IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4209 of 2003 Between: The Oriental Insurance Company Limited .. Appellant AND Mengani Kumar & 6 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4209 of 2003 JUDGMENT: This appeal is directed against the award in M.V.O.P.No.119 of 1999, on the file of the Motor Accidents Claims Tribunal-cum- II Additional District Judge, Warangal, dated 26.11.2002. 2. M. Kumar, claiming to have been dashed against by a Hero Honda motor cycle No.AP 36 8500, driven in high speed rashly and negligently, when he was standing in front of Sneha Engineering Company, Warangal, on 26.08.1998, filed the claim for a compensation of Rs.1,25,000/- against the driver, owner and insurer of the motor cycle. He claimed that he was treated for the multiple injuries at M.G.M. Hospital, Warangal, and in spite of taking bed rest after treatment, he was left with a permanent disability. Subsequent to the filing of the claim, M. Kumar passed away and his legal representatives namely the wife, son and two daughters were brought on record as claimants 2 to 5. The legal representatives amended their claim to Rs.3,00,000/- and claimed jointly and severally against all the three respondents with interest and costs. 3. Respondents 1 and 2 remained ex parte before the Tribunal, while the third respondent/insurer/appellant herein contested the claim contending that the claimants are put to strict proof of all their allegations and the owner of the vehicle did not report about the accident to the insurer. The compensation claimed is excessive and the driver of the motor cycle having valid driving licence had to be proved. Protection under Sections 147, 149 and 170 of the Motor Vehicles Act, 1988, be extended to the insurer and, hence, the appellant/insurer sought for negativing the claim. 4. The Tribunal framed issues about the cause for the accident, the entitlement of the claimants to compensation and the relief to be granted. 5. During the course of enquiry, P.Ws.1 to 3 and R.W.1 were examined and Exs.A-1 to A-8 and B-1 were marked. 6. The Tribunal rendered the impugned award firstly accepting the eye witness account of P.W.2 corroborated by Ex.A-1-First Information Report and Ex.A-2-Charge Sheet. The Tribunal also noted that the first respondent/driver was convicted on admission under Ex.A-5-Order by the Criminal Court in C.C.No.674 of 1998 and, hence, the rash and negligent driving of the vehicle by the first respondent was concluded to be the reason for the accident. The Tribunal also opined that the bodily injuries received by the deceased first claimant in the accident subsequently turned fatal and resulted in his death. As the ownership of the vehicle with the second respondent and its subsisting insurance with the third respondent are probablised by Ex.A-6/Ex.B-1-Insurance Policy and admitted by R.W.1, the respondents 1 to 3 were considered jointly and severally liable to pay just compensation to the claimants 2 to 5 for the death of the deceased first claimant. The deceased was taken to be aged 38 years and to be earning Rs.40/- per day as daily wages as a labourer on which basis, after deducting 1/3rd amount out of the assessed income, the loss of dependency was calculated at Rs.1,53,600/-. That apart, the Tribunal also awarded Rs.2,200/- towards funeral expenses, Rs.5,000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.10,000/- towards medical expenses, extra nourishment, etc., making the compensation in total Rs.1,80,800/-. The Tribunal directed the compensation to carry interest at 9% per annum from the date of death of the deceased first petitioner till the date of realization and proportionate costs. It also gave directions about the apportionment of the compensation. 7. The insurer filed the present appeal contending that the deceased first petitioner sustained a simple injury and fracture of lower 1/3rd of Tibia and Fibula for which he was operated on 28.08.1998 and was discharged on 31.08.1998. The death of the first petitioner on 27.05.1999 cannot be attributed to the injuries suffered in the accident and as there was no nexus between the death of the deceased first petitioner and the accident, the insurer is not liable to pay any compensation. In any view, the application of the multiplier 16 was incorrect and the insurer obtained permission under Section 170 of the Motor Vehicles Act, 1988, from the Tribunal. Hence, the insurer desired the award to be reversed. 8. Heard Smt. I. Maamu Vani, learned counsel for the appellant and Sri K. Ravinder Reddy, learned counsel for the claimants/respondents. The driver and owner of the motor cycle remained unrepresented before this Court also. 9. The findings of the Tribunal about the responsibility of the first respondent to the claim for the accident with his rash and negligent driving, the ownership of the vehicle with the second respondent to the claim and the subsistence of a valid insurance policy with the third respondent to the claim at the relevant time are not disputed and the findings of the Tribunal in this regard have become final. 10. The only question that remains for consideration is the quantum of just and adequate compensation to which the claimants are entitled in respect of the injuries and their consequences suffered by the deceased first claimant. 11. The second petitioner/wife of the deceased first petitioner as P.W.1 stated that her husband was treated for about one month as inpatient for the injuries suffered in the accident and after discharge, he took bed rest in the house. While stating that he died eight months after the incident, she attempted to attribute the death to the injuries, but during the course of her cross- examination, she admitted that they did not file any documentary proof about any subsequent visits to the hospital for treatment after discharge or to show that the first claimant died due to the impact of the accident. P.W.2, the eye witness to the accident, was not speaking anything about the injuries suffered in the accident proving fatal. P.W.3 attempted to claim that due to the injuries becoming septic, the first claimant passed away on 27.05.1999 on the same day on which he was admitted into the hospital. While he claimed to be knowing the deceased and his family members, his connection with the family being such as to make him present at the time of such crisis is not elaborated to be for any reason and his claim that the deceased received injuries to his head also during the accident was not the claim of even the claimants. Again the chance