1 MACMA NO. 390 / 2022 VS,J. APHC010485432022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 390/2022 Between: 1. SHRIRAM GENERAL INSURANCE COMPANY LIMITED, REP. BY ITS MANAGER, BRANCH OFFICE, R/AT 2ND FLOOR, SRI GOPAL AUTO STORES, MARUTHI NAGAR. NEAR RTC BUS STAND, KADAPA CITY, YSR DISTRICT. ...APPELLANT AND 1. PESALA MURALI MOHAN REDDY, S/O. PESALA MALLA REDDY, AGED ABOUT 49 YEARS, HINDU, PREVIOUSLY AGRICULTURE R/O. D.NO.5/30-A, PESALAVANDLAPALLI VILLAGE, GANGANAPALLI POST, PENDLIMARRI MANDAL, YSR DISTRICT, PRESENTLY RESIDING AT YERRAMUKKAPALLI KADAPA CITY, YSR DISTRICT. 2. SHAIK KHALEEL AHAMMED, S/O. S.ALI HUSSAIN, AGED ABOUT NOT KNOWN, BUT MAJOR, MUSLIM, OWNER OF THE EICHER LORRY BEARING NO.AP 04 TU 7697, R/O. D.NO.4/125, LAKKIREDDYPALLI VILLAGE TOWN AND MANDAL, YSR DISTRICT. 3. S ABDUL RASHEED, S/O. YAKUB SAHEB, AGED BOUT 68 YEARS, MUSLIM, DRIVER OF LORRY BEARING NO.AP 04 TU 7697, RESIDING AT D.NO.28-288/3, E CROSS, RAMANAGAR COLONY, CHITTOOR TOWN AND DISTRICT ...RESPONDENT(S): 2 MACMA NO. 390 / 2022 VS,J. Counsel for the Appellant: 1. A JAYANTHI Counsel for the Respondent(S): 1. D KODANDARAMI REDDY The Court made the following: 3 MACMA NO. 390 / 2022 VS,J. THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 390/2022 J U D G M E N T: 1. This Motor Accident Civil Miscellaneous Appeal (for short MACMA) has been preferred by the 2nd Respondent Insurance Company i.e., Shriram General Insurance Company Limited, Rep., by its Manager, Branch Office near RTC Bus stand, Kadapa city, YSR District, challenging the Order and Decree dated 24.05.2022 in M.V.O.P.No.100 of 2018 passed by the Chairman, Motor Accident Claims Tribunal (for short MACT) –cum- Judge, Family Court –cum- VI Additional District Judge, Kadapa, awarding compensation of Rs.4,19,000/- against the claim of Rs.7,50,000/- made by the claimant-petitioner. For the sake of convenience and to avoid confusion, the parties hereinafter are referred to as they were arrayed before the Tribunal i.e., Appellant as 2nd Respondent; Respondent No.1 as Petitioner – Claimant; Respondents No.2 and 3 as Respondents No.1 and 3. 2. The brief averments of the petition in MVOP No.100 of 2018 are that –the Petitioner being injured filed claim petition under Sec.166 (2) of Motor Vehicle Act, r/w. Rules 475, 476 of Andhra Pradesh Motor Vehicle Rules, claiming compensation of Rs.7,50,000/- from the respondents 1 to 3 jointly and 4 MACMA NO. 390 / 2022 VS,J. severally together with interest and costs, for the injuries sustained by him in a road traffic accident. The petitioner and other farmers used to raise flower gardens (chamanthi flowers) in their respective lands and used to transport the same to Madras, Bangalore etc.,. While so, on 26.11.2017 the petitioner and one G.Subba Reddy, D.PeddaSubha Reddy and DasariSubbarayudu engaged 1st respondent’s lorry bearing No.AP04 TU 7697 for transport of their respective flowers to Chennai.The petitioner loaded 10 baskets of flowers, each basket 40 kgs which comes to 400 kgs of Chamanthi flowers in the said lorry and all the four persons occupied seats in the cabin of the lorry and were travelling as owners of goods to Chennai to sell the flowers. i. On 26.11.2017 at 10.30 P.M., when they reached near Karakambadi Railway Gate, 3rd respondent being driver of the lorry, drove the same in a rash and negligent manner lostcontrol over steering, as a result, the lorry fell beyond the road, due to which, the petitioner sustained segmental fracture to left femur and bleeding laceration at right ankle. The entire load of flowers also scattered from the lorry and became unfit for use.He sustained loss of flowers worth Rs.56,000/-. Immediately after the accident, he was shifted to Purna’s Remedy Hospitals, Tirupathi, wherein he underwent surgery to his left femur segmental fracture and interlocking of nail was done and discharged on 05.12.2017 and the Doctors