National Insurance Company Limited vs Singareddy Pulla Reddy & Others

V.Gopala Krishna Rao, J

Aggrieved by the award dated 01.10.2014 passed by the Chairman, Motor Accident Claims Tribunal-cum-XIII Additional District Judge, Gajuwaka, in M.V.O.P.No.1596 of 2012, the 2nd respondent/Insurance company preferred the instant appeal questioning the legal validity of the order of the Tribunal.

For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition.

The claim petitioner filed the petition under Section 166 of the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V. Rules, 1989 against the respondents claiming compensation of Rs.18,00,000/- for the injuries sustained by him in a motor vehicle accident which took place on 21.08.2012.

The brief averments in the petition filed by the petitioner are as follows:

On 21.08.2012 at about 10.30 p.m. the petitioner was going to New Gajuwaka on his friend’s bike as a pillion rider while his friend by name Bada Prasada Rao was driving the bike. While so, the slipper of the petitioner fell down on the road and the petitioner got down the bike to take his slipper, at that time, a gas tanker lorry bearing registration No.AP 13T 5598 being driven by its driver in a rash and negligent manner at high speed came from Kurmannapalem side and hit the petitioner, as a result, the petitioner’s left leg was fully crushed and he also sustained facial fractures. The S.H.O., Gajuwaka Traffic P.S. registered a case in crime No.328 of 2012 against the driver of the offending lorry. The 1st respondent is owner and the 2nd respondent is insurer of the offending lorry, hence, both the respondents are jointly and severally liable to pay the compensation.

The 1st respondent was set ex parte. The 2nd respondent/Insurance company filed a counter by denying the material allegations in the petition. It is pleaded that the driver of the offending lorry was not holding valid and effective driving licence on the date of accident, the 1st respondent intentionally violated the conditions of the policy by allowing his driver to drive the offending lorry, as such, the Insurance company is not liable to pay any compensation.

Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:

1) Whether the injured Singareddy Pulla Reddy got injured in the motor accident on 21.8.2012 occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP 13T 5598?

2) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

3) To what relief?

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.11 and Exs.X.1 and X.2 were marked. On behalf of the 2nd respondent, R.Ws.1 and 2 were marked and Exs.B.1 to B.3 and Exs.X.3 and X.4 were marked.

At the culmination of the enquiry, after considering the evidence on record and on appreciation of the same, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending lorry and accordingly, allowed the claim petition and granted a sum of Rs.19,62,400/-towards compensation to the petitioner with costs and interest at 7.5% p.a. from the date of petition till the date of deposit against both the respondents. Being aggrieved by the impugned award, the 2nd respondent/Insurance company has preferred the present appeal.

Heard Sri T.S. Rayalu, learned counsel for the appellant/2nd respondent-Insurance company, and Sri A. Srinath, learned counsel for the 1st respondent/petitioner, and perused the record.

Now, the point for determination is:

Whether the order of the Tribunal needs any interference, if so, to what extent?

POINT: The case of the petitioner is that on 21.08.2012 at about 10.30 p.m. he was going to New Gajuwaka on his friend’s bike as a pillion rider while his friend by name Bada Prasada Rao was driving the bike, while so, his slipper fell down on the road and he got down the bike to take his slipper, at that time, a gas tanker lorry bearing registration No.AP 13T 5598 being driven by its driver in a rash and negligent manner at high speed came from Kurmannapalem side and hit him, as a result, his left leg was fully crushed and he also sustained facial fractures. In order to prove the rash and negligent driving of the driver of the offending lorry, the petitioner relied on his self testimony as P.W.1. P.W.1 in his evidence reiterated the contents of the petition and also denied the contra suggestions put to him. The petitioner also relied on Ex.A.1 and Ex.A.2. Ex.A.1-attested copy of first information report goes to show that a case in crime No.328 of 2012 was registered against the driver of the offending lorry by the Police, Gajuwaka Traffic P.S. for the offence punishable under Section 338 of IPC. Ex.A.2-attested copy of M.V.I. report shows that the accident occurred not due to any mechanical defects in the offending lorry. Though the 2nd respondent examined R.Ws.1 and 2, admittedly, they are not eye witnesses to the accident, therefore, their evidence cannot be believed. The evidence of P.W.1 coupled with Exs.A.1 and A.2 clearly goes to show that the accident took place due to rash and negligent driving of the driver of the offending lorry. The Tribunal, on appreciating the entire material on record, also came to the same conclusion. I do not find any legal flaw or infirmity in the said finding given by the Tribunal.

In order to prove the injuries sustained by him, the petitioner deposed in his evidence that he sustained a crush injury on his left leg and also fracture injuries on his face in the said accident. He relied on Ex.A.3-attested copy of wound certificate, Ex.A.11-x rays, and Ex.X.2-case sheet. The petitioner examined the Doctor, who treated him, as P.W.2. As per the evidence of P.W.2, the injuries sustained by the petitioner are grievous in nature. The petitioner also examined the doctor, who is a Consultant Plastic Surgeon in Care Hospital, as P.W.3. P.W.3 deposed in his evidence that he found crush injuries on the left leg and fractures on the upper and lower jaws. The evidence of P.Ws.1 to 3 coupled with Ex.A.3, Ex.A.11 and Ex.X.2 clearly goes to show that the petitioner sustained severe grievous injuries, he lost his left leg upto knee and he underwent treatment for about four times in the hospital as an inpatient.

