Allowed

B Shivaji, Hyd v. R. Naga Raju, Hyd and Another

Telangana HC21 Jan 2025MACMA/473/2017

Case brief

AI extract

What is this about?

The High Court determined the quantum of compensation for a motor accident victim. It partially allowed the insurance company's appeal to reduce the award and dismissed the claimant's appeal for enhancement. The Court fixed the final compensation at Rs. 23,45,000 with 7.5% interest.

What did the court decide?

Compensation reduced to Rs. 23,45,000 with interest at 7.5% p.a. Insurance company directed to deposit the amount.

B Shivaji, Hyd Vs R. Naga Raju, Hyd and Another — Motor Accident Claims | Telangana HC (2025)

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t³⁴³⁰ I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE DR. JUSTICE G.RADHA RANI

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MACMA NO: 473 AND 800 0F 2017

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MACMA NO:473 oF 2017

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Appeal filed under section '173 of MV Act against the order and decree dated 18-10-2016 passed in MVop No.2153 of 2011 on the court of the Xill Additional Chief Judge(FTC)-City Civit Court, Hyderabad.

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Between:

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& Shivaji,9/o. Tulasiramaged 27 years Occ presenfly Nil (previously B.Tech lll Year Student Cum-Part Time Tutor), R/o H.No. 4-613.l4/316,'Esamia Bazar, Koti, Hyderabad

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...APPELLANT/PETITIONER

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AND

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1 R Naga Raju S/o Srinivas Rao Aged Major. Owner of pulser Motor cvcle Beanng no. AP 28 BL 9303 Rlo 4-97, Dulapally Road, Kompalty R.R Disirict at Hyderabad.

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2 Bajaj Allianz General lnsurance Co. Ltd, Rep bv its Branch Manaoer (Claims) Far. East Plaza, 3-6-11118, II Floor Street no. t8, Main Road, Himayatnigai Hyderabad - 29.

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,..RESPONDENTS/RESPONDENTS

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l.A. NO: 1 OF 2017(MACMAM P. NO: 963 OF 20171

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Petition under Order 6 Rule 17 R/w Section^.l5l CpC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to permit the petitioner to enhance the claim from Rs. 30,00,000/- to Rs,50,00,000/- in the ctaim petition in Op No. 2153 of 2011 passed by the Chairman, MACT cum Xllt Addl Chief Judge (FTC), City Civit Court, Hyderabad.

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MOTOR ACCID ENT CIVIL MISCELLANEOUS APPEAL NO: 800 OF 2017

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Appeal fired under section^'r 73 of tirv Act against the orcler and decree dated 18-10-2016 passed in MVop No.2153 of 2011 on the court of the xill Additional Chief JuCge(FTC)-City Civit Court, Hyderabad.

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Between:

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M/s Baja.1 Allianz General lnsurance Company Limited, Rep,esented bv its Branch Manager Far East ptaza. 3_6_1ri7a,'lf Fi""i' Si;;"it; is tfi;; Road. Himayat Nagar. Hyderabad

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...AppELLANT/2,'d Respondent

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AND

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1 B Shivaji S/o Tulsiram, aged about 25 yearc, resident of 4_6_314/316, Esamaia Bazztr Kali Hydera6ad.

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,..RESPONDENT/PETITIONER

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R.Nagaraju S/o Srinivasa^Rao Aged Major, Owner of pulser Motor Cycle Bearing No Ap 28 B L. 9303. R6 c-st,'outipaiiy noaO. Xomia"riv nii,i, Reedy Diskict

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...RESPONDENT/RESpONDENT No. 1

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l.A. NO: 1 OF 2017(MACMA MP. NO: 1706 oF 20171

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Petition under section 151 cpc praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be preased to grant stay of operation of the decree and judgment in MVop.No. 2.1s3 of 2011 on the fire of the court of the Xilr chief Judge (FTC), City civir court, Hyderabad dated 18th October, :201 6 pending disposal of the main CMA.

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Counsel for the Appellant in MACMA No. 473 ot 2O1l and for the Respondent No. 1 in MACMA No. g00 ot 2017 : Sri^pailati chandramouti

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Counsel for the Respondent No. 1 in MACMA No. 473 ol 2O17 and for Respondent No. 2 in MACMA No. g00 of 2011 : None Appeared

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Counsel for the Respondent No. 2 in MACMA NO. 473 ot 2017 and for the Appellant in MACMA No. 800 of 2o17

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: sri A. Rama Krishna Reddy

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The Court delivered the foilowing COMMON JUDGMENT:

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THE HONOURABLE^{SRI .IUSTICD SU.'OY PAUL} & THE HONOURABLE^{DR. JUSTICEG. RADTIA RANI}

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M.A.C.M.A.Nos.⁴⁷³ &^8OO of2Ot7

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COMMON JUDGMENT: Qter^{Hon'ble Dr. Justice G.RadhaRant)}

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'As both these appeals are arising^{out of the samejudgment in} M.V.O.P.No.2153^{of 2O 11, the same are discussedtogether'}

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M.A.C.M.A.No .473 of^{2Ol7 is frled by the claimantseeking} enhancement of^{compensation while M.A.G.M.A.No.800of 2017 is hled} by the Insurance Company^{aggrievedby the quantumof compensation} award.edbytheTribunalinM.V.o.P.No.2l53of2ollanditsliability.

