Partly allowed

The National Insurance Company Limited v. Korrai Gangulu

Telangana HC18 Jun 2014MACMA/1884/2011

Case brief

AI extract

What is this about?

In these appeals, the High Court examined the appeal by a coolie injured in a tractor-accident and the insurer's appeal seeking exemption. While affirming the insurer's joint liability, the Court set aside the Tribunal's assessment of disability and earnings, enhancing the compensation to Rs.5,30,000.

What did the court decide?

Compensation enhanced from Rs.4,32,300 to Rs.5,30,000 with interest at 7.5% p.a. Claimant's appeal allowed; Insurer's appeal dismissed.

The National Insurance Company Limited Vs Korrai… — Motor Accident Claims | Telangana HC (2014)

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HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO

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M.A.C.M.A Nos.1806 and 1884 of 2011

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COMMON JUDGMENT:

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These two appeals i.e., MACMA Nos.1806 of 2011 filed by the claimant-injured and MACMA No.1884 of 2011 filed by the Insurer of the crime tractor and trailor against the award of the Tribunal, dated 21.03.2011, granting compensation of Rs.4,32,300/- with interest at 7.5% per annum against the claim of Rs.7 lakhs in O.P. No.338 of 2009 on the file of the learned Chairman of the Motor Accidents Claims Tribunal-cum-District Judge, Srikakulam, (for short, ‘Tribunal’) under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

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2. Heard Sri Aravala Rama Rao, learned counsel for the claimant, Sri Nisaruddin Ahmed Jeddy, learned Standing Counsel for the Insurance Company in both the appeals, and taken as heard the owner of the vehicle for having been served with notice called absent with no representation, to decide on merits. Perused the material on record. The parties herein after are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

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3. The contentions of the appellant-claimant in the grounds of appeal MACMA No.1806 of 2011 who is the 1^st respondent in MACMA No.1884 of 2011 as well as submissions (in both the appeals) during course of hearing in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case; that the tribunal ought to have seen that the right hand of the claimant is amputated at higher level to

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save his life since the trailor of the crime tractor ran over on his right hand; that the tribunal failed to see that the claimant was taken to Government Hospital, Tekkali, and from there to KGH where his hand was amputated and after discharge he is continuing his treatment as out patient; that the Tribunal failed to consider the earnings of the claimant at Rs.6,000/- per month as Kalasi but taken at Rs.75/- per day without any basis, and failed to see that due to amputation of right hand, the claimant is unable to attend normal duties and lost his income and as such he was suffering from 100% permanent disability including pain and mental agony; that the Tribunal failed to consider Exs.A7 to A9 in awarding medical expenses and the interest awarded at 7.5% per annum by the Tribunal is low and hence to enhance the compensation as prayed for in the claim petition by allowing the appeal.

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4. The contentions of the appellant – Insurer in the grounds of appeal in MACMA No.1884 of 2011, who is 2^nd respondent in MACMA No.1806 of 2011 as well as submissions (in both the appeals) during course of hearing in nutshell are that, the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case; that the Tribunal erred in fastening joint and several liability on the insurer without basis along with the owner of the crime vehicle; that the Tribunal failed to see that Ex.B1 policy is issued for goods carrying commercial vehicle having seating capacity of one person in the driver’s seat and the claimant was a gratuitous and unauthorized passenger sitting on sand load but not a third party to claim for fell down and sustained injuries; that the Tribunal failed to appreciate the evidence of RW.1 (Administrative Officer of the Insurer); that the policy is issued to