advised him to take complete bed rest for three months. Due to the 5 MACMA NO. 390 / 2022 VS,J. accident, the petitioner is suffering severe pain, inconvenience, loss of amenities, unable to squat, unable to sit in natural position and attend calls of nature and he also unable to lift and carry weights being a farmer and now on account of several complications, he is unable to discharge his previous duties and that he used to raise flower gardens in his Ac.5.25 cents and was earning Rs.3,00,000/- to Rs.3,50,000/- per year excluding all expenses and prior to the date of accident, he owned bulls and cart and used to attendpersonally all works. ii. 1strespondent’sEicher lorry was insured with 2ndrespondent insurance company with package lorry policy covering the risk of owner of goods or his representative automatically under Sec.147 of M.V. Act and Respondent No.3 as its driver and caused the accident, hence, all the respondents are jointly and severally liable to pay the compensation amount to the petitioner. 3. Respondents 1 and 3 remained ex-parte. 4. 2ndrespondent/insurance company filed written statement, denied the averments of the petition and contended that the petitioner must prove his age, income and manner in which the accident occurred and his expenditure towards medical treatment and submitted that the policy was issued in the name of KhaleelAhammed Shaik for the vehicle Eicher lorry bearing No.AP04 TU 7697 under goods carrying commercial package policy valid from 11.05.2017 to 10.05.2018, subject to terms and conditions of the policy and that the petitioner 6 MACMA NO. 390 / 2022 VS,J. has to prove that the registered owner i.e. 1strespondent used the vehicle without any breach of permit and traffic rules as per the M.V Rules and the crime vehicle possessed valid fitness certificate at the time of accident. As per policy and R.C., the seating capacity of the offending vehicle is 3 in all, but at the time of accident, five persons including driver travelled in the said offending vehicle and that the amount claimed by the petitioner is excessive and exorbitant and hence, prayed to dismiss the petition, with costs. 5. Basing on the above pleadings of both parties, the following issues were framed by the Tribunal for trial: 1) Whether the accident occurred due to rash and negligent driving of the driver of lorry bearing No.AP04 TU 7697? 2) Whether the petitioner is entitled for compensation, if so, to what amount and from whom? And 3) To what relief? 6. During Enquiry/Trial, the petitioner - Pesala Murali Mohan Reddy got examined as P.W.1, the Doctor who treated the Petitioner by name Dr. J.Nagesh, got examine as P.W.2 and also got marked Ex.A.1: Attested copy of F.I.R., in Cr.No.807/2017 of Renigunta Urban P.S, Ex.A.2: Attested copy of Wound certificate of petitioner; Ex.A.3: One colour photo of petitioner relating to the injuries; Ex.A.4: Discharge summary issued by Purnas Remedy Hospital, 7 MACMA NO. 390 / 2022 VS,J. Tirupathi dt.28.11.2017 to 05.12.2017; Ex.A.5: Bill dt.28.11.2017 for Rs.1,600/- issued by Sri Venkateswara Institute of Medical Science, Tirupathi; Ex.A.6: Flower Merchant sale bills (9 in number); Ex.A.7: 1-B (ROR) issued by Mee- seva; Ex.A.8: AdangalPahanies issued under Mee-seva; Ex.A.9: Attested copy of charge sheet; Ex.A.10: Original discharge summary dt.10.4.2018 issued by Purnas Remedy Hospital, Tirupathi; Ex.A.11: Out-patient treatment records issued by Purnas Remedy Hospitals, Tirupathi; Ex.A.12: O.P., Treatment slip dt.31.3.2018 issued by Sri Sai Nursing Home, Kadapa; Ex.A.13: O.P., Treatment slip dt.05.05.2018 and 160.8.2018 issued by RIMS Hospital, Kadapa; Ex.A.14: Physical disability certificate issued by RIMS Hospital, Kadapa dt.11.10.2018. On behalf of contesting Respondent No.2 one D.Ramanjaneyulu examined as R.W.1 and got marked Ex.B.1: True copy of insurance policy. One Shaik Kalesha, Junior Assistant from R.T.O office, Kadapa got examined as R.W.2 and got marked Ex.X.1: Authorization letter issued by R.T.O., Kadapa; Ex.X.2: B- Register extract of vehicle bearing No.AP04 TU 7697; Ex.X.3: Extract of permit details. One A.S.Mohan Kumar, Motor Vehicle Inspector, got examined as R.W.3. 