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3.Thefactsoftlrecaseinbriefarethattheclairnantwasaged about 21^{years. He was a stud-entof B'Tech third year studying in} St.Martin College,^{Dhulapally.He was also stated to be taking} tuitionsforintermediatestud'entspartlimeandwasearning Rs.15,OOO/-^per month.^{It was further statedttrat on the occasionof} New Year eve on^{the interveningnight of 3l'12'2OlO /01'01'2011in} the midnight at^{about 01:00 hours,while the claimant was travelling} as a pillion rider^{on a Pulsar Motor Cycle bearing No'AP-28-BL-9303} from Kompa-lly towards^{Suchitra and whenreached in front of Cine} Planet, the rider of^{the motor cycle, the friend of the petitioner} (respondent No.1 in^{O.P.) drove the vehicle in a rash arld negligent}

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2 SP,J&Dr'GRR,J f,^cfra-473^{& 8OO-2O 17}

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manner^{with highspeedand applied sudden brakes' due 1-o whichthe} claimant^{fell o:a the road, sustained bleeding injury on headand went} un-conscious.^{ImmediatelY'he wasshifted toKIMSHosPital'} Secunderabad^{and was admitted as in-patient till 3 1'O l '2O1 1'On} O5.O 1^{.2O1 1, l- 1.o 1 201 1 and14'01'2O1 1' surgicalope::ationswere} conducted.^{It wasstated that' his facewas disfrgured'his movements} were restricted,^{he sustained permanent disability'his careerwas} badly^{affectecl,he was constrainedto leavehis education' PS Pet} Basheerbagh,^{Cyberabad registered' a case in Crime No'1O of 2011} under^{Sectiorr 338 of IPC againstthe riderof the motor c-r'cle'}

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The clraimant^{claimed compensationof Rs 3O'OO'O0O/-from the} owner^{and insurer of the Bajaj Pulsar Motor VehiclebearLng No'AP-28-} BL-9303. 5 The resrpondent^{No' 1 - owner of the Pulsar motor cycle remained} ex-parte.

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The^r':sPondent No.2 Insurance^{ComPanYfrled counter} complaint^{was lodged at abelatedstageon} contending^{that the} |2.o1.2o11^{at 19:3o hours, thoughthe accidentwas allegedto have} occurred^{on 31.12-2OlO' The hospital recordof the petitionerwouid} reveal that^{,rn o1'o1.2011at a[ouT 02:o0AM' whileht: wasdriving a} two wheeler^{met with an accidentunder the inJluenceof alcohol while}

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SP,J&Dr.GRX"J macma_473 & Eql_2O17

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returning from New Year celebrations. It would establish that the case of the petilioner was stage managed and for the purpose of clairning compensation, a false case was foisted, by planting tfre insured vehicle in connivance with the owner of the vetricle. It was further contended that the respondent No.1 (owner of the vehicle) was the friend of the claimant. The said motor cycle was planted in collusion with respondent No.1. In the case of accidents, when the injured was shifted to hospital, it was the duty of the concerned medical officer or the hospital authorities to intimate the same under medico legal case (for short "MLC") immediately to the concerned Police Staliop. But there was no such MLC intimation in the case, as such suspected the involvement of the insured motor cycle bearing No.AP-28-BL-93O3 in the alleged accident. It was further contended that respondent No.l (the driver - cuim - owner of the said motorcycle) was not holding any driving license to drive the said motor cycle and contravened the provisions of Motor Vehicles Act, 1988 as well as Motor Vehicle Rules, The remand report and charge sheet Iiled against respondent No. 1 also would show that he was not holding any driving license as on the date of accident. As such, charge sheet was filed under Section 181 of the Motor Vehicles Act for driving the vehicle without driving license. As the respondent No. 1 committed breach of tJ.e terms and conditions of the policy, the petition was liable to be dismissed.

