APHC010091612022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] THURSDAY, THE SIXTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NOs.95 AND 229 of 2022 Between: 1. JALLEPOGULA PADMAVATHI, W/O. RATNA RAJU, NOW AGED ABOUT 44 YEARS, AGRICULTURAL COOLIE, NALLACHERUVU 2ND LINE, GUNTUR CITY, GUNTUR DISTRICT. ...APPELLANT AND 1. SHAIK SUBHANI, S/O. ABDUL KHADAR, (OWNER OF THE AUTO AP 7 TT 5742) GORANTLA VILLAGE, GUNTUR DISTRICT. 2. THE ORIENTAL INSURANCE CO LTD, REP. BY ITS DIVISIONAL MANAGER, KOTHAPET, GUNTUR COVER NOTE NO. 462699 VALID FROM 11-4-2005 TO 10-4-2006. 3. SHAIK KARIMULLA CHINNA SUBANI, S/O. SUBANI, NOW GED ABOUT 36 YEARS, KARLAPALEM VILLAGE AND MANDAL, GUNTUR DISTRICT ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased tomay be pleased to set aside the Judgment and decree passed in M.V.O.P. 532 of 2016 on the file the Chairman, Motor Accidents Claims Tribunal-cum-IV Addl. District Judge, Guntur dated 28-1-2022 and enhance the amount of compensation as entitled by the appellant together with interest at the rate of 12percent per annum from the date of filing the Original Petition till the date of realization and pass such IA NO: 1 OF 2022 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 may be pleased to permit her to amend the amount of compensation claimed from Rs.10,00,000/- to Rs.15,00,000/- in the Original Petition in MVOP No. 532 of 2016 on the file the court of the Chairman, Motor Accidents Claims Tribunal-cum- IV Addl. District Judge, Guntur dated 28-1-2022 and to pass such Counsel for the Appellant: 1. SIVA PRASAD KATAKAMSETTY Counsel for the Respondent(S): 1. V RAGHU 2. The Court made the following: THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NOs.95 AND 229 of 2022 COMMON JUDGMENT: Both these appeals challenge the order dated 28.01.2022 passed in M.V.O.P. No.532 of 2016 on the file of Motor Accidents Claims Tribunal – cum – IV Additional District Judge, Guntur, by which the tribunal has awarded compensation for a case of death. 2. For the sake of convenience, parties herein will be referred to as they were arrayed before the Tribunal. 3. (a) This is a case of injuries. The claimant was proceeding in passenger auto and in head-on collision with another goods auto, resultantly, the claimant suffered severe injuries. The injuries were assessed to be of fracture to right femur (entire right leg was crushed, leading to stiffness of right knee and ankle joint fracture of right led involving ankle joint). She was admitted to Government hospital at Bapatla and undergone multiple surgeries. The incident occurred on 02.03.2006. The same was reported to police, who registered Crime No.14/2006 against the driver of auto in which claimant was travelling. The police have conducted investigation and laid charge sheet against him. The claimant 2 CGR, J MACMA. Nos.95 & 229 of 2022 stated to be agricultural coolie and used to earn ₹200/- per day. Since she had already undergone treatment not only at Government hospital but also at private hospital as inpatient for about 60 days and was operated for major surgery to her right leg and implants were inserted besides skin grafting, substantial amounts were spent for medical treatment. Therefore, compensation was claimed for ₹10,00,000/-. (b) The owner and driver of auto in which claimant travelled remained ex parte. The 2nd respondent – Insurer of the said auto filed written statement denying the manner in which the accident has occurred and that the claim has to be rejected for non-joinder of owner and driver of claimant’s auto, that the auto was carrying more than 10 persons at the time of accident, beyond the permissible capacity, therefore, the same amounted to violation of conditions of policy. Further that as per FIR and Charge Sheet, it was the driver of passenger auto who was negligent in causing the accident, therefore, clearly there was negligence on the part of the passenger auto driver, but not on the other goods transport auto driver alone. Besides further plea was also raised that claim was instituted nearly after 10 years of occurrence of accident, therefore, 3 CGR, J MACMA. Nos.95 & 229 of 2022 is barred by limitation and disputed the disability factor, age, income and the compensation so claimed. (c) Upon considering the material available on record, the tribunal framed the following issues: 1) Whether the accident occurred due to rash and negligent driving of the driver of the auto bearing No.AP 7TT 5742? (or) Whether the accident occurred due to rash and negligent driving of the driver of the auto bearing No.AP 27DT/R 6463? 