IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3829 of 2002 Between: The United India Insurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Konda Pulla Reddy and another .. Respondents JUDGMENT: This appeal is directed against the award in M.V.O.P. No.477 of 2001 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa, dated 11-06-2002. The claimant, his wife and relatives were travelling in jeep No.AP04 B8992 of the 1st respondent on 17-08-2000 and at about 7.45 P.M. near Goderu Vanka bridge, the jeep driver turned the jeep to left side rashly and negligently due to which, the jeep came into contact with the rear iron anglers of the lorry coming in opposite direction and while the claimant’s wife died on the spot, the claimant suffered injuries on the left scapula and ribs on both sides. The claimant was taken to Government hospital, Proddatur and then to Ruya hospital, Tirupati, where he was treated for three months and he was also treated by Dr. Narendra Dev at Kadapa. He spent Rs.20,000/- towards medical expenses and he lost his income of Rs.36,000/- per annum from cultivation after the accident, as he was unable to do any work. Hence, he claimed a compensation of Rs.1,50,000/- from the owner and insurer of the jeep. The owner of the jeep remained ex parte before the Tribunal, while the insurer contended that the conditions of the policy were violated by hiring the jeep to others absolving the insurer of any liability to indemnify the owner. The insurer also contended that the Tribunal has no jurisdiction to entertain the petition, which is also bad for non-joinder of necessary parties i.e. owner and insurer of the lorry. The compensation claimed was contested as excessive and the insurer desired the claim to be negatived. The Tribunal settled the issues on the manner of the accident and the entitlement of the claimant to compensation and examined P.Ws.1 and 2 and R.W.1 and marked Exs.A.1 to A.6 and B.1 during the enquiry. The Tribunal rendered the impugned award firstly accepting the evidence of P.W.2 corroborated by Ex.A.2 first information report and Ex.A.4 charge-sheet as probablising that the accident occurred due to the rash and negligent driving of the 1st respondent’s jeep by its driver. Coming to the quantum of compensation, the Tribunal accepted the expenditure of Rs.15,743/- incurred under Ex.A.5 bills and also considered it appropriate to grant Rs.5,000/- towards pain and suffering. The Tribunal with reference to the evidence of the doctor as P.W.1 and the injured as P.W.2, opined that an agriculturist cannot do any work if he is suffering from pain more over near the ribs and therefore, considered that the claim of P.W.1, the doctor, about 30% permanent disability should result in assessment of loss of future earnings at the same proportion on the assessed annual income of Rs.40,000/- for P.W.2 at the age of 55 years. The multiplier applied was 11 and the total compensation payable was rounded off to Rs.1,50,000/-. The Tribunal opined that the conditions of insurance policy were not violated and the vehicle was given only for social purpose. Hence, it fastened the liability to both the respondents jointly and severally to pay the compensation with interest at 9 per cent per annum and proportionate costs. The insurer challenged the said award in this appeal contending that there was firstly no rashness and negligence in driving the jeep and secondly the insurer could not have been made liable when the terms and conditions of the policy were violated by running the jeep for hire or reward. The insurance policy being a private car policy, the risk of the passengers carried for hire is not covered and application of multiplier 11 at the age of 55 years and granting a compensation on assessing the income of the injured at Rs.40,000/- per annum were excessive. Hence, the insurer desired that the award be reversed. Sri E. Venugopal Reddy, learned counsel for the appellant and Sri K. Rathangapani Reddy, learned counsel for the claimant/1st respondent are heard and none appeared on behalf of the 2nd respondent-owner of the jeep before this Court. The points that arise for consideration are again about the responsibility for the accident and the quantum of compensation to which the claimant is entitled. The claimant as P.W.2 reiterated the claim about the jeep driver driving the vehicle rashly and negligently while negotiating a ditch, on which the jeep turned turtle. The version is identical to what was stated in the earliest version in the first information report Ex.A.2, which specified that the driver was rash and negligent in spite of the requests by the inmates of the vehicle. Ex.A.4 charge-sheet containing the result of the independent investigation by the statutory agency, confirmed the guilt of the jeep driver for the offence