APHC010063612018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3548] WEDNESDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL Nos: 1572/2018 & 2623/2018 M.A.C.M.A.No.1572 of 2018: Between: 1. CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD, REP.BY ITS BR.MANAGER, OFFICE SITUATED AT PARA HOUSE, 2ND FLOOR, NO.2, S.C.BOSE ROAD, CHENNAI. ...APPELLANT AND 1. B VAMSI KUMAR, S/O.B.KRISHNA REDDY, AGED ABOUT 30 YEARS HOME GUARD, R/O.THALEBEDU VILLAGE AND POST, CHITTOOR MANDAL AND DISTRICT. 2. SHOWKATH SHAIK KALLU, S/O.IBRAHI, AGED NOT KNOWN, R/O.D.NO.28-164, RAMANAGAR COLONY, CHITTOOR. 3. S INTHIYA, S/O.LATE S.BABU, AGED ABOUT 30 YRS, MUSLIM, R/O.D.NO.15-2236, C.K.ROAD, CHITTOOR. ( R 2 AND 3 ARE NOT NECESSARY PARTY) ...RESPONDENT(S): Appeal filed under Order 41 of CPC before the High Court, aggrieved by the orders passed by way of judgment and Decree in M.V.O.P.No.121 of 2015, dated 01.08.2017 on the file of the IX Addl. District Judge-cum- Chairman, Motor Accidents Claims Tribunal Chittoor, the Appellant begs to prefer this appeal 2 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 IA NO: 1 OF 2018 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 50 days in filing the appeal against the decree and judgment passed in M.V.O.P.No.121 of 2015, dated 01.08.2017 on the file of the IX Addl. District Judge-cum-Chairman, Motor Accidents Claims Tribunal, Chittoor, and pass IA NO: 2 OF 2018 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 stay the execution of decree and judgment passed in M.V.O.P.No.121 of 2015, dated 01.08.2017 on the file of the IX Addl. District Judge-cum-Chairman, Motor Accidents Claims Tribunal, Chittoor, pending the final disposal of the main appeal and pass IA NO: 3 OF 2018 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 condone the delay of 112 days in representing the MA.CMA.SR.No.4738 of 2018, and pass. Counsel for the Appellant: 1. KOTA SUBBA RAO Counsel for the Respondent(S): 1. T JANARDHAN RAO & 3 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 APHC010667472018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3548] WEDNESDAY,THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2623/2018 Between: 1. B.VAMSI KUMAR, S/O B.KRISHNA REDDY, AGED ABOUT 30 YEARS, HOME GUARD, R/O THALEBEDU VILLAGE AND POST, CHITTOOR MANDAL, CHITTOOR DISTRICT. ...APPELLANT AND 1. SHOWKATH SHAIK KALLU, S/O IBRAHIM, R/O D.NO.28-164, RAMANAGAR COLONY, CHITTOOR. 2. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, REP. BY ITS BRANCH MANAGER, PARE HOUSE, 2ND FLOOR, NO.2, NSC BOSE ROAD, CHENNAI-600 001, TAMILNADU STATE. 3. S INTHIYAZ, S/O LATE S.BABU,. AGED ABOUT 30 YEARS, R/O D.NO.15-2236, C.K.ROAD, CHITTOOR. ...RESPONDENT(S): Appeal filed under Order 41 of CPC before the High Court, aggrieved by the order and decree dated 1.4.2017 passed in M.V.O.P.No.121 of 2015 by the Motor Vehicle Accidents Claims Tribunal-cum-IX Additional District Judge, Chittoor, in so far as it went against the interest of the appellant 4 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 IA NO: 1 OF 2018 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 263 days in filing the present MACMA and pass Counsel for the Appellant: 1. T JANARDHAN RAO Counsel for the Respondent(S): 1. 2. KOTA SUBBA RAO The Court made the following: 5 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 COMMON JUDGMENT: Heard, Mr.Kurapati Srinivasa Rao, learned counsel representing Mr.Kota Subba Rao, learned counsel for the Insurance Company and Mr.T.Janardhan Rao, learned counsel appearing for the claimant. 1. Aggrieved by the Order and Decree, dated 01.08.2017, passed in M.V.O.P.No.121 of 2015, by the Motor Vehicle Accidents Claims Tribunal- cum-IX Additional District Judge, Chittoor (hereinafter referred to as <the Tribunal=), awarding Rs.24,10,972/-, the appeal M.A.C.M.A.No.1572 of 2018 is filed by the Insurance Company, Cholamandalam MS General Insurance Company Limited, represented by its Branch Manager. The claimant also filed Cross-Appeal, numbered as M.A.C.M.A.No.2623 of 2018 against the same order passed by the Tribunal in M.V.O.P.No.121 of 2015. Since both the appeals arise out of the same order, they are heard together and a common order is being passed. 