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SP,J&Dr.GRR,J macma 473 & aoo-2017

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6.l.ThelnsuranceCompanyfurthercalledforstrictproofo[theage, the claimant^{beir:Lga student of B'Techthird year working as a part} time tutor^{and t]lat he wasearningRs' 15,OOO/-per month' It also} called for^{strict proof of the injuries sustained by the claimantand} that he^{incr.rrredthe amountsas alleged by him'TheI nsurance} Companyfurthercontendedthatthecompensationclaimedbythe claimant^{was excessiveand prayed to disrnissthe claim petition} against^{the InsuranceCompanywith costs'}

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The injured^{was exarninedas PW. 1. A Neurosurgeonof KIMS} Hospital,^{Secunderabadwas examined as PW'2' The billingmanager} of KIMS^{Hospital was examinedas PW'3 and the member of the} District^{Medical Board,Khammam,who issued the disability} certificate,^{was examinedas PW.4. Exs'Al to A13 were m arkedon} behalf^{of the claimant.The Senior Executive - Legal of the Insurance} Company^{was examined as RW' 1 and the CMO of KIMS Hospital,} Secunderabad^{wzrs examined as RW.2. Exs.Bl to E}7 were marked on} behalf of^ttt e^{InsuranceCompany.}

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On considering the^{oral ald documentaryevjdence on record,} the Motor Accidents^{ClaimsTribunal(for short'Tribunal")considered} that the accident^{occurred due to the rash and negligent driringof the} motor^cycle bearing^{No.AP-28-fl-q3o3by its rider.}

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SP,J&DricRR,J EacEa_473 & aOO_2O17

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The Motor Accident Claims Tribunal considered the income of the claimant as Rs. 15,O0O/- per month and by adding 5O % of it towards future prospects, considered the same as Rs.22,5OO/- and by applying multiplier "18" and considering the partial and permanent disability sustained by the claimant as 25 yo ascertained the loss of earnings of the claimant as Rs. 12,15,000/-. The Tribunat awarded Rs.3,3O,OOO/- for the medical expenses incurred by the claimant, Rs.3,00,000/- for future medical expenses, Rs. 1,O0,0OO/_ towards pain and suffering and mental agony and Rs.3,00,000/_ for loss of earnings, Rs.2,0O,00O/- towards attendant charges, . extra nourishment and travelling expenses and Rs.1,OO,OOO/_ for loss of marital life, Rs. 1,0O,O00/- for loss of amenities in life, Rs.SO,OOO/_ for physiotherapy and in all awarded an amount of Rs.26,95,0O0/_. considering that the rider of the motor cycle drove the vehicle without driving license, t1le Tribunal directed the Insurance Company to pay the awarded arnount ald to recover the same frorn respondent No.l. The Tribunal directed the Insurance Compary to pay the said amount witlr interest @ 9^o/o per annum from the date of petition till realization with proportionate costs and interest.

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Aggrieved by the said award passed by the Tribunal, the claimant and the Insurance Company preferred these appeals.

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6 SP'J&Dr.GRR,J macma-473^{6G EOO-2O17}

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1 1. Heard Sri Pallati^{Charrdra Mouli, leamed counsel for the} claimant and^{Sri A.RamaKrishna Reddy, learned StandingCounsel} for thb Insurance^ComPanY.

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t earned^{counselfor the claimant in M'A'C'M'A No'47!iof 2Ol7} contended that^{theclaimantpreferred t]"eappealseeking} enhancement of^{the award from Rs'3O,OO,OOO/-to Rs'50'00'OOO/-'} I.A.No.1 of^{2OI7 was filed seekingenhancernent of claim' As per the} disability certiflcate^{issuedby PW'4,the appellant sustained'257o} permanent disability,^{whichwas partialand permanentin nature'} But the functional^{disabilitywas 1O0 Vo. The disability certiljcate was} issued only witl.^{referenceto orthopedicinjuries sustainedby the} claimant. The claimalt^{sustained severehead injuries. As per the} evidence of PW.2,^{the treating doctor in KIMSHospital,Seculrderabad,} the claimant^{had undergone major surgeries for several times'Dueto} lack of knowledge,^{the claimant could not obtain the disabilily relating} to head injuries^{from medical boardor from treated doctor'The} clairnant^{was an engineering student - cum - home l-utor. His income} was considered^{as Rs. 15,0OO/ - per month' But the HorL'ble Apex} CourtinitsrecentjudgmentinAtulTiwariv.RegionalMarrager, M/s.orientallnsuranceComPanyLimitedldecidedon06.0l.2o2S had considered the^{notional income of a B'Tech student' who was}

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'2025^{SCC Online fiC 29}

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SP,J&Di.GRX"J macEe_473 & 800_20 r7

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similarly placed as that of the claimant as Rs.2O,OOO/- per month. The Tribunal ought to have awarded an amount of Rs.1O,0O,OOO/towards pain and suffering. But awarded only a meager amount of Rs.1,00,000/- and ought to have awarded Rs.3,00,0OO/- towards loss of expectation of life and interest ought to have been awarded @ t2 % per annum instead of 9^oh per annum and prayed to enhance the claim from Rs.30,00,O00/- to Rs.5O,O0,OOO/-.