7. Upon hearing both side counsel, upon perusing the material in record, the Tribunal partly allowed the claim of the Petitioner awarding compensation of Rs.4,19,600/- together with proportionate costs and interest @ 8 MACMA NO. 390 / 2022 VS,J. 9% per annum from the date of petition till the date of deposit, directing the respondents 1 to 3 jointly and severally to pay compensation amount to the petitioner. The respondent No.2/insurance company is directed to deposit the compensation amount of Rs.4,19,600/- into the court within two (2) months from the date of this order. 8. Being aggrieved by the said Order and Judgment, the 2nd Respondent – Insurance Company has preferred this appeal on the grounds - that since the injured were travelling as an unauthorized passenger in a goods vehicle the Tribunal ought to have exonerated the Insurance Company from its liability; the seating capacity of the crime vehicle i.e., Eicher lorry is only three including driver and cleaner, but at the time of accident five (05) persons were travelling in the crime vehicle violating the terms and conditions, hence, the Tribunal ought to have fixed the liability on the owner of the vehicle.The Tribunal erred in granting interest @ 9% per annum which is excessive and on high side and contrary to the Hon’ble Apex Court judgment in Sarala Varma's case in which interest was granted 6% p.a., and the Tribunal ought to have granted interest @ 6% per annum.The Tribunal erred in taking the income of the injured as Rs.10,000/- per month without any basis and the same is excessive and the tribunal ought to have taken Rs.4,500/-per month as income of the injured; as the injured suffered only one grievous injury the Tribunal erred in assessing the disability @ 20% which is excessive and high; The Tribunal having granting 9 MACMA NO. 390 / 2022 VS,J. Rs.25,000/- towards grievous injury ought not to have granted Rs.30,000/- towards pain and suffering which is unwarranted and excessive; the Tribunal ought not to have taken the income of the injured as Rs.10,000/- per month because the injured was doing agriculture and he owns land of about Ac.4.00 cents and the court ought to have taken the supervisory charges of Rs.12,000/- per annum or Rs.1,000/- per month since the land will be intact and he can monitor or he can lease out the land and can get income;the Tribunal did not even observe pay and recovery at-least, since the injured was an unauthorized passenger in a goods vehicle. The tribunal failed to appreciate the evidence of R.W.3 who is Motor Vehicle Inspector deposed that the offending lorry is goods carrying vehicle and as per Ex.X.2 registration certificate the seating capacity is 3 among whom driver, cleaner and owner/representative of goods are alone permitted to travel in the cabin of the lorry but in the crime vehicle five (05) persons were travelling, including driver and cleaner at the time of accident, which is violation of terms and conditions and the injured shall be treated as an unauthorized passenger in a goods vehicle. Hence, prayed to allow the appeal by setting aside the Decree and Order dated 24.05.2022 in MVOP No.100 of 2018 passed by the Chairman, Motor Accidents Claims Tribunal - Cum- Judge Family Court-Cum-VI Additional District Judge, Kadapa and to dismiss the MVOP No.100 of 2018 filed by the Respondent No.1/ Claim Petitioner against the Appellant/ Respondent No.2 before the Tribunal. 10 MACMA NO. 390 / 2022 VS,J. 9. Heard both counsel and perused the material in record. 10. Now the point for consideration is: Whether the order of the Tribunal needs any interference? 