Allowed

Gandi Subbarayudu, Unsound Mind, rep by G.Bala Subbaiah v. S.Ravindranath Reddy

Telangana HC9 Dec 2014MACMA/416/2007

Case brief

AI extract

What is this about?

Appeal by injured motor accident claimant against Motor Accidents Claims Tribunal award. Court enhanced compensation from Rs. 75,000 to Rs. 3,00,000 with joint liability, partially deducting for claimant's contributory negligence regarding riding on hay load.

What did the court decide?

Enhanced compensation of Rs. 3,00,000 with 7.5% per annum interest from date of appeal till realization.

Gandi Subbarayudu, Unsound Mind, rep by G.Bala… — Motor Accident Claims | Telangana HC (2014)

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A. No.416 OF 2007

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JUDGMENT:

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The injured claimant, aged about 35 years as on the date of accident i.e., on 12.04.2003 while travelling on the groundnut hayrick load of the trailor (bearing No.AP04E 8161) propelled to tractor bearing No.AP 04 E 8164 belongs to 1^st respondent, insured with 2^nd respondent under Ex.B-1 policy, claiming that while travelling on the groundnut hayrick load of tractor-cum- trailor, due to rash and negligent driving of driver of tractor, the claimant fell down on the ground and received head injuries. Due to head injury and fracture of left temporal bone, the mental condition of the claimant is unbalanced. Hence, the claimant represented by his father i.e., PW.1, filed M.V.O.P No.474 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Fast Track Court, at Kadapa (for short ‘the Tribunal’) for Rs.1,70,000/- under Section 166 M.V Act and later amended as per orders passed in I.A No.1011 of 2004 dated 02.09.2004 for Rs.3,00,000/-, the Tribunal granted Rs.75,000/- with 7.5% per annum against respondents 1 & 2 with joint liability. Aggrieved by the award of the Tribunal, the claimant filed the present appeal seeking enhancement.

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2. Heard the learned counsel for the appellant (claimant) and the learned counsel for respondent No.1 and learned Standing Counsel for respondent No.2. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

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3. The contentions in the grounds of appeal by the appellant (claimant) in nutshell as well as oral submissions of the claimant that the Tribunal gravely erred in awarding meagre compensation by ignoring the medical evidence of PW.3 Doctor; the

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Tribunal should have seen that the injured suffers with 100% disability from mental imbalance and unable to move or even to attend any work or to represent himself and the Tribunal should have granted compensation as prayed for. Learned counsel for the appellant reiterated the contentions in the grounds of appeal.

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4. Whereas it is the contention of the counsel for 2^nd respondent-insurer that but for no cross objections even awarded Rs.75,000/- by fixing with joint liability on the insurer is unsustainable as the injured claimant was unauthorised passenger on the trailor propelled to the tractor sitting on the groundnut hayrick yard without proper care and caution and the policy does not cover the risk, hence if at all, to grant any compensation, it must be against the owner of the vehicle (1^st respondent in claim petition), hence to dismiss the appeal in so far as 2^nd respondent-insurer is concerned.

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5. Now the points that arise for consideration are as follows: 1. Whether the award passed by the Tribunal in fixing compensation of Rs.75,000/- is unsustainable and requires enhancement, if so, the 2^nd respondent—Insurer cannot be fastened with liability atleast beyond the unchallenged portion of the award of the Tribunal of Rs.75,000/- made final for want of cross objections and with what observations?

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2. To what result?

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Point No.1:

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6. The undisputed facts show the injured by name Gandi Subbarayudu, aged about 35 years, now representing by his father and natural guardian by name G.Bala Subbaiah saying 100% disabled being mentally unbalanced; claiming as a coolie along with another person PW.2 the other injured who were travelling on the groundnut hayrick yard on the trailor propelled to tractor and the accident occurred due to rash and negligent driving of the driver, who lost control and turned turtle, due to which they fell down and the injured claimant sustained head injury.

