the high court of ANDHRA PRADESH :: AMARAVAT^I^f^^ THURSDAY, THE EIGHTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE IN j! i-R- >« Iku PRESENT THE HON’BLE MS. JUSTICE B.S. BHANUMATHI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3416 OF 2005 Between: The Oriental Insurance Co. Ltd., Rep. by its Branch Manager, Labbipet Branch Officer -2, Vijayawada, Vijayawada DMC. ...APPELLANT/RESPONDENT No.3 AND ■ ♦ 1. Garikapati Veeraiah, S/o. Sriramulu, Aged 44 Years, Tailor, R/o. Kodali , Kodali Post, Ghantasala Mandal, Krishna District. ... RESPONDENT/PETITIONER Chittajallu Srinivasa Rao, S/o. Bujji Babu, Aged 44 Years, Driver of Mini Van AP 16V 1386, R/o. Srikakulam Village, Ghantasala Mandal, Avanigadda, D.M.C. Gujjula Siva Ranga Nayaka Venkata Subba Rao, S/o. Veeraiah, Aged 44 Years, Owner of Mini Van AP 16 V 1386, R/o. Avanigadda, DMC. 2. 3. ...RESPONDENTS/RESPONDENT Nos.1 & 2 Appeal under Section 173 of M.V. Act against the Judgment and decree dated. 18.08.2005 in M.V.O.P. No:325 of 1996 on the file of the Court of the Chairperson, Motor Accidents Claims Tribunal -cum- District Judge, Machilipatnam. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers f y / in the suit and upon hearing the arguments of Smt. S.A.V. Ratnam for the Appellant and of Sri Y. Ramatirtha for the Respondent No.1. The Court doth order and decree as follows:- 1. That the MAGMA be and is here by partly allowed. That the award is modified to the extent of quantum of compensation by reducing from Rs.1,48,000/- to Rs/1,30,000/- (Rupees One Lakh Thirty Thousand Only) and the rest of the award passed by the Tribunal remaining intact. That there be no order as to costs in this MAGMA. 2. 3. Sd/- SHAIK MOHD. RAFI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Chairman MACT cum District Judge, Machilipatnam. Three C.D. Copies. 2. Cnr r •f \ HIGH COURT \ \V \ DATED:08/05/2025 * •% DECREE MACMA.No.3416 of 2005 m f. Co ^ Current seciion PARTLY ALLOlWING THE MACMA i ( f T IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAV THURSDAY, THE EIGHTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HON’BLE MS. JUSTICE B.S. BHANUMATHI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 341 fi OF 2005 (Appeal under Section 173 of M.V. Act against the Judgment and decree dated. 18.08.2005 in M.V.O.P. No.325 of 1996 on the file of the Court of the Chairperson, Motor Accidents Claims Tribunal -cum- District Judge, Machilipatnam) Between: The Oriental Insurance Co. Ltd., Rep. by its Branch Manager, Labbipet Branch Officer -2, Vijayawada, Vijayawada DMC. ...APPELLANT/RESPONDENT No.3 AND 1. Garikapati Veeraiah, S/o. Sriramulu, Aged 44 Years, Tailor, R/o. Kodali , Kodali Post, Ghantasala Mandal, Krishna District. ...RESPONDENT/PETITIONER 2. Chittajallu Srinivasa Rao, S/o. Bujji Babu, Aged 44 Years, Driver of Mini Van AP 16V 1386, R/o. Srikakulam Village, Ghantasala Mandal, Avanigadda, D.M.C. 3. Gujjula Siva Ranga Nayaka Venkata Subba Rao, S/o. Veeraiah, Aged 44 Years, Owner of Mini Van AP 16 V 1386, R/o. Avanigadda, DMC. '.V ...RESPONDENTS/RESPONDENT Nos.1 & 2 Counsel for the Petitioner : Smt. S.A.V. Ratnam. Counsel for the Respondent No.1 : Sri Y. Ramatirtha The Court made the following Order: . ? • '4 r / ■■ APHC010633682005 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] ■ Thursday, the Eighth day of May, Two Thousand and Twenty Five Present The Honourable Ms. Justice B.S.Bhanumathi Motor Accident Civil Miscellaneous Appeal No: 3416 of 2005 Between: ...Appellant The Oriental Insurance Company Limited and ...Respondents Garikapati Veeraiah and others Counsel for the appellant: I.S.A.V. Ratnam Counsel for the respondentj^ I.Yallabandi Ramatirtha The Court made the following: f/ 2 M.A.C.M.A.No.3416 of 2005 0^ JUDGMENT: This appeal is filed by the respondent No.3 (before the Tribunal) / insurance company, under Section 173 of Motor Vehicles Act, 1988 (in short ‘the Act’) challenging the award and the decree dated 18.08.2005 allowing-in-part the petition in M.V.O.P.No.325 of 1996 on the file of the Court of District Judge-cum-Motor Accidents Claims Tribunal, Krishna at Machilipatnam, filed under Section 140 and 166 of the Act, seeking compensation of Rs.2,00,000/- with interest @ 12% p.a., from the date of the accident till the date of realization. The case of the claimant is briefly as follows; 2. On 22.08.1995, at