IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE B.N.RAO NALLA MA.CMA.No. 3332 OF 2002. Between: Mandavalli Satyanarayana … Appellant V/s. Tatikonda Srinu & 3-Ors. … Respondents Counsel for the Appellant : Sri Venlateswara Gudapati Counsel for the Respondents 3 & 4: Smt.Pushpinder Kaur The Court made the following : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE B.N.RAO NALLA MA.CMA.No. 3332 OF 2002. JUDGMENT : This Civil Miscellaneous Appeal is directed against the award and decree dated 18-1-2002 passed in MOP.No.175 of 1999 by the Chairman (District Judge), Motor Accidents Claims Tribunal (District Court), Vizianagaram, whereby the claim- petition was partly allowed by awarding compensation of Rs.55,000/- with proportionate costs and interest @ 9% per annum from the date of petition till the date of realization. 2. The facts leading to the filing of this appeal can be summarized as follows: On 25-6-1998 at about 09:30 a.m., the petitioner was standing on the left side of the road at Pusapatrirega near Petrol bunk. All of a sudden a lorry bearing No.AP-12T-6379 came without blowing horn, as it was proceeding from Visakhapatnam side to Srikakulam side, the first respondent drove the said lorry in a rash and negligent manner and at high speed and dashed against the petitioner. As a result of which the petitioner fell down on the road and sustained injuries all over his body. He sustained grievous injury on the right toe. He was taken to the Government headquarters hospital, Vizianagaram. He took treatment there for two days as inpatient. Later, he used to take treatment under Dr.A.Sree Ramamurthy as outpatient. The petitioner stated that he could not attend his regular work as usual. He stated that he was hale and healthy prior to the accident and he used to attend agricultural work and also Kirana business. He stated that after the said accident, the petitioner could not move in the village to collect his dues. He stated that he used to earn Rs.6000/- per month. He stated that the accident occurred due to gross negligence on the part of the first respondent. On the complaint, the police Pusapatriega registered a case in Cr.No.83/98 under section 337 IPC against the first respondent and after due investigation the police filed charge sheet against Respondent No.1 under section 338 IPC. The petitioner stated that he spent Rs.20,000/.- towards medicines, transport and extra nourishment. The petitioner is claiming Rs.1,20,000/- towards compensation. 2. Before the Claims Tribunal, Respondent Nos. 1 to 3 remained exparte. 3. The fourth respondent filed written statement denying the allegations of the petition and put the petitioner to strict proof of his age, income and avocation, the mode of occurrence of the accident as alleged by him and his sustaining grievous injuries in the said accident. It is averred that the petitioner is put to strict proof of the allegations that the accident occurred due to gross negligence of the first respondent and that Respondent No.1 is having valid and subsisting driving licence, that the lorry is road worthy to ply, that it was having valid insurance coverage with the respondents 3 and 4 on the date of the accident and that the second respondent is the owner of the accident vehicle. It is contended by the fourth respondent that at the time of the accident, the petitioner suddenly crossed the road from the petrol bunk without following the traffic rules and thereby contributed to the accident and that the accident occurred due to the fault of the petitioner. The compensation claimed by the petitioner is excessive, exorbitant and out of all proportions. 4. The fourth respondent filed additional written statement contending that the second respondent gave proposal to the third respondent Insurance Company at Vijayawada on 27-8-1997 at 1 p.m. and that he also issued cheques bearing No.052662 dated 27-8-1997 for Rs.7878/- on UCO Bank. After receiving the cheques the cover note was issued and the policy was also issued to the second respondent. The third respondent Insurance Company presented the cheques to Andhra Bank and the cheques were bounced with an endorsement “funds insufficient” with a memo dated 2-9-1997. Immediately after receiving the memo from the bank, the third respondent Insurance company sent a letter dated 8-9-1997 to the owner and also to RTA Vijayawada and also to the finance company regarding dishonour of cheques and also regarding cancellation of cover note issued to the second respondent as per the provisions of the Motor Vehicles Act. Accordingly, the policy was also cancelled. The owner and the RTA received the registered letter and kept quiet. 