1 APHC010086422019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3505] THURSDAY,THE THIRTIETH DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 173/2019 Between: 1. GUDE SUBBA RAO, S/O. VENKAIAH AGED ABOUT 39 YEARS, D.NO. 20-18-1781/2, 11TH LINE, DS NAGAR, GUNTUR CITY, GUNTUR DISTRICT. GUNTUR JCJC ...APPELLANT AND 1. MULLA GOUSE BASHA, (OWNER OF THE AUTO AP 27 TW 3518) S/O. ABDUL KHADAR,H.NO. 11-372 A, PODILI, PRAKASAM DISTRICT. 2. ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD, REP. BY ITS BRANCH MANAGER, 1ST FLOOR KAIZEN HEIGHTS, SUNDAY MARKET, GANDHI NAGAR. NELLORE. POLICY NO. VGC 0319633000100 VALID FROM 29-6-2013 TO 28-6-2014 3. MADDELA RAVI, S/O. VENKATESWARLU, (AUTO DRIVER)POTHAVARAM VILLAGE, PODILI MANDAL. PRAKASAM DISTRICT (THE 3RD RESPONDENT IS IMPLEADED AS PARTY TO THE PROCEEDINGS AS PER THE ORDERS ON I.A. 983/2015 DATED 21-9-2015) 2 ...RESPONDENT(S): Appeal filed under Order 41 of CPC before the High Courtto set aside the Judgment and decree passed in M.V.O.P. 207 of 2015 on the file of the Motor Accidents Claims Tribunal-II Addl. District Judge, Guntur dated 30-10-2017 and enhance the compensation to Rs.12,00,000/- as claimed together with interest at the rate of 12 perstg per annum from the date of filing the Original Petition till the date of realization and pass IA NO: 1 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 396 days in filing the MACMA against the Judgment and award in MVOP.No. 207 of 2015 on the file of the court of the Motor Accidents Claims Tribunal-cum-III Addl District Judge, Guntur dated 30.10.2017 and to pass Counsel for the Appellant: 1. SIVA PRASAD KATAKAMSETTY Counsel for the Respondent(S): 1. GUDI SRINIVASU 2. The Court made the following: 3 HON’BLE SRI JUSTICE T.C.D. SEKHAR MACMA No.173 OF 2019 JUDGMENT:- 1. The present appeal is filed aggrieved by order dt.30.10.2017 in MVOP No.207 of 2015, on the file of Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur, by the claimant. 2. For the sake of convenience, the parties are referred to, as they were referred before the Tribunal. 3. The petitioner filed claim petition under Section 166(1) of Motor Vehicles Act read with Rules made thereunder claiming compensation of Rs.12,00,000/-, on account of injuries sustained by him in the accident that occurred on 18.08.2013 in which the offending Auto bearing Registration No.AP27TW 3518 was involved. It was the case of the petitioner that on 18.08.2013, the deceased was travelling on motorcycle bearing Registration No.AP27AU 1765 as pillion rider. When, they reached Addanki-Kanigiri Road, near Timmayapalem, Addanki Mandal, Prakasam District, the 3rd respondent driver of the offending auto came in opposite direction at high speed, in rash and negligent manner and dashed the motorcycle. As a result, the petitioner sustained severe injuries viz:- 4 (i) Grade II B compound and comminuted fracture of right distal femur with inter condylor split; (2) fracture of right patella and (3) communited spiral fracture of tibia. 4. Immediately the petitioner was taken to Government Hospital, Addanki and later he was shifted to Amar Orthopaedic Hospital, Kothapet, Guntur, where he was treated as inpatient from 18.08.2013 to 23.09.2013. It was further stated that during the said period, the petitioner underwent three (03) major surgeries to his right leg on 21.08.2013 and 07.09.2013. It was further contended that plates and screws were inserted and bone grafting was also done, in the said surgeries. After discharge from the hospital, he has taken treatment as outpatient. It was further stated that despite long treatment, the movements of his right leg knee joint and right ankle joint movements were badly restricted due to the injuries sustained by him. A case in Crime No.215 of 2013 was registered, on the file of Addankani Police station under Sections 304 (A) and 338 IPC. It was further contended that the petitioner was aged about 35 years as on the date of accident and he was earning Rs.10,000/- per month by running a provision store. It was further stated that the petitioner spent an amount of Rs.3,00,000/- towards his treatment. In view of the said injuries sustained by him, he stated that he lost earning 5 capacity and prayed the Tribunal to pay compensation of Rs.12,00,000/-. 5. The respondent Nos.1 & 3 i.e., the owner and driver of the offending Auto remained ex-parte. The 2nd respondent filed counter affidavit denying the averments made in the claim petition. It was contended that the accident was occurred due to rash and negligent driving of the motorcycle. It was further contended that the driver of the auto had no valid driving license and if at all the compensation was to be paid, the same has to be paid by the respondent Nos.1 & 3. It was further contended that, the petitioner failed to implead the insurer of the motorcycle, whose presence is necessary to decide the issue in the claim petition and sought to dismiss the claim petition on the ground of non-joinder of necessary party and inter alia it was also contended that the claim made by the petitioner was excessive. 6. In order to substantiate the case of the petitioner, the petitioner himself was examined as PW-1 and Dr. S. Amarnath, who treated the petitioner was examined as PW-2. The petitioner also marked documents in Exs.A1 to A5. On the other hand, the respondents examined one Mr.K.Leela Kumar, employee of the Insurance Company and Mr.T.Sudharsan Kumar, Senior Assistant in the office of AMVI, Darsi, Prakasam District as RW-2. Exs.B1 to B4 6 were marked on behalf of the 2nd respondent. Ex.X1 and X2 were marked through PW-2 and Ex.X3 was marked through RW-2. Considering the case on either side, the Tribunal partly allowed the claim petition by awarding compensation of Rs.5,26,000/- together with interest @ 7.5% per annum from the date of petition till the date of deposit, fixing liability on respondent Nos.1 & 3 and directed the 2nd respondent to deposit the same and to recover the compensation from the owner and driver i.e., respondent Nos.1 & 3 later. Not satisfying that the compensation awarded by the Tribunal, the claimant preferred, the present appeal. 