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Learned Standing Counsel representing the Insurance Company in M.A.C.M.A.No.8O0 of 2Ol7 on the other hand contended that there was a delay of 12 days in lodging tl:re FIR. As per Ex.A4, tne Shimant was hit by an un-known vehicle and that he was under the influence of alcohol after attending a New Year celebration. No documentar5r evidence was liled by the claimalt to show that the claimant was a student and was earning Rs. 15,OOO/- per month. The Tribunal erred in awarding an amount of Rs.3,30,00O/- when the evidence on record would show that he availed Arograsri for his medical treatment. The Tribunal erred in awarding Rs.3,OO,OOO/- towards loss of earnings when the rnultiplier method is adopted for calculating loss of incorne, which would amount to awarding twice under the same head. The alleged accident was a hit and run by an un-known vehicle. The rider and the pillion rider were under the influence of alcohol. As such, the Tribunal ought to have dismissed tl"e claim. The interest awarded at

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-..-i?;',^{t Slfltii}

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9 7o was on high side. The Tribunal ought to have awarded interest @^{6 % per} allnum ald prayed to set aside the award and decree passed in M.V.O.P.No.2153 of 2OtI by the Tribunal

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As seen from these rivai contentions, admittediy, the claimalt travelled as a pillion rider on the Bajaj pulsar Motor cycle bearing No.AP-28-BL-9303. The pulsar motor cycle was driven by respondent No.l. As per the claim petition, the motor cycle was not hit by any vehicle, but while the rider of the motor cycre dnving the saine in a rash and negligent manner, applied sudden brakes, due tc, which, the pillion rider fell on the road and sustained breeding injuries on his head and went un-conscious and he was admitted in KIMS Hospital immediately. Ilx.Al is the certified copy of the FIR. Thr: complaint lodged by the fzrther of the injured was enclosed to it. Ever.L as per the complaint, the motor cycle was driven by its ricler in a. rash and negligent manner, due to which, the claimant who was tra,relling as a pillion rider fell down, sustained head injury and fel un,conscious. The delay was a-lso explained by the de-facto complainarrt drat his son was un-conscious even by the date of lodging the complaint on L2.Ol.2Oll and as he was attending his son, could not lodge the complaint imrnediately. Ex.A2 is the final report (charge sheet) hled by Police of PS Pet Basheerbagh.3)s rcr the investigation conducted by the Police also, the vehicle was not hit by an5, un-known vr:hicle. but

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the accident occurred due to the rash and negligent driving by the rider of t}le motor cycle, who applied sudden brakes, due to which the pillion rider fell down and sustained grievous head injuries. It was also mentioned therein that the injured claimant was a B.Tech student in St.Martin College, Dhulapally. Ex.A3 is the injury certiflcate issued by ttre Casualty Medical Offrcer of KIMS Hospital which would disclose that the clajmant was admitted in the hospital on O1.11,2O11 and tJlat he was discharged on 31.01.2011. The injury certifrcate also would disclose that the claimant sustained traumatic CSF rhinorrhoea and diffuse axonal injury. It was recorded i4 the history of the accident that he was hit by an un-known vehicle while travelling on a two-wheeler at around O2:OO AM on O1.O1,2011 near Kompally. This aspect was seriously contended by the learned Standing Counsel' of Insurance Company that the Bajaj Pulsar motor cycle was hit by al un-known vehicle and got examined RW.2, the Casualty Medical Officer working irr KIMS Hospital to prove the said fact. RW.2 stated in his evidence that Ex.A3 was issued by one Dr. K.K. Sai Brahmam and he left the hospital and the said history was recorded by the doctor basing on tJle information given by the patient attendants accompanying the patient. Admittedly, the claimant was in un-conscious state and he was not in a position to give the details of the accident. The father of the claimant, who admitted the claimant

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10 SP,J&Dr'GRR'J macma-473^{& 80() 2017}

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in the hospital'ras^{not an eye-witness to the accident'As such' the} same^{could not be taken as basis for suspecting the clairn As the} Investigating^{Officer after completing the investigation' frledthe charge} sheet^{holdingthat the rider of the motorcyclewas aloneresponsible} for the^{accidentfor his negligentdriving,the manner of the accident} need^{not be suspected. The delay in rodging the report is ar.so properly} explained^{by the father of the claimantwhilelod ging the complaint} enclosed^{to Ex''A1 itself' As such' this Court is of opinion that the} Tribunar^{had :not committedary error in holding that the accident} occurred^{due to the rash and negligentdriving of the rider of the motor} vehicle^{bearing No'AP-28-BL-9303'}

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However,^{the charge sheet marked under Ex A2 wc'ulddisclose} that the^{rider of the motor cycle was not holdingdriving license'as} such,^{the charge sheet was frledagainst him underSection181 of the} Motor^{VehiclesAct apart from Section338 of IPC' As the same would} prove that^{the respondentNo'1 - owner - cum - driver of the motor} cycle^{committed breach of the terms and conditionsof the policyby} driving^{the vehiclewithout having a driving license' this Courtalso} does not^{fintl any illegality in the award passe<l by the Tribunal for} "pay ald^{rec'overy"consideringthat the claimantwas a third partyto} the Insurance^{Policy and the l@tor Vehicles Act being a benefrciary} legislation.