about 10 P.M., after getting the sewing machine and table repaired at Challapalli, the-claimant and Addanki Subbaiah engaged the mini lorry bearing No.AP 16 V 1386 for Rs.100/- for dropping them at Kodali and boarded it along with the sewing machine and table. The claimant and Addanki Subbaiah were asked to sit in the body of the lorry on the Super Phosphate bags which already had been loaded. The respondent No.1 drove the mini lorry with high speed in a rash and negligent manner near Gunderu bridge on Challapalli to Kodali road at K.M. Stone No.36/6, and suddenly applied breaks. As a result, the van turned turtle and the claimant and Addanki Subbaiah received grievous injuries. The claimant was shifted to the Government Headquarters Hospital, Machilipatnam for treatment. On the report given by the claimant, the S.H.O. of Ghantasala Police Station registered a case in Crime No.72/95 under Section 338 of I.P.C. and it was numbered as C.C.No.84 of 1996 on the file of the Judicial Magistrate of I Class, Avanigadda. The respondent No.1 filed counter denying the allegations and resisted the claim. The respondent No.2 / owner of the mini lorry filed a adopting the counter of the respondent No.1. The respondent 3. memo ffm 3 M.A.C.M.A.No.3416 of 2005 No.3 / insurance company which insured the mini lorry, filed a separate counter denying the material allegations and further contended that all conditions of policy relating to Section 149 (2) of the Act, were violated; that the respondent No.1 was not a licensed driver and so not authorized to drive; that the vehicle had no valid permit; that the amount of compensation claimed under different heads is high; and that as the claimant was travelling as an unauthorized passenger in a goods vehicle, the insurance company was not liable to pay compensation. The claimant was examined as P.W.1 and Dr.C.Sai Prasad examined as P.W.2. On behalf of the respondents, V.S. Subrahmanyam was examined as R.W.1. The following documents were marked behalf of all the parties: 4. was on 4(a). On behalf of the claimant: Exhibit Date Description of document Ex.AI 23.08.1995 Copy of FIR in Crime No.72/95 of Ghantasala Police Station. EX.A2 07.02.1995 Copy of wound certificate. EX.A3 25.08.1995 Copy of MVI report EX.A4 24.02.1996 Photostat copy of disability certificate EX.A5 Nil Bunch of medical bills. Nil X-ray. EX.A6 Bunch of x-rays. EX.A7 Nil 10.03.1998 Medical certificate. EX.A8 4(b). On behalf of the respondents, policy dated 13.04.1995 with terms and conditions was marked as Ex.BI. \ 4 M.A.C.M.A.No.3416 of 2005 ! 4(c). On behalf of the claimant, through the third parties, Accident Register was marked as Ex.X1 and a bunch of x-rays, along with radiologist opinion, was marked as Ex.X2. /■ ■ After considering the evidence on record and arguments on both sides, the Tribunal held that the accident was occurred due to the rash and negligent driving of the respondent No.1 and assessed the quantum of compensation at Rs. 1,48,000/-. The Tribunal allowed the petition against all the respondents with joint and several liabilities to pay the compensation and further held that the respondent No.3 is also liable to pay the awarded amount of compensation to the claimant and then recover the same from the respondent No.2. 5. Aggrieved by the award and the decree, the respondent No.3 filed this appeal. It is mainly contended by the appellant that the claimant was travelling in the van which is a goods vehicle as a fare paying passenger, whereas the terms and conditions of the policy of insurance under Ex.B1 do not cover liability for such person and therefore, the Tribunal erred in fastening liability on the insurance company, even by permitting the insurance company to first pay to the claimant and recover from the owner. It is also contended that the amount of compensation awarded is excessive and that the observations of the Tribunal are not founded on valid evidence. 6. 7. The learned counsel for the appellant submitted that the appellant is not at all liable to pay compensation as the claimant is a fare paying passenger in a goods vehicle and there is no evidence that he was accompanying sewing machine as alleged to treat him as owner of goods being carrying in goods vehicle and so, the policy of insurance does not cover the liability of the claimant, yet, the Tribunal erroneously made the insurance company also liable to pay the compensation. J 5 M.A.C.M.A.No.3416 of 2005 8. The learned counsel for the respondent No.1 / claimant contended that the Tribunal had rightly record and fastened liability on the respondents and the respondent No. 3 to appreciated the evidence on moreover permitted owner and recover the amount paid from the therefore, no loss would be caused to the appellant. 