2) Whether the petitioner is entitled to compensation for the injuries sustained by her in the accident, if so, to what amount and from whom? 3) To what relief? (d) Claimant got examined herself as P.W.1 besides examining the doctor, who treated her as P.W.2 and got marked Exs.A1 to A4 and Ex.X1. Officer of the respondent insurer was examined as R.W.1 and no documents were marked. The tribunal after analysing the evidence on record, answered first issue by holding that the accident occurred due to head-on collision of two autos, and the same was on account of the negligence of both drivers. However, the tribunal has come to conclusion that it was a case of composite negligence but not contributory negligence, therefore, the liability has been fastened on the insurer. 4 CGR, J MACMA. Nos.95 & 229 of 2022 (e) Coming to the aspect of quantum of compensation, tribunal has awarded the same as under: S.No. Heads Calculation 1. Annual Income ₹42,000/- 2. Multiplier (at the age of 30 years) 17 3. Functional Disability 50% 4. Future Prospects 40% Total Loss of earnings for the disability ₹7,14,000/- 5. Medical expenses ₹30,000/- 6. Loss of earnings ₹21,000/- 7. Pain and Suffering ₹21,000/- 8. Total compensation granted ₹7,86,000/- (e) Aggrieved by aforesaid order, both the insurer as well as claimant are in appeal. 4. Heard Sri Katakamsetty Siva Prasad, learned counsel for claimant and Sri V.Raghu, learned counsel for respondent insurer. Submissions regarding liability: 5. (a) Learned counsel for insurer contended that the tribunal has committed error in not construing the negligence of the driver of auto in which claimant was proceeding to be that of 5 CGR, J MACMA. Nos.95 & 229 of 2022 contributory negligence rather the tribunal having come to conclusion that both drivers of vehicles involved in accident being negligent, it ought to have considered such negligence to be that of contributory negligence rather than composite negligence. (b) He further contended that the tribunal ought not to have entertained the claim petition as the same came to be instituted nearly after ten years of occurrence of accident and such belated claims are clearly not entertainable. 6. (a) Per contra, learned counsel for the claimant tried to support the impugned order by contending that as the claimant was only travelling in auto and not in the control of driving of auto, even if it is a case of head on collision, the same would not constitute to be contributory negligence rather it has to be only composite negligence. Only in cases where the claimant himself is a driver of one of the vehicles which collude with other, then alone negligence on his part resulting in such accident would arise, leading to assessing contributory negligence. He tried to differentiate between contributory and composite negligence, and in support of the same, reliance has been placed on judgment of Hon’ble Apex 6 CGR, J MACMA. Nos.95 & 229 of 2022 Court in Khenyei v. New India Assurance Company Limited and others1. (b) He further contended that as there is no specific limitation provided under the Act, there is no bar for initiation of claims and question of computing any limitation does not arise. Submissions regarding quantum: 7. (a) Learned counsel for claimant while addressing his appeal filed for enhancement of compensation, contended that the tribunal ought to have considered the income of claimant as ₹6,000/- but not as ₹5,000/- and that functional disability has been assessed as 50% when there is a clear evidence, in particular, medical board certificate issued under Ex.A4 suggesting the disability as 85% and evidence of P.W.2 – doctor, who treated the claimant suggesting 60%, therefore, the tribunal has without any basis has merely applied 50%, which is unsustainable. (b) He further contended that tribunal has not granted any compensation towards pecuniary heads, in particular, future medical expenses, attendant charges and transport charges, considering the nature of injuries sustained and difficulty faced by the claimant. She is entitled to be awarded reasonable 1 (2015) 9 SCC 273 7 CGR, J MACMA. Nos.95 & 229 of 2022 compensation towards aforesaid heads. He also contended that even with respect to non-pecuniary heads, such as loss of amenities and pain and suffering, the tribunal has not considered the prior claim and only granted ₹21,000/- for later, which are also required to be reasonably determined. 8. (a) Opposing aforesaid submission, learned counsel for insurer contended that the tribunal, on proper appreciation of evidence on record, has determined just and fair compensation, which does not warrant any interference. Though there is no evidence on record to suggest that the claimant was attending to agricultural coolie works and earning ₹6,000/- per month, tribunal has awarded ₹5,000/-, considering the year of accident, the same is very much reasonable and commensurate with minimum wages being paid at that point of time. (b) He further contended that the tribunal has assessed the disability factor as 50% after analyzing the evidence on record. As the accident occurred in 2006, but the medical board certificate was secured only on 03.12.2010 and even P.W.2 doctor deposed on 16.03.2020, the tribunal has liberally considered the disability factor and arrived at 50%, which cannot be found fault with. Insofar as pecuniary and non-pecuniary heads, the tribunal has 8 CGR, J MACMA. Nos.95 & 229 of 2022 considered and granted appropriate amounts, which do not call for any revision, and therefore, the quantum of compensation awarded by tribunal being just and fair and does not call for any interference. 