IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE NINETEETH [19TH] DAY OF JULY TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.4578 of 2008 Between: United India Insurance Company Ltd., rep. by its Divisional Manager, Vizianagaram … Appellant And: Durga Charan Misra & another … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.4578 of 2008 JUDGMENT: This appeal is directed against the order dated 09.06.2008 in OP No.1569 of 2006 on the file of the Motor Accidents Claims Tribunal cum VI Additional District Judge, Visakhapatnam, wherein, the claim of the first respondent herein was allowed in part, awarding compensation of Rs.1,50,000/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the record. 3. The first respondent herein filed claim application seeking compensation of Rs.2,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 28.09.2006. According to the claimant, on the date of accident, he was going on his motor cycle bearing No.AP 31 AL 2284 from Vijayanagaram to Kothavalasa and when he reached near Bheemasingh Railway gate, an auto bearing No.AP 35 T 6734 came in the opposite direction, driven in a rash and negligent manner and dashed against the claimant, resulting in grievous injuries, including fracture of right leg. The claimant took treatment in PVN Hospital and Dr. PVN Malleswara Rao, treated him and conducted an operation. Jami Police registered a case in Cr.No.76 of 2006 against the driver of the auto. According to the claimant, he spent Rs.60,000/- towards medical expenses and he needs another Rs.30,000/- for future surgery. 4.The owner of the auto and the insurer filed counters opposing the claim and denying their liability to pay the compensation. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial. (1) Whether the petitioner sustained injuries in the motor accident dated 28.09.2006 due to rash and negligent driving of the Motor vehicle Auto bearing registration No.AP 35 T 6734 by its driver? (2) Whether the petitioner is entitled for compensation, if so to what amount and from which of the respondents? (3) To what relief? Additional Issue: Whether the driver of the offending vehicle Auto bearing No.AP 35 T 6734 was holding valid driving licence as on the date of accident to drive with vehicle and whether the insurance company-2nd respondent is not liable to pay compensation to the petitioner on that count? 6. During enquiry, the claimant was examined as PW.1 and Dr. PVN Malleswara Rao was examined as PW.2 and Exs.A.1 to A.16 and Ex.X.1 were marked on behalf of the claimant. RW.1 official of the insurance office, RW.2 official of the RTO Office, were examined and Ex.X.2 was marked on behalf of the respondents. 7. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the auto by its driver. The Tribunal further held that the claimant was entitled for a total compensation of Rs.1,50,000/- and accordingly an award was passed for the said amount with interest at 7.5% per annum. Aggrieved by the said award, the insurer filed the present appeal. 8. Learned counsel for the appellant would contend that the Tribunal ought to have apportioned the negligence between two vehicles as both the drivers were at fault. He would further contend that the driver of the auto was not having valid licence at the time of the accident and therefore, the insurance company is not liable to pay any compensation. According to him, the driver was having non-transport vehicle licence, whereas, he was found driving a transport vehicle and the driver was not having a transport vehicle licence and a badge, which is required as per statute and therefore, there is violation of the terms and conditions of the policy. Learned counsel for the first respondent on the other hand would contend that the evidence of RW.2 would go to show that the driver was having licence to drive LMV non-transport category and non-possession of badge is immaterial and there was no violation of terms and conditions of the policy. 9. The evidence on record would go to show that while the claimant was going on his motorcycle, an auto came in the opposite direction in a rash and negligent manner and dashed against the motorcycle. FIR Ex.A.1 was registered against the driver of the auto. PW.1 testified to the manner in which the accident has taken place. His testimony that the accident occurred due to the rash and negligent driving on the part of the driver of the auto remains unchallenged, as no evidence has been adduced by the respondents before the Tribunal. There is absolutely no material on record to support the contention of the appellant that it was a case of composite negligence and the liability to be apportioned between the two drivers. In the circumstances, it is held that the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the auto by its driver, does not call for any interference. 