APHC010438782012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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THURSDAY ,THE TWENTIETH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2320/2012

Between:

The Oriental Insurance Co. Ltd., ...APPELLANT

AND

Parvathareddi Rajesh Naidu Another and Others ...RESPONDENT(S)

Counsel for the Appellant:

1.N RAMA KRISHNA

Counsel for the Respondent(S):

1.SUBRAHMANYESWARA RAO LOYA

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2325/2012

Between:

The Oriental Insurance Company Limited ...APPELLANT

AND

Pasupuleti Gowtham Sridhar Anr and Others ...RESPONDENT(S)

Counsel for the Appellant:

1.N RAMA KRISHNA

Counsel for the Respondent(S):

1.SUSHMA YAGANTI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3786/2012

Between:

Pasuppuleti Gowtham Sridhar ...APPELLANT

AND

Smt S Kumari And Another and Others ...RESPONDENT(S)

Counsel for the Appellant:

1.SUSHMA YAGANTI

Counsel for the Respondent(S):

1.N RAMA KRISHNA

2..

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2274/2015

Between:

Parvathareddi Rajesh Naidu ...APPELLANT

AND

Smt S Kumari And Another and Others ...RESPONDENT(S)

Counsel for the Appellant:

1.RAVI KUMAR TOLETY

2.SUBRAHMANYESWARA RAO LOYA

Counsel for the Respondent(S):

1.N RAMA KRISHNA

2..

3.A RAMAKRISHNA REDDY

The Court made the following:

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MACMA.Nos.2320 of 2012, 2325 of 2012 and 3786 of 2012 and 2274 of 2015

COMMON JUDGMENT:

1. MACMA.No.2320 of 2012 under section 173 of the Motor Vehicles Act, 1988 (for short "the MV Act") is filed by the appellant/ insurance company impugning the order dated 31.01.2012 of the learned Chairman, Motor Accident Claims tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.1000 of 2007.

2. MACMA.No.2325 of 2012 under section 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ insurance company impugning the order dated 31.01.2012 of the learned Chairman, Motor Accident Claims tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.999 of 2007.

3. MACMA.No.3786 of 2012 under section 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ claimant impugning the order dated 31.01.2012 of the learned Chairman, Motor Accident Claims tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.999 of 2007.

4. MACMA.No.2274 of 2015 under section 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ claimant impugning the order dated 31.01.2012 of the learned Chairman, Motor Accident Claims tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.1000 of 2007.

5. Every personal life undertakes certain steps towards the realization of dreams, hold goals and aspirations. However, when they land up in an unfortunate situation for no fault of them the trajectories of life are forever altered. At the core of suffering is the sense that something is irreparably wrong in life. In compensation claims for injuries the judge is tasked to convert the pain and suffering of a given claimant into a monetary award which the court considers to be reasonable by way of compensation. In some injury claims the injured person may not even be able to enjoy the compensation he receives because of the injury which he has sustained¹ .

6. This is a case of collision of two vehicles on 24.08.2007. A lorry bearing registration No. AP 27 V 1577 was driven by one

¹ K.S.Muralidhar V. R.Subbulakshmi 2024 2024 INSC 886

Mr.D.Ravi on NH-9 road and the vehicle was proceeding from Vijayawada side to Hyderabad and dashed an opposite coming Tata Van bearing registration No. AP 16 TW 4092. The Tata van turned turtle. Among the inmates in the Tata Van, Sri P.Gowtham Sridhar aged 24 years and Sri P.Rajesh Naidu aged 24 years suffered serious injuries. This incident was registered as Cr.No.98 of 2007 and FIR was issued. After due investigation, a charge sheet was filed before the learned Judicial Magistrate of the First Class. During investigation, the rough sketch of the scene of offence and a report describing the scene of offence were prepared by the investigation police. The injured were treated at Area hospital, Suryapet and were then shifted to VINS hospital, Vijayawada. Asserting that the accident was out of rash or negligent driving on part of the driver of lorry bearing registration No. AP 27 V 1577, Sri P.Gowtham Sridhar filed MVOP.No.999 of 2007 praying for compensation of Rs.30,00,000/- under section 166 of the MV Act. Sri P.Rajesh Naidu filed MVOP.No.1000 of 2007 praying for compensation of Rs.30,00,000/- under section 166 of the MV Act. In both the claims, the owner was R1 and the insurance company was R2. At the material point of time, the offending lorry was found duly insured under Ex.B1 insurance

