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2011 DIGILAW 1216 (AP)

Chintala Krishna Murthy v. K. Surya Prakas Rao

2011-12-30

L.NARASIMHA REDDY

body2011
JUDGMENT : Respondent No.1 in M.A.C.M.A.No.4250 of 2008 filed an independent appeal being M.A.C.M.A.No.1492 of 2006. He died on 15.07.2011. His legal representatives are brought on record in M.A.C.M.A.No.1492 of 2006. A memo is filed on behalf of the legal representatives to bring them on record in M.A.C.M.A.No.4250 of 2008 also. The request is acceded to and the Registry shall reflect the legal representatives of the sole appellant in M.A.C.M.A.No.4250 of 2008 also for respondent No.1. Both the appeals are directed against the order, dated 26.04.2006, passed by the Motor Accident Claims Tribunal-cum-X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad (for short ‘the Tribunal’) in O.P.No.1453 of 2003. For the sake of convenience, the parties are referred to as arrayed in the O.P. The claimant filed the O.P. under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming a sum of Rs.3,20,000/- as compensation. He pleaded that on 20.11.2003, at about 1.45 p.m., he was proceeding on a motorcycle bearing No. AP 09 AN 1009, along with his son-in-law as a pillion rider from Gowliguda Chaman to Narayanaguda and that when they reached Green Hotel, one scooterist came from by-lane in a rash and negligent manner and dashed against the vehicle from the backside. The claimant is said to have suffered bleeding and fracture injuries. He was said to have been treated initially in Sravan Hospital, M.J. Road, Hyderabad and thereafter, Chella Nursing Home, Ameerpet, Hyderabad. Twice the right knee is said to have been operated. He stated that he incurred huge expenditure for treatment and claimed the compensation. Respondent No.1 is the owner of the vehicle on which the claimant was travelling and respondent No.2 is the insurer. Respondent No.1 remained ex parte. The claim was opposed by respondent No.2 alone. Various facts pleaded by the claimant were denied and it was pleaded that respondent No.2 is not liable to pay the compensation. Through order, dated 26.04.2006, the Tribunal awarded a sum of Rs.1,27,794/- as compensation. The claimant filed C.M.A.No.1492 of 2006 seeking enhancement of the compensation, whereas the Insurance Company i.e. respondent No.2 filed C.M.A.No.4250 of 2008 challenging the order passed by the Tribunal. Heard Sri Ch.Ramesh, learned counsel for the claimant and Sri Kota Subba Rao, learned counsel for respondent No.2. The claimant initially invoked two provisions, namely Sections 166 and 163-A of the Act. Heard Sri Ch.Ramesh, learned counsel for the claimant and Sri Kota Subba Rao, learned counsel for respondent No.2. The claimant initially invoked two provisions, namely Sections 166 and 163-A of the Act. Later on, he restricted the claim to be the one under Section 163-A of the Act. According to him, he received grievous injuries when he was hit by an unknown scooterist and operation had to be conducted twice to his knee. To prove his case, he examined P.Ws.1 to 4 and filed Exs.A1 to A34. On behalf of respondent No.2, R.W.1 was examined and Exs.B1 and B2 were filed. Exs.X1 to X3 were also taken on record. In a claim filed under Section 163-A of the Act, the necessity does not arise for the Tribunal to decide as to whether the accident occurred on account of rash and negligent driving on the part of the driver of any vehicle. Therefore, the Tribunal proceeded to decide the quantum of compensation and liability on the part of respondent No.2. The claimant pleaded that he suffered disability to the extent of 20%. However, R.W.1, a Director, from a Government Hospital, who checked the claimant, found that his disability is only 10%. The Tribunal accepted the same. Though the claimant stated that he was earning a sum of Rs.15,000/- per month, he ultimately restricted the income to Rs.40,000/- per year by filing a memo. The same was reflected in his chief-examination. The Tribunal determined the loss of earning capacity on account of an injury by taking the annual income as Rs.40,000/-, applying multiplier ‘11’ and restricting the disability