9. The main contention of the the claimant was a fare paying passenger i other hand, the claimant pleaded that he appellant is that it has no liability as a goods vehicle. On the in was travelling in the vehicle along with the goods i.e., sewing machine. Except in the petition and evidence of P.W.I, as there is no other evidence supporting that plea or charge sheet etc.,), the Tribunal did (due to silence in the F.I.R. not believe it and opined that the claimant a fare paying passenger. There is no appeal or cross objection filed by him challenging that finding. The appellant also took the was same stand. Therefore, it is not necessary to examine evidence accompanying the goods in the vehicle. Then, the point is that the Tribunal relied on the proposition that the insurance company is liable to amount of compensation from the as to whether the claimant was first pay and then recover the owner of the vehicle as held by the Supreme Court in National Insurance Company Limited vs. Baijit Kaur and others’, this Court in the case of United India Insurance Which was followed by Company Limited vs. Suggu Venkataraju and others and also that even if there was for not holding valid passengers, the insurer has recover from the insured Company Limited violation of terms and conditions of policy either licence by the driver or carrying gratuitous liability to first pay to the claimant and then held by this High Court in United India Insurance as . Tam Tam Venkata Reddy and another’. vs ' 2004 ACJ 428 2 2005 ACJ 669 ^2004(1)LS 373 'V, 7' F ^ M.A.C.M.A.No.3416 of 2005 The appellant contends that the Tribunal ought to have exonerated the appellant from the liability as per the decision of the Supreme Court in National Insurance Company Limited Bommithi Subbhayamma and others'*, and M.V.Jayadevappa and another vs. Oriental Fire and General Insurance Company Limited and others®. 10. vs. In the case of Bommithi Subbhayamma (supra) and M.V.Jayadevappa (supra), the question is regarding the liability of insurance company to a gratuitous passenger travelling in a goods vehicle, but not a fare paying passenger in such vehicle. As such, there is no application of these decisions to prove the contention of the appellant. No error is found in the award of the Tribunal on this aspect. 11. 12. With regard to quantum of compensation, it is pertinent to note that the Tribunal found from the evidence of the claimant and the doctor examined as P.W.2, that the claimant sustained fracture of right burner, left ulna, left forearm and left leg besides lacerated wound over the left parietal region and abrasion over dorsum of foot and another abrasion the roof of the right toe, dorsal aspect and that the claimant was over treated in the Government Hospital, Machilipatnam as in-patient from the date of the accident till May, 1996 and subsequently, several times he underwent treatment. The claimant was treated by surgery, debridement of left leg and external fixations, but as the wounds had not healed, he sustained temporary disability and shortening of leg leading to limping and that he requires another surgery for removing of implants. P.W.2 who happened to be one of the doctors of the Medical Board stated that the disability certificate was issued to the claimant fixing temporary disability @ 30%. However, since it is a temporary disablement, the Tribunal took it @ 20% instead of 30%. ^ 2005(2) TAG 1 (SC) ® 2005^)=TAC 5 (SC) 7 M.A.C.M.A.No.3416 of 2005 The claimant stated that he used to earn Rs.3,000/- per month as tailor and the same was accepted by the Tribunal as he can earn at least Rs.100/- per day on an average. Since the claimant was aged about 35 years, the Tribunal adopted multiplier 15 which is nearest to the multiplier 14.81 indicated in the case of Bhagwan Das vs. Mohs. Arif®. While calculating the total amount of 20% annual loss multiplied by multiplier 15, the Tribunal estimated total loss of future earnings Rs.5,40,000/- (Rs.36,000/- x 15), 20% comes to Rs. 1,35,000/-. Obviously, this calculation is erroneous 20% of Rs.5,40,000/- is equal to Rs. 1,08,000/-. 