APHC010174792021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 190/2022 Between: 1. SAKE DURGA PRASAD @ DURGESH, S/O. NAGENDRA, AGED ABOUT 19 YEARS, RELIGION. HINDU, R/O. TADIPATRI ROAD, BATHALAPALLI VILLAGE & MANDAL, ANANTHAPURAMU DISTRICT. ...APPELLANT AND 1. A.VENKATESWARLU, S/O. NOT KNOWN, R/O. D.NO.5-62-54, NEAR POLICE STATION, VIJAYAPURI SOUTH, MACHERLA, GUNTUR- 522426 (OWNER LORRY BEARING NO.AP-07-TD-2176) 2. THE ORIENTAL INSURANCE CO LTD, REPRESENTED BY ITS AUTHORISED SIGNATORY, ANANTHAPURAM. 3. SHAIK NASAR, S/O. LATE SYDULU, AGED ABOUT 39YEARS, RIO. NEHRU NAGAR, MACHERLA VILLAGE 86 MANDAL, GUNTUR DISTRICT. ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying that the High Court may be pleased to aggrieved by the decree and judgment passed in, dated 22.01.2019, on the file of Motor Accident Claims Tribunal (Before The IV Addl. District Judge), Ananthapuramu. 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 to 2 VS,J MACMA.No.190 of 2022 condone the delay of 314 days in filing the appeal against, dated: 22.01.2019 on the file of the court of the Motor Accidents Claims Tribunal (Before The IV Addl. District Judge, Ananthapuramu) and to pass such other orders. IA NO: 2 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 to enhance the compensation of amount of Rs.10,50,000/- (Rupees Ten Lakhs Fifty thousand only) which was claimed by the petitioner in M.V.O.P.No.310/2013 on the file of the Court of The Chairman, Motor Accidents Claims Tribunal (Before the IV Addl. District Judge) Ananthapuramu, from claiming compensation of Rs.5,82,000/- with interest @7.5% p.a to the entitled amount in filing the above Appeal and pass such other orders. Counsel for the Appellant: 1. P NARASIMHUDU Counsel for the Respondent(S): 1. MANIMMA MEDIDA 2. The Court made the following: 3 VS,J MACMA.No.190 of 2022 JUDGMENT: The appellant/claimant filed the present appeal challenging the order and decree dated 22.01.2019 passed in M.V.O.P.No.310 of 2013 by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Ananthapuram, whereby and whereunder the Tribunal granted compensation of Rs.5,82,000/- (Rupees Five lakhs and Eighty Two thousand only), as against the claim of Rs.6,50,000/-, for the injuries sustained by him in a motor accident that occurred on 14.12.2012. 02. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 03. The claimant filed the claim petition before the Tribunal under Sections 140 and 166 of Motor Vehicles Act, 1988 and Rules 455 and 475 of A.P.M.V. Rules, the case of the petitioners, in brief, is as follows: The petitioner is aged 15 years, hale and healthy and he was studying 8th class at the time of accident. On 14.12.2012 at about 6.30 pm, when he was proceeding towards his house by taking his bicycle at Tadipatri road, Bathalapalli, suddenly the crime vehicle lorry bearing No.Ap07-TD-2176 coming from Dharmavaram road driven by its driver i.e., the 3rd respondent in a rash and negligent manner with high speed and lost control over the same, dashed against the petitioner, as a result the petitioner received crush injury on right foot and injuries all over his body. Immediately he admitted in RDT hospital, Bathalapalli and on the next day he was shifted to Sparsh Hospital, 4 VS,J MACMA.No.190 of 2022 Bangalore where he undergone surgery and all the foot fingers were removed except great toe of right leg and skin grafting was conducted and was treated as an inpatient for 22 days. The petitioner spent Rs.1,00,000/- towards his medical expenses. Due to the accident, the petitioner is unable to walk and play and do his personal day to day works and he is suffering with severe pain in doing his routine work and lost his education and he lost his earning capacity. Due to this injury, the leg remained useless and due to the skin grafting there is big scare on his back and it impacts in future life. The accident occurred only due to the negligent and rash driving of the driver i.e., 3rd respondent. Basing on the report, Bathalapalli police registered a case in Crime No.144 of 2012 under Section 338 of IPC. Seeking compensation of Rs.6,50,000/- for the injuries sustained by the petitioner in the said accident, the petitioner, filed the claim petition against the driver, owner and insurer of the crime vehicle. 