Partly allowed

Yarasani Yesu Ratnam v. Pothineni Hanumantha Rao

Telangana HC8 Sept 2014MACMA/738/2007

Case brief

AI extract

What is this about?

The injured claimant appealed against the Tribunal's Award awarding Rs.2,23,000 compensation for a motor accident resulting in amputation of both legs. The Court enhanced the compensation to Rs.3,00,000 with joint liability of the insurer and insured, and increased interest to 7.5% p.a.

What did the court decide?

Compensation enhanced to Rs.3,00,000 with joint liability of insured and insurer; Rs.1,00,000 balance claim is personal liability of insured. Interest enhanced to 7.5% p.a.

Yarasani Yesu Ratnam Vs Pothineni Hanumantha Rao — Motor Accident Claims | Telangana HC (2014)

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.738 OF 2007

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JUDGMENT:

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The injured-claimant filed this appeal, having been aggrieved by the Award of the learned Chairman of the Motor Accidents Claims Tribunal– cum–VI Additional District and Sessions Judge, Markapur,(for short, ‘Tribunal’) in M.V.O.P.No.86 of 2005 dated 11.12.2006, awarding compensation of Rs.2,23,000/-(Rupees two lakh twenty three thousand only) with interest at 7% p.a. as against the claim of Rs.4,00,000/-(Rupees four lakh only), for enhancement of compensation as prayed for in the claim petition under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’).

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2. Heard Sri N.Subba Rao, the learned counsel for the appellant and Smt. Jyothieswar Gogineni, the learned counsel for the 1^st respondent-owner of the crime lorry and the 2^nd respondent-the National Insurance Company Limited, served with notice called absent with no representation and thus taken as heard for its absence to decide on merits and 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 as well as submissions 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 restricting the monthly income of the injured to Rs.1500/-p.m., though R.W.1-owner of the crime vehicle deposed that he was paying salary of Rs.2,000/-p.m. to the claimantcleaner apart from paying Rs.2,000/- for loading bricks into the lorry, that the Tribunal failed to take correct multiplier basing on his age of 40 years, instead taken multiplier 11 and should have considered that the claimant both legs are amputated and lost avocation and earnings, that the

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Tribunal erred in fixing liability on the 2^nd respondent to Rs.1,38,127/even as per the provisions of Workman’s Compensation Act,1923/24 (for short W.C.Act), but ought have seen that under the provisions of the M.V.Act, the claimant is at liberty to approach either the Tribunal constituted under the M.V.Act or Commissioner under W.C.Act, that the Tribunal failed to appreciate that the liability of the Insurance Company is not limited to the amount awardable under W.C.Act, by virtue of the decision of the Division Bench of this Court in Mandulova Satyanarayana Vs.Bodireddy Lokeshwar i^[1] , that the Tribunal failed to appreciate that even as per the provisions of W.C.Act, the minimum wages payable to the claimant as on date of accident was more than Rs.2,500/-p.m., out of which 50% to be multiplied by factor of 184.17 applicable to the persons aged 40 years and if that is done, the claimant is entitled to compensation of Rs.2,76,000/-, that the Tribunal failed to award just and reasonable compensation considering the medical expenses, pain and suffering, attendant and transport charges, extra nourishment and other incidental expenses and the interest awarded is low and hence to enhance the compensation by allowing the appeal.

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4. The learned counsel for 1^st respondent-owner of the crime lorry supported the contention in saying the insurer is liable to indemnify for total compensation without any personal liability of insured for policy covers the risk and sought for modification of the award of tribunal accordingly.

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5).Now the points that arise for consideration in the appeal are:

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1. Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement, what rate of interest and with what observations?

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2. To what result?

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POINT-1:

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5. The facts of the case and evidence of PW1 are that on 23.01.2005 the claimant as cleaner to the lorry bearing No. AP 16 W 9002 belongs to the 1^st respondent insured with the 2^nd respondent covered by Ex.B.1 policy, along with other coolies loaded bricks in Valetivaripalem brick industry in the lorry and in order to unload the same in Seetharamapuram village, the claimant and two others sat in the cabin along with the driver of lorry and when it reached near Central Research Tobacco Institute on Singarayakonda -Kandukuru road, the driver drove it in rash and negligent manner with high speed and in order to give side to R.T.C. bus coming in opposite direction lost control and dashed against road left side tree and the cabin of the lorry was crushed, as a result, the claimant sustained fractures to his both legs, others also sustained injuries, that immediately the injured were shifted to Government hospital, Kandukuru, then to Government hospital, Ongole and then to Guntur where the two legs of claimant injured were amputated up to knee, which occurrence is covered by Ex.A.2 charge sheet. The Tribunal from evidence on record, arrived Rs.2,23,000/-in all with interest at 7% p.a. and out of said total compensation, directing the 2^nd respondent to pay Rs.1,38,127/-as arrived under the W.C.Act and for the balance, fixed the liability on 1^st respondent, which is now impugning.

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7. Coming to the factual matrix, the fact that the accident was the result of rash and negligent driving of the driver of crime vehicle belongs to the 1^st respondent insured with the 2^nd respondent and the injured claimant was aged about 40 years at the time of accident, travelling as workman under the vehicle owner-insured, as cleaner and unloading workmen too with salary of Rs.2,000/-p.m. as also admitted by owner as RW1, even stated additional payment of Rs.2,000/-for loading and unloading with no more proof but of PW1 & RW1 and the policy covered the risk from payment of accidental cover Premium to workmen of Rs.25/each up to 9 persons and not unlimited over statutory liability of insurer

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from the policy terms is proved from the evidence of P.W.1 with reference to Ex.A.2 charge sheet and also not in dispute for purpose of the appeal. [2] Thus, if the multiplier 14.5 taken as per Sarla Verma Vs DTC and as per [3] Latha Wadhwa V State of Biha r in the absence of proof of earnings, the minimum to be taken is Rs.3,000/-p.m. with 100% disability, it comes to Rs.36,000/-p.a.x 14.5 = Rs.5,22,000/- besides medical and transport expenses, pain and sufferance etc., that comes to more than claimed. Even taken liability under W.C.Act of Insurer to calculate at 50% of Rs.3,000/-p.m. to be multiplied by factor 184.17, it comes to Rs.2,76,255/for said permanent disability, besides medical and transport expenses, pain and sufferance etc., of Rs.23,745/- and thus, it requires enhancement with joint liability of insured and insurer to Rs.3,00,000/-and rest of the claim of Rs.1,00,000/- the owner-Insured personally liable.

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8. Coming to the rate of interest, though the interest at 7% per annum awarded by the Tribunal is low as from the settled proposition of law in TN Transport Corporation v. Raja Priya^[4] and from the latest expression of the Apex Court in Rajesh Vs Ranbir Singh^[5] , interest is enhanced to 7½% per annum. Accordingly, Point-1 is answered.

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POINT -2:

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9. In the result, the appeal is allowed in part by enhancing the compensation with joint liability of insured and insurer to Rs.3,00,000/and with separate liability of insured for the balance claim of Rs.1,00,000/by directing the respondents to pay or deposit within one month from date of service of the award failing which the claimant can execute and recover the respective amounts, if any amount deposited or paid, for the balance and with interest at 7.5% p.a. from date of claim petition till deposit with notice/realisation. There is no order as to costs. In other respects award of the Tribunal holds good. As a sequel, miscellaneous petitions, if any,

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pending in this appeal shall stand closed.

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Dr. B. SIVA SANKARA RAO, J

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Date:08-09-2014 VVR

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