policy which was in force by the time of the accident. The driver of the offending lorry was found holding a valid and effective driving licence.

7. Before the claims tribunal, the owner did not choose to appear and contest. The insurance company filed its counter denying the narration of facts and contended that the accident was out of rash or negligent driving of the driver of the Tata van bearing registration No. AP 16 TW 4092 and since the owner and the insurer of the said vehicle were not impleaded as parties, the claim could not be sustained. Various amounts of compensation claimed were challenged as exorbitant.

8. In MVOP.No.999 of 2007, the learned claims tribunal settled the following issues and additional issues.

Issues: -

• 1. Whether the petitioner sustained injuries in a motor vehicle accident occurred on 24.08.2007 due to rash and negligent driving of the driver of Lorry AP 27 V 1577 belonging to R1?
• 2. Whether the petitioner is entitled to the compensation as prayed for? If so, from whom and to what amount?
• 3. To what relief?

Additional Issues: -

• 1. Whether the petition is bad for non-joinder of driver, owner and insurer of TATA Van AP 16 TW 4092 in which the petitioner was traveling?
• 2. Whether there is contributory negligence on the part of the driver of TATA Van AP 16 TW 4092?

9. There was the evidence of PW.1 to 4 and RW.1 and Exs.A1 to A21 and Ex.B1 and Ex.X1 and X2 for consideration before the claims tribunal.

10. In MVOP.No.1000 of 2007 the following issues were settled.

Issues: -

• 1. Whether the petitioner sustained injuries in a motor vehicle accident occurred on 24.08.2007 due to rash and negligent driving of the driver of Lorry AP 27 V 1577 belonging to R1?
• 2. Whether the petitioner is entitled to the compensation as prayed for? If so, from whom and to what amount?
• 3. To what relief?

Additional Issues: -

• 1. Whether the petition is bad for non-joinder of driver, owner and insurer of TATA Van AP 16 TW 4092 in which the petitioner was traveling?
• 2. Whether there is contributory negligence on the part of the driver of TATA Van AP 16 TW 4092?

The evidence of PW.1 to 4 and RW.1 and Exs.A1 to A27 and Ex.B1 and Ex.X1 were placed for consideration before the claims tribunal.

11. Learned claims tribunal considered the evidence placed before it and the contentions raised on both sides and stated that the accident was result of rash or negligent driving on part of the driver of the offending lorry. That the driver of the Tata Van did not contribute to this accident. In the opinion of the learned claims tribunal, the driver, the owner and the insurer of the Tata van are also necessary parties. However, in its view, the Motor Vehicles Act is a beneficial legislation and therefore failure to implead them cannot result in dismissal of the claim.

12. In MVOP.No.999 of 2007 it awarded Rs.13,96,000/- as compensation and the operative portion of the award reads as below.

In the result, petition is allowed in part granting compensation of Rs. 13,96,000/- in favour of petitioner against the respondents together with proportionate costs of the petition with subsequent interest @ 7.5% p.a.from the date of petition till the date of realization

R2 is directed to deposit the same in the Court within two months from the date of this order.

The petitioner is at liberty to withdraw 50% the compensation amount with accrued interest soon alter deposit made by R2 and the remaining 50% of the amount shall be kept in Saptagiri Grameena Bank, Edupugallu, Vijayawada for a period of two years.