10. Regarding the other contention pertaining to the validity of the licence of the driver, Ex.A.3 Motor Vehicle Inspector’s report shows the particulars of the licence and the testimony of RW.2 the official from the R.T.O. office shows that the driver was holding valid licence to drive LMV non-transport category vehicle and the said licence was in force as on the date of the accident. The testimony of RW.2 also shows that the badge to drive a passenger vehicle would be given only after a period of one year, during which period, the driver possess a non- transport category licence. It is also in his evidence that there will be no separate skill test for issuing badge and it doesn’t make any difference as to the efficiency of driver to drive particular category of vehicle and it is meant to know only whether the driver is having first aid knowledge. The fact that the driver was not having a badge does not therefore make any difference, as he possessed a valid licence to drive LMV non-transport vehicle like auto. It cannot therefore be said that there was any violation of terms and conditions of the policy. Absence of such badge is not shown to have in any way contributed to the accident. 11. Regarding the quantum of compensation, the Tribunal awarded a sum of Rs.15,000/- towards pain and suffering for grievous injury, Rs.5,000/- for pain and suffering for simple injuries, Rs.40,000/- towards medical expenses covered by bills Exs.A.14, Rs.10,000/- towards actual loss of income and Rs.80,000/- towards future loss of income due to disability, making up a total of Rs.1,50,000/-. The claimant sustained multiple injuries, fracture of right leg and he was operated upon by PW.2 and implants were inserted. PW.2 also testified that the claimant was admitted in the hospital on 28.09.2006 and was discharged on 17.10.2006, during which period, an operation was conducted and nails were inserted in the right femur and patella. Ex.A.2 is the wound certificate issued by him. Ex.A.11 is the disability certificate, wherein PW.2 assessed the disability at 35%. The claimant sustained one grievous and two simple injuries. The Tribunal awarded a sum of Rs.15,000/- towards pain and suffering for the grievous injury and Rs.5,000/- towards simple injuries, which are considered just and reasonable. Similarly, an amount of Rs.40,000/- awarded towards medical expenses covered by bunch of bills Ex.A.14, cannot also be disputed. 12. According to the claimant, he was a contractor and was earning income of Rs.10,000/- per month. He filed Ex.A.10 pan card, but did not file any income tax returns. Based on the pan card Ex.A.10, income of the claimant cannot be assessed. Even the work order Ex.A.9 filed by him would only show that some work was entrusted to him, but it does not disclose the income of the claimant. The Tribunal has taken the income of the claimant at Rs.5,000/- per month, which is considered to be reasonable. In fact, the Tribunal has taken the percentage of the disability at 25%, though PW.2 assessed the same at 35% in Ex.A.11. The Tribunal has further deducted 1/3rd from out of the assessed loss of income and taken only Rs.10,000/- into consideration and applying the multiplier ‘8’ awarded a sum of Rs.80,000/- towards future loss of income due to the permanent disability. The said amount is considered to be just and reasonable, in view of the deductions made by the Tribunal both in the percentage of disability and also 1/3rd of the income. The Tribunal, however, awarded a sum of Rs.10,000/- covered by Ex.A.13 without any basis. Ex.A.13 is the receipt for a sum of Rs.17,800/- issued by PW.2. PW.2 has not spoken about issuing of Ex.A.13. Bunch of medical bills Ex.A.14 covered a sum of Rs.33,238.05. The Tribunal awarded a sum of Rs.40,000/- towards medical expenses as covered by bunch of medical bills. As PW.2 has not stated anything about issuing Ex.A.13, the claim based on Ex.A.13 cannot be up held. However, the Tribunal has not awarded any amount towards extra-nourishment, attendant charges, though the evidence on record shows that the claimant was hospitalized for about three weeks, during which period, he has undergone surgery as well. No further amount was also awarded by the Tribunal for any future surgery. Under those circumstances, it is considered that the amount of Rs.10,000/- awarded under Ex.A.13 can be adjusted towards extra nourishment and attendant charges. 13. In the circumstances, it is held that the amount awarded by the Tribunal on the whole represents just and fair compensation, having regard to the nature of the injuries and length of hospitalization, treatment undergone and the permanent disability suffered. The impugned award does not therefore call for any interference. 14. In the result, the appeal is dismissed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 19.07.2010 bss