witness stated during his cross-examination that the deceased was taken to the hospital by his wife and subsequently, he visited the hospital on the date of his death. He was claimed to have been informed by Dr. Chandra Shekhar of the reason for the death and the said Dr. Chandra Shekhar himself had not been examined and it is not known how he was connected with the admission or treatment of the deceased first claimant. The documents Exs.A-1 to A-4 relating to the accident do not throw any light on any connection between the death of the deceased first claimant and the injuries suffered in the accident. Ex.A-3-Wound Certificate does not throw any light on the possibility of the injuries leading to his death and Ex.A-7-Discharge Card issued by M.G.M. Hospital, Warangal, only advised a review after bed rest for two and a half months and it is not known whether the deceased first claimant attended the hospital for any such review after taking bed rest for such a period. Any complications developing subsequently solely or at least proximately attributable to the injuries suffered in the accident cannot be considered probablised on such evidence on record and there appears no evidentiary basis for the Tribunal presuming that the facts clearly show that the injuries subsequently turned fatal to the deceased first petitioner. 12. If so, the compensation should be assessed and granted only to the extent of the injuries and their consequences and not as a case of death caused due to the accident. 13. Ex.A-1-First Information Report itself mentioned about the deceased first claimant suffering fracture of the left leg and also injuries for the right hand and face. The injuries were said to be bleeding and the prosecution of the first respondent/driver under Ex.A-2-Charge Sheet for an offence punishable under Section 338 of the Indian Penal Code, 1860, obviously indicates the first claimant suffering grievous hurt. Ex.A-3-Injury Certificate recorded three grievous and simple injuries and the fracture was of the lower 1/3rd of Tibia and Fibula. While the first respondent/driver was convicted on admission for the offence for which he was prosecuted, Ex.A-4-X-ray opinion confirmed the sustaining of the fracture by the injured. Ex.A-7-Discharge Card shows that since the accident on 26.08.1998, the deceased was an inpatient in M.G.M. Hospital, Warangal, till 31.08.1998 and he was also subjected to a surgery on 28.08.1998. Notwithstanding the treatment, the very advice under Ex.A-7-Dsicharge Card shows that the injuries were of such serious nature as to confine the deceased first claimant to bed for at least two and a half months even after discharge requiring a further review about the future course of treatment after such period. While Ex.A-8-Death Certificate only shows about the factum of death on 27.05.1999, the deceased had to be compensated the grievous and simple injuries suffered by him, the pain and suffering he had undergone, the loss of earnings at least for a period of three to four months due to his being immobilized, the expenses of transport, extra nourishment, damage to clothing, attendant charges, expenses for purchase of medicines, advice to be taken as per Ex.A-7- Discharge Card, etc. 14. The fracture suffered resulting in a surgery and confining to bed for three months apart from the other simple injuries would require to be compensated at least by a sum of Rs.25,000/-, while the pain and suffering which he had undergone since the accident has to be further compensated by a similar sum of another Rs.25,000/-. The deceased was stated to be earning Rs.60/- to Rs.70/- per day as a labourer and the Tribunal fixed the daily wages at Rs.40/- without stating the basis for the same. While even the minimum wages payable under the Minimum Wages Act, 1948, at about the relevant time for an unskilled labourer would have been more, the market rates of wages payable to labourers would have been something more than what were the minimum wages. The earnings of the deceased could have been reasonably taken at about Rs.60/- per day or about Rs.1,800/- per month and he would have been granted loss of income for about four months in toto at Rs.7,200/-. The other expenses towards the transport, extra nourishment, attendant charges, expenses of medicines, damage to clothing and all other heads of pecuniary and non-pecuniary damages could have been assessed at about Rs.25,000/- in assessing which, of course, an element of guess and estimate become inevitable. 15. Though no direct nexus between the death of the deceased first claimant and the accident had been established, the fact remains that the deceased was hale and healthy before the accident and his death at the age of 38 years left the young widow aged 30 years and children aged about 19, 14 and 12 years as destitutes. Though only one fracture injury appeared to have been suffered by the deceased apart from the other simple injuries, the violent impact of the accident is obviously such as to confine him to bed in spite of a surgery for about three months and had shattered his physical well being. As the beneficial provisions of the Motor Vehicles Act, 1988, have to be liberally construed so as to place the victims in the same position in which they would have been, but for the accident, the compensation to be awarded to the claimants for the injuries and consequences suffered by the deceased first claimant can be rounded off to a sum of Rs.1,00,000/- and to that extent, the compensation awarded by the Tribunal as if it were for the death of the first claimant due to the accident itself has to be reduced. The rate and period of interest and proportionality of the costs can be maintained and the said compensation of Rs.1,00,000/- can be directed to be apportioned in the same proportion in which the Tribunal directed the original compensation to be apportioned. 16. In the result, the award, dated 26.11.2002, in M.V.O.P.No.119 of 1999, on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Warangal, is modified by reducing the compensation to Rs.1,00,000/- payable with the same rate of interest from the date of the petition originally filed by the deceased first claimant till the date of realization and proportionate costs and the compensation shall be shared between the claimants 2 to 5 in the same proportion in which it was directed to be apportioned by the original award. 17. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 23rd March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4209 of 2003 Date: 23rd March, 2011 KL