13. In MVOP.No.1000 of 2007, the claims tribunal awarded

Rs.21,85,857/- and the operative portion of award reads as below.

In the result, petition is allowed in part granting compensation of Rs.21,85,857/- in favour of petitioner and against the respondents together with proportionate costs of the petition and with subsequent interest @ 7.5% p.a.

from the date of petition till the date of realization.

R2 is directed to deposit the same in the Court within two months from the date of this order.

The petitioner is at liberty to withdraw 50% of the compensation amount with accrued interest soon after deposit made by R2 and the remaining 50% of the amount shall be kept in Saptagiri Grameena Bank, Edupugallu, Vijayawada for a period of two years.

14. The injured claimants as well as the insurance company

were not happy with the award.

The injured claimant assailed the award in MVOP.No.999 of 2007 and filed the appeal under section 173 of the MV Act in MACMA.No.3786 of 2012. The insurance company assailed the award in MVOP.No.999 of 2007 and filed the appeal under section 173 of the MV Act in MACMA.No.2325 of 2012.

The injured claimant in MVOP.No.1000 of 2007 assailed the order and filed an appeal under section 173 of the MV Act in MACMA.No.2274 of 2015. The insurance company in MVOP.No.1000 of 2007 assailed the order and filed an appeal under section 173 of the MV Act in MACMA.No.2320 of 2012.

15. Sri N.Rama Krishna, the learned standing counsel for insurance company and Sri Subrahmanyeswara Rao Loya, the learned counsel for claimants in each of the claim appeals submitted their arguments. Since common questions of fact and law are involved, the learned counsel on both sides argued all the four appeals together. Therefore, by this common judgment, these four appeals are to be decided.

16. On behalf of the insurance company, the learned counsel argued that the van in which the injured were travelling was overloaded and that caused grave inconvenience to the driver of it and consequently, he was unable to drive it properly and thereby contributed for the accident. The driver, owner and insurer of the Van were necessary parties and since they were not joined in the claims before the claims tribunal the award impugned suffers from legal infirmity. The further submission of the learned counsel for the insurance company is that in proof of the respective salary income of the claimants, the relevant employers did not enter the witness box. However, the claims tribunal was inclined in accepting the salary claims of the injured claimants. According to the learned counsel for the insurance company law permits, in such circumstances to consider the salary as Rs.12,000/- per month and the approach of the claims tribunal in considering excess salary resulted in factual and legal error. That at any rate the amounts awarded were excessive.

17. Refuting the said contentions, the learned counsel for injured claimants argued that the evidence on record fully demonstrated that it was the driver of the offending lorry who was completely at fault and the claims tribunal committed no error and

recorded a positive finding in that regard. The number of persons who could travel in the other vehicle/ van, in such circumstances, could never be a question that could fall for consideration. Therefore, failure to implead the driver, owner and insurer of the van has no legal consequence. The further submission of the learned counsel is that looking at the nature of the injuries and the disability suffered by the injured claimants one ought to have found that they were 100% disabled, but the claims tribunal considered their disability at 60% only. The injured claimants were young engineering graduates and were earning their monthly salary in their employment and future prospects had to be considered but the claims tribunal failed in considering it. Therefore, learned counsel seeks enhancement of compensation.

• 18. The following points fall for consideration
  • 1. Was it a case of contributory negligence and consequently non impleadment of driver, owner and insurer of Tata van bearing registration No. AP 16 TW 4092 is fatal?
  • 2. Whether the impugned award failed to grant just compensation thereby requiring interference?

Point No.1

19. In the opinion of the claims tribunal, the offending vehicle is lorry bearing registration No. AP 27 V 1577. The question whether the other vehicle/ Tata Van bearing registration No. AP 16 TW 4092 contributed to the accident is a question that is common in all the four appeals. Therefore, the answer governs this aspect of the matter in all the four appeals.

