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2020 DIGILAW 175 (AP)

Poluri Chandraiah v. Shaik Jilani

2020-03-02

BATTU DEVANAND

body2020
JUDGMENT : This Appeal arises under the Motor Vehicles Act, 1988 against the decree and judgment, dated 28.09.2007 in M.O.V.O.P.No.960 of 2004 on the file of the Motor Accidents Claims Tribunal-cum-X Additional District Judge (F.T.C) of Guntur at Narasaraopet. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the Appeal. 2. The facts, in nutshell, giving rise to this appeal are that on the intervening night of 05/06-09-2004 at about 12 mid night, while the petitioner was traveling in the Jeep bearing No.ADF 4320 as a passenger along with others from his village to attend Krishna Puskarams at Vijayawada on Narasaraopet-Vinukonda road and when they reached near Lakshmipuram village, the driver of 2nd respondent drove the jeep with high speed in a rash and negligent manner without taking proper care and caution and dashed against the stationed tractor from its behind. As a result, the petitioner and some other passengers received grievous injuries. They were taken to Government Hospital, Narasaraopet. After giving first aid, the petitioner was shifted to Government General Hospital, Guntur where he underwent treatment as inpatient. The petitioner sustained fracture to his spinal card and his both hands and one leg became wreck and paralised. The petitioner cannot move from bed. He sustained permanent disability and became disabled person. He cannot attend to his personal duties without assistance of others. He sustained injuries in the above said accident which was occurred only due to rash and negligent driving of Jeep bearing No.ADF 4320 by its driver. A case was registered in Crime No.161 of 2004 by the Narasaraopet Rural Police Station. 3. The petitioner further averred that he was aged about 40 years and hale and healthy at the time of accident. He was doing coolie work and used to earn Rs.75/-per day. He was unable to do his work due to his permanent disability. Therefore, the petitioner filed claim petition seeking compensation of Rs.1,65,000/-for the injuries sustained by him in the said accident. The 1st respondent is owner of Jeep bearing No.ADF 4320 and 2nd respondent is present owner which was purchased on 30.12.2003 and the same was transferred to him and the 3rd respondent is insurer of the said Jeep. Therefore, all the respondents are jointly and severally liable to pay the compensation. 4. The respondent Nos.1 and 2 remained exparte. The 1st respondent is owner of Jeep bearing No.ADF 4320 and 2nd respondent is present owner which was purchased on 30.12.2003 and the same was transferred to him and the 3rd respondent is insurer of the said Jeep. Therefore, all the respondents are jointly and severally liable to pay the compensation. 4. The respondent Nos.1 and 2 remained exparte. The 3rd respondent filed counter denying all the averments made in the petition and contending that there is no rash and negligence on the part of the driver of Jeep bearing No.ADF 4320 at the time of the accident and there is negligence on the part of the petitioner himself. It is further contended that the driver of Jeep bearing No.ADF 4320 in question has no valid and effective driving licence to drive the vehicle and the alleged vehicle has no valid permit and fitness certificate which is an infringement of specified conditions of the insurance policy and the said jeep was not insured with 3rd respondent at the time of accident and that there is no valid insurance policy. The 3rd respondent further contended that there is no intimation about the transfer of the vehicle and its present owner and other relevant matters relating to the transfer and it is a violation of the policy condition. The 3rd respondent further contended that the accident if any was the culmination of contributory or composite negligence of both the drivers of the jeep and tractor. The 3rd respondent further contended that the vehicle was running with more passengers than the permitted capacity which is violation of the policy condition and the petition is bad for non-joinder of proper and necessary parties. The 3rd respondent further contended that the petitioner has sustained only simple injuries and not sustained any permanent disability and that the claim of the compensation is highly excessive and exorbitant. Therefore, the 3rd respondent is not liable to pay any compensation to the petitioner. 5. During the course of trial, the petitioner was examined as PW.1 and examined PW.2 and got marked Exs.A.1 to A.5. R.Ws.1 and 2 were examined for the 3rd respondent and Exs.B.1 and B.2 were marked and Ex.X.1 is also marked. 6. Therefore, the 3rd respondent is not liable to pay any compensation to the petitioner. 5. During the course of trial, the petitioner was examined as PW.1 and examined PW.2 and got marked Exs.A.1 to A.5. R.Ws.1 and 2 were examined for the 3rd respondent and Exs.B.1 and B.2 were marked and Ex.X.1 is also marked. 