SP,J&Dr.GRR,J macma 473 & 8OO 2Ol7

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With regard to the amount of^{compensation, it is averredthat} the claimant was a B.Tech third^{year student and no rebuttalevidence} was adduced to disprove the same. As such, notional^{incomehas to} be taken into consideration for calculating^{the loss of earnings.In} B.Ramulamma v. Venkatesh Bus Union,^{Lingarajapuram,} Bargalore arrd another2, the erstwhile^{High Court of AndhraPradesh} on considering various^judgments of^{the Hon'ble Apex Court and of} the various High Courts, held that:

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As far as the students,^who are^{about to} complete their course, are^{concerned, itis very} diflicult to determine their income.^{Guess work} becomes inevitable. But even for^{guesswork some} rationale has to be followed. Every^{conclusionmust} be based on sound reasoning and^{establishedlegal} principles. The parents of tl.e deceased with^fond hope irnpart educa.tion to their^{children. Now-a-} days the educational expenses have^{been increased.} Even if a student secures a seat in^EAMCETunder Convener quota, the^{parents have to bear other} expenses, such as hostel fees,^{books,travelling} charges etc. Normally, the^{parents have to spendat} least Rs. 7O,OOO/- to Rs. 1,0O,0OO/-^{per annum to} meet the expenses of their^{children, who are} studying B.Tech or M.Tech or similar^{courses. Of} course expenditure incurred for^{educationcannot} be taken as basis for determining^{the income of the} deceased students. After completing^their

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'2oo9^(61ALTzB4

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education, when they^{may securea job, what woulcl} be their salary and^{how long they would havt:} continued in their^{job and how much they would} hav,: contributed to their^{parents are the questions} whi,:h necessarily depend upon^{some guess work'} In such circumstances,^{theevidence of} contemporaries or tJle classmates^{of those students} who have secured^job and^{who are getting regular} income can be taken as basis.

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In view of^{t.I.e present salaries, being earned b'g} the Computer Engineers,^{there cannotbe anydoubt} to say that the deceased^{would have earned} minimum Rs. 12,0OO/- to^{Rs. 15,0O0/-per mont}l'} It has to be seen that^{now-a-daysIVclass} employees are also^{gettingminimumRs. 7,000/-trl} Rs. 1O,OOO/- per month^{dependingupon their} senrice. The Junior Assistants^{are also gettingRs''} 72,1)oOI- to Rs. 15,O00/-^{per month. 'lherefore,} considering the normal^{scalesbeing earned by the} Government employees^{and also the minimumwage} scales hxed to the technical^{persons, we are of tJle} vierv that the minimum salary of^{a technicalperson.,} who is holding a bachelor degree in^computersor eleotronics or mechalical,^{can be taken as Rs.} |2,OOO/-^per month.^{Therefore,the income of the} graduates in engineering i.e, B.Tech,^cannotbe lrxed less thal Rs. |2,OOO / -^per month,^otherwise:.t am,lunts to neglecting the^{ground reality. Similarly} those who have completed M.Tech, MCA,^MBA,the income of such persons can be hxed a^{little higher} i.e. at Rs.^t 5,OO0/- fri-not^{trr. This will take care of}

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the additional income which they would^have earned in course of their service.

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Relying on the above^judgment, the^{learned StandingCounselfor} the Insurance Company contended tJlat^{the notiona-l incomeof a B.E} graduate can be taken as Rs.12,000/- per month.^But in^{the present} case, the claimant was a student of^{B.Tech.third year but his notional} income was taken as Rs.15,000/-^{per month by the Tribunal,which} was more than the income frxed by the^{High Court of AndhraPradesh} in tJle above case, as such the same^{needs to be reduced.}

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The contention of the learned^{counsel for the claimant on the} other hand was that the accident^{in the said case was occurredin the} year 1995. But in the present case, the accident occurred^on 3l .l2.2OlO i.e. 15^years later.^{The Hon'ble Apex Court in Atul Tiwari}

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v. Regional Marager' Oriental^{Insurance Company Limited (cited} supra) for the accident occurred on^{O3.1O.20O9considered the} notional income of a student as^{Rs.2O,00O/-per month as against} Rs.15,000/- taken by^{the Tribunalbasing on the efflux of time ald} changed economic scenario and^{insisted for taking the notiona-l} income of the clairnalt as Rs.20,O0O/-^{per month.}

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Ig. However, in the above case,^{the Hon'bleApex Court held that it} was proved that the said claimant was^{a meritorious student' But, in} the present case, no^{such evidencewas adducedto consider the}

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academic excellence or the merit of the present claimant. However, as the Tribunal considered the notional income of the appellant - claimant as Rs.15,000/- per mont}, more than the income considered by the High Court in the case of Ramulamma (cited supra) and an addition of 50 9uo of it is also added towards future prospects as per the judgment of the National Insurance Company Limited v. Pranay Sethis, we consider that the amount of Rs.22,500 / - taken by the Tribunal as loss of income for assessing the loss of future earnings is justifrable.