20. The undeniable evidence that is available from Ex.A1/ FIR copy and Ex.A24 copy of charge sheet in MVOP.No.1000 of 2007 and Ex.A1 FIR and Ex.A18 charge sheet in MVOP.No.999 of 2007 are part of the evidence. After due investigation, the state police had found fault with the driver of the offending lorry. RW.1 who testified on behalf of the insurance company was not an eye witness to the incident. Each of these claimants were witnesses to the incident and they testified before the claims tribunal as PW.1. Their assertion was that the fault entirely was with the driver of the offending lorry. Ex.A20 and Ex.A26 are copies of the same rough sketch prepared by the police during the course of investigation. This is one crucial piece of evidence which required consideration. This rough sketch disclosed that the van in which

the injured were travelling and the offending lorry were travelling in the opposite directions. That the Van was on the left side of the road which means it was proceeding in accordance with the law prescribing road use. The opposite coming vehicle which was supposed to travel on its own left side which was proper for it deviated its path and it came on to the other side of the road and dashed on the front part of the Van. The rough sketch is depicting this. The evidence of PW.1 in each of these claims matched with that. That makes it crystal clear that the offending lorry was driven rashly or negligently by its driver as it changed its direction and went to the wrong side of the road. What compelled the driver of the offending lorry to deviate its correct path and in going to the wrong side of the road was to be explained and at any rate it was for the insurance company to answer that since it contended that the other van though coming on the appropriate side of the road contributed to the accident. There is absolutely no factual evidence laid before the claims tribunal in that regard. From the very same evidence, the same question has fallen for consideration before this Court. Though the insurance company repeated its contention, it failed to show to this court as to how one could be persuaded to say that the driver of the van was also

at fault. In the above facts and circumstances, the only logical conclusion is that the accident was the result of rash or negligent driving of the driver of the offending lorry and there was no fault on part of the driver of the Van. Since the driver of the van was in no way responsible for this accident, the presence or absence of the driver, owner and insurer of that van in the cases has no legal consequence. If really, the insurance company believes otherwise, it was well within its competence to seek its remedies as against the driver, owner and insurer of the Van by initiating appropriate cases. The observations of the claims tribunal are that the Motor Vehicles Act, 1988 being a beneficial legislation, non impleadment of the driver, owner and insurer of the Van is of no consequence. That observation is not in accordance with the facts and law. There was a clear finding of the claims tribunal that the entire fault was with driver of the lorry. It positively held that the driver of the Van did not contribute to the accident. In such circumstances there was no scope to say anything contrary to that. For the reasons mentioned above, this point is answered against the insurance company.

Point No. 2: -

21. The case of Sri P.Gowtham Sridhar/ injured in MVOP.No.999 of 2007/ MACMA.No.3786 of 2012 is that from the evidence it is seen that by the time of this accident, he was aged 24 years. He is an engineering graduate. He is employed in My Home Constructions Private Limited, Hyderabad. A legal officer from the employer company testified as PW.3. Ex.A9 discloses the appointment letter of the injured. Ex.A11 discloses pay slips of the injured for two months. The evidence of PW.1 as well as PW.3 was that the annual salary of the injured was Rs.1,20,000/-. Thus, the legitimate earnings of the injured spoken to by PW.3 satisfied the legal requirement of proof of disputed fact by the employer. When facts are proved as asserted in the claim petition, it was for the opponent insurance company to sustain its contention. It failed to bring on record any evidence either disproving the case set out by the claimant or by impeaching the credibility of PW.1 and 3 in this regard. Thus, this is a case of salaried employee, aged 24 years, which means he has a bright future ahead to grow up in the ladder. In Sarla Verma V. Delhi Transport Corporation² case, the law has been stated that in those cases where the injuries left the injured invalid making him a comatose patient, the courts can consider future prospects as in the case of death claims.

