THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.376 of 2008 Dated:- 29th December, 2010 Between:- National Insurance Company Ltd., ...Appellant AND L.Mahender Reddy and another …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.376 of 2008 JUDGMENT:- This appeal is filed by the National Insurance Company Limited, represented by its Divisional Manager, against the order and decree dated 09.04.2007 passed in M.V.O.P.No.39 of 2004 by the XVII Additional Chief Judge – cum – III Additional Metropolitan Sessions Judge, Hyderabad (‘the Tribunal’, for brevity). The parties will be referred to as they were arrayed before the Tribunal, for the sake of convenience. 2. The petitioner – L.Mahender Reddy filed a petition under Section 166 of the Motor Vehicles Act, 1988, before the Tribunal seeking a compensation of Rs.7,00,000/-. His case is that on the intervening night of 29/30.10.2003 at about 02:30 A.M., while he was on return journey from pleasure trip traveling in a Swaraj Mazda Mini Bus bearing No.AP 9 W 2988, when reached outskirts of Guttur village on National Highway No.7, the driver of the bus drove the vehicle in a rash and negligent manner at high speed, lost control and dashed against the stationed Lorry bearing No. AP 02 U 6153, as a result of which, the petitioner sustained crash injury on the left leg, compound fracture of cuneiform right foot, fracture of 4 and 5 metatarsals of right foot and several other injuries. It is also his case that he underwent treatment at Apollo Hospital, Ananthapur, and he was later shifted to Care Hospital, Hyderabad, wherein he underwent treatment for a period of 12 months. It is also his case that that on account of the said injuries caused in the accident, his left leg was amputated. 3. The first respondent is the owner of the offending vehicle and the second respondent is the Insurance Company with which the offending vehicle was insured. They resisted the claim of the petitioner contending that the accident was not due to the negligent driving of the driver of the offending vehicle. They have also denied other averments of the claimant with regard to injuries, treatment, disability etc. 4. On behalf of the petitioner, the petitioner himself was examined was examined as P.W.1 and P.Ws.2 and 3 were examined and Exs.A.1 to A.11 were marked. On behalf of the respondents, except Ex.B.1 – True copy of policy certificate, no other oral and documentary evidence has been adduced. 5. The Tribunal, on appreciation of the oral and documentary evidence adduced by both the parties, held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle in which the claimant was traveling and that the claimant sustained 50% permanent disability and with regard to the compensation, the Tribunal, relying on Ex.A.10 – Salary Certificate of the claimant, evidence of P.W.3 – Dr. R.Shiva Prasad, Orthopaedic Civil Surgeon and taking the income of the petitioner as Rs.4,000/- per month, partly allowed the petition and awarded a total compensation of Rs.5,00,000/- to the claimant. Aggrieved by the same, the second respondent therein – Insurance Company preferred this appeal. 6. Sri A. Veera Swamy, learned standing counsel for the Insurance Company submitted that the claimant failed to prove his salary certificate and in the above circumstances, the Tribunal was not justified in taking the salary of the claimant at Rs.4,000/- per month and adopting the multiplier as 15. It is also his submission that the accident was not due to the negligence of the driver of the offending vehicle and there was contributory negligence. 7. Per contra, learned counsel for the respondent supported the judgment of the Tribunal and submitted that there is nothing to interfere with the same. 8. Having considered the above rival contentions, the points that arise for consideration in this appeal are (1) whether the accident occurred due to the negligence of the driver of the offending vehicle; and (2) whether the compensation awarded by the Tribunal to the claimant is just and reasonable in the facts and circumstances of the case. POINT No.1 9. As far as this point is concerned, admittedly, except Ex.B.1 – True copy of the policy certificate, no other oral and documentary evidence was adduced by the Insurance Company to prove that the accident was not due to the negligence of the driver of the offending vehicle and that there was contributory negligence. On the other hand, the evidence of P.W.1 – injured himself and the documents filed by him clinchingly establish that the accident occurred due to the negligence of the driver of the offending vehicle. Mere taking a plea that there was contributory negligence will not come to the rescue of the Insurance Company in the absence of any evidence to prove the same. POINT No.2 10. Admittedly, the claimant was aged about 42 years and was working as Purchase Officer in M/s. M.R.Enterprises, Hyderabad, a proprietary concern of P.W.2. He had produced the Salary Certificate in Ex.A.10 and also examined P.W.2 – his employer. Of course, P.W.2 – the employer of the claimant failed to produce any documents pertaining to M/s. M.R.Enterprises. Having regard to the age the claimant and the job he was doing at the time of accident, it is clear that the Tribunal has not committed any error in taking the income of the claimant at Rs.4,000/- per month. 11. Coming to the aspect of disability sustained by the claimant, the evidence of P.W.3, who is one of the member of the Medical Board of Osmania General Hospital and who issued Ex.A.7 – Physically Handicapped Certificate, clearly establishes the fact that the claimant sustained serious injuries which resulted in amputation of his left leg below knee and that he became permanently disabled and that the disability is to the extent of 50%. Hence, there is nothing to disbelieve the same. 12. Coming to the aspect of applicability of appropriate multiplier, the Tribunal awarded Rs.3,60,000/- (Rs.4,000 X 12 X 50% X 15) towards the head of loss of earnings due to disability, by applying the multiplier 15. But, as per the judgment of the Apex court in case between Sarla Verma v. Delhi Transport Corporation[1], the appropriate multiplier applicable to the instant case is 14 and the compensation under the head of loss of earnings due to disability, would be Rs.3,36,000/- (Rs.4,000/- X 12 X 50% X 14). Thus, the amount awarded by the Tribunal under the head of Loss of earnings due to disability is modified to Rs.3,36,000/-. 13. Having regard to the facts and circumstances of the case, I do not see any valid reason to disturb the findings of the Tribunal, except on the point of applicability of appropriate multiplier, as calculated above. 14. In the result, the award of the Tribunal is modified to the extent indicated above and, accordingly, the M.A.C.M.A. is partly allowed. There shall be no order as to costs. _______________________________ JUSTICE B.CHANDRA KUMAR 29th December, 2010 Bvv [1] AIR 2009 SC 3104