13. \ as 14. As per the decision of the Supreme Court in Raj Kumar vs. Ajay Kumar^, compensation for loss of future earnings due to permanent disability shall be assessed as indicated below: 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability), (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his M987 ACJ 1052 "(2011) 1 see 343 1 8 M.A.C.M.A.No.3416 of 2005 permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” But, in the present case, though it is temporary disablement, the Tribunal erroneously adopted the method of calculation as noted above. The decision of Bhagwan Das’s case (supra.) also is on the similar linies as in the decision of the Supreme Court in Raj Kumar’s case (supra). Therefore, it is not only a calculation error, there is also error in the method adopted to the awarded compensation. 15. Since the claimant was treated for a prolonged time for multiple injuries and was treated as in-patient and even after his discharge since he has to use his legs for working as a tailor. Therefore, the claimant is entitled to compensation for actual loss of income during the said period. As the amount of monthly income assessed by the Tribunal is appropriate, the claimant can be granted the compensation for the actual loss of income for at least a period of ten months, because he frequently visited hospital for treatment even after his discharge from the hospital. Thus, he is entitled to Rs.30,000/- for compensation of actual loss of income. 16. That apart, he is also entitled to compensation for pain and suffering. As he suffered from multiple injuries, some of which are compound and underwent treatment for a prolonged period, ail through 17. \ 9 M.A.C.M.A.No.3416 of 2005 suffering not only mentally, but also physically, he can be granted compensation of an amount of Rs.50,000/- for pain and suffering. As the claimant suffered permanent disability of shortening of leg which lead to limping, he is entitled to additional amount of compensation of Rs.30,000/- The Tribunal awarded Rs.5,000/- for transportation expenses, the same is not excessive and needs no interference. Similarly, the Tribunal awarded Rs.15,000/- for medical expenses, both past and future as he filed medical bills under Ex.A5 for a sum of Rs.2,895/- and also underwent some operations for removal of implants. This amount also does not require interference. Thus, in total, the claimant is entitled to Rs.1,30,000/- . Due to calculatiori error, the Tribunal awarded Rs. 1,48,000/-. Anyhow since the claimant is entitled to compensation of Rs.1,30,000/-, impugned award needs modification by reducing the amount of compensation from Rs. 1,48,000/- to Rs.1,30,000/-. 18. 19. 20. The Tribunal awarded interest @ 6% per annum. The rate of interest, needs no interference as it is not high. The claimant has not sought increase in the rate of interest as he did not choose to file appeal or cross-objections. The Tribunal asked to pay interest from the date of the petition i.e., 04.11.1996 till 20.01.2000 on which date the petition was dismissed for default and again from 01.02.2005 on which date the petition restored to file and till the date of realization. As such, the interest, both in terms of rate and the period shall be paid as awarded by the Tribunal. 21. 22. was 23. ■ ' - 10 4.. M.A.C.M.A.No.3416 of 2005 In the result, the Motor Accident Civil Miscellaneous Appeal is partly allowed by modifying the award only to the extent of quantum of compensation by reducing from Rs. 1,48,000/- to Rs.1,30,000/- (Rupees one lakh thirty thousand only) and the rest of the award passed by the Tribunal remains intact. No costs. 24. / Interim orders granted earlier, if any, shall stand vacated. Pending miscellaneous petitions, if any, shall stand closed. Sd/- SHAIK MOHD. RAFI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To. 1. The Chairman MACT cum District Judge, Machilipatnam. 2. One CQto Smt. S.A.V. Ratnam, Advocate (OPUcf 3. One CC to Sri Y. Ramatirtha, Advocate (OPUC) 4. One CC to The Section Officer, V.R. Section, High Court of A.P. 5. Three C.D. Copies. Cnr HIGH COURT DATED:08/05/2025 JUDGMENT + DECREE MACMA.No.3416 of 2005 4. Current Section ^ ^ PARTLY ALLOlWING THE MAGMA