18

22. PWs.2 and 4 are the doctors who examined this injured. There is on record, Ex.A2/ wound certificate, Ex. A3 discharge summary, Ex. A8 scan reports four in number, Ex. A12 disability certificate, Ex. A15 scan films seven in number, Ex. A16 OP book, Ex. A21 latest disability certificate issued by District Medical Board, Guntur. The above evidence disclosed that this injured suffered D11 wedge compression fracture with spinal cord injury. Because of that, both the lower limbs/ legs have become nonfunctional. He was found unable to stand and walk. There was such damage to the body that he lost control over the bowels and urinary bladder. According to PW.2 that condition would be permanent and could not be rectified. The doctor further clarified that the injured requires an assistant all throughout his life since even the nature calls were not within the control of the injured. In the opinion of the doctors, he suffers from 80% permanent disability. Claims tribunal thought that his upper limbs were

² 2009 (6) SCC 121

functional and therefore he could attend software work and therefore it took his functional disability affecting his earning capacity to a tune of 60%. That is seriously assailed in this appeal. The learned counsel for injured claimant/appellant made a strong submission that the approach of the claims tribunal was unreasonable. Learned counsel argued stating that a person who lost control over his natural calls cannot be said to be capable of attending software work. The insurance company did not lead any evidence of any medical expert to enable the claims tribunal to evaluate the medical evidence of PW.2 and 4 and test the medical claims. As a matter of fact, the injured claimant cannot be equated with a comatose patient. Physical disability is really translated into functional disability leading to loss of earning capacity. 80% as certified by the medical expert ought to have been considered by the claims tribunal. Since it failed to do it, interference is required in this appeal. The functional disability leading to loss of earning capacity is recorded at 80%.

23. The annual income of the injured claimant is Rs.1,20,000/-. 80% of it is Rs.96,000/-. Multiplier 18 is rightly applied by the claims tribunal and therefore the same is accepted here. On applying multiplier 18 to the multiplicand, it comes to

Rs.17,28,000/-. This is towards loss of earning capacity because of permanent disability. Claims tribunal granted only Rs.12,96,000/-. Therefore, towards loss of earning capacity, Rs.17,28,000/- is granted. The injured requires an attendant all throughout his life. Claims tribunal granted Rs.50,000/-. In the opinion of this court that is too meagre. Therefore, Rs.3,00,000/ is to be granted towards attendant charges.

24. An injured with the above referred disorders requires constant medical attention which requires transportation. Future medical expenses were not adverted to by the claims tribunal. Towards transportation and extra nourishment, it granted only Rs.10,000/-. That is found to be too meagre. Given the kind of physical condition and the mental trauma of the injured, towards future medical needs and transportation and extra nourishment Rs.1,00,000/- is granted. Towards pain and suffering claims tribunal granted a total sum of Rs.40,000/-. Considering the facts and circumstances of the case, Rs.1,00,000/- is granted towards pain and suffering. Thus, the compensation awarded is enhanced from Rs.13,96,000/- to Rs.22,28,000/-.

25. Sri P.Rajesh Naidu/ injured claimant in MVOP.No.1000 of 2007/ MACMA 2274 of 2015 is found to be aged 24 years by the time of accident. He is an Engineering (Agriculture) graduate. There is on record, Ex.A12 copy of certificate issued by National Institute Of Agricultural Extension Management, Ex.A11 copy of B.Tech certificate, Ex. A10 copy of provisional degree certificate. The subject matter accident took place on 24.08.2007 by which time he obtained Ex. A13 letter of appointment and Ex. A14 joining letter. PW.3/ the business analyst in Dark House Technologies Private Limited said that the injured claimant was employed with them. According to the evidence of PW.1 and 3, the injured claimant joined in his employment on 04.10.2016 as per Ex. A15. His salary per annum as per Ex. A13 certificate is Rs.1,80,000/-. Thus, employment and the pay particulars were proved through sworn evidence of competent witnesses. The insurance company did not bring out any material contrary to this. The medical condition of this injured was proved through PW.2 and 4/ medical doctors. There is on record Ex.A2 - wound certificate, Ex.A3,A4 - discharge summaries, Ex. A7 - disability certificate, Ex.A18 - scan reports, Ex. A19, A20 outpatient books of the hospitals where he was treated, Ex. A22 x-ray films and