2. The parties are arrayed as they were before the Tribunal. 3. The petition before the Tribunal was filed under Section 166(1)(a) of the Motor Vehicles Act, 1988, claiming compensation of Rs.30,00,000/- for the injuries sustained by the claimant in the accident occurred on 11.09.2014 at about 07.45 p.m. near Cherlopalle village on Chittoor-Tiruttani road. In the said accident, the vehicle involved is an Auto bearing registration No.AP03TC3194, belonging to the 1st respondent. The 2nd respondent is the Insurance Company and the 3rd respondent being the driver. 4. The brief facts germane to the issue are that the petitioner, who is the claimant, was aged about 28 years and was working as Home Guard in Police Department and, in addition to attending agricultural work. On 11.09.2014, while he was riding his Hero Honda motor cycle bearing No.KA02HB1147 to go to Chittoor, on the way near Cherlopalle, an Auto 6 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 bearing No.AP03TC3194 was driven by the 3rd respondent in a rash and negligent manner, dashed the motor cycle, which resulted the accident, wherein petitioner incurred severe bleeding on his right leg knee, which was crushed. Immediately, the petitioner was shifted to Government Hospital, Chittoor, and from there to CMC Hospital, Vellore, for expert treatment, where surgery was conducted and he was admitted as inpatient from 12.09.2014 to 21.09.2014 and in view of the accident, he incurred huge amounts for the treatment. 5. A complaint was registered vide Crime No.160 of 2014 for the offence punishable under Section 338 of IPC by the Station House Officer, G.D. Nellore Police Station, against the driver of the Auto bearing No.AP03TC3194, who is the 3rd respondent. After investigation, charge sheet is filed. 6. The 2nd respondent filed his written statement refuting the allegations and averred that the petitioner himself drove the vehicle in a rash and negligent manner and, while crossing the road, lost control due to which the accident has occurred and contended that the 2nd respondent is not liable to pay any compensation. 7. Basing on the said pleadings, the Tribunal has framed the following issues: i. Whether the accident was occurred due to rash and negligent driving of the driver of the auto bearing No.AP 03/TC 3194 or due to rash and negligent riding of the rider of the Hero Honda bearing Reg. No. KA 02/HB 1147 or by both? ii. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? iii. To what relief? 7 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 8. The petitioner has examined PWs.1 to 4 and marked Exs.A1 to A9. On behalf of the respondents, RWs.1 and 2 were examined and Ex.B1 was marked. Exs.X1 to X6 were marked. 9. The Tribunal, while answering issue No.1, has taken note of the evidence adduced by the petitioner and his examination as PW1 along with Exs.A1 to A9. PW2, M.Dayasagar, who was working in the District Police Office deposed regarding the salary received by the petitioner. PW3, P.Lakshmipathi, who issued disability certificate-Ex.A8, deposed that the disability is 80% and is permanent in nature and there is amputation to the right leg above knee level and stated that PW1 can attend only desk work. PW4, G.Santhosh Kumar, who is working as Assistant Professor in CMC Hospital, has also deposed that he treated the petitioner and marked Exs.X1 to X3. 10. The Senior Assistant in RTA Office, Chittoor, was also examined as RW1, who deposed that as per the records, the 3rd respondent is non- transport vehicle driver and he has given his evidence. RW2, G.Anandan, who is Legal Manager of the 2nd respondent-company, through his affidavit, reiterated the written statement averments and got marked Ex.B1, copy of insurance policy and accepted that the charge sheet is filed by the police against the driver of the crime vehicle. 