to 10%. No interference is warranted with this finding. Under Schedule II of the Act, which is referable to Section 163-A, the amounts that can be awarded towards pain and suffering and medical expenses are stipulated. For a serious injury, the amount that can be awarded towards pain and suffering is Rs.5,000/-and for a simple injury, it is Rs.1,000/-. Medical expenses are restricted to Rs.15,000/-irrespective of the amount that may have been spent by the claimant. In the instant case, the Tribunal awarded several amounts such as Rs.12,500/- for fracture injuries, Rs.15,000/- for removing implants, Rs.41,694/-towards medical expenses, Rs.10,000/- towards loss of earning and Rs.1,000/- each for extra nourishment and transportation. Medical expenses are restricted to Rs.15,000/-irrespective of the amount that may have been spent by the claimant. In the instant case, the Tribunal awarded several amounts such as Rs.12,500/- for fracture injuries, Rs.15,000/- for removing implants, Rs.41,694/-towards medical expenses, Rs.10,000/- towards loss of earning and Rs.1,000/- each for extra nourishment and transportation. Except a sum of Rs.5,000/- for the grievous injury and Rs.1,000/- for simple injury towards pain and suffering and Rs.15,000/- towards medical expenses, no amounts are permissible, since the claim is under Section 163-A of the Act. Therefore, the amount that can be awarded to the claimant, is Rs.75,000/-. Learned counsel for respondent No.2 submits that the claim itself was not maintainable in view of the judgment of the Supreme Court in Deepal Girishbhai Soni Vs. United India Insurance Company Limited, Baroda (2004 (3) ALD 81 (SC)).In Oriental Insurance Co. Ltd. Vs. Hansrajbhai V Kodala (2001) 5 Supreme Court Cases 175), the Hon’ble Supreme Court explained the legislative history of Section 163-A of the Act and held that even where the income of the injured or deceased, as the case may be, exceeds Rs.40,000/-, compensation can be awarded by restricting it to Rs.40,000/-. In Deepal Girishbhai Soni’s case, relied upon by the learned counsel for respondent No.2, the Hon’ble Supreme Court while relying on the judgment in Hansrajbhai V Kodala’s case, held that in case the income of the deceased or injured exceeds Rs.40,000/-, the claim cannot be presented under Section 163 of the Act at all. The question as to whether the present O.P. could have been maintained under that provision does not arise, since the claimant himself stated that his income is Rs.40,000/-. Under the scheme of the Act, the Tribunal cannot examine as to whether the injured or the deceased in a claim petition was earning more income than what was stated. Enquiry if at all, would be in the other direction, namely whether the income was less than what was pleaded. Another ground raised on behalf of respondent No.2 is that the claimant was travelling as a pillion rider and that the insurance company is not liable to pay any compensation to him. Enquiry if at all, would be in the other direction, namely whether the income was less than what was pleaded. Another ground raised on behalf of respondent No.2 is that the claimant was travelling as a pillion rider and that the insurance company is not liable to pay any compensation to him. However, in all fairness, the learned counsel for respondent No.2 stated that during the pendency of the appeal, the Insurance Regulatory Development Authority issued instructions to the effect that wherever the insurance is comprehensive, the insurer shall be under obligation to cover the liability towards the pillion rider also. Hence, the said question does not arise for consideration. For the foregoing reasons, C.M.A.No.1492 of 2006 is dismissed and C.M.A.No.4250 of 2008 is allowed reducing the compensation from Rs.1,27,000/- to Rs.75,000/-. During the pendency of the appeals, the claimant died. His legal representatives were brought on record. The wife of the claimant shall be entitled to withdraw 40% and his two sons and daughter shall be entitled to withdraw 20% each of the amount that is payable. They shall be entitled to withdraw the same, without furnishing any security. There shall be no order as to costs.