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The evidence of PW.2, the Neuro Surgeon of KIMS Hospital would disclose that tJle claimant sustained an open tLead injury (traumatic CSF Rhinorrhea), diffuse axona.l injury, multiple fractures of left side of t-he skuli bones, sub-arachnoid bleeding and bilateral pleural effusiorr right more than left, with- collapse of right lower limb of lung. It was also stated by PW.2 that the patient was in coma score of E-1, M-4 B-1 6/ 15 (severe head injury). He was admitted in neuro ICU with ventilator support. He was on antibiotics, anti conlulsants and anti oderna measures and was on Ionotropic supports. He developed CSF Rhinorrhea (Cerebro Spinal Fluid - leak from the nose). On O5.O 1 .2O 1 1 , a bicoronal flap surgery and frontal craniotomy was performed on hrim. ACF repair witty,fascialata and pericranium was /

1 (2Ot7) t6 scc 6,80

SP,J&Dr.GRR,J raacma 473 & 8(X) 2Ol7

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performed on 05.01.2011. After ttre surgery also, the claimant was found to be drowsy, as such a CT-scan brain was done, which revealed diffuse cerebral edema. For prolonged ventilator support, he had undergone tracheostomy on 11.01.2011. As he was not showing any signs of improvement, another surgery i.e. bilateral fronto temparo craniotomy was performed on 14.O1.2011. He stated that the said injuries were grievous in nature.

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2L. He further stated that the patient was admitted for second admission on O2.O7.2O11 for replacement of skull bone (BFR), which bone was kept in abdomen wa,ll on L4.OL.2OII and was dischaiged on 12.07.2011. He stated that the claimant required further surgery for defect in the front skull bones, for which foreign titanium mash was required, which would cost €rn amount of Rs.3,OO,0O0/-, as per trx.AlO. He further stated that the patient could not srnell because of fracture forehead skull base fracture.

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In the cross-examination, PW.2 also stated that there was weakness under lower limb at ttre time of second admission and discharge. The knee deformity was because of RTA. But the main injury was that of head and chest. He further stated that it was compulsory for the patient to undergo further surgery because there was deformit5r over the forehead. He stated that he had not mentioned

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in the discharg€'^{summary aboutthe lack of sense of smell of patient'} as the^{patientwas in coma at that time'}

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23.-Thus,theevidenceofPw.2woulddisclosethattheciairnanthad undergone thre,e surgeries.^{One on O5'O1'2O11, secondone on} 1 1.01.201 1^{an,C third one onl4.Ol.2olland craniotomy was} performed on him and^{the claimantsustaineddeformJty due to} fracture forehea.d^{of skull and he was unable to smellbeczruse of the} injuriessustainedbyhimtohisskullandthathea]sorequired another major surgery^{with cranioplasty, which would require} Rs.3,OO,0OO/-^{a.s per the estimationgiven by PW'2'}

¶115

Thus, con^{sideringthe evidence ol PW.2,which woulddisclose} that the clairnant^{was admitted as in-patient in KIMS Hospitalfrom} O1.O1.2O11 to 31.O1.2O11^{and had undergonethreesurgeriesand was} admitted for the^{second time once again on 02} 'O7 '2Ol^Iandwas admitted as in-patient^{for a period of 10 days and was discharged on} L2.O7.2011 ancl^was in^{comatoseconditionfor several darrs and was} on prolonged ventilator treatment,^{the amount of Rs1 ,OO,OO0/ -} awarded by the Tribunal towards^{pain and sufferingis colrsidered as} meager. The zrppellant - claimant^{ought to havebeen awarded an} amount of atleast Rs.2,OO,0OO/-^{towards pain and suffering '}

¶116

¶117

¶118

sP, J & Dr.cRR, J macma-473 & EOO-2O17

¶119

¶120

The evidence of PW.3, the billing^{rnanager of KIMS Hospital} would disclose that the clairnant paid an^{amount of Rs.3,3O,O0O/-} under Ex.AS. As such, the appellant - claimant^{was entitled to receive} the said amount towards the actual medical expenses^{incurredby hirn}

¶121

As the evidence of PW.2 would disclose that the^claimant required an amount of Rs.3,O0,00O/- for^{furthersurgery, the Tribunal} rightly awarded an amount of Rs.3,00,000/-^{for his futuremedical} expenses, which requires no interference^{by this Court.}

¶122

The Tribunal awarded arr amount of^{Rs.3,0O,O00/-towardsloss} of earnings. However, as the claimant^{failed to adduceany evidence} that he was earning as a part time tutor^{while studyingand that he} sustained aly actual loss of earnings^{and the loss of futureearnings is} considered basing on a notional^{income, this Court considersthat} there is no necessit5r to award any amount^{under this head. As such,} the same is required to be deleted.

