APHC010297472022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] TUESDAY, THE SIXTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 428/2022 Between: 1. THE BRANCH MANAGER, M/S. ORIENTAL INSURANCE COMPANY LTD., PRAKASAM HIGH ROAD, CHITTOOR TOWN AND DISTRICT. ANDHRA PRADESH. ...APPELLANT AND 1. S DILIP KUMAR, S/O. V.SELVARAJ, AGED ABOUT 28 YEARS, HINDU, BUSINESS. RESIDING AT D.NO.3-49, RAMULA TEMPE STREET, 75 DODDIPALLI, CHITTOOR TOWN AND ANDHRA PRADESH. 2. B S SAINATH RAO, S/O. S.SHANMUGHA HINDU, DRIVER, RESIDING AT D.NO.24-65.. LAKSHMINAGAR, KONGAREDDYPALLI, CHITTOOR TOWN AND DISTRICT, ANDHRA PRADESH. (AMENDED AS PER ORDERS IN I.A. NO.716/2019, DATED 17.01.2020 ...RESPONDENT(S): Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment passed in M.V.O.P.No.291 of 2018 on the file of the Chairman, Principal Motor Accidents Claims Tribunal-cum-Principal District Judge, Chittoor, dated 20.12.2021. Counsel for the Appellant: 1. GUDI SRINIVASU Counsel for the Respondent(S): 1. T C KRISHNAN The Court made the following: 2 CGR, J. MACMA No.428 of 2022 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN M.A.C.M.A.No.428 of 2022 JUDGMENT: The present appeal is filed under Section 173 of the Motor Vehicles Act,1988 (for short, “the Act”), assailing the Award, dated 20.12.2021, passed in M.V.O.P.No.291 of 2018 on the file of the Chairman, Principal Motor Accidents Claims Tribunal-cum-Principal District Judge, Chittoor, (for short, “the Tribunal”), whereby compensation of Rs.15,80,200/- was awarded to the injured/claimant, along with proportionate costs and interest at the rate of 7.5% per annum from the date of petition till the date of realisation, for the injuries sustained by him in a motor accident. 2. For the sake of convenience, parties herein are referred to as they were arrayed before the Tribunal. 3. Brief facts relating to the present appeal in a nutshell are as follows: (a) This is a case of injuries. The injured preferred claim under Section 166 of the Act, claiming compensation of Rs.10.00 Lakhs on account of injuries sustained. It is stated that on 19.07.2017 while he was proceeding on Bullet motorcycle along with his wife, was hit by Tata Indica Car bearing Registration No.AP 26 M 7047, driven by 1st respondent, coming in opposite direction, and he sustained serious injuries. He stated to have been shifted to hospital for treatment and undergone surgery to 3 CGR, J. MACMA No.428 of 2022 right leg. The claimant stated to have been running an automobile shop, aged 28 years, and earning about Rs.50,000/- per month. Considering the nature of injuries sustained, claim was laid for Rs.10.00 Lakhs. (b) 1st respondent the driver-cum-owner of Tata Indica Car remained ex parte. (c) 2nd respondent Insurer filed written statement inter alia denying the manner in which the accident has occurred, that even the claimant was also attributable to the cause of accident, therefore, he contributed for the negligence. Besides the nature of injuries, treatment availed, the expenses incurred, and compensation claimed have been disputed. (d) Based on the pleadings, the Tribunal has framed the following issues: “1. Whether the injured/S.Dilip Kumar sustained injuries in the accident, due to rash and negligent driving of the driver/1st respondent of TATA Indica Car bearing No.AP26M 7047? 2. Whether the petitioner is entitled for any compensation and if so, to what amount and from which of the respondents? 3. To what relief?” (e) To support the case of claimant, he was examined as PW.1 and also examined the doctor, who treated the injuries, as PW.2, and got marked Exs.A1 to A11. None were examined for respondent Insurer, however, got marked Ex.B1 Insurance Policy. (f) The Tribunal after evaluating the evidence on record, has come to conclusion that accident occurred due to rash and negligent driving of 4 CGR, J. MACMA No.428 of 2022 driver of Tata Indica Car. Though Insurer has pleaded that the claimant was also responsible for causing the accident, thereby contributing for negligence, the same came to be rejected. Considering the evidence of Doctor, who treated the injured and also issued disability certificate under Ex.A9 assessing the physical disability at 45%, the Tribunal has, accordingly, determined the functional disability as well at 45%. Though income of claimant was claimed as Rs.50,000/- per month, in the absence of any evidence, considering the earliest statement made in the police report, which culminated into under Ex.A1 FIR, the Tribunal has determined the income as Rs.10,000/- per month. Accordingly, the loss of earnings came to be assessed by applying multiplier of 17 and after providing for future prospects at the rate of 40%. Therefore, claimant was awarded Rs.12,85,200/- towards loss of earnings; and awarded Rs.1,00,000/- towards pain and suffering; Rs.1,50,000/- towards medical expenses; Rs.20,000/- towards attendant charges; Rs.25,000/- towards transport and extra-nourishment charges, in total awarded Rs.15,80,200/-. (g) Assailing the same, present appeal is preferred by the Insurer. 