurred due to rash and negligent act of the respondent No.1 in driving the offending vehicle, but the Tribunal made a finding that the petitioner received injuries on account of the user of the lorry bearing No. AP 07 X 9699. The Tribunal considered the contention of the claimant that the claim application was filed under Section 163(A) of the M.V. Act, and that there was no need to prove rash and negligent driving. It is to be noted that Section 163(A) of the M.V.Act, runs as follows:

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“Special provisions as to payment of compensation on structured formula basis.— (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

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Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

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(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

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(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule”.

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It is to be noted that when an issue was framed as to whether the accident was occurred due to rash and negligent act of the respondent No.1 in driving the offending vehicle, the Tribunal did not answer the same. If the contents of the claim before the Tribunal are looked into, it goes without saying that the petitioner wanted to claim compensation alleging rash and negligent act against the respondent No.1. The claim should have been under Section 166 of the M.V.Act, literally. Though the claimant pleaded everything in tune with Section 166 of the M.V. Act, but unfortunately got mentioned the Section of law wrongly as that of Section 163(A).

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It is to be noted that when the Tribunal considered that the claim was under Section 163(A) of the M.V.Act and made a finding that the petitioner received injuries by virtue of the user of the lorry bearing No. AP 07 X 9699, but the award does not disclose that looking into Schedule-II of Section 163(A) of the M.V.Act, the Tribunal arrived at the figure of Rs.15,000/towards injuries and Rs.5,000/- towards transportation and attendant charges and Rs.2,000/- towards loss of earnings. Absolutely, without looking into the structured formula under Section 163(A) of the Motor Vehicle Act, the Tribunal arrived at

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the figure on its own on guess work. So, virtually the claim of the petitioner according to the contents of the averments means that under Section 166 of the M.V.Act. When the Tribunal settled the issues, as if the claim was under Section 166 of the M.V.Act, but the Tribunal did not answer issue No.1 properly. Further when it answered issue No.1 as if it was a claim under Section 163(A) of the M.V.Act, but the Tribunal failed to consider the Schedule-II concerning Section 163(A) of the M.V.Act, to calculate the compensation. Under the circumstances, this Court is of the considered view that as this Court is a Court of appeal, it has to re-appreciate the evidence on record to answer the issues No.1 and 2 properly, considering that it is a case of Section 166 of the M.V.Act. Keeping in view of the same, this Court would like to answer the issue No.1.

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As seen from the evidence, of PW.1, he put forth the facts in tune with the petition averment. Turning to cross-examination part of PW.1, during the course of cross examination of PW.1, he deposed that at the time of accident, muta-coolies Srinivas and Rosaiah were present. He did not observe the crime lorry. He volunteers that lorry came from behind. He denied that he was proceeding on the road without observing the traffic. As seen from Ex.A1, the police registered F.I.R. in Crime No. 492 of 2011 and after investigation, field charge sheet under Ex.A2.

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Respondent No.1 failed to contest the matter. RW.1 was not a witness to the occurrence. The evidence of PW.1 with regard to the rash and negligent act against respondent No.1 in tune with the averments in the petition. For obvious reasons, respondent No.1 remained exparte . So, there was no rebuttal to the evidence of PW.1. So, the unchallenged evidence of PW.1, coupled with documents, goes to proved that accident was occurred due to rash and negligent act of the driver of the offending lorry bearing No. AP 07 X 9699.

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As seen from the evidence of PW.2, coupled with Ex.A3-the certified copy of wound certificate, the petitioner received fracture of both bones below knee on left leg, compound in nature.

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The petitioner categorically proved the fact that the accident occurred was due to the rash and negligent act of the driver of the offending vehicle in driving the vehicle and he received fracture of both bones of left leg.

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Now coming to the contention of the respondent No.2, it wanted to avoid the liability on the ground that, respondent No.1 had no valid driving license to drive the offending vehicle and that though the offending vehicle was insured under Ex.B1, but there was a violation of policy conditions.

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Firstly, this Court would like to make it clear that, the Tribunal negatived the contention of the respondent No.2 in this regard, on the ground that though it was the contention of the respondent No.2 that the driver of the offending had no valid driving license, but failed to prove the said fact. It is to be noted that RW.2 was examined by the Insurance Company, who was not the investigating officer, practically. He was a person who laid charge sheet after verifying the investigation done by the Sub-Inspector of Police. So, the Tribunal did not believe the evidence of RW.2 in this regard. The respondent No.2 did not examine any R.T.A. authorities, to prove the fact that the respondent No.1 had no valid driving license. The findings of the Tribunal that respondent No.2 failed to prove that the driver of the offending vehicle had no valid driving license are not challenged by the respondent No.2 herein, by way of filing any appeal. The appellant herein is no other than the claimant, who felt aggrieved that he was awarded with a meager compensation and approached this Court. There are no cross-objections by the respondent No.2, so as to disturb the findings of the Tribunal that the respondent No.2 failed to prove that the driver of the offending vehicle had no valid driving license. So, as the offending vehicle was insured with respondent No.2, both the

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respondent Nos.1 and 2 are liable to pay compensation and their liability is joint and several.