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goods carrying commercial vehicle only and the driver did not have valid driving license and seating capacity of Tractor-Trailor is only one person i.e,. driver, that at the time of accident the trailor was carrying the claimant for hire and reward that is not permissible as per terms of policy, same is also as per the evidence of RW.2 (Senior Assistant of RTA Office) that seating capacity is to the tractor and not to trailor; that driver alone should sit in the tractor and others are not allowed to sit for no seating capacity to the trailor, as per Exs.B2 and B3 registration extracts of tractor and trailor and Ex.B4 permit for carrying goods only and no specific endorsement in the driving license to drive the tractor and trailor; that the tribunal erred in considering the income of the claimant without any proof of employer nor any proof of income and occupation except basing on self serving testimony; that the claimant is working as a loading and unloading coolie; that the Tribunal failed to see that the collection of premium for risk of coolies is only for loading and unloading operations and not for unlawfully allowing them to travel in the goods vehicle causing violation of provision of M.V. Act; that the Tribunal failed to observe that the claimant not got examined the doctor who done amputation of his right arm; that PW.2—B.Uday Kumar was not the doctor done amputation but issued disability certificate; that compensation awarded is also excessive. Hence, to set aside the award of the Tribunal by exonerating the insurer.

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5. Now the common points that arise for consideration in both the appeals are:

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1. Whether the award of the Tribunal fastening joint liability on the insurer with insured to indemnify the insured for the claimant(s) requires interference by this Court while sitting in the appeal and with what observations?

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2. Whether the quantum of compensation awarded by the Tribunal is not just and requires interference by this Court and if so to what extent and against whom with what rate of interest?

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3. To what result?

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POINT Nos. 1 & 2

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6. The facts of the case are that, on 06.02.2009 at about 7.00 am the claimant Korragi Gangulu and his villager Kappa Achayya went to Komanapalli Village on the tractor and trailor bearing No.AP 30 U 3767 – 3766 belongs to the 1^st respondent insured with the 2^nd respondent to bring sand from Vamsadhara river and having loaded the sand and boarded on the trailer on the said load to go to Akasalakkkavaram village for unloading purpose; that while so when the tractor reached near fifth culvert located in between Vaddithandra – Hanumanthunaidupeta villages, due to rash and negligent driving of the driver with high speed, the tractor ran over the cement electrical poles, as a result, the claimant and another fell down on the road and the left rear wheel of the trailor ran over the claimant’s right hand due to which he sustained multiple facture injury on both the hands, legs and all other parts of the body and fell unconscious. Immediately, he was taken to the Government Hospital, Tekkali, from there to K.G.H. Government Hospital, Tekkali and from there shifted to KGH, Visakhapatnam where right hand of the claimant was amputated at the higher level to save his life of the claimant. After discharge from the hospital the claimant is continuing his treatment as outpatient till today, which occurrence is covered by Ex.A1 - FIR and Ex.A4 – charge sheet. The learned Tribunal basing on the oral and documentary evidence on record, awarded in all compensation

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of Rs.4,32,000/- (Rupees four lakhs thirty two thousand only) out of Rs.7,00,000/- with interest at 7.5% per annum against the respondents i.e., insurer and owner in the claim petition joint and severally.

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7. From the above the fact that the accident was the result of rash and negligent driving of the driver of the crime tractor and trailer is not in dispute. Coming to the liability of the Insurer from the contention of the insured is not entitled as a coolie for loading and unloading in traveling on load of sand and thus unauthorized passenger of the crime tractor and trailer bearing No.AP 30 U 3767 – 3766 concerned:PW.1 with reference to Ex.A1—FIR, based on hospital intimation and his statement of injured recorded by the police and shown aged 20 years is that he along with other persons as coolies traveling on the sand load of the trailer propelled to the tractor having loaded the sand at Vamsadhara to unload at another place and in the way the driver allowed one S.Laxmi, who sat behind his seat and due to rash and negligent driving at 5 culverts located in between Vaddithandra – Hanumanthunaidupeta Villages due to his rash and negligent driving, he lost his control over the tractor and dashed the cement electrical poll and from the jolting he fell down and left rear wheel of the trailer ran over on the petitioner’s right hand and his right hand was crushed under the wheels of the trailer and his left leg and right femur are also fractured and he was shifted in 108 Ambulance to the Government Hospital, Tekkali.

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8. PW-1 in his chief affidavit evidence besides above facts deposed about fracture of right femur, above elbow amputation of right upper limb and amputation of 5^th toe of left foot and there was operation for femur fracture with ‘K’ wiring fixation.