11. POINT: On perusal of the award passed by the Tribunal, it can be observed that the claimant/injured himself got examined as P.W.1 who categorically deposed that on 26.11.2017 the petitioner, G. Subba Reddy, D.Pedda Subba Reddy and Dasari Subbarayudu engaged 1st respondent's lorry bearing No.AP 04 TU 7697 for transport of their respective flowers to Chennai from their fields and on the way, when they reached near Karakambadi Railway Gate, respondent No.3 being the driver of lorry drove the same in a rash and negligent manner, lost control over steering, as a result of which, the lorry fell beyond the road and he sustained segmental fracture to left femur and bleeding laceration at right ankle. Hence, relying upon the evidence of P.W.1 coupled with Ex.A.1 – Attested copy of FIR in Cr.No.807 of 2017 of Renigunta Urban Police Station, which shows that after due investigation, it was established that the accident had occurred due to the negligence of respondent No.3, resulting injuries to the petitioner, the Tribunal safely concluded that the accident had occurred due to the negligence of respondent No.3 resulting injuries to the petitioner. 11 MACMA NO. 390 / 2022 VS,J. 12. Coming to the contention of 2nd respondent that it has to be exonerated from the liability by the Tribunal - as the petitioner was traveling in the Eicher Lorry as owner of the goods (flowers) at the time of accident, the accident was occurred due to rash and negligent driving of driver of the Eicher lorry, admittedly as on the date of accident, the insurance policy of Eicher lorry was in force, the Tribunal rightly directed Respondents No.1 to 3 jointly and severally to pay compensation amount to the petitioner. 13. This Court perused the Order passed by the Tribunal. The contention of the 2nd Respondent is that the Tribunal taken monthly income of the deceased as Rs.10,000/- per month without any basis, instead of taking Rs.12,000/- per annum. P.W.1 in his chief examination affidavit stated that he is an agriculturist and earning Rs.3,00,000/- to Rs.3,50,000/- per annum. To prove the same, Petitioner filed Ex.A.6-Flower Merchant sale bills, Ex.A.7 -1-B (ROR) issued under Mee-seva, Ex.A.8 – Adangal Pahanies issued under Mee-seva. Ex.A.7 and Ex.A.8 discloses that Petitioner – Pesala Murali Mohan Reddy owned lands in different survey numbers, in two villages, totally Ac:6.38 cents. Hence, the Court assessed the income of the Petitioner as Rs.10,000/- per month. At the time of accident, the petitioner was traveling in the Eicher lorry as owner of goods i.e., flowers. In those circumstances, monthly income of the petitioner taken by the Tribunal as Rs.10,000/- is acceptable but, not excessive. The Tribunal awarded Rs.25,000/- for grievous injury, Rs.30,000/- towards pain and 12 MACMA NO. 390 / 2022 VS,J. suffering as the petitioner undergone surgeries twice, Rs.8,000/- towards transportation expenses considering the distance from Pesalavandlapalli village, Ganganapalli Post, Pendlimarry Mandal, Y.S.R District to Purnas Remedy Hospital, Tirupati is about 150 K.Ms. The Tribunal awarded Rs.8,000/- towards attendant charges as the petitioner sustained Segmental fracture on left femur bone and he cannot move freely without the assistance of somebody to attend on his day to day needs during one month treatment period at Purnas Remedy Hospital, Tirupati as in-patient and thereafter as per advise of Doctors he has taken complete bed rest for another one month (totally for two months Rs.8,000/- awarded towards attendant charges). For that two months period, loss of earnings of Petitioner is awarded at Rs.10,000/- per month, totally, Rs.20,000/-. The Tribunal awarded Rs.15,000/- towards nourishment of food to recoup his health as he undergone surgery to his fracture and Rs.1,600/- towards medical bills. 