HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.208
OF 2007
JUDGMENT:
The injured-claimant filed this appeal,
having been aggrieved by the Order/Award of the learned Chairman of the Motor
Accidents Claims Tribunal–cum-I Additional District Judge, Chittoor, (for short, ‘Tribunal’) in M.V.O.P.No.65 of 2003 dated 11.12.2006,
awarding compensation of Rs.2,46,750/-(Rupees two lakh forty six thousand seven
hundred and fifty only) as against the claim of Rs.5,00,000/-(Rupees five lakh
only), for enhancement of compensation as prayed for in the claim petition
under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).
2. Heard Sri S.V.Muni Reddy, the
learned counsel for appellant, Sri B.Devanand, the learned standing counsel for
2nd respondent-Oriental Insurance Company Limited and the 1st
respondent-owner of the crime vehicle who was served with notice called absent
with no representation. Taken as heard the 1st respondent for his
absence to decide on merits and perused the record. The parties hereinafter are
referred to as arrayed before the Tribunal for the sake of convenience in the
appeal.
3. The contentions in the grounds of appeal as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law, weight of evidence and probabilities of the case, that the compensation
awarded by the Tribunal is utterly low and unjust and to enhance compensation by
taking into consideration of the proper estimation of the earnings of the
claimant and for 85% permanent disability is sustained from the amputation of
upper and lower left limbs by allowing the appeal as prayed for before the
Tribunal. Whereas, the contentions of the 2nd respondent-Insurer are
that the award of the Tribunal is just and for this Court while sitting in
appeal there is nothing to interfere but for dismissal of the appeal.
4).
Now the points
that arise for consideration in the appeal are:
1.
whether
the quantum of compensation awarded by the Tribunal fixing with 50%
contributory negligence apportionment on both the vehicles in the claim under
Section 166 of the M.V.Act is unsustainable and requires interference by this
Court while sitting in appeal against the award and if so with what enhancement
to arrive a just compensation and with what rate of interest?
2.
To what result?
POINT-1:
5.The
facts of the case are that on 2/3.09.2002 during midnight while the claimant was seated in the lorry as
a cleaner, due to rash and negligent driving of the driver of said lorry
belongs to the 1st respondent insured with the 2nd
respondent covered by Ex.B.1 policy, on N.H.Road, Rajulathalla valasa of
Visakhapatnam district, it dashed against the stationed water tanker bearing
No.AP11-B/2699, as a result, the
claimant received a crush injury to his left leg, deformity of left leg,
deformity of right wrist, bruise injuries to left elbow and left fore arm and
some other injuries, which occurrence is covered by Ex.A.1 First Information
Report and Ex.A.2 charge sheet. The Tribunal basing on the oral and documentary
evidence available on record, granted compensation of Rs.2,46,750/- with interest
at 7.5%p.a. however fixing liability to both the respondents(owner and Insurer
of the Lorry) only to 50%, thereby the claimant is awarded compensation only of
Rs.1,23,375/-.
6. The fact that the accident was the result of the
rash and negligent driving of the driver of the crime lorry bearing No.AP 03
T/0310 belongs to 1st respondent insured with the 2nd
respondent while proceeding on N.H.5 dashed against the stationed tanker which
was with no signal blinking light as indication for the passersby vehicles since
midnight proved before the Tribunal from the evidence on record not in dispute
herein and thereby for this Court while sitting in appeal there is nothing to
interfere with the said observation of the Tribunal in fixing 50% contributory
negligence on the stationed tanker to make a claim by the claimant against its
driver, owner and Insurer and in fixing the remaining 50% on the 1st
respondent-owner and the 2nd respondent-Insurer of the lorry to
which he is cleaner.
7. Now coming to the quantum of compensation, as per
Ex.B.1 policy the premium paid to the driver and another worker is under the
Workmens Compensation Act,1923 (for short ‘WC Act’), of Rs.30/- total in addition
to another coverage for owner of goods unloaded for third party damage to say
it is to the extent of comprehensive from Act policy. Here as per the age of
the claimant above 40 years from perusal of the Ex.A.3 wound certificate, A.4
disability certificate Ex.A.4 wound certificate traumatic amputations left
upper and lower limbs i.e. disarticulation left elbow and below knee
amputation left lower limb, disability
estimated about 85% and this certificate issued by the District Medical Board
of Chittoor and Ex.A.5 discharge summery also speaks the traumatic amputation
of left upper limb and left lower limb. As per the W.C.Act Section 4 read with
Schedule 4, for a person who completed age of 40 the factor 184.17 and coming
to the earnings for no proof as to what exactly the owner is paying to the
cleaner and even as per the Apex Court expression in Latha Wadhwa vs. State of Bihar[1] that even there is no proof of income and
earnings, it can be reasonably estimated at Rs.3,000/- p.m. for any non-earning
member and even for a housewife as domestic contribution with proportionate increase from that expression to the date of accident
2/3.09.2002 to take the maximum of Rs.3,200/- and 60% therein as per the
Section 4(b) of the WC Act for the permanent disablement comes to Rs.1920/-x85%
permanent disability therein comes to Rs.1632/-x 184.17 (factor) = Rs.3,00,565/-
which the claimant is entitled against the respondent Nos.1 and 2-owner and
Insurer of the crime lorry. No doubt when
the risk is covered by the W.C. Act for the claimant in the course of
employment, the question of reducing said amount to the extent of the driver of
the 1st respondent contributory negligence of the 50% does not arise
but for at best to enable the respondents 1 and 2 who are owner and Insurer of
the lorry for recovering the said 50% composite negligence liability against
the tanker driver, owner and Insurer by filing execution petition before the
Tribunal (lower Court) by impleading them and in such event, it is open to
conduct enquiry under Section 47 CPC read with 149 of the MV Act, 1988 for
refixing of the composite negligence and the liability therefrom, for the
reason of the tanker owner and Insurer are not parties herein to bind the
finding of 50% composite negligence conclusively.
8.Coming to the rate of interest,
though the interest at 7.5% per annum awarded by the Tribunal even not in
dispute, from the settled proposition of law in TN Transport Corporation v.
Raja Priya[2]
and Sarla Verma’s case (cited
supra) and from the latest expression of the Apex Court in Rajesh’s
case (cited supra), interest is awarded at 7½% per annum by
modifying and reducing from 9% per annum awarded by the Tribunal. Accordingly, Point-1 is answered.
POINT
-2:
9.
In the result, appeal is partly allowed modifying the liability fixed by the
Tribunal on respondents who are owner
and Insurer of the lorry enabling them for recovering 50% composite negligence
liability against the tanker driver, owner and Insurer by filing execution
petition before the Tribunal (lower Court) by impleading them and in such
event, it is open to conduct enquiry under Section 47 CPC read with 149 of the
MV Act, 1988 for refixing of the composite negligence and the liability
therefrom, for the reason of the tanker owner and Insurer are not parties
herein to bind the finding of 50% composite negligence conclusively. There is
no order as to costs.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
21.02.2014
VVR