scan reports, Ex. A27 is latest disability certificate issued by District Medical Board, Guntur. From all of that, it is seen that he suffered D7 wedge compression fracture with spinal cord injury, left side hem-thorax injury, left side fracture neck of scapula. There was complication of renal failure because of spinal shock with dorsal cord injury. A nephrologist also attended him. On multiple occasions, he was admitted in hospital and was treated and discharged. He suffered from traumatic paraplegia because of damage of spinal cord. His both legs were not functioning. One disability certificate indicated 100% disability while the other indicated 80% disability and both the certificates showed that it is permanent disability. However, claims tribunal considered that there was only 60% permanent partial disability. Multiplier 18 was rightly applied. In the opinion of this court, the claimant is not in vegetative state and considering the overall record his functional disability leading to loss of earning capacity is assessed at 80%. His annual income is found to be Rs.1,80,000/-. 80% loss of earning capacity means it is a loss of Rs.1,44,000/-. On applying multiplier 18, it comes to Rs.25,92,000/-. Claims tribunal granted only Rs.19,44,000/-. Therefore, towards loss of earning capacity Rs.25,92,000/- is granted. Towards actual medical expenses

claims tribunal granted Rs.91,857/-. As rightly argued by the learned counsel for injured some of the medical bills which indicated actual medical expenses incurred by the claimant were not considered by the claims tribunal and that requires consideration. Considering Exs. A16, A17, A 21 and A 23, a total sum of Rs.1,52,873/- is awarded towards loss of actual medical expenses. Claims tribunal granted only Rs.10,000/- towards transportation and extra nourishment. Therefore, an amount of Rs.1,00,000/- is found just in this regard. It granted Rs.50,000/ towards attendant charges. The evidence on record indicates that he requires attendant all throughout his life. However, during pendency of the appeal, the injured appellant died. Towards pain and suffering, claims tribunal granted Rs.90,000/-. Looking at the plight of the claimant, Rs.1,25,000/- is granted. Thus, the compensation awarded is enhanced from Rs.21,85,857/- to Rs.29,69,873/-.

26. In the result,

MACMA.No.2320 of 2012 and MACMA.No.2325 of 2012 are dismissed.

MACMA.No.3786 of 2012 is allowed enhancing the compensation awarded in the impugned award dated 31.01.2012 of the learned Chairman, Motor Accident Claims Tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.999 of 2007 from Rs.13,96,000/- to Rs. 22,28,000/- with 7.5% interest per annum from the date of petition till the date of realization. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Respondent No.2/ The Oriental Insurance Company Limited is directed to deposit the amount within 30 days before the claims tribunal after giving due credit to amounts, if any, deposited already.

MACMA.No.2274 of 2015 is allowed enhancing the compensation awarded in the impugned award dated 31.01.2012 of the learned Chairman, Motor Accident Claims Tribunal – Cum – V Additional District Judge, Vijayawada in MVOP.No.1000 of 2007 from Rs.21,85,857/- to Rs.29,69,873/- with 7.5% interest per annum from the date of petition till the date of realization. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Respondent No.2/ The Oriental Insurance Company Limited is directed to deposit the amount within 30 days

before the claims tribunal after giving due credit to amounts, if any, deposited already.

As a sequel, miscellaneous applications, pending, if any, shall stand closed.

________________________ Dr. V.R.K.KRUPA SAGAR, J

Date: 20.03.2025 Dvs

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

MACMA.Nos.2320 of 2012, 2325 of 2012 and 3786 of 2012 and 2274 of 2015

Date: 20.03.2025

Dvs