5. Before the Claims Tribunal, the petitioner filed rejoinder denying the allegations contained in para No.3 of the additional written statement of the fourth respondent. According to the petitioner, the fourth respondent has not at all properly cancelled the policy according to the Motor Vehicles Act and Rules. The petitioner stated that once the cheques issued by the second respondent are bounced, the only remedy available to the third respondent is to file a criminal case and prosecute the second respondent under the provisions of N.I.Act and that respondents 3 and 4 have no right to cancel the policy. According to the petitioner, the policy is in existence between respondents 2, 3 and 4 and so there is contractual obligation on the part of the Insurance company and, therefore, the fourth respondent is bound to pay compensation to be awarded to the petitioner and that the fourth respondent has liberty to take necessary steps for recovery of the compensation amount from the second respondent after paying the same to the petitioner. The fourth respondent cannot avoid to indemnify the loss of the petitioner. The petitioner finally stated that the fourth respondent cannot unilaterally cancel the obligation under the policy in question. Therefore, the petitioner prayed to award compensation as claimed in the main petition. 6. On the basis of the above pleadings, the Claims Tribunal framed the following issues for trial : (1) whether the accident occurred due to rash and negligent driving of the accident vehicle as alleged in the O.P.? (2) whether R.1, R.2, R.3 and R.4, or any of them are liable to pay compensation to the petitioner, and if so, to what amount ? (3) To what relief ? 7. On behalf of the petitioner, PWs.1 and 2 were examined and Exs.A1 to A6 and Exs.X-1 and X-2 were marked. On behalf of the fourth respondent, RW-1 was examined and Exs.B1 to B9 were marked. 8. On appreciation of the oral and documentary evidence adduced by both parties, the Claims Tribunal partly allowed the claim-petition granting compensation of Rs.55,000/- to the petitioner payable by respondents 1 and 2 jointly and severally with proportionate costs and interest @ 9% p.a. from the date of petition till realization. Being dis-satisfied with the quantum of compensation awarded by the Claims Tribunal, the claimant filed the present appeal. 9. Heard the learned counsel for the appellant and Smt.Pushpinder Kaur, learned standing counsel for the Respondents 3 and 4. Perused the material placed on record. 10. The Claims Tribunal absolved the liability of respondents 3 and 4, as there was no insurance coverage by the date of accident. The cheques issued by the owner of the vehicle towards payment of premium were dishonoured on 28-7-1997. The accident had occurred on 28-6-1998. Thus there is a gap of ten months in between. The only plea raised in this appeal is that the Claims Tribunal, basing on Ex.A5 disability certificate, wherein the medical board has opined that the injured claimant suffered disability at 20%, it had granted Rs.20,000/- only towards the said disability. The appellant-claimant took exception to the same and it is contended on his behalf that the Claims Tribunal ought to have considered his monthly earning @ Rs.6000/- per month or in the absence of any supporting evidence thereof, the Claims Tribunal ought to have considered his case under second schedule of the Act by fixing his annual earnings @ 15,000/- per annum by applying the appropriate multiplier, and it could have awarded reasonable amount of compensation towards 20% disability, as he was aged 50 years only at the time of accident. This Court finds considerable force in the plea raised on behalf of the appellant-claimant and the same is sustainable. 11. In the facts and circumstances, it appears that the impugned award and decree passed by the Claims Tribunal appears to suffer from legal infirmity and the same requires to be set aside. As such, this Court is of the view that an amount of Rs.39,000/- ought to have been awarded towards 20% disability. A perusal of the impugned award reveals that the compensation is awarded as hereunder: Rs.20,000-00 towards grievous injury Rs. 7,000-00 towards medical expenses Rs.20,000-00 towards disability Rs. 5,000-00 towards pain and suffering Rs. 1,000-00 towards attendant charges Rs. 2,000-00 towards incidental expenses ____________ Rs.55,000-00 ____________ 12. This Court has in fact enhanced only Rs.19,000-00 towards 20% disability as already stated hereinabove. Thus, the total amount of compensation comes to Rs.74,000-00 and the same appears to be just and reasonable. Respondents 1 and 2 are jointly and severally liable to pay the said compensation amount. However, it is settled law, as of now that interest @ 6% per annum is only permissible and as such the interest awarded by the Claims Tribunal @9% per annum is reduced to 6% p.a. 13. With the said modification of the impugned award and decree, this Civil Miscellaneous Appeal stands disposed of. No costs. ________________________ JUSTICE B.N.RAO, NALLA. 08-07-2010. I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CIVIL MISCELLANEOUS APPEAL NO. 3332 OF 2002 Circulation No.137 Date:08-7-2010 Computer No.43 Court Master: I s L