14. Regarding disability of the Petitioner, petitioner got examined P.W.2 – Dr. J.Nagesh, Professor, Department of Orthopedics, RIMS Hospital, Kadapa, who issued Ex.A.14 – disability certificate in the capacity of District Medical Board, Kadapa on 11.10.2018 and opined that the Petitioner is suffering from 35% disability to the lower limb. But, the Tribunal considering the fact that the petitioner was suffering from old fracture left femur segmental malunited, twice implant in the femur bone with shortening of left femur one inch compared to the 13 MACMA NO. 390 / 2022 VS,J. right-side femur, walking with walking aid, difficulty in squatting and walking, assessed the disability of petitioner at 20%. Under similar circumstances, the Hon'ble Apex Court in "Prakash Chand Sharma Vs. Rambabu Saini"1 has held that when disability certificate was issued by the Medical Board and one of the members of the Medical Board is examined as witness to prove the disability certificate, the Tribunal cannot reassess the disability. In view of the same, this Court is of the opinion that the Tribunal ought not to have reassessed the disability as 20% instead of 35% as mentioned in Ex.A.14 disability certificate issued by the Medical Board. Therefore, this Court is of the opinion that the claimant has suffered 35% disability taking into consideration Ex.A.14 disability certificate. 15. As the claimant had lands in his village, which is evident from Exs.A.7 and A.8, the Tribunal assessed the income of the claimant as Rs. 10,000/- per month. Accordingly, annual income of the claimant would come to (Rs. 10,000 X 12) Rs.1.20,000/-. After applying the appropriate multiplier i.e. 13 for the age group of 46 to 50 years, as per the decision of the Hon'ble Apex Court in "Sarla Verma Vs. Delhi Transport Corporation"2, the loss of dependency would come to (1,20,000 X 13) Rs.15,60,000/-. Therefore, the claimant is entitled for an amount of Rs.5,46,000/- (Rs.15,60,000 X 35%) for loss of disability. 12025 Supreme (SC) 305 2 2009 ACJ 1298 14 MACMA NO. 390 / 2022 VS,J. 16. The Tribunal also awarded a sum of Rs.25,000/- towards Grievous injury, Rs.30,000/- towards pain and suffering, Rs.8,000/-towards Transportation charges, Rs.20,000/- towards loss of earnings for two months, Rs.8,000/- towards attendant charges, Rs. 15,000/- towards extra nourishment of food, and Rs.1,600/-towards medical bills, which needs no interference by this Court. 17. The present appeal has been preferred by the Insurance company. Even though, it is the insurance company appeal, this Court can enhance the compensation even in the absence of cross-objections filed by the claimants as per the decision of the Hon’ble Apex Court in “Surekha Vs. Santosh3” 18. The compensation awarded by the Tribunal under different heads and the amounts enhanced by this Court, are as follows: Sl. No. Head of the claim Compensation awarded by the Tribunal in Rs. Ps. Amounts now awarded by this Court Rs. Ps. 1. Grievous injury 25,000-00 25,000-00 2. Pain and sufferance 30,000-00 30,000-00 3. Transportation charges 8,000-00 8,000-00 4. Loss of earnings for two months 20,000-00 20,000-00 5. Attendant charges 8,000-00 8,000-00 6. Extra nourishment of food 15,000-00 15,000-00 7. Disability @ 20%=3,12,000-00 35%=5,46,000-00 8. Medical bills 1,600-00 1,600-00 TOTAL 4,19,600-00 6,53,600-00 3 SCC OnLine SC 1312 15 MACMA NO. 390 / 2022 VS,J. 19. In the result, the Motor Accident Civil Miscellaneous Appeal is dismissed, however, by enhancing the compensation from Rs.4,19,600/- to Rs.6.53,600/- with interest at 7.5% P.A. from the date of filing of the petition till the date of realization. There shall be no order as to costs. Consequently, pending miscellaneous applications, if any, shall stand closed. _______________________ SMT JUSTICE V.SUJATHA KS Dated 10.02.2026. 16 MACMA NO. 390 / 2022 VS,J. 208 THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 390/2022 DATED 10.02.2026 KS