APHC010178472022 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 NOs: 159 & 163/2022 MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 159/2022 Between: 1. M/S UNITED INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH MANAGER, HAVING ITS BRANCH AT GANDHI ROAD EXTENSION, CHITTOR ...APPELLANT AND 1. BM RAJENDRAN, S/O B MUNUSWAMI, HINDU, AGED ABOUT 55 YEARS, RESIDING AT D NO. 2-49, BALU STREET, MURAKAMBATTU, CHITTOR)OPN AND DISTRICT, AADHAR NO. 33519043674 2. K MARICHAMY, S/O M KALIMUTHU, HINDU AGED ABOUT 37, RESIDING AT D. NO. 133, KALAPERUMAL PATTI, A.PUDUPATTI MANDAL, VERUDUNAGAR DISTRICT, TAMILANADU, DRIVER OF THE BUS NO. AP 03 TA 7177 3. A RAMACHANDRAN, S/O ANNAMALAI,IIINDU, AGED ABOUT NOT KNOWN BUT MAJOR, RESIDING AT D.NO. 2 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 4-107/A, SAI NAGAR, GREAMSPET, CHITTOR TOWN AND DISTRICT OWNER OF THE BUS NO. AP 03 TA 7177 ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased tomemorandum of appeal being aggrieved by the decree and judgment passed in MVOP 99/2019, dated 03.11.2021, on the file of Motor Accident Claims Tribunal cum 1st Additioanl District Judge, Chittor 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 grant stay of all further proceedings in the award dated 03.11.2021 in MVOP 100/2019 on the file of Motor Accident Claims Tribunal cum 1st Additioanl District Judge, Chittor pending disposal of the above appeal in the interest of justice and pass Counsel for the Appellant: 1. RAMA MOHAN RAO KOTHA Counsel for the Respondent(S): 1. The Court made the following: 3 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 163/2022 Between: 1. M/S UNITED INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH .MANAGER, HAVING ITS BRANCH AT GANDHI ROAD EXTENSION, CHITTOR ...APPELLANT AND 1. BR VENKATESAN, S/O BR RAJENDRAN, HINDU, AGED ABOUT 31 YEARS, RESIDING AT D NO. 2-49, BALU STREET, MURAKAMBATTU, CHITTOR TOWN AND DISTRICT, AADHAR NO. 556182674410 2. K MARICHAMY, S/O M KAFIMUTHU, HINDU AGED ABOUT 37, RESIDING AT D. NO. 133, KALAPERUMAL PATTI, A.PUDUPATTI MANDAL, VERUDUNAGAR DISTRICT, TAMILANADU, DRIVER OF THE BUS NO. AP 03 TA 7177 3. A RAMACHANDRAN, S/O ANNAMALAI, HINDU, AGED ABOUT NOT KNOWN BUT MAJOR, RESIDING AT D.NO. 4-107/A, SAI NAGAR, GREAMSPET, CHITTOR TOWN AND DISTRICT OWNER OF THE BUS NO. AP 03 TA 7177 ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased tomemorandum of appeal being aggrieved by the decree and judgment passed in MVOP 99/2019, dated 03.11.2021, on the file of Motor Accident Claims Tribunal cum 1st Additioanl District Judge, Chittor IA NO: 1 OF 2022 4 VS,J M.A.C.M.A.NOS.159 & 163 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 pleasedpleased to grant stay of all further proceedings in the award/order dated 03.11.2021 in MVOP 99/2019 on the file of Motor Accident Claims Tribunal cum 1st Additioanl District Judge, Chittor pending disposal of the above appeal in the interest c justice and pass Counsel for the Appellant: 1. RAMA MOHAN RAO KOTHA Counsel for the Respondent(S): 1. The Court made the following: 5 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 COMMON JUDGMENT:- Since both the Civil Miscellaneous appeals’ arise out of the same accident, they are being disposed of by this common order. 2. The Insurance Company filed both the appeals, challenging the order dated 03.11.2021 in M.V.O.P.Nos.100 & 99 of 2019 on the file of the Court of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor, whereby and whereunder the Tribunal granted compensation of Rs.5,89,355/- and Rs.33,685/- with proportionate costs and with future interest at 7.5% per annum on Rs.5,89,355/- and Rs.33,685/- from the date of petition till the date of deposit against respondent Nos.1 to 3 jointly and severally, for the injuries sustained by him in a motor accident that occurred on 28.07.2017. 3. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 4. The claimants filed the above O.Ps seeking compensation for the injuries sustained in a road accident occurred on 28.07.2017. On the fateful day, claimants, who are father and son were proceeding on their TVS-XL motor cycle bearing registration No.AP 03 AX 6647 and reached near Murukambattu situated on 6 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 Chittoor-Tirupati road near Neeva river bridge at about 8:30 p.m. at that time, one bus bearing registration No.AP 03 TA 7177 driven by its driver i.e., the 1st respondent, in a rash and negligent manner and lost control over the vehicle and dashed the motor cycle of the claimants, as a result of which, they fell down and the father sustained fracture and dislocation of right shoulder and also received injuries all over the body and the son sustained fracture distal phalanx right great toe and also received other injuries all over the body. Immediately, they were shifted to Government Hospital, Chittoor in a private vehicle and from there to CMC Hospital, Vellore for better treatment. A complaint was lodged which was registered as Crime No. 64 of 2017 of Chittoor Traffic Police Station under Section 338 IPC and Sec 185 of the Motor Vehicles Act and charge sheet was laid against the 1st respondent on the file of III Additional Judicial Magistrate of I Class, Chittoor. b) Prior to the accident the claimant who filed MACMA No.159 of 2022, had been running a printing press under the name and style as Rajendra offset printers in Chittoor and was earning Rs.15,000/- per month. He was aged about 55 years and was hale and healthy prior to the accident. He took treatment as 7 