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He deposed in his cross examination that there is no record of he was working at the time of accident under R1-owner of the tractor and trailor as cooli (kalasi) for loading and unloading in his saying traveling after loaded on the sand load at the time of accident going for unloading and denied the suggestion of his negligence in sitting on the sand load of trailor caused the accident. There from even it establishes the claimant injured is a cooli traveling for unloading on the sand load and not an unauthorized passenger as the A.P.M.V.Rules and IMT 39 X 39-A also provides for covering upto 6 coolies and the contention of when no provision in trailor to sit, he comes under unauthorized passengers even traveling as cooli in the course of employment under the owner or the policy when admittedly covers risk the coverage of risk is not meant for such person is untenable. Thus the tribunal is right in holding the risk is covered by the policy. Then coming to contention of no valid driving license to the driver, RW-1 deposed with reference to Ex.B2 & B3—tractor and trailor registration certificates and Ex.B4permit to say it is a goods carrying permit. Thus no permit violation even but for to contend with reference to Ex.B5—extract of driving license of driver, from which admittedly entitled to drive even heavy goods vehicles and license is valid and he could not say of any endorsement specifically required for tractor driving. Thus, there is nothing to exonerate the Insurer, even driver allowed by his side of tractor seat a lady, for not the claim by lady, much less that resulted accident apart from not a breach so fundamental to escape from liability.

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9. Now coming to the quantum, PWs.1 & 2 evidence corroborates with reference to Ex.A10—medical report, of the amputation including from Ex.A11—photos; in saying permanent

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disability of 90%, no doubt disputes by Insurer as excessive, for the amputation of right hand upto the shoulder, below it with stump less than 20-32 cms from tip of acromion is shown as 80% permanent disability under Item No.2 part 2 of Schedule I of the Workmen Compensation Act, 1923.

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10. From this by adopting multiplier 17 as deposed as 20 years, even the certificate shows about 18 years, and even taken the minimum earnings at Rs.3,000/- p.m. as per the expression of Apex Court in Latha Wadhwa v. State of Bihar^[1] and Kishangopal v. Lal a^[2] ; 80% disability of Rs.2400/-p.m

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x 12 x 17 =Rs.4,89,600/-, apart from this an amount of Rs.20,000/for the premier fracture, Rs.10,000/- to the toe amputation, even taken medical expenses and treatment free as admitted by P.W.2, for extra nourishment, attendant and transport charges of Rs.10,400/-, in all comes to Rs.5,30,000/- which is just compensation so to award with interest at 7.5% p.a. by enhancing from Rs.4,32,300/-.

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Accordingly, Point Nos.1 & 2 are answered.

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Point No.3:

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11. In the result, the appeal (MACMA No.1806 of 2011) filed by the claimant is partly allowed by modifying the Award of the Tribunal by enhancing the compensation from Rs.4,32,300/(Rupees four lakh thirty two thousand three hundred only) to Rs.5,30,000/-(Rupees five lakh thirty thousand only) with interest at 7.5% p.a. from the date of petition (MVOP) till the date of realization. The respondents 1 and 2 are directed to deposit the said amount, if deposited anything for balance within one month from today, failing which the claimant can execute and recover.

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On such deposit or execution and recovery, the claimant is permitted to withdraw the same. Rest of the terms of award holds good. The appeal (MACMA No.1884 of 2011) filed by the Insurer is dismissed. There is no order as to costs in both the appeals.

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12. Consequently, miscellaneous petitions, if any, pending in these appeals, shall stand closed.

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_________________________ Dr. B. SIVA SANKARA RAO, J

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Date:18-06-2014 Knl/ vvr

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[1] (2001) 8 SCC 197=AIR 2001 (SC) 3218 [2] 2014(1) SCC 244

The National Insurance Company Limited v. Korrai Gangulu

Case brief

What is this about?

What did the court decide?

The National Insurance Company Limited v. Korrai Gangulu

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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