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2023 DIGILAW 1190 (AP)

Gedda Appalanaidu v. Ganta Lakshmana Rao

2023-08-13

V.GOPALA KRISHNA RAO

body2023
JUDGMENT 1. M.A.C.M.A.No.3009 of 2014 is filed by the petitioner and M.A.C.M.A.No.508 of 2023 is filed by the 3rd respondent/Insurance company in M.V.O.P.No.419 of 2010 on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Vizianagaram. 2. Since both the appeals arose from out of one decree and order passed in M.V.O.P.No.419 of 2010, they are heard together and are being disposed of by this common judgment. 3. For the sake of convenience, both the parties in the appeals will be referred to as they are arrayed in the claim petition. 4. The claim petitioner filed the petition under Sec. 166 of the Motor Vehicles Act, 1988 against the respondents claiming compensation of Rs.7, 50, 000.00 for the injuries sustained by him in a road accident that took place on 19/10/2009. 5. Facts germane to dispose of the appeals may briefly be stated as follows: On 19/10/2009 the petitioner was proceeding on a Tata Magic Van bearing registration No.AP 35V 2776 to go to Vizianagaram and when the van reached near Chandakapeta junction, due to rash and negligent driving of the driver of the said van at high speed, he lost control over the van and dashed a stationed lorry which was parked towards extreme left margin of the road, as a result, the petitioner sustained grievous injuries. The S.H.O., Bondapalli P.S., Vizianagaram registered a case in Crime No.103 of 2009 against the driver of the van for the offences punishable under Ss. 338 and 304-A of IPC. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the offending van, hence, all the respondents are jointly and severally liable to pay compensation to the petitioner. 6. The 1st respondent was set ex parte. Respondent Nos.2 and 3 filed individual counters by denying the manner of accident, age, avocation and income of the petitioner. i) It is pleaded by the 2nd respondent that the offending van was insured with the 3rd respondent and the policy was in force, as such, the 3rd respondent is liable to pay compensation. ii) The 3rd respondent/Insurance company pleaded that the driver of the offending van was not having valid driving licence to drive the crime vehicle at the time of accident, as such, the Insurance company is not liable to pay any compensation. 7. ii) The 3rd respondent/Insurance company pleaded that the driver of the offending van was not having valid driving licence to drive the crime vehicle at the time of accident, as such, the Insurance company is not liable to pay any compensation. 7. Based on the above pleadings, the following issues were framed for trial by the Tribunal: 1) Whether the accident occurred due to rash and negligent driving of the vehicle (Tata Magic Van) bearing No.AP 35V 2776 by its driver? 2) Whether the petitioner is entitled to any compensation and, if so, at what quantum and from which of the respondents? 3) To what relief? 8. During the course of enquiry in the claim petition, on behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.7 and Ex.X.1 were marked. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B.1 to B.3 were marked. 9. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending van and accordingly, allowed the petition in part and granted a total compensation of Rs.3, 93, 800.00 with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of payment against all the respondents. Aggrieved against the said order, the petitioner filed M.A.C.M.A.No.3009 of 2014 for enhancement of compensation, while the 3rd respondent/Insurance company filed M.A.C.M.A.No.508 of 2023 questioning the legal validity of the order of the Tribunal. 10. Heard Sri Jayanti S.C. Sekhar, learned counsel for the petitioner (appellant in M.A.C.M.A.No.3009 of 2014), Sri Naresh Byrapaneni, learned counsel for the 3rd respondent/Insurance company (appellant in M.A.C.M.A.No.508 of 2023), and Sri Saripalli Subrahmanyam, learned counsel for the 2nd respondent, and perused the record. 11. Now, the points for determination are: 1) Whether the claim petitioner is entitled for enhancement of compensation as prayed for? and 2) Whether the order of the Tribunal needs any interference, if so, to what extent? 12. 11. Now, the points for determination are: 1) Whether the claim petitioner is entitled for enhancement of compensation as prayed for? and 2) Whether the order of the Tribunal needs any interference, if so, to what extent? 12. POINT Nos.1 and 2: The case of the petitioner is that on 19/10/2009 he was proceeding on a Tata Magic Van bearing registration No.AP 35V 2776 to go to Vizianagaram and when the van reached near Chandakapeta junction, due to rash and negligent driving of the driver of the said van at high speed, the driver lost control over the van and dashed a stationed lorry which was parked towards extreme left margin of the road, as a result, he sustained grievous injuries. 