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 inpatient in CMC Hospital, Vellore from 29.07.2017 to 08.08.2017 and underwent three operations, in which three iron nails were inserted in his right leg and he spent nearly Rs.2,50,000/- towards treatment and underwent treatment in CMC Hospital, Vellore as out-patient. Due to the said injuries, he was not able to attend his normal duties, unable to sit and stand and squat on the floor and failed to discharge his duties and thereby became completely disabled. The 1st respondent being the driver, the 2nd respondent being owner of the crime vehicle which was insured with the 3rd respondent insurance company, are jointly and severally liable to pay the compensation. c) Prior to the accident the claimant who filed MACMA No.163 of 2022, was hale and healthy and due to accident, he was not able to lead normal life, his right great toe was shortened and he became permanently disabled. Therefore, he was entitled to a compensation of Rs.20,00,000/-. The 1st respondent being the driver, the 2nd respondent being owner of the crime vehicle which was insured with the 3rd respondent insurance company, are jointly and severally liable to pay the compensation. 8 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 5. While the respondent Nos.1 & 2 remained ex parte, Respondent No.3 filed the written statement, denying the manner in which the accident occurred, the age, avocation and income of the claimants. The 3rd respondent pleaded gross negligence on the part of the driver of the TVS XL Motor Cycle bearing registration No.AP 03 AX 6647 in driving it and that the 1st respondent-driver of the offending vehicle was in a drunken state at the time of the accident and the 3rd respondent is not liable to pay any compensation to the petitioners. If at all, the petitioners are entitled to any compensation the respondent Nos.1 & 2 are liable to pay the same. The petitioners have to prove that they became permanently disabled. The compensation claimed is highly excessive. The petition is bad for non-joinder of the insurance company with which offending vehicle was insured. Hence, prayed to dismiss the petition. 6. Based on the pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident was occurred due to rash and negligent driving of the driver of the bus bearing registration No.AP 03 TA 7177 or the rider of the motor cycle bearing registration No.AP 03 AX 6647? 9 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 2. Whether the petition is bad for non joinder of necessary parties? 3. Whether the petitioner is entitled for grant of compensation, if so, to what amount and from whom? 4. To what relief? 7. On behalf of the petitioner in MACMA No.159 of 2022, PWs. 1 to 3 were examined and Exs.A1 to A9 and Exs.X1 to X3 were marked. On behalf of the 3rd respondent, RW-1 and Ex.B1 was marked. 8. On behalf of the petitioner in MACMA No.163 of 2022, PWs.1 & 2 were examined and Exs.A1 to A7 and Exs.X1 and X2. On behalf of the 3rd respondent, RW-1 and Ex.B1 was marked. 9. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed O.P.No.100 of 2019 by awarding compensation of Rs.5,89,355/- and also allowed O.P.No.99 of 2019 by awarding compensation of Rs.33,685/- with proportionate costs and with future interest at 7.5% per annum from the date of petition till the date of deposit against the respondent Nos.1 to 3, jointly and severally . The respondents shall deposit the amount of compensation within two months from today, failing which they are liable to pay the compensation with interest at 9% p.a., On deposit of the 10 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 compensation amount, the petitioners is entitled to receive the entire amount forthwith. 10. Aggrieved by the said awards, respondent No.3/insurer preferred these appeals independently by contending that the Tribunal erred on fastening the liability on the appellant though the appellant placed relevant material regarding violation of terms and conditions of the policy by the owner of the offending vehicle. The Court below ought to have considered that the respondent driver of offending vehicle was in drunken state at the time of accident and as such appellant-insurance company is not liable to pay compensation. The Tribunal erroneously gave a finding that the appellant/insurance company has not filed certificate issued by the Medical Officer nor examined the said Medical Officer and as such, insurance company failed to prove the drunken state of the respondent driver. Though, the fact remains that the claimants themselves filed a copy of the judgment in C.C.No.359 of 2017, which reveals that the respondent driver was charged under Section 185 of Motor Vehicles Act and on admission of the offence, he was sentenced to pay a fine of Rs.2,000/- for the offence and the said judgment was marked as Ex.A7. The Tribunal went wrong to give a finding that claimant-father 11 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 sustained 45% disability without evidence of treated doctor, the Tribunal having appreciated the fact that respondent No.3/insurance company should be exonerated from the liability and if at all there is any liability, it should be on the owner and driver of the offending vehicle only, and grossly erred in directing the respondents to pay the compensation jointly and severally. 11. On the other hand, learned counsel for the claimant/respondent Nos.1 to 3 herein has supported the impugned award and prayed to dismiss the appeal. 