CMA/718/2006 of Eravar Balajee Vs Manda Ravinder Alias Ravi on 28 December 2006

JUDGMENT:

This Civil Miscellaneous Appeal is filed by the insurance companyaggrieved by the order-dated 24.7.2002 passed by V Additional Chief Judge,City Civil Court, Hyderabad in O.P.No.283 of 2000.

1[st] respondent is the injured and she filed the O.P. alleging that on7.12.1999 at about 5.30 p.m. when herself and some others were travelling inthe unregistered new auto of 2[nd] respondent-M.Umamaheshwar fromIbrahimpatnam to Polkampally on the way near Raipolu village, the driver ofthe auto drove it in high speed and in a rash and negligent manner, wherebyhe lost control over the vehicle and it overturned resulting in injuries to herand other inmates of the auto. She sustained fracture of shaft humurous andfracture of right hand both bones and took treatment in Osmania GeneralHospital for some time and later on in Chaithanya Nursing Home,Ibrahimpatnam by spending huge amount. The injuries resulted in permanentdisability. The 1[st] respondent filed the claim petition before the Tribunalclaiming compensation of Rs.1,20,000/-. It was pleaded by her that she wasaged about 35 years as on the date of the incident and was working as alabourer and attending to household works and earning an amount ofRs.3,000/- per month.

The 2[nd] respondent, owner of the vehicle, remained ex parte. Theappellant herein (insurer) filed counter and additional counter denying theaverment that the 1[st] respondent - injured had spent huge amount towards medical expenses. It is also stated in the counter that that the injured has toprove that the auto driver had valid licence to drive the auto as on the date ofthe accident, that the insurance policy issued by the appellant is in force andthat the claim is exorbitant. It is further stated that since the auto in question isan unregistered auto, the driver of the auto would not have used it forpassenger transportation and since he has used it in violation of Section 39of M.V. Act., he alone is liable to pay the compensation, if any. The 2[nd]respondent denied the plea of the claimant that the accident took place onaccount of rash and negligent driving on the part of the driver and also deniedthe age and avocation of the injured. It was also pleaded that the amount ofcompensation claimed was highly excessive and exorbitant.

On the basis of the above pleadings, the Tribunal framed the followingissues for trial:

1. Whether the petitioner sustained injuries in a motor vehicleaccident on 7.12.1999 due to rash and negligent driving of 1[st]respondent’s auto by its driver?accident on 7.12.1999 due to rash and negligent driving of 1[st]respondent’s auto by its driver?

2. Whether the petitioner is entitled for compensation, if so, towhat amount and from whom?what amount and from whom?

3. To what relief?

During the course of enquiry, on behalf of the claimant, she wasexamined as P.W.1 and Dr.S.Narsing Rao was examined as P.W.2. Exs.A1to A11 were marked on behalf of the 1[st] respondent-petitioner. On behalf ofthe appellant-insurance company, R.W.1 A.Venkateshwarulu was examinedand Ex.B.1, copy of the policy, was marked.

Before the Tribunal, the 1[st] respondent - injured got herself examined asP.W.1 and in her evidence she vividly narrated the allegations and markedthe certified copies of the report given to the police by one of the eyewitnesses as Exs.A1, charge sheet filed by the police against the auto driveras Ex.A2 and Medical certificate as Ex.A3. She further stated that she wasaged about 35 years as on the date of the accident.

Arguments

The Tribunal after analysing the evidence on record and on appreciationof the same, opined that the accident occurred due to rash and negligentdriving on the part of the driver of the auto belonging to 2[nd] respondent and itaccordingly awarded an amount of Rs.1,20,000/- as compensation withinterest at 9% p.a. from the date of the petition till the date of realisation.Aggrieved by the award passed by the Tribunal, the appellant-insurancecompany filed the present appeal.

Sri.Ramachandra Reddy Gadi, learned Standing Counsel appearing forthe appellant-insurance company contended that the Tribunal erred in fixingRs.75,600/- towards disability, Rs.5,000/- towards pain and suffering,Rs.40,000/- towards medical expenses and Rs.5,000/- towards attendantcharges, transportation and extra nourishment. He further contended that thebasis adopted for determining the compensation is incorrect. The Tribunalhas also erred in awarding interest at 9% per annum and it should haveawarded interest at 6% per annum.

Learned counsel appearing for the 1[st] respondent/claimant on the otherhand, supported the impugned award of the Tribunal and stated that theTribunal while taking into account the age and earnings of the deceased, hasrightly awarded the compensation as also the rate of interest at 9% perannum and the same does not require any interference.

The main contention advanced by learned Standing Counsel appearingfor the appellant-insurance company is with regard to the rate of interest @ 9% p.a. which is on higher side.

Having regard to the facts and circumstances of the case, the Tribunalis justified in awarding the compensation as claimed. However, this Court isof the view that the rate of interest awarded by the Tribunal at 9% per annumis excessive and ends of justice would be met if the rate of interest is reducedto 6% per annum.

The appeal is accordingly allowed in part. The rate of interest awarded by the Tribunal is reduced from 9% to 6% per annum from the dateof petition till the date of realisation. No costs.

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GHULAM MOHAMMED, J

Date: 24-03-2011.

TNB

Dated: 23-4-2011.