4. Heard Sri Gudi Srinivasu, learned counsel for the appellant/ Insurer and Sri T.C. Krishnan, learned counsel for the 1st respondent/ claimant. 5 CGR, J. MACMA No.428 of 2022 5. Learned counsel for appellant mainly advanced arguments regarding the Tribunal ignoring the contributory negligence on the part of the claimant, besides the computation of income by considering income of deceased as Rs.10,000/- per month and fixing disability as 45%. Coming to the aspect of contributory negligence, it is contended that the Tribunal erred in not considering the evidence on record in proper perspective to include negligence on the claimant as well, inasmuch as the accident occurred on account of collision of two vehicles. He contended that the Tribunal has assessed income of deceased as Rs.10,000/- per month, which is not based on any cogent evidence, and lastly, that the Tribunal has assessed functional disability as 45%, when the crucial evidence of doctor, who was examined as PW.2, spoke of physical disability as only 45%, considering the nature of avocation of the claimant, the same would not automatically translate the same amount of disability, therefore, the Tribunal ought to have fixed the functional disability to that of half of the physical disability. 6. Opposing the aforesaid submissions, learned counsel for the 1st respondent/claimant, on the other hand, supported the award under challenge, by contending that the Tribunal has rightly on appreciation of evidence on record has rendered findings regarding contributory negligence and also that the income has been assessed based on statement in Ex.A1 FIR, which is earliest piece of evidence on record. 6 CGR, J. MACMA No.428 of 2022 Lastly, he contended that the doctor has specifically issued disability certificate assessing the disability as 45%, in view of the nature of injuries sustained, claimant is not in a position to undertake the day-to-day activities as in normal course, therefore, rightly, even the functional disability has been assessed as 45%, and the findings of the Tribunal do not call for any interference. 7. Perused the record and considered the rival submissions of both the learned counsel. 8. Now, the points that arise for consideration in this appeal is: 1. Whether the Tribunal was justified in holding that the accident occurred solely due to the rash and negligent driving of the driver of the Tata Indica car, and not attributing any contributory negligence to the claimant? 2. Whether the physical disability of a leg can be considered a permanent functional disability affecting the claimant’s ability to perform his job or business and Tribunal is justified in assessing the same as 45%? 3. Whether the compensation awarded by the Tribunal is fair and reasonable considering the monthly income of injured at Rs.10,000/-? 9. POINT No.1: The accident has occurred on 19.07.2017 while the claimant was proceeding on Bullet motorcycle along with his wife. The record and 7 CGR, J. MACMA No.428 of 2022 evidence disclose that the motorcycle and Tata Indica car have collided with each other in opposite directions. It is the case of the claimant that the driver of the car was negligent and driving the car in high speed, therefore, accident has occurred. To buttress the same, claimant spoke for himself and also got marked Ex.A1 FIR, Ex.A2 charge-sheet, which supported his version. On the other hand, the Insurer has taken stand that even claimant was equally responsible for cause of accident, therefore, there was a contributory negligence on his part. Except for taking the said stand in the written statement, Insurer has not taken any steps to examine the driver of car, who would be best person to speak about the manner in which it occurred. The Tribunal, considering these two versions of claimant as well as Insurer, has come to conclusion that in the absence of examining the driver of Car, the Insurer’s plea of contributory negligence cannot be accepted, therefore, the said issue came to be answered in favour of the claimant. 10. On appreciation of the aforesaid evidence and also the findings recorded by the Tribunal, this Court is of the opinion that the conclusion arrived at by the Tribunal does not suffer any infirmity or is said to be perverse, calling for interference of this Court. 