12. Now the point for consideration is: Whether the order of the Tribunal needs any interference? 13. Though various grounds have been urged in the grounds of appeal, the learned counsel for the appellant mainly challenged the impugned award with regard to the assessment of disability sustained by the petitioner-father in MVOP No.100 of 2019. However, it is to be noted that claimant has filed Ex.A3-Wound Certificate, Ex.A6-Disability Certificate, which would contain the age of the petitioner. A perusal of the impugned award would indicate that nothing adverse was elicited in the cross-examination of the witnesses examined on behalf of the petitioner with regard 12 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 to the age claimed by the petitioner. In view of the same, this Court is of the considered view that the Tribunal has not committed any error in taking the age of the petitioner as 57 years as on the date of accident as mentioned in Ex.A3-Wound Certificate for the purpose of computing the quantum of compensation. As per Ex A6-Disability Certificate, the disability sustained by the petitioner was only to an extent of 45% and not to the entire body. The Tribunal has erred in considering the same as 50% permanent disability. The said contention does not merit acceptance for the reason that the petitioner was an labourer and on account of 45% disability in relation to right lower limb, his ability to engage in agricultural works would be significantly affected and thus, it should, in fact be considered as 100% functional disability. 14. 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 injured resulting in complete disability to continue his occupation as a driver, referring to the earlier decisions on the aspect of functional disability, has held 1 (2020) 1 SCC 796 13 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 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. Ltd 2, 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 2 (2008) 8 SCC 5182008) 2 SCC (L&S) 733` 3 United India Insurance Co.Ltd v. K.Janardhan, 2001 SCC OnLineKar 841 14 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 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%. 15. In the instant case also, as noted above, the petitioner- father sustained permanent disability. Thus, his ability to engage in works would be significantly affected. In that view of the matter, following the ratio laid down in the decision of the Hon'ble Apex Court in Chanappa Nagappa Muchalagoda (supra), this Court is of the view that the assessment of the disability sustained by the petitioner as 50% for the purpose of computing the loss of earnings by the Tribunal does not warrant interference. 16. After deducting 1/4th of his income towards personal expenditure and applying the relevant multiplier of ‘7’ applicable for the age i.e., 57 years, as per the decision of the Hon’ble Apex Court in Sarla Verma v. Delhi Transport Corporation 4, the Tribunal has rightly calculated the loss of earnings which comes to Rs.3,15,900/-(6500x12x9x45%). Further, in terms of the decision of the Hon’ble Apex Court in National Insurance Company v. Pranay Sethi5, the Tribunal has awarded Rs.5,89,755/- towards loss of earnings, during period under treatment, medical 4 2009 ACJ 1298 5 2017 ACJ 2700 15 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 expenses, pain and suffering, Transport, attendant charges, extra nourishment etc., 17. Having considered the matter in its entirety, this Court is of the considered view that the Tribunal, upon consideration of the oral and documentary evidence on record, has rightly awarded compensation of Rs.5,89,355/- to the petitioner-father in M.V.O.P.No.100 of 2019 for the injuries sustained by him in the motor accident and hence, no interference is warranted therewith. 18. From perusal of the Ex.A1 to A6, in MACMA No.159 of 2022, it is clear that accident was only due to rash and negligent driving of the offending vehicle by the 1t respondent and he was convicted by the Magistrate for causing the accident. Though RW- 1 supported the version of the 3rd respondent on oath, admittedly he is not a direct witness to the occurrence. Further the 3rd respondent did not examine any direct witness to disprove the case of the petitioner, which is established by the oral testimony of PW1 and Exa.A1 to A4 and A6 documents. In the circumstances, it is found that the petitioner has successfully proved the accident in which he sustained injuries, was only due to rash and negligent driving of the offending vehicle by the 1st respondent. 16 VS,J M.A.C.M.A.NOS.159 & 163 OF 2022 19. From the evidence of PW-2, it is clear that the petitioner-son in MVOP No.99 of 2019 sustained one fracture and incurred a sum of Rs.3,685/- towards medical expenses. From the perusal of the record, the petitioner sustained fracture of distal phalanx right great toe and underwent treatment in CMC Hospital, Vellore. Therefore, he would have suffered pain and mental agony during the period under treatment, and he was entitled for a sum of Rs.25,000/- towards pain and suffering. The petitioner expended some amount towards transport to the hospital, attended charges and extra nourishment etc., during treatment. The Tribunal has rightly awarded compensation under various heads and the compensation awarded Rs.33,685/- needs no interference and hence, M.A.C.M.A.No.163 of 2022 is liable to be dismissed. 20. Accordingly, both the appeals are dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed. __________________ JUSTICE V.SUJATHA 27.01.2026 LSP