9. Perused the record and considered rival submissions. 10. The injuries sustained by the claimant were on account of the accident that occurred on 02.03.2006. The claimant, while traveling in passenger auto, another goods auto coming in opposite direction collided with each other and due to such head-on collision, the accident occurred, thereby the claimant had sustained serious injuries. The nature of injuries are clearly captured in Ex.A3 – wound certificate. The accident was reported to police and registered crime, and the driver of passenger auto was arrayed as accused and even charge sheet came to be laid against him. It is the case of claimants that accident has occurred while she was travelling in the passenger auto. In order to prove that accident has occurred and she sustained injuries, she herself spoke as P.W.1 and got marked Ex.A1 – FIR, Ex.A2 – Charge Sheet. 11. On the other hand, the insurer has taken a stand that since the accident has occurred on account of negligence of driver of passenger auto, there is a contributory negligence and thereby, as 9 CGR, J MACMA. Nos.95 & 229 of 2022 insurer of the said auto, it cannot be mulcted with entire of the liability. The tribunal after appreciation of evidence on record has ultimately rendered finding that the accident occurred due to head on collision involving two autos and on account of rash and negligent driving of drivers of both the autos, the claimant has sustained injuries. There is no dispute nor denial regarding the negligence of driver of passenger auto. Since the claimant was inmate of passenger auto and has not directly contributed to the negligence, it merely amounted to composite negligence. 12. Learned counsel for appellant vehemently contended that even if the claimant is inmate of the auto, since the accident occurred because of the rash and negligent act of drivers of both autos, there was a head-on collision and thereby, the claimant sustained injuries, the principle of contributory negligence clearly applies. The concept of contributory and composite negligence came to be considered and explained by Hon’ble Apex Court in T.O.Anthony v. Karvarnan and others2, followed in Khenyei case (supra). The relevant observations are quoted as under: “15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person 2 (2008) 3 SCC 748 10 CGR, J MACMA. Nos.95 & 229 of 2022 who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan [(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : (SCC pp. 750-51, paras 6-7) “6. ‘Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it 11 CGR, J MACMA. Nos.95 & 229 of 2022 necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of ‘composite negligence’ will not apply nor can there be an automatic inference that the negligence was 50 : 50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 12 CGR, J MACMA. Nos.95 & 229 of 2022 13. The present case clearly falls under composite negligence but not contributory negligence. The tribunal has rightly held so, therefore, this Court is not impressed with aforesaid contention of the insurer. Insofar as the aspect of limitation is concerned, as rightly contended by counsel for claimant, since there is no prescribed period of limitation under the Act, as claim for compensation made is under beneficial legislation, no specific time limit can be inferred to curtail the rightful claim. It is also to be seen that prior to 01.04.1994 and after 01.04.2024, the statute had specifically provided for limitation, therefore, when the legislature clearly contemplated not to have any specific period of limitation, this Court cannot read into it any fetters for restricting the claim. 14. The claimant has claimed income as ₹6,000/- per month whereas tribunal has assessed it as ₹5,000/-. Except for the statement made by P.W.1, there is no supporting evidence to justify the claim of ₹6,000/-. Nevertheless, tribunal has considered ₹200/- per day as normal coolie earnings and even the said amount also appears to be reasonable considering the minimum wages applicable at relevant point of time. Therefore, this Court finds that the amount so fixed is justified and does not warrant any interference. 