04. Before the Tribunal, the 1st and 3rd respondents-driver and owner of the vehicle remained ex parte. 05. The 2nd respondent filed counter denying most of the allegations mentioned in the petition and submitted as follows; the accident occurred only due to the negligence of the petitioner. The lorry bearing No.AP07-TD-2176 was not insured with the respondent at the time of the accident. The driver of the lorry was not having driving license to drive the same at the time of the accident. The crime lorry was not having valid permit to ply and fitness 5 VS,J MACMA.No.190 of 2022 certificate at the time of the accident. Hence, the 2nd respondent is not liable to pay compensation. The compensation claimed by the petitioner is highly excessive. The interest cannot exceed 6% p.a. and hence, it was prayed to dismiss the claim petition. 06. Basing on the pleadings, the Tribunal framed the following issues for trial: “1. Whether the accident occurred on 14.12.2012 at about 6.30 pm, due to rash and negligent driving of lorry bearing No.AP07-TD-2176 by its driver and caused injuries to the petitioner? 2. Whether the petitioner is entitled for compensation? If so, to what amount? 3. To what relief?” 07. On behalf of the petitioner/claimant, P.Ws.1 to 3 were examined and Exs.A1 to A11 were marked. On behalf of the 2nd respondent, no witnesses were examined, but Ex.B1 policy was marked with the consent of both counsels. 08. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition with proportionate costs awarding compensation of Rs.5,82,000/- to the petitioner payable by all the respondents together with accrued interest thereon at the rate of 7.5% per annum from the date of petition till the date of deposit before the Tribunal with joint and several liability. This petition in respect of rest of the claim of the petitioner is dismissed without costs. 6 VS,J MACMA.No.190 of 2022 Respondents are directed to deposit said compensation amount together with accrued interest thereon and costs of petition within 30 days from this day. On deposit of said compensation amount the petitioner is entitled to withdraw Rs.1,82,000/- and accrued interest thereon and entire costs of petition payable to him. The remaining balance compensation amount and accrued interest thereon payable to him shall be deposited in any Nationalized Bank for a period of two years. 09. Aggrieved by the said award, the appellant/claimant preferred this appeal contending that the Tribunal failed to take into consideration 100% functional disability instead of 50% functional disability and awarded lesser compensation to him which is insufficient to his future and welfare, that the Tribunal did not appreciate the oral and documentary evidence and wrongly taken the earnings of the petitioner on lower side and awarded meager compensation erroneously. The Tribunal failed to consider future prospects of the petitioner since the petitioner is studying 8th class at the time of accident, and failed to consider that he lost his future prospects due to the accident. The Tribunal ought to have granted just and reasonable compensation duly considering entitlement of the petitioner claim. It is therefore, prayed to allow the appeal by enhancing the compensation. 10. On the other hand, learned counsel for the respondents/respondent Nos.1 to 3 herein has supported the impugned award and prayed to dismiss the appeal. 7 VS,J MACMA.No.190 of 2022 11. Though notice was served on the 3rd respondent/owner of the offending vehicle, there is no representation on his behalf. 12. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 13. To prove the rash and negligent driving of the driver of the crime vehicle by the respondent No.3, the petitioner himself was examined as PW1 besides marking Exs.A1 to A3. The Tribunal through the oral evidence of PW1 coupled with unchallenged documentary evidence i.e., Exs.A1 to A3 established that the accident was occurred only due to the rash and negligent driving of the crime vehicle by the 3rd respondent, due to which the petitioner sustained injuries. Therefore, the Tribunal has rightly articulated the rash and negligent driving of driver of crime vehicle which needs no interference. 