11. POINT NO.2: With respect to the aspect of disability, the claimant has got examined PW.2, the doctor, who has issued disability certificate. Ex.A9 8 CGR, J. MACMA No.428 of 2022 disability certificate has been issued by the medical board. As per the said certificate, the physical disability is assessed as 45%. In the examination of PW.2, it has been elicited that claimant is suffering from post trauma of right leg and has difficulty in undertaking regular daily activities. The cross- examination of PW.2 also indicated that the disability assessed is for right leg, but not for whole body. He has admitted that claimant was not clinically and radiologically examined while assessing the disability. 12. Learned counsel for appellant, therefore, based on aforesaid evidence contended that 45% physical disability to right leg as assessed cannot by itself translate into equal percentage of functional disability. This Court, having given its anxious consideration to the said submission, considering the evidence of PW.2, who has spoken that the physical disability as assessed was only to right leg and as the avocation of the claimant being running of an automobile shop, the functional disability ought not have been assessed at 45%. 13. In Rajkumar v. Ajay Kumar1, the Hon’ble Apex Court, while summarising the principles regarding the assessment of disability has observed that though doctor who treated the injured claimant or who examined him subsequently to assess the extent of permanent disability of the injured can speak of the same, however, loss of earning capacity is 1 (2011) 1 SCC 343 9 CGR, J. MACMA No.428 of 2022 something which is required to be assessed keeping in view the nature of profession, occupation or job and other factors. 14. In the present case, the nature of job that the claimant is stated to be undertaking is running of automobile shop. Even the Tribunal has also, after considering the evidence under Ex.A11, came to such conclusion. The physical disability assessed at 45%, though restricts the physical movements of the claimant, the same by itself may not come in his way to effectively carry on his business avocations. There may slightly be some amount of inconvenience that would cause in the process of his day-to- day course of life. While determining the loss of earnings, aforesaid factors have to be kept in mind. Therefore, the finding of the Tribunal that claimant has suffered functional disability of 45% cannot be sustained. Accordingly, this Court, considering the totality of circumstances and evidence on record, is hereby compelled to fix the functional disability as 30%. Accordingly, this point is answered. 15. POINT No.3: Coming to the last aspect of determination of income of claimant, the Tribunal has proceeded on the basis of the statement made in Ex.A1 FIR. Though claimant has claimed Rs.50,000/- per month, considering the evidence available on record, the Tribunal has assessed income of claimant as Rs.10,000/- per month. This Court does not find any infirmity 10 CGR, J. MACMA No.428 of 2022 with such finding. As the accident has occurred in the year 2017 and considering the nature of business being attended to by claimant, the amount of income arrived at by the Tribunal really would not be disproportionate. Therefore, this Court is not inclined to interfere with the said conclusion arrived at by the Tribunal. Accordingly, the income of claimant as determined by the Tribunal is sustained. 16. In view of the aforesaid findings, the compensation that is awarded by the Tribunal stands modified as under: S.No. Description of the Head Amount Entitled (in rupees) 1 Compensation for loss of earnings on account of disfiguration and permanent disability at 30% on Rs.1,68,000/- = Rs.50,400/- x multiplier 17 Rs.8,56,800/- 2 Compensation for pain and suffering Rs.1,00,000/- 3 Medical Expenses Rs.1,50,000/- 4 Transport and extra-nourishment Rs.25,000/- 5 Attendant charges Rs.20,000/- Total Compensation Rs.11,51,800/- 17. In the result, this appeal is allowed in part, by reducing the compensation awarded by the Tribunal from Rs.15,80,200/- to 11 CGR, J. MACMA No.428 of 2022 Rs.11,51,800/- payable with interest at the rate of 7.5% per annum from the date of petition till realization. The Appellant-Insurance Company is directed to deposit the balance compensation, after deducting the amount, if any, already deposited, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is entitled to withdraw the same. There shall be no order as to costs. As a sequel, miscellaneous petitions pending consideration, if any in this case, shall stand closed. _____________________________ JUSTICE CHALLA GUNARANJAN Date:16.09.2025. cs