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2020 DIGILAW 772 (TS)

Nalparaju Laxmamma v. Mohd Jahangeer

2020-11-12

B.VIJAYSEN REDDY

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JUDGMENT B. Vijaysen Reddy, J. - The appellant is the claimant in OP.No.34 of 2008 on the file of the Motor Accidents Claims Tribunal cum I Additional District Judge, Nalgonda, filed under Section 166 of the Motor Vehicles Act, 1988, on account of the injuries sustained by her in a motor accident which occurred on 24.09.2007, while she was proceeding to a temple in her village, Bangarigadda, on foot. At the place of accident, she was hit from back by a Hero Honda Motor Cycle bearing No.AP-29/S-8937, driven by its driver, owned by the respondent No.1 and insured with the respondent No.2. Alleging that the accident occurred due to rash and negligent driving of the driver of the crime vehicle, the claim petition was filed before the tribunal below, claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the respondent No.1 remained absent and he was set ex parte. The respondent No.2 insurer filed a counter opposing the claim petition. The claimant examined herself as P.W.1 and further examined P.W.2 and P.W.3, who are Orthopaedic Surgeons. Exs.A1 to A10 were marked on behalf of the claimant. EXs.X1 and X2 and Ex.C1 were marked by the tribunal below. R.Ws.1 and 2 were examined on behalf of the respondent No.2 and Exs.B1 to B4 were marked on its behalf. 3. After considering the pleadings and material on record, the tribunal below arrived at the conclusion that the accident occurred due to rash and negligent driving of the driver of the crime vehicle. The tribunal below chose to award Rs.25,000/- towards medical expenses; Rs.10,000/- toward grievous injury; Rs.2,000/- towards simple injury; Rs.5,000/- towards pain and suffering. After assessing the loss of income with 60% disability sustained by the claimant at Rs.57,600/- the tribunal below awarded total compensation of Rs.99,600/- together with interest at 7.5% per annum from the date of petition till the date of realization. The tribunal below further directed that respondent No.1 alone is liable to pay compensation and claim against the respondent No.2, Insurance Company, was dismissed holding that the driver of the offending vehicle did not hold valid licence at the time of accident. 4. Dissatisfied with the quantum of compensation awarded by the tribunal below under various heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the insurance company. 6. 4. Dissatisfied with the quantum of compensation awarded by the tribunal below under various heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the insurance company. 6. Learned counsel for the appellant submits that P.W.2, Orthopaedic Surgeon, at Doctor's Multispeciality Hospital, has categorically deposed that the claimant sustained fracture injuries viz. fracture tibial condyle right knee and head injury and that she was operated and fixed with external fixates to left leg and for right leg she was applied Plaster of Paris. The claimant was admitted as in-patient in the hospital from 29.09.2007 to 15.10.2007. As per Ex.A5, the disability certificate, the disability is assessed as 60% and the same was proved through P.W.3, the Orthopaedic surgeon, District Head Quarters, Nalgonda Hospital and also Member of District Medical Board Nalgonda. Learned counsel also contends that the income taken by the tribunal below is very meagre and it ought to have taken the income as Rs.4,000/- per month. Hence, the compensation granted is very meagre. He also submitted that the tribunal below, while assessing the compensation in respect of injury cases, could not have made any deductions. Further orally counsel for the appellant raised another ground that the lower tribunal was not justified in dismissing the claim petition as against respondent No.2, Insurance Company. 7. Sri R. Sheetal Kumar, learned counsel representing Sri Ravi Shankar Jandhyala, learned counsel for the insurance company, submits that the order passed by the tribunal below is just and reasonable since the driver of the crime vehicle did not hold valid driving licence as on the date of the accident viz. 24.09.2007 but obtained the licence on 15.12.2007. He further submits that the terms of the insurance policy were violated and thus, the tribunal below rightly held that the respondent No.2 - insurance company is not liable to pay compensation. 