11. The Tribunal, on an overall gamut of the evidence adduced on behalf of the petitioner and the documentary evidence adduced thereof, considered the injury as grievous in nature and held that the petitioner was successful in proving the accident occurred due to rash and negligent driving of the offending vehicle, and accordingly, answered issue No.1 in favour of the petitioner and against the respondents. 12. While answering issue No.2 regarding the entitlement for compensation, the vital aspect taken by the Tribunal was the salary certificate and the deposition of the petitioner and the doctors, who treated the petitioner. 8 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 The Tribunal awarded Rs.10,000/- towards transport charges and Rs.10,000/- towards extra nourishment. The salary of the petitioner was taken as stated by PW2 that the petitioner was drawing Rs.9,000/- per month, and 50% was added towards future prospects. As per the settled law, the multiplier >17? was adopted as per the judgment of Hon?ble Supreme Court in Sarla Verma and Others vs. Delhi Transport Corporation and Another 1 . The Tribunal constructively accepted the 80% disability certificate issued by PW3 and in total, the compensation which was awarded on the different heads, such as transport charges, extra nourishment, pain and suffering and medical expenses, derived at Rs.24,10,972/-. 13. The principal contention advanced by the appellant?s counsel, Mr.Kurapati Srinivasa Rao, is that the Tribunal has grossly erred in accepting the evidence and considered Rs.9,000/- per month as salary believing the evidence of PW2. Further, the Tribunal was wrong in awarding 50% towards future prospects and in total, the entire order passed by the Tribunal is erroneous and liable to be set aside. 14. On the other hand, Mr.T.Janardhan Rao, learned counsel appearing for the claimant, asserted that a cross appeal is filed seeking enhancement of compensation. In particular, the Tribunal ought to have taken the disability as 100% instead of 80%, as the petitioner is unable to do his regular work and is confined only to desk jobs. 15. The Tribunal, in the opinion of this Court, went wrong in considering the disability as 80% when it has positively taken the deposition of the doctor, who was examined, who stated that the petitioner can only do desk jobs and the amputation is permanent in nature. This Court feels that the proper assessment of disability would be 90%. The other part of the judgment passed by the Tribunal is upheld. 1 2009 (3) ACC 708 (SC) 9 GTK, J M.A.C.M.A.Nos.1572 & 2623 of 2018 16. This Court has noted the judgment of the Hon?ble Supreme Court relied upon by the learned counsel for the claimant in Mohan Soni vs. Ram Avtar Tomar and others2, which holds that when the right leg is amputated up to the knee, it has to be treated as permanent disability and the said ratio is no more res integra and hence, borrowing the said principle, this Court feels that 90% disability would be appropriate. On this basis, the amount towards pain and suffering, loss of income, loss of earnings would be Rs.24,78,600/- (Rs.13,500 x 12 x 17 x 90/100). The rest of the conditions remain unchanged. 17. In view of the aforesaid facts and circumstances, the Order and Decree passed by the Tribunal in M.V.O.P.No.121 of 2015, dated 01.08.2017, is modified to the extent indicated above. However, it is made clear that the claimant is not entitled to claim any interest on the enhanced compensation. 18. In fine, the Motor Accident Civil Miscellaneous Appeal No.1572 of 2018 is dismissed and the Motor Accident Civil Miscellaneous Appeal No.2623 of 2018 is partly allowed. There shall be no order as to costs. 19. As a sequitur, Interlocutory Applications pending, if any, shall stand closed. ___________________________ TUHIN KUMAR GEDELA, J Date : 18-03-2026 BMS 2 2012 (2) SCC 267