14. The Tribunal, considering the disability under Ex.A11 35% for right lower limb, but not to whole body; assessed the functional disability of the injured/petitioner as 50% as he is unable to walk and do any work and he remained idle without studying and doing work. 15. In Chanappa Nagappa Muchalagoda v. New India Insurance Company Ltd., the Hon'ble Apex Court1, the Hon’ble Supreme Court, while dealing with the claim petition of an injured whose right leg got permanently 1 (2020) 1 SCC 796 8 VS,J MACMA.No.190 of 2022 injured resulting in complete disability to continue his occupation as a driver, referring to the following decisions on the aspect of functional disability, has held that the functional disability suffered by the claimant therein should be assessed at 100%, as he had lost the ability to work as a driver and the prospect of securing any other manual labour job was also not possible. Relevant portions of the said judgment is extracted hereunder:- 12. In K.Janardhan v. United India Insurance Co. Ltd2, this Court examined the capacity in the case of tanker driver who had met with an accident, and lost one of his legs due to amputation. The Commissioner for Workmen’s Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court, however, referred to Schedule I to the Workmen's Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. 13. In Suresh v. Oriental Insurance Co.Ltd3 this Court held that (SCC p. 780, para 9) “9…..We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement Therefore, he has lost 100% of his earning capacity as a lorry driver, more so when he is disqualified from even getting a driving license under the Motor Vehicles Act, 1988.” (emphasis supplied) 14. The aforesaid judgments are instructive for assessing the compensation payable to the appellant in the present case. As a consequence of the accident, the appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the appellant must be assessed as 100%. 2 (2008) 8 SCC 5182008) 2 SCC (L&S) 733` 3 United India Insurance Co.Ltd v. K.Janardhan, 2001 SCC OnLineKar 841 9 VS,J MACMA.No.190 of 2022 16. In the instant case also as noted above, this Court is of the opinion that in similar circumstances, the Tribunal must have considered the fact that as the injured/petitioner is aged 15 years and was studying 8th Class at the time of accident and after accident he is unable to walk and remained idle without studying and doing work, it should have considered 100% functional disability. Therefore, this Court feels it appropriate to enhance the functional disability of the injured/petitioner as 100% functional disability under the head of loss of earning capacity. 17. So far as the quantum of compensation is concerned, as the injured PW1 is a student and not earning member as on the date of accident. The Tribunal considered the notional income of the injured as Rs.4,000/- per month and annual income would be Rs.48,000/-(Rs.4,000/- x 12). As the age of the injured was 15 years as on the date of accident, the Tribunal below rightly applied the multiplier as ‘18’ in view of the law laid down by the Apex Court in Sarla Varma vs. Delhi Transport Corporation Ltd4. After applying the multiplier ‘18’, if we calculate the annual income with percentage of disability (100%), it would come to Rs.8,64,000/-(Rs.48,000/- x 18). In addition to the above, the Tribunal also awarded Rs.1,00,000/- towards pain and suffering and loss of amenities and Rs.50,000/- towards future medical expenses and extra nourishment. In total, the Tribunal below awarded Rs.10,14,000/- (Rs.8,64,000/- + Rs.1,00,000/- + Rs.50,000/-) to the petitioner. 4 2009 ACJ 1298 10 VS,J MACMA.No.190 of 2022 18. In the result, the appeal is allowed enhancing the percentage of functional disability of the injured/petitioner from 50% to 100% functional disability thereby enhancing the compensation from Rs.5,82,000/- to Rs.10,14,000/-(Rupees Ten Lakhs fourteen thousand only) with interest at the rate of 7.5% per annum from the date of petition till date of deposit before the Tribunal with joint and several liability. The Respondents are directed to pay the enhanced compensation amount within 30 days from the date of receipt of copy of this order. Pending miscellaneous applications, if any, shall stand closed. ___________________ JUSTICE V.SUJATHA Date: 27.01.2026 PBS