8. The issues that arise for consideration in this appeal are: 1. Whether the appellant/claimant is entitled to enhancement of compensation awarded by the tribunal below under various heads. 2. Whether the respondent No.2 - insurance company is liable to pay compensation in spite of the driver of the vehicle not holding valid driving licence as on the date of the accident. ISSUE No.1: 9. Whether the appellant/claimant is entitled to enhancement of compensation awarded by the tribunal below under various heads. 2. Whether the respondent No.2 - insurance company is liable to pay compensation in spite of the driver of the vehicle not holding valid driving licence as on the date of the accident. ISSUE No.1: 9. Excepting oral evidence, there is no documentary evidence to prove that the claimant was working as an agricultural coolie - washerwoman and earning Rs.4,000/- per month. The tribunal below, however, took the income of the claimant as Rs.1,500/- per month. It is imperative to point out that the tribunal below, while assessing the compensation for injuries, has committed an error in deducting the 1/3rd towards personal expenses. The instant claim being compensation for injuries any deductions much less 1/3rd deduction cannot be done. 10. Taking into consideration decisions of the Supreme Court in NEETA v. THE CIVISIONAL MANAGER, MSRTC, (2015) 3 SCC 590 , RAMACHANDRAPPA v. THE MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, (2011) 13 SCC 236 and ARUN KUMAR AGRAWAL AND OTHERS v. NATIONAL INSURANCE COMPANY AND OTHERS, (2010) 9 SCC 218 and LATHA WADHWA v. STATE OF BIHAR, (2001) ACJ 1735 (SC) and since it is claimed that the claimant is an agriculturist and washerwoman and since there is no contra evidence, the notional income of the claimant is fixed at Rs.3,500/- per month which works out to Rs.42,000/- per annum. Taking into consideration the disability of the claimant at 60%, her income works out to Rs.25,200/- per annum. The age of the claimant, being 55 years, the multiplier relevant as per the decision of the Supreme Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION, (2009) 6 SCC 121 is 11' instead of 8' as adopted by the tribunal below. Hence, the loss of future income would come to Rs.25,200/- x 11 = Rs.2,77,200/-. The compensation awarded under heads viz. Rs.25,000/- towards medical expenses, Rs.10,000/- towards grievous injury; Rs.2,000/- towards simple injury and Rs.5,000/- towards pain and suffering is not interfered with. Hence, in all, the claimant is entitled to total compensation of Rs.2,77,200/- + Rs.25,000/- + Rs.10,000/- + Rs.2,000/- + Rs.5,000/- = Rs.3,19,2000/-. The compensation awarded under heads viz. Rs.25,000/- towards medical expenses, Rs.10,000/- towards grievous injury; Rs.2,000/- towards simple injury and Rs.5,000/- towards pain and suffering is not interfered with. Hence, in all, the claimant is entitled to total compensation of Rs.2,77,200/- + Rs.25,000/- + Rs.10,000/- + Rs.2,000/- + Rs.5,000/- = Rs.3,19,2000/-. Though the compensation exceeds the claim amount, now the law is well settled by virtue of the decision of the Supreme Court in RAJESH v. RAJBIR SINGH, (2013) 9 SCC 54 that the compensation has to be just and it can exceed the claimed amount. This Court also in ADAM INDUR MUTEMMA v. RATHOD PEDDITA, (2015) 4 ALD 585 (LB) held that the compensation amount can exceed the claimed amount, subject to payment of court-fee. 11. Hence, the claimant would be entitled to total compensation of Rs.3,19,200/- with proportionate costs. The claimant shall pay the differential Court-fee. The award of the tribunal below is modified as indicated above. The award shall relate back to the date of decree and the compensation awarded shall carry the interest at the rate and from the date specified by the tribunal below. ISSUE No.2: 12. The Supreme Court in MANUARA KHATUN v. RAJESH KR. SINGH, (2017) 4 SCC 796 laid down the principle of 'pay and recover'. Even if the driver of the offending vehicle does not possess a valid driving licence, which is in violation of the terms of the insurance policy, still the insurance company is liable to pay the compensation to the claimant and later, recover the same from the owner of the crime vehicle. In view of the same, this Court holds that the respondent No.2 is liable to pay the compensation to the claimant and upon such payment the respondent No.2 shall be entitled to recover the same from the insured, Respondent No.1. The civil miscellaneous appeal is allowed. As a sequel, the miscellaneous applications, if any, shall stand closed.