¶123

The evidence of PW.4, the member^{of the District Medica,lBoard,} Khammam would disclose that the claimant^{appearedbefore the} Medical Board on O3.1rO.2Ol2 and after examining^{him, he issued the} disability certihcate Ex.A9, which^was counter-signed^{by the Medical} Board Chairman. As per Ex.A9, PW.4 stated^{that the claimant} sustained 25 % disability, which was^{partial and permanent.As per}

¶124

¶125

18 SP,J&Dr.GR&J macma 4?3 &^8OO-2O17

¶126

the learned^{counsel for the claimant'PW'4 being an orthopedic civil} surgeon had^{i'ssued the disabilitycertihcateonly assessingttre} disability^{sustained by the claimant to his knee'but not considering} the head^{injur5' sustainedby him'But if the sarnewas true' the} claimant^{or the learned counsel for the claimant ouglrt to have} obtained^{the opinion of PW'2 with regardto the disability sr'rstainedby} the claimalt^{basing on the head inj uries sustainedby him' But the} evidence of^{PW.2 is silent on the said aspect.He onlystated that the} claimant could^{not smell' The claimantought to haveshown his} entiremedicairecordtoPW.4whileobtainingtheclisabili['-certifrcate. As such, it^{has to be consideredthat PW'4 aJter considering the entire} med.ical record^{of the petitionerand after making alindependent} assessment^{had only given the disabilitycertihcatemarkedunder} Ex.A9 as 25^oh

¶127

Considen-ng^{the photograph of the claimantpastedon the} disability^{certilicate also, his head injury appeared to be healedby the} date of issuing^{the said certihcate on 03' 10'2012'As such' as the} physical disability^{sustainedby the claimantis assessedby an} experienced^{doctor, the memberof the Medical Board and assessed} the same as 25^{ok and the evidenceof PW' 1 is a-lso silent aboutthe} functional diszLbility^{sustained ty4tim and the difhcultieslaced by him} in conducting his^{normal functions, it is consideredthat th.e 25 o/o}

-""-"11;it?i;1}tⁱ

functional disability taken by the Tribunal is also proper. As such, we do not deem it necessa5r to interfere with the calculation made by the Tribunal towards loss of earnings sustained by the claimant. Considering the judgment of ttre Hon'ble Apex Court in Sarla \Ienna and .others v. Delhi Transport Corporation and anothera, as the multiplier is taken as "18" and the loss of earnings is calculated as Rs.22,5OO/- x 12 x 18 x 25^o/o : 12,L5,OOO I -, the same is accepted.

¶132

Considering the prolonged treatment taken by the claimant in a reputed hospital and as some of his family members might have attended to him during the above period ald might have iniurred amounts for extra nourishment and travelling, the amount of Rs.2,O0,OOO/- awarded by the Tribunal for all these expenses i.e. attendalt charges, extra nourishment and travelling is considered as reasonable.

¶133

3 1. As the evidence of PW .2 would disclose that the petitioner had sustained loss of smell, the arnount of Rs.I,OO,OOO/- awarded towards loss of amenities in life by the Tribunal is also considered as reasonable. However, as there is no evidence that the petitioner had sustained any difficulty for performing marriage, no amount ought to have been awarded by the Tribuna1 for loss of marital life. As such, the arnount of Rs. 1,OO,OOO/- awarded by the Tribr.rnal under the said '^(2OO9l 6 SCc¹²¹

¶134

¶135

SP,J&Dr.GRR,J macma_473 & BOO_2Olz

¶136

head need to be deleted. As the evidence of pws.2 and 4 is a_lso silent with regard to any physiotherapy required by the claimant and no bins for physiotherapy were a-lso encrosed by the claim:rnt, the said amount of Rs.50,O0O/- awarded by the Tribunal also need to be deleted.

¶137

As such, this Court considers it reasonable to award the following amounts under the following heads:

¶138

S. No. 1 c 4 5	Heads PainandSufferin Attendantcharge s,extra nortrishmentandtravelling nses S Lo o S E f arnln S FutureMe ses ses dical Medical	AmountofCompensation awarded iaRs. Rs. 12 15 oo0 Rs.3,30 ,oo0 Rs.3 o0 000 Rs.2 00,ooo Rs.2,O0,0OO/-
6	enttres ln life Lossof am TotaI lnRs.	Rs.1,00,oo0 Rs.23,45,oool-

¶139

We a_lso consider it appropriate to award interest @ 7.5 %;o per annurn instead of 9 yo interest per annum as awarded by the Tribu-na1.

¶140

In the result, M.A.C.M.A.No.SOO of 2Ol7 filed by the tnsurance company is arlorved reducing the compensation from Rs.26,9s,ooo/_ awarded by the I,ribunal to Rs.23,45,OO0/_ and M.A.C.M.A.No .473 of 2OLZ filed by the claimant is dismissed confirming .he compensation of Rs.23,45,o00/- witrr interest @ 7.s o/o per annum. The Insurance Company is directed to deposit Jhe above amount uithin a period of / eight (08) weeks fiom thr : date of receipt of a copy of this judflment by

¶141

¶142

¶143

SP,J&Dr.GRR,J rD.acma 473 & aoo 20L7

¶144

deducting the arnount already deposited by it if any and the claimant is permitted to withdraw the said arnount without furnishing any security. The Insurance Company is permitted to recover the said amount from respondent No. I after its deposit.