The Tribunal, on considering the entire material on record, awarded Rs.5,000/- towards transportation charges, Rs.10,000/-towards extra nourishment of food. On considering Ex.A.8-medical record, Ex.A.10-bunch of medical bills, and Ex.A.11-x rays, the Tribunal awarded an amount of Rs.72,400/- towards medical expenses. The Tribunal also awarded Rs.5,000/- towards damage to clothes and articles. On considering the entire evidence on record, the Tribunal gave a finding that the petitioner is working as an ambulance driver and earning Rs.10,000/- per month. On considering Ex.A.4-salary certificate of the petitioner, the Tribunal rightly awarded Rs.10,000/- towards loss of earnings during the period of treatment.

As per the evidence of P.W.1, the petitioner sustained a crush injury to his left leg and he lost his left leg upto knee and amputation was also done by the Doctors. Therefore, by considering the entire material on record, the Tribunal awarded an amount of Rs.1,00,000/- towards pain and suffering.

The material on record clearly goes to show that in the accident, the petitioner lost his left leg upto knee, amputation was also done, and the petitioner sustained 70% permanent disability. On considering the age of the petitioner and Ex.A.4-salary certificate of the petitioner, the Tribunal awarded an amount of Rs.12,60,000/-(Rs.10,000/- x 12 months x 70% disability x multiplier ‘15’) towards 70% disability.

The compensation awarded by the Tribunal under the above heads, in my view, is just and proper, hence, there is no need to interfere with the quantum of compensation awarded under the above heads.

Coming to awarding of damages of Rs.5,00,000/- towards loss of earning power, there is some justification in the contention of the learned counsel for the appellant/Insurance company that the Tribunal erred in awarding compensation towards loss of earning power, having considered an identical claim under the head of permanent disability. As seen from the material on record, the Tribunal awarded an amount of Rs.12,60,000/- towards permanent disability and again an amount of Rs.5,00,000/- was awarded as damages towards earning power. Therefore, the damages towards loss of earning power includes to the damages towards permanent disability. Therefore, the petitioner is not entitled to Rs.5,00,000/-which was awarded by the Tribunal as damages towards loss of earning power.

A reliance has been placed by the learned counsel for the petitioner on a decision of the Allahabad High Court in Virendra Kumar Vs. Vijay Kumar 2021 ACJ 205 = 2020 SCC ONLINE ALL 499 wherein it is held as under:

“11. In Common Cause, A Registered Society v. Union of India, Hon'ble Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Nonpecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.

In Divisional Controller, KSRTC v. Mahadeva Shetty, the road accident resulted in paraplegia due to serious injury to the spinal cord. The Supreme Court held that the object of providing compensation is to mitigate the hardship and place the claimant as far as possible in the same position financially as he was before the accident. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The compensation awarded has to be "just" and not a bonanza. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. The Supreme Court further held that while fixing compensation, suffering of the mind, shortening of life expectancy, loss of earning capacity, permanence of the disability, loss of amenities of life etc. are to be considered against the backdrop of age, marital status, unusual deprivation one has undertaken in one's life etc.”

Since the petitioner lost his left leg upto knee and he underwent treatment in the hospitals as an inpatient several times and on considering the aforesaid decision of the Allahabad High Court, I am of the considered view that it is just and necessary to award a sum of Rs.1,00,000/- towards loss of amenities and Rs.50,000/- towards loss of comfort.

In total, the petitioner is entitled to a sum of Rs.16,12,400/-towards compensation.

It is the contention of the learned counsel for the appellant/Insurance company that the offending vehicle is a hazardous vehicle and the driver of the offending lorry was not holding hazardous driving licence. In order to prove its contention, the Insurance company examined R.Ws.1 and 2. R.W.1 is the Assistant Manager of the 2nd respondent/Insurance company. R.W.1 deposed in her evidence that the driver of the offending lorry had HGV driving licence on the date of accident, but he was not holding hazardous driving licence. R.W.2 is the Junior Assistant in R.T.A. Office, Vijayawada. According to R.W.2, the driver of the offending vehicle had hazardous driving licence till 22.07.2012, he did not renew his licence thereafter and he had no hazardous driving licence by the time of accident. As per the evidence of R.Ws.1 and 2, it is clear that the driver of the offending lorry had HGV driving licence but he had no hazardous driving licence endorsement on the said licence. However, on considering that the offending lorry of the 1st respondent was insured with the 2nd respondent/Insurance company under Ex.B.1-policy and the policy was also in force as on the date of accident and on considering the principle laid down by the Hon’ble Apex Court in National Insurance Company Limited Vs. Swaran Singh reported in 2004 (1) ACJ Page 1, by giving cogent reasons, the Tribunal in its order held that as the driver of the offending vehicle in the instant case was holding HGV driving licence, non-possessing of hazardous driving licence by him is only a technical defect and because of technicalities, the claim of the petitioner cannot be rejected and the 2nd respondent/Insurance company cannot be absolved from its liability, as such, both the respondents being owner and insurer of the offending vehicle 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.

In view of the foregoing discussion, the appeal is partly allowed. The order dated 01.10.2014 passed by the Tribunal in M.V.O.P.No.1596 of 2012 is modified by reducing the compensation of Rs.19,62,400/- awarded by the Tribunal to Rs.16,12,400/-. The order of the Tribunal in all other respects shall remain intact. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.