13 CGR, J MACMA. Nos.95 & 229 of 2022 15. Coming to the aspect of disability, the claimant has adduced the evidence of P.W.2 – doctor, who treated her, to speak about the disability. P.W.2 deposed that having regard to nature of injuries sustained, as seen from Ex.A3, the claimant had inflicted with disability of 60%, which was partial and permanent. No doubt the doctor had treated her at relevant point of time, but he has given such evidence only in the year 2020. Further, the claimant has also got marked Ex.A4, which is medical board certificate dated 03.12.2010, as per which the disability was indicated as 85%. Though such certificate came to be accepted, the doctors who issued the same have not been examined, even the said certificate was secured after more than four years of the occurrence of incident. 16. In the light of the aforesaid evidence, the tribunal having assessed the genuinity and veracity of the same, has ultimately come to conclusion and fixed the functional disability as 50%. Normally, in cases of injuries, the doctors or medical board would only certify the percentage of disability of particular part of body or the total bodily disability. It is for the tribunal to ultimately assess the functional disability corresponding to the local or complete 14 CGR, J MACMA. Nos.95 & 229 of 2022 bodily disability, having regard to the nature of avocation of the victim. 17. In the present case, it is stated that claimant was a coolie and since she had suffered injury to her right leg and inasmuch as dysfunction of leg would completely paralyzed her from performing the coolie works, the functional disability should be viewed from such angle. Considering totality of circumstances of the case, the tribunal has ultimately fixed the functional disability as 50%. Though medical certificate was at later point of time and doctor has spoken about the disability and that too without having any access to the medical record, still the tribunal assessed functional disability as 50%. Since the conclusion drawn by tribunal is based on sound reasoning and on appreciation of evidence on record, this Court is not inclined to disturb the same. Non-pecuniary heads: 18. Loss of Amenities: Claimant has claimed ₹1,00,000/- towards loss of amenities, however, tribunal granted none. In Raj Kumar v. Ajay Kumar and another3, the Hon’ble Apex Court, considering the aspect of loss of amenities, held that person is not only to be compensated for the physical injury and also for the loss 3 (2011) 1 SCC 343 15 CGR, J MACMA. Nos.95 & 229 of 2022 he suffered as a result of such injury and such person is required to be compensated for his inability to lead a full life, inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn. As tribunal has not granted any amounts under this head, this Court deems it fit to award an amount of ₹25,000/- for loss of amenities, considering the age of deceased as 30 years. 19. Pain and suffering: Tribunal has awarded ₹21,000/- under pain and suffering. The claimant has sustained grievous injuries and even medical evidence on record suggests so. She had also undergone multiple injuries in the process of treatment and had undergone loss of mental stress and rejectment and unhappiness. 20. Considering the facts and circumstances of the case, this Court is of the opinion that amount awarded by tribunal needs to be revised and accordingly, an amount of ₹50,000/- awarded towards the same. Pecuniary Heads: 21. Claimant has claimed for future medical expenses, attendant charges and transport charges. No such claim was made before tribunal, and for the first time, such plea has been raised in present appeal. On perusal of evidence on record, there is nothing 16 CGR, J MACMA. Nos.95 & 229 of 2022 forthcoming to suggest either any medical expenses were incurred nor the doctors have spoken of the expenses that would be incurred in future or the requirement of having any attendant on permanent basis. In fact, the tribunal has noted that there was absolutely no evidence in support of claim for medical expenses, rather, considering the nature of injuries and treatment undergone, it had awarded ₹30,000/- per month towards medical expenses. In normal course, unless the expenses are supported by valid medical bills, the same would not be granted, but having regard to peculiar facts and circumstances, the same has been awarded. In view of the same, this Court does not see any basis for awarding aforesaid claim of amounts falling under pecuniary heads. 22. Accordingly, in view of the above observations, the compensation payable to claimants stands modified as under: Sl.No. Heads Amount Awarded 1 Loss of income with 50% disability ₹7,14,000/- 2 Loss of Amenities ₹25,000/- 3 Pain and Suffering ₹50,000/- 4 Medical expenses ₹30,000/- 5 Loss of earnings during treatment ₹21,000/- Total ₹8,40,000/- 17 CGR, J MACMA. Nos.95 & 229 of 2022 23. Appeal of insurer i.e., MACMA No.229 of 2022 is dismissed. Appeal of claimant i.e., MACMA No.95 of 2022 is allowed in part. The order is modified to the extent of compensation so revised and other directions issued in the operative portion of the tribunal order shall stand unmodified. No costs. As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed. _______________________ CHALLA GUNARANJAN, J 16.10.2025 SS