¶145

No order as to costs.

¶146

As a sequel, miscellaneous applications pending in these appeals, if any shall stand closed.

¶147

Sd/. P. CH. NAGABHUSHAMBA ASSISTANT REGISTRAR

//TRUE COPY//

secrroWirr rcER /

To,

'1 . The Xlll Additional Chief Judge(FTC)-City Civit Court, Hyderabad.(with records, if any) 2. One CC to Sri Pallati Chandramouli, Advocate [OPUC] 3. One CC to Sri A. Rama Krishna Reddy, Advocate [OPUC] 4. Two CD Copies

I /

HIGH COURT

DATED: 2110112025

COMMON JUDGMENT+ COMMON DECREE MACMA.No.473 ot 2017 AND MACMA.No.8O0 of 2017

¶159

\dE SrAr 6'
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¶160

DISMISSING THE MACMA.No.473 ot 2017 AND ALLOWING THE MACMA.No.80O of 2017

¶161

Jrl

¶162

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶163

TUESDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

¶164

PRESENT

¶165

THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE DR. JUSTICE G.RADHA RANI

¶166

MACMA NO:47 3 AND 800 0F 2017

¶167

MACMA NO: 473 OF 2017

¶168

Between:

¶169

B Stivaji€/o Tulasiramaged_27 years Occ presenily Nil (previousty B.Tech I[ Year Student Cum-Part Time Tutor), R/o H.No-. 4_63141316,' Esamia Bazar, Koti, Hyderabad

¶170

AND

¶171

...APPELLANT/PETITIONER

¶172

!^{Naga Raju S/o Srinivas RaoAged} Maior. Owner of^pulser l/otor cvcte tsearing no. AP 28 BL 9303 Rlo 4-97, Dutai:aily Road, Kompaily R R. Disirict at Hyderabad.

¶173

2 B-qa1_Allianz General lnsurance co. Ltd, Rep by its Branch Manaqer (craims) Far. East Plaza, 3-6-11118, ll Floor Street nb. 18, Main noao, Hi.avatnagil Hyderabad - 29.

¶174

..RESPONDENTS/RESPONDENTS

¶175

MACMA NO: 800 OF 2 017 Between:

¶176

M/s Bajqj- Allianz General lnsurance Company Limited, Represented by its Branch .Manager, Far East plaza, 3-6-11'1/8,' ll Floor, Street flo. i A fif ain Road, Himayat Nagar, Hyderabad

¶177

AND

¶178

...APPELLANT/2nd Respondent

¶179

1 B. Shivaji S/o Tulsiram, aged about 25 years, resident ot 4-6_314t316, Esamaia Bazar, Kati Hydera6ad.

¶180

R.Nagaraju S/OS n n ivasa- Ra o Ased Majo r, 6[:::3i B5,iJi "#J#"&:,: Bearing No. AP28 B.L. 9303. Rlo 4-97.'Dulapaliy Road Kompally Rahga Reedy District

¶181

...RESPONDENT/RESpONDENT No. 1

¶182

Appeals filed under section 173 of MV Act against the order and decree dated 18-10-2016 passed in MVop No.2153 of 2011 on the court of the Xilt Additional Chief Judge(FTC)-City Civit Court, Hyderabad.

¶183

--7

¶184

These appeals coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of sri pallati chandranrouli, Advocate for the Appellant in MACMA No.473 of 2017 and for the Respondent No.^.l in MACMA No. 800 of 2017 and Sri A. Rama Krishna Reddy, Advocate for the Respondent No 2 in MACMA No 473 of 2017 and for Appellant in MACMA No. 800 of 2017 and ncne appeared for the Respondent No. 2 in I\iIACMA NO.473 of 2017 and for the appellant No.2 in MACA/A No. 800 of 2017 either in person or by Advocate.

¶185

This Court doth Order and Decree as follows:

¶186

That the IVACIVA No. 800 of 2017 filed by the lnsurance Company be and hereby is allowed reducing the compensation from Rs.26,95,000i_ awarded by the Tribunal to Rs. 23,45,000/-

¶187

That the MACMA No 473 of 2O1Z filed by the claimant is .dismissed confirming thei compensation of Rs. 23,4S,OOO1- with interest @ 7.5o/o per an num;

¶188

That the lnsurance company be and hereby is directed to deposit the above amount within a period of eight (08) weeks from the date of receipt of a copy of this judgment by deducting the amount arready deposited by it if any and the claimant is; permitted to withdraw the said amount without furnishing any security;

¶189