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Now, coming to the quantum of compensation, the Tribunal awarded a sum of Rs.15,000/-, towards pain and suffering and further Rs.5,000/-, towards transportation and attendant charges and Rs.2,000/-, towards loss of earnings.

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The contention of the appellant is that he sustained disability and the Tribunal did not consider the same. It is to be noted that the petitioner did not produce any disability certificate. Evidence of PW.2 was discussed at length by the Tribunal. There was fracture of both bones of left leg, compound in nature, which was treated with surgical intervention twice. There is a procedure to prove the disability. Neither the claimant produced any disability certificate nor examined any person from the medical board to prove disability. So, the Tribunal rightly held that petitioner did not prove any disability on account of the injuries.

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Turning to the quantum of compensation awarded in favour of the claimant i.e., a sum of Rs.15,000/-, towards pain and suffering, the petitioner sustained fracture of both bones of left leg, compound in nature. Evidence of PW.2 coupled with the documentary evidence would reveal that the petitioner was admitted in the Hospital on 04.10.2011 and he was operated on

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11.10.2011. Subsequently, another surgery was done on 22.10.2011 and he was discharged on 21.11.2011. So, the petitioner underwent two surgical procedures on 11.10.2011 and 22.10.2011 and ultimately, he was discharged on 21.11.2011. So, he was treated as inpatient for a period of two and half months. Even after discharge, it is reasonable to expect that a couple of weeks, he would be at home, without doing any work. According to the petitioner, he was a coolie, getting income of Rs.3,000/- per month. Considering the same, the Tribunal should have considered the loss of earnings @ Rs.3,000/- for a period of three months, which amounts to Rs.9,000/(Rs.3,000/- X 3 months = Rs.9,000/-). The loss of earnings grated by the Tribunal is Rs.2,000/-, is totally meager. Apart from this, when the petitioner sustained fracture of both bones of left leg, commuted in nature, underwent two surgeries, the Tribunal ought to have awarded reasonable amount for the pain and suffering, for grievous injury. Having regard to period of treatment and having regard to the nature of the injury, which was treated with surgical intervention twice, it is appropriate to consider the compensation under the head of pain and suffering to a tune of Rs.40,000/- instead of Rs.15,000/-. The Tribunal awarded a sum of Rs.5,000/-, towards transportation and attendant charges, which is reasonable. The Tribunal did not

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award any compensation towards the extra-nourishment, as such, it is reasonable to award a sum of Rs.5,000/- towards extra-nourishment.

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Having regard to the above, the compensation which can be awarded to the claimant while deciding this M.A.C.M.A. are as follows:

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Towards pain and suffering = Rs.40,000/-

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Towards of loss of earnings = Rs. 9,000/-

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Towards Transportation &

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Attendant charges = Rs. 5,000/-

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Towards Extra-nourishment = Rs. 5,000/-

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------------Total = Rs.59,000/-------------

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As evident from the award of the Tribunal, though the Tribunal did not believe the defence of the respondent No.2 that respondent No.1 had no valid driving license, but ordered pay and recovery, which is not tenable.

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In the result, the M.A.C.M.A. is allowed in part, enhancing the compensation amount from Rs.22,000/- to Rs.59,000/- by holding that respondent Nos.1 and 2 are jointly and severally liable to pay compensation, directing the respondent No.2 to deposit the compensation of the difference amount with interest

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@7.5% per annum from the date of petition till the date of realization, within a period one month from the date of this

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judgment and on such deposit the petitioner can withdraw the difference amount with up to date interest and costs.

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The Registry is directed to forward the record along with

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copy of the order to the trial Court on or before 11.03.2024.

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Consequently, miscellaneous applications pending, if any, shall stand closed.

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________________________ JUSTICE A.V. RAVINDRA BABU

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Dt.29.02.2024. Vnb

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THE HON’BLE SRI JUSTICE A.V. RAVINDRA BABU

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M.A.C.M.A.No.1080 of 2016

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Date: 29.02.2024

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Note:

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The Registry is directed to forward the record along with copy of the order to the trial Court on or before 11.03.2024.

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Vnb

Chatragadda Mohana Rao, Krishna Dist v. Shaik Basha, Guntur Dist and Anr.

Case brief

What is this about?

What did the court decide?

Chatragadda Mohana Rao, Krishna Dist v. Shaik Basha, Guntur Dist and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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