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7. Now coming to the compensation awarded is disputed as utterly low and requires enhancement concerned, the learned counsel for the (injured) appellant placed reliance upon the expression of Ranjan Prakash V. Divisional Manage r^[1] wherein it was observed referring to Order 41 CPC that without cross objections by the respondent but for attacking the findings in the award of the Tribunal, cannot dispute the quantum arrived by the Tribunal. Here the Tribunal passed the award by fixing joint liability for Rs.75,000/- and to the extent which was made final as there was no cross objections filed by the insurer cannot dispute the same but for to permit without cross objections to attack the appeal claim for any enhancement.

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8. Now coming to the facts as on the date of accident from the evidence on record including PWs.1 & 2 the claimant-injured was travelling on the groundnut hayrick load of the tractor claimed as a coolie. Ex.B1 shows the policy is covering the risk of six persons for loading and unloading and in IMT 39 and 39-A six persons besides driver risk can be covered. As per Rule 185 of A.P M.V Rules permit can be accorded for six coolies for loading and unloading. Ex.B2— RC of the vehicle placed reliance by the insurer no way shows there is any lack of permit. Thus, once the tariff is collected for six coolies under IMT 39 as the injured was one of the said coolies and that too travelling on the load of the trailor for no space to sit at the driver while travelling as cooli for the purpose of unloading.

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9. The factual matrix show the injured fell down from the groundnut hayrick load as the trailor propelled to tractor due to the driver lost control and turned turtle. It is the moment he fell down he is a third party. In fact, as seen from the evidence of PW.3—doctor and Ex.A-5 CT Scan, the injured sustained head injury with sub dural effusion in left parietal region, hypodemic area in left parietal region

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with diffuse cerebral edema, compression both lateral ventricles and 3^rd ventricle with midline shift to right side and craniotomy defect left temporal bone with extra carnial soft tissue swelling in temporal and parietal regions.

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10. In fact as referred supra, when the policy covers the risk of six coolies for loading and unloading, the injured is one of such coolies and when it is a package policy, undisputedly once the policy covers the risk, the insurer cannot avoid the liability.

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11. When such is the case, no doubt travelling on the groundnut hayrick load and sitting inadvertently that also contributed to the accident though the policy covers the risk and there from as that is the main contribution to the accident if 50% negligence of the injured deducted, the injured is entitled to compensation from the policy covers the risk for remaining 50%. At the time of accident the injured was aged about 35 years, he suffers with 100% disability from head injury, lost mental balance and requires continuous assistance.

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12. The earnings of the injured as on the date of accident can be taken, following the Apex Court’s expression in Latha Wadwa vs State of Bihar, at Rs.3,000/- per month with proportionate increase at Rs.3,250/- and if 50% deducted there from comes to Rs.1,625/-. The age of injured is about 35 years, as per Sarla Verma vs. Delhi Transport Corporation for persons aged above 36 years below 40 years, the multiplier applicable is ‘15’ that comes to Rs.2,92,500/(Rs.1,625/- X 12 X 15). Since the claimant claimed for an amount Rs.3,00,000/-, the same is no way excessive for his further entitlement towards medical expenses and treatment, attendant charges, extra nourishment and transport charges etc. Accordingly, point No.1 is answered.

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Point No.2:

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13. In the result the appeal is allowed by enhancing the compensation from Rs.75,000/- (Rupees Seventy five thousand only) to Rs.3,00,000/-(Rupees three lakhs only) with joint liability with interest at 7.5% per annum. However, the enhanced compensation shall carry interest at 7.5% per annum from the date of appeal till date of realisation. No costs.

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14. Miscellaneous petitions, if any pending in this appeal shall stand closed.

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_____________________ Dr. B. SIVA SANKARA RAO, J

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9^th December, 2014 Knl

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

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M.A.C.M.A. No.416 OF 2007

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Date:09.12.2014