MACMA/1492/2006 of Chintala Krishna Murthy Vs K. Surya Prakas Rao on 30 December 2011

COMMON JUDGMENT:

Respondent No.1 in M.A.C.M.A.No.4250 of 2008 filed anindependent appeal being M.A.C.M.A.No.1492 of 2006. He died on15.07.2011. His legal representatives are brought on record inM.A.C.M.A.No.1492 of 2006. A memo is filed on behalf of the legalrepresentatives to bring them on record in M.A.C.M.A.No.4250 of2008 also. The request is acceded to and the Registry shall reflectthe legal representatives of the sole appellant inM.A.C.M.A.No.4250 of 2008 also for respondent No.1.

Both the appeals are directed against the order, dated26.04.2006, passed by the Motor Accident Claims Tribunal-cum-XAdditional Chief Judge (Fast Track Court), City Civil Court,Hyderabad (for short ‘the Tribunal’) in O.P.No.1453 of 2003.

For the sake of convenience, the parties are referred to asarrayed in the O.P.

The claimant filed the O.P. under Section 163-A of theMotor Vehicles Act, 1988 (for short ‘the Act’) claiming a sum ofRs.3,20,000/- as compensation. He pleaded that on 20.11.2003, atabout 1.45 p.m., he was proceeding on a motorcycle bearing No.AP 09 AN 1009, along with his son-in-law as a pillion rider fromGowliguda Chaman to Narayanaguda and that when they reachedGreen Hotel, one scooterist came from by-lane in a rash and negligent manner and dashed against the vehicle from thebackside. The claimant is said to have suffered bleeding andfracture injuries. He was said to have been treated initially inSravan Hospital, M.J. Road, Hyderabad and thereafter, ChellaNursing Home, Ameerpet, Hyderabad. Twice the right knee issaid to have been operated. He stated that he incurred hugeexpenditure for treatment and claimed the compensation.

Respondent No.1 is the owner of the vehicle on which theclaimant was travelling and respondent No.2 is the insurer. Respondent No.1 remained ex parte. The claim was opposed byrespondent No.2 alone. Various facts pleaded by the claimantwere denied and it was pleaded that respondent No.2 is not liableto pay the compensation.

Through order, dated 26.04.2006, the Tribunal awarded asum of Rs.1,27,794/- as compensation. The claimant filedC.M.A.No.1492 of 2006 seeking enhancement of thecompensation, whereas the Insurance Company i.e. respondentNo.2 filed C.M.A.No.4250 of 2008 challenging the order passed bythe Tribunal.

Heard Sri Ch.Ramesh, learned counsel for the claimant andSri Kota Subba Rao, learned counsel for respondent No.2.

The claimant initially invoked two provisions, namelySections 166 and 163-A of the Act. Later on, he restricted theclaim to be the one under Section 163-A of the Act. According tohim, he received grievous injuries when he was hit by an unknownscooterist and operation had to be conducted twice to his knee. To prove his case, he examined P.Ws.1 to 4 and filed Exs.A1 toA34. On behalf of respondent No.2, R.W.1 was examined and Exs.B1 and B2 were filed. Exs.X1 to X3 were also taken onrecord.

In a claim filed under Section 163-A of the Act, thenecessity does not arise for the Tribunal to decide as to whetherthe accident occurred on account of rash and negligent driving onthe part of the driver of any vehicle. Therefore, the Tribunalproceeded to decide the quantum of compensation and liability onthe part of respondent No.2.

The claimant pleaded that he suffered disability to theextent of 20%. However, R.W.1, a Director, from a GovernmentHospital, who checked the claimant, found that his disability isonly 10%. The Tribunal accepted the same.

Though the claimant stated that he was earning a sum ofRs.15,000/- per month, he ultimately restricted the income toRs.40,000/- per year by filing a memo. The same was reflected inhis chief-examination. The Tribunal determined the loss of earningcapacity on account of an injury by taking the annual income asRs.40,000/-, applying multiplier ‘11’ and restricting the disability to10%. No interference is warranted with this finding.

Arguments

Under Schedule II of the Act, which is referable to Section 163-A, the amounts that can be awarded towards pain andsuffering and medical expenses are stipulated. For a seriousinjury, the amount that can be awarded towards pain and sufferingis Rs.5,000/- and for a simple injury, it is Rs.1,000/-. Medicalexpenses are restricted to Rs.15,000/- irrespective of the amountthat may have been spent by the claimant.

In the instant case, the Tribunal awarded several amounts such as Rs.12,500/- for fracture injuries, Rs.15,000/- for removingimplants, Rs.41,694/- towards medical expenses, Rs.10,000/-towards loss of earning and Rs.1,000/- each for extra nourishmentand transportation. Except a sum of Rs.5,000/- for the grievousinjury and Rs.1,000/- for simple injury towards pain and sufferingand Rs.15,000/- towards medical expenses, no amounts arepermissible, since the claim is under Section 163-A of the Act. Therefore, the amount that can be awarded to the claimant, isRs.75,000/-.

Learned counsel for respondent No.2 submits that the claimitself was not maintainable in view of the judgment of the SupremeCourt in Deepal Girishbhai Soni Vs. United India InsuranceCompany Limited, Baroda[[1]]. In Oriental Insurance Co. Ltd. Vs.

Hansrajbhai V Kodala[[2]], the Hon’ble Supreme Court explainedthe legislative history of Section 163-A of the Act and held thateven where the income of the injured or deceased, as the casemay be, exceeds Rs.40,000/-, compensation can be awarded byrestricting it to Rs.40,000/-. I n Deepal Girishbhai Soni’s case,relied upon by the learned counsel for respondent No.2, theHon’ble Supreme Court while relying on the judgment inHansrajbhai V Kodala’s case, held that in case the income of thedeceased or injured exceeds Rs.40,000/-, the claim cannot bepresented under Section 163 of the Act at all. The question as towhether the present O.P. could have been maintained under thatprovision does not arise, since the claimant himself stated that hisincome is Rs.40,000/-. Under the scheme of the Act, the Tribunalcannot examine as to whether the injured or the deceased in aclaim petition was earning more income than what was stated. Enquiry if at all, would be in the other direction, namely whether the income was less than what was pleaded.

Another ground raised on behalf of respondent No.2 is thatthe claimant was travelling as a pillion rider and that the insurancecompany is not liable to pay any compensation to him. However,in all fairness, the learned counsel for respondent No.2 stated thatduring the pendency of the appeal, the Insurance RegulatoryDevelopment Authority issued instructions to the effect thatwherever the insurance is comprehensive, the insurer shall beunder obligation to cover the liability towards the pillion rider also. Hence, the said question does not arise for consideration.

For the foregoing reasons, C.M.A.No.1492 of 2006 isdismissed and C.M.A.No.4250 of 2008 is allowed reducing thecompensation from Rs.1,27,000/- to Rs.75,000/-.

During the pendency of the appeals, the claimant died. Hislegal representatives were brought on record. The wife of theclaimant shall be entitled to withdraw 40% and his two sons anddaughter shall be entitled to withdraw 20% each of the amount thatis payable. They shall be entitled to withdraw the same, withoutfurnishing any security.

There shall be no order as to costs.

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Conclusion

L.NARASIMHA REDDY,J

Dt:30.12.2011.Note: L.R. copy to be marked.(B/o)kdl [1]2004 (3) ALD 81 (SC)2004 (3) ALD 81 (SC)

[2](2001) 5 Supreme Court Cases 175(2001) 5 Supreme Court Cases 175