punishable under Sections 304-A and 337 of the Indian Penal Code and there is no reason to discredit Exs.A.2 and A.4 or P.W.2 in the absence of any contrary evidence for the respondents. The conclusion of the Tribunal that the rash and negligent driving by the jeep driver caused the accident cannot, therefore, be interfered with. The next question sought to be raised by the insurer is about the violation of the terms and conditions of the insurance policy, concerning which it examined R.W.1, who stated about the insurance policy Ex.B.1 being a private car B.policy, which only enables the use of the vehicle for social, domestic and personal purposes of the insured only, but not for any purpose of hire. However, he had no personal knowledge about the use of the vehicle for hire or otherwise and he also admitted that three other claims made against the insurer by the legal heirs of the persons who died in the same accident were allowed against them on merits. The results of the alleged appeals filed by the insurer against such awards are not available and P.W.2 stated that they were returning from a marriage in the jeep in question and it was nowhere elicited from him as to in what capacity he and the other passengers in the jeep were travelling in the vehicle. In the earliest version in Ex.A.2, it was, of course, stated that it was on hire, but in the absence of any further details forthcoming, there need be no presumption that the jeep was taken on hire. Ex.A.4 charge-sheet also was silent on the aspect and the owner cited as L.W.9 in the charge-sheet was so cited to speak about his sending the jeep to his friend free of cost. There is no other material on record on this aspect and therefore, any violation of the terms and conditions of Ex.B.1 insurance policy cannot be presumed. Coming to the quantum of compensation, the evidence of P.W.1, the doctor, about assessing the disability of P.W.2 was on his examining the injured on 18-01-2001 in respect of the injuries suffered in the accident on 17-08-2000. P.W.1 admitted that he did not give any treatment to the petitioner and the alleged persistent pain over both sides in the chest and left scapula were stated by him to be felt only on touch and not otherwise. How the pain on touch was assessed to cause permanent disability of 30% was not explained and even P.W.1 stated that the claimant can attend to his work, of course, with some difficulty. The very description of the nature of disability by P.W.1 is suggestive of the assessment of percentage of disability to be positively more liberal than necessary and P.W.2 himself in his evidence did not elaborate what difficulty he was facing in carrying on his agricultural activity in the five acres of land owned by him. While he did not file any document to show the alleged treatment for three months as in-patient or the expenditure of Rs.30,000/- as claimed by him, the functional disability with reference to whole body and avocation of the injured cannot positively be considered to be the same as the disability found by P.W.1. Even if the ownership of five acres of land by P.W.2 as probablised by Ex.A.6 pattadar passbook justifies the probable annual income of the injured at Rs.40,000/- per annum as assessed by the Tribunal, the loss of future earnings has to be reasonably assessed at about 50% of the disability assessed by P.W.1 with reference to functional disability of the whole body vis-à-vis the avocation of P.W.2. The injured was stated to be about 55 years of age by the time of the accident in respect of whom the appropriate multiplier applicable will be 11 as per Sarala Verma v. Delhi Transport Corporation[1] and if so, the future loss of earnings granted by the Tribunal calculating at 30% have to be exactly halved and the damages should be reduced by Rs.66,000/- under that head. In so far as the grant of Rs.5,000/- towards pain and suffering and Rs.15,743/- towards medical expenses under Ex.A.5 medical bills are concerned, they need not be interfered with and the rate of interest and proportionate costs also need no disturbance. Accordingly, the just and adequate compensation to which the claimant is entitled should be arrived at by reducing the compensation awarded to the extent of Rs.66,000/-. The compensation to be awarded can, therefore, be rounded off to Rs.85,000/-. In the result, the award, dated 11-06-2002 in M.V.O.P. No.477 of 2001 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa is set aside and the said M.V.O.P. No.477 of 2001 is ordered by granting a compensation of Rs.85,000/- (Rupees eighty five thousand only) with interest thereon at 9 per cent per annum from the date of the petition till the date of realization and proportionate costs and the appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 03-03-2011 Svv [1] 2009 ACJ 1298