6. The Tribunal after hearing rival contentions and upon perusing the oral and documentary evidence available on record held that the accident happened due to the rash and negligent driving of the driver of the crime vehicle (ADF 4320) and that he is responsible for that accident. The Tribunal awarded compensation of Rs.67,200/-with subsequent interest at the rate of 7.5% per annum from the date of the petition till date of realization by holding that the respondent No.3 is directed to deposit the amount so awarded into the Court within 2 months and thereafter 3rd respondent is at liberty to realize the amount so deposited into the Court from respondent Nos.1 and 2 by filing execution proceedings. 7. Dissatisfied with the compensation of Rs.67,200/-awarded by the Tribunal against the claim of Rs.1,65,000/-, the petitioner filed the present appeal. 8. Heard, Sri N. Subba Rao, learned counsel for the appellant-petitioner and Sri N.S. Bhaskara Rao, learned counsel for the 3rd respondent. 9. There is no dispute in this appeal with regard to the occurrence of accident and negligence aspect. With regard to the liability aspect, the Tribunal considering the evidence that the driver of the offending Jeep was not holding valid driving licence in the light of the decision rendered by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Laxmi Narain Dhut, AIR 2007 SC 1563 directed the Insurance Company to pay the compensation awarded to the petitioner at first instance and directed to realize the said deposited amount from the respondent Nos.1 and 2 by filing execution proceedings. These findings are become final. 10. Now the issue to be considered in the present appeal is with regard to the quantum of compensation awarded by the Tribunal. The Tribunal considering the evidence of the Associate Professor in Orthopedics in SV Medical College, Tirupati, who was examined as PW.2 and Ex.A.3-wound certificate and Ex.X.1-case sheet has assessed permanent and partial disability of 30% suffered by the petitioner. The Tribunal considering the evidence of the Associate Professor in Orthopedics in SV Medical College, Tirupati, who was examined as PW.2 and Ex.A.3-wound certificate and Ex.X.1-case sheet has assessed permanent and partial disability of 30% suffered by the petitioner. The appropriate multiplier of “13” was taken considering the age of the petitioner as 47 years. As the petitioner had not filed any proof with regard to his income, the Tribunal fixed Rs.15,000/-as the notional annual income of the petitioner and awarded Rs.58,500/-towards disability and Rs.8,701/-towards medical expenses in total Rs.67,201/-rounded off to Rs.67,200/-was awarded as compensation by the Tribunal. 11. As per the evidence of Doctor, who was examined as PW.2, the petitioner has sustained the following injuries:- (1) A sutured wound over left frontal region of scalp 2 c.m. large. (2) A sutured injury over the root of the nose. (3) A cut injury 3 c.m. x 1 c.m. over the darcem of left fore arm. The PW.2 deposed that on examination patient had quadriparesis and X-rays were taken and MRI also taken. MRI shows cord contusion of C3, C4 level. Patient was treated conservatively and was discharged on 02.10.2004. PW.2 examined the patient now and found weakness of both hands and mild weakness of both feet. Because of that weakness PW.1 cannot lift weights and he cannot walk long distance. PW.1 had permanent and partial disability of 30% and giving this evidence as per Ex.X.1 case sheet. In view of the evidence of PW.2 and Ex.A.3 and Ex.X.1, the finding of the Tribunal that the petitioner has suffered 30% of the permanent and partial disability is in accordance with law. 12. However, it appears that the Tribunal went wrong in considering Rs.15,000/-as notional annual income of the petitioner. The Tribunal stated that in the absence of any proof, the notional income of the petitioner was taken. The Hon’ble Apex Court in the case of Latha Wadhwa vs. State of Bihar, (2001) 8 SCC 197 which was followed by the High Court of Andhra Pradesh in T. Rama Krishna vs. Valluri Babu Rao and others, 2017 (1) ALD 453 in which it was held that in the absence of the proof of earnings, minimum Rs.3,000/-per month can be taken as income. As per the ratio laid down in these judgments, the income of the petitioner can be safely to be considered as Rs.3,000/-per month and by following the procedure adopted by the Tribunal (i.e., Rs.3,000/-x 12 x 13 x 30%), the petitioner will be entitled for Rs.1,40,400/-towards 30% disability. By adding Rs.8,701/-granted by the Tribunal towards medical expenses, in total the petitioner will be entitled for compensation of Rs.1,49,101/-. 13. In the result, the appeal is partly allowed and the compensation of Rs.67,200/-(Rupees sixty seven thousand and two hundred only) which was awarded by the Tribunal is enhanced to Rs.1,49,101/-(Rupees one lakh forty nine thousand one hundred and one only). The enhanced amount of Rs.81,901/-(Rupees eighty one thousand nine hundred and one only) shall carry with interest at the rate of 6% per annum from the date of the petition till the date of realization. However, the other directions of the Tribunal shall remain unaltered. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.