7. Heard counsel for the appellant and Sri Gudi Srinivasu, counsel appearing for the 2nd respondent. Despite service of notice, there is no appearance for respondent Nos.1 & 3. 8. The counsel for the appellant would strenuously contend that the Tribunal erred in taking the income of the petitioner as Rs.4,500/- per month. Despite the specific pleading in the claim petition that the petitioner was running provision store and earning an amount of Rs.10,000/- per month the Tribunal ignored the same. Further he would submit that the respondent-Insurance Company did not place anything on record to disprove the fact that the petitioner was running the provision store. On the other hand, the counsel appearing for the insurance company would submit that the 7 Tribunal had rightly taken the income of the petitioner as Rs.4,500/- per month inasmuch as the petitioner had not filed any documentary evidence in support of his contention. A perusal of the record would go to show that the petitioner has specifically pleaded in the claim petition and as well as in his evidence that he was running provision store. Though the same was denied in the counter affidavit, nothing is placed on record to disprove the evidence of the petitioner in this regard. Though, the petitioner was cross-examined at length, nothing was elicited to disprove the evidence adduced by him. A perusal of the order under challenge, would show that, while, believing the evidence of the petitioner, the Tribunal did not given any reasons as to why the evidence of the petitioner was rejected. In such circumstances, the finding of the Tribunal is not sustainable under law and the income of the petitioner has to be fixed by taking into consideration of the evidence adduced by the petitioner. 9. In this connection, it is pertinent to note that the Government of Andhra Pradesh has issued Gazettee Notification No.349, dt.23.05.2013, whereby and whereunder the minimum wages were revised by exercising powers conferred under Minimum Wages Act, 1948. A perusal of the said notification would go to show that the store keeper was placed under establishments in the schedule appended thereto. Further, the minimum wages of store 8 keeper was revised and it was fixed as Rs.7,020/- per month in the said notification. By taking into consideration of notification coupled with the evidence of PW-1, it can be held that the income fixed by the Tribunal is not reasonable and the same has to be fixed in accordance with the above notification. In such circumstances, the finding given by the Tribunal in this regard is liable to be interdicted and set aside. Accordingly the income of the petitioner is fixed at Rs.7,020/- per month. 10. Further the counsel for the appellant would contend that Dr.S.Amarnath was examined as PW-2. He would further submit that PW-2 after re-examining the petitioner deposed that the petitioner sustained disability of 50% and the same is permanent. He would further submit that due to the injuries sustained by the petitioner, there is stiffness of the total right knee joint apart from shortening of the leg by 1 ½ inches. He would further submit that despite evidencing of PW-2, the Tribunal erred in taking the disability as 25%. A perusal of the evidence of PW-2, it is not clear, as to the disability suffered by the petitioner is to the whole of the body or to a particular limb. Further, PW-2 did not give disability certificate to the petitioner, therefore the evidence of PW-2 cannot be taken into consideration so as to decide the disability suffered by the petitioner. 9 11. Further, on perusal of disability certificate issued by the Medical Board, Government General Hospital, Guntur, which was marked as A-15, it is clear that the disability suffered by the petitioner was to the whole body, but not to a particular limb. After considering the evidence on record, the Tribunal had rightly assessed the disability of the petitioner as 25%. In such circumstances, this Court does not wish to interfere with the finding recorded by the Tribunal and accordingly the said contention of the counsel for the appellant is rejected. Further as observed supra, the income of the petitioner has to be taken as Rs.7,020/- per month and accordingly the compensation is computed as under:- S.No. Head Compensation Awarded 1 Annual Income Rs.7,020 x 12 =Rs.84,240/- 2 Multiplier of 16 (for the age of 35 years) 16 3 Disability 25% 4 Loss of future earnings Rs.84,240 x 16 x 25% = Rs.3,36,960/- 5 Extra nourishment attendant charges Rs.19,000/- 6 Medical Bills Rs.2,41,000/- 7 Pain and suffering Rs.50,000/- Total Rs.6,46,960 /- 10 12. For the reasons mentioned above, the appeal filed by the claim petitioner is allowed by enhancing the compensation from Rs.5,26,000/- to Rs.6,46,960/-. The 2nd respondent-Insurance company is directed to deposit the said amount together with interest @ 7.5% per annum within a period of two (02) months from the date of receipt of copy of this order. 13. Accordingly, the appeal is allowed. There shall be no order as to costs. As a sequel, all pending miscellaneous petitions, if any, shall stand closed. __________________________ JUSTICE T.C.D.SEKHAR 30.04.2026 DR 11 39 THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR M.A.C.M.A.No.173 of 2019 Date: 30.04.2026 U DR