13. In order to prove the rash and negligent driving of the driver of the offending van, the petitioner relied on the evidence of P.W.1. P.W.1 is none other than the petitioner/injured in the present case. The evidence of P.W.1 clearly goes to show that the accident took place because of rash and negligent driving of the driver of the offending van. In cross-examination, nothing was elicited from P.W.1 to disbelieve his evidence in chief-examination affidavit. The petitioner also relied on Exs.A.1-first information report and Ex.A.4- charge sheet. A perusal of Exs.A.1 and A.4 reveals that upon a complaint given by one of the inmates of the offending van, the police of Bondapalli registered a case in Crime No.103 of 2009 against the driver of the offending van for the offences punishable under Ss., 337, 338 and 304-A of IPC, and after completion of investigation, a charge sheet was laid against the driver of the offending van holding him responsible for the accident. On considering the evidence of P.W.1 coupled with Exs.A.1 and A.4, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending van. There is no legal flaw or infirmity in the said finding given by the Tribunal. 14. The evidence of P.W.2, who is the Professor of Orthopedics at MIMS Hospital, Nellimarla, clearly goes to show that the petitioner sustained a lacerated injury over scalp in the occipital region and a crush injury on left hand. There is no legal flaw or infirmity in the said finding given by the Tribunal. 14. The evidence of P.W.2, who is the Professor of Orthopedics at MIMS Hospital, Nellimarla, clearly goes to show that the petitioner sustained a lacerated injury over scalp in the occipital region and a crush injury on left hand. He also deposed that he assessed the disability of the petitioner at 60% which is partial and permanent in nature, due to which, the petitioner cannot do any work with left upper limb. On considering the evidence of P.W.2, the Tribunal came to the conclusion that the petitioner sustained 60% partial and permanent disability. It is the case of the petitioner that he is aged about 25 years and he was a M.Sc. student and conducting tuitions at his house and thereby earning Rs.9, 000.00 p.m. but no documentary evidence was filed by the petitioner before the Tribunal to establish his monthly income. However, by giving cogent reasons, the Tribunal fixed the monthly income of the petitioner as Rs.3, 000.00 i.e., Rs.36, 000.00 per annum and by applying the multiplier 18' applicable to the age group of the petitioner as per Sarla Varma case, the Tribunal awarded an amount of Rs.3, 88, 800.00 (Rs.36, 000.00 x multiplier 18' x 60% permanent disability) towards compensation for permanent disability sustained by the petitioner. I do not find any legal flaw or infirmity in the said finding given by the Tribunal. 15. On considering the nature of injuries, the Tribunal awarded an amount of Rs.5, 000.00 towards pain and suffering. As seen from the material on record, the petitioner sustained an injury to head and a crush injury on left hand which are grievous in nature. Therefore, the amount of Rs.5, 000.00 awarded by the Tribunal towards pain and suffering is enhanced to Rs.40, 000.00. 16. Since the petitioner sustained 60% permanent disability and he was hospitalized from 19/10/2009 to 13/11/2009 as an inpatient in K.G.H., Visakhapatnam, it is desirable to award an amount of Rs.10, 000.00 towards nutrition of food and transportation charges and Rs.5, 000.00 towards attendant charges. In total, the petitioner is entitled to a sum of Rs.4, 43, 800.00 towards compensation. 17. Since the petitioner sustained 60% permanent disability and he was hospitalized from 19/10/2009 to 13/11/2009 as an inpatient in K.G.H., Visakhapatnam, it is desirable to award an amount of Rs.10, 000.00 towards nutrition of food and transportation charges and Rs.5, 000.00 towards attendant charges. In total, the petitioner is entitled to a sum of Rs.4, 43, 800.00 towards compensation. 17. It is not in dispute that the offending van of the 1st respondent was insured with the 3rd respondent/Insurance company under Ex.B.1-policy and the policy was also in force as on the date of accident. 18. It is the contention of the appellant/2nd respondent-Insurance company that the driver of the offending van was having driving licence to drive light motor vehicle (non-transport), but there is no transport endorsement on the driving licence of the driver. As seen from the evidence of R.W.2, who is the Junior Assistant in R.T.A. Office, the driver of the offending van was having non-transport licence which is valid from 2/9/2009 to 1/9/2029. By applying the decision in National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria reported in 2008 ACJ 721 , the Tribunal came to the conclusion that when the driver of the vehicle was having valid licence to drive light motor vehicle, but was found to be driving Tata magic van, which is a light motor vehicle and which is less than 7500 kgs, the Insurance company cannot be absolved of its liability, therefore, all the respondents are jointly and severally liable to pay the compensation to the petitioner. There is no legal flaw or infirmity in the said finding given by the Tribunal. 19. In the result, M.A.C.M.A.No.508 of 2023 filed by the 3rd respondent/Insurance company is dismissed and M.A.C.M.A.No.3009 of 2014 filed by the petitioner is allowed in part enhancing the compensation of Rs.3, 93, 800.00 awarded by the Tribunal to Rs.4, 43, 800.00. The respondents are directed to deposit the enhanced compensation of Rs.50, 000.00 with interest at 7.5% p.a. from the date of petition till the date of deposit before the Tribunal within two months from the date of this judgment. On such deposit, the petitioner is entitled to withdraw the same. No order as to costs in both the appeals. Miscellaneous petitions, if any, pending in the appeals shall stand closed.