The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value. Therefore, though the claimant sought for a lesser amount, and the claim petition being valued at lesser value for Rs.12,00,000/-, the amount actually due and payable is to be awarded is Rs.16,09,739/-.

HIGH COURT OF ANDHRA PRADESH

THURSDAY ,THE NINETEENTH DAY OF JANUARY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2680 OF 2016

Between:

1. SHRIRAM GEN INS CO LTD., JAIPUR, RAJASTHAN ST E/8, EPIP,

RIICO, Industrial Area, Sit Jaipur,

Rajasthan State - 302022

...PETITIONER(S)

AND:

1. NAKKALA POTHURAJU, PRAKASAM DIST & 4 OTHERS S/o

Audiseshu, 32 years, Hindu, Advocate,

R/o Gaddalaguntapalem, Ongole,

Prakasam District

2. Md.Jaffer Sadiq, S/o Towfigue, aged 48 years, Muslim,

R/o Duggirala Village, Tenali Manda. Guntur District.

(Driver of Auto bearing No.AP-27X-8673

3. Shaik Riyaz, S/o Basheerun, age not known R/o D.No.37-1-159 (21),

Islampet, Ongole, Prakasam District,

(Regd., Owner of Auto bearing No.AP-27X-8673)

4. Yamala Venkata Rao S/o Lakshmiah, aged 39 years, Hindu, business,

R/o D.No.3-150, C/a Gorripati Satyanarayanapuram, Ongole District

5. Yamala Balakrishna, S/o Lakshmaiah, 36 years, Hindu, business,

R/o D.No.3-150, C/o Gorripati Satyanarayanapuram, Ongole, District.

...RESPONDENTS

Counsel for the Petitioner(s): V HEMANTH KUMAR

Counsel for the Respondents: MADHAVA RAO NALLURI

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

M.A.C.M.A.No.2680 OF 2016

Between:

Shriram General Insurance Company Limited,

E8, EPIP, RIICO, Industrial Area, Sitapura,

Jaipur, Rajasthan State.

 ….Appellant.

 Versus

1. Nakkala Pothuraju, S/o.Audiseshu,

 Hindu, Aged 32 years, Advocate,

 R/o.Gaddalaguntapalem,

 Ongole, Prakasam District.

2. Md.Jaffer Sidiq, S/o.Towfigue,

 Musli, Aged 48 years,

 R/o.Duggirala Village, Tenali Mandal,

 Guntur District, Driver of Auto No.AP27X 8673.

3. Shaik Riyaz, S/o.Basheerun,

 R/o.D.No.37-1-159 (21), Islampet,

 Ongole, Prakasam District.

4. Yamala Venkata Rao, S/o.Lakshmaiah,

 Hindu, Aged 39 years, Business,

 R/o.D.No.3-150, C/o.Gorripati

 Satyanarayanapuram, Ongole District.

5. Yamala Balakrishna, S/o.Lakshmaiah,

 Hindu, Aged 36 years, Business,

 R/o.D.No.3-150, C/o.Gorripati

 Satyanarayanapuram, Ongole District.

 ….Respondents.

DATE OF JUDGMENT PRONOUNCED : 19.01.2023

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SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

 ____________________________

 B.V.L.N.CHAKRAVARTHI, J

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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ M.A.C.M.A.No.2680 OF 2016

% 19.01.2023

# Between:

Shriram General Insurance Company Limited,

E8, EPIP, RIICO, Industrial Area, Sitapura,

Jaipur, Rajasthan State.

 ….Appellant.

 Versus

1. Nakkala Pothuraju, S/o.Audiseshu,

 Hindu, Aged 32 years, Advocate,

 R/o.Gaddalaguntapalem,

 Ongole, Prakasam District.

2. Md.Jaffer Sidiq, S/o.Towfigue,

 Musli, Aged 48 years,

 R/o.Duggirala Village, Tenali Mandal,

 Guntur District, Driver of Auto No.AP27X 8673.

3. Shaik Riyaz, S/o.Basheerun,

 R/o.D.No.37-1-159 (21), Islampet,

 Ongole, Prakasam District.

4. Yamala Venkata Rao, S/o.Lakshmaiah,

 Hindu, Aged 39 years, Business,

 R/o.D.No.3-150, C/o.Gorripati

 Satyanarayanapuram, Ongole District.

5. Yamala Balakrishna, S/o.Lakshmaiah,

 Hindu, Aged 36 years, Business,

 R/o.D.No.3-150, C/o.Gorripati

 Satyanarayanapuram, Ongole District.

 ….Respondents.

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! Counsel for the Appellant : Sri V.Hemanth Kumar

^ Counsel for the

 1st Respondent : Sri Madhava Rao Nalluri

< Gist:

> Head Note:

? Cases referred:

1. 2008 (3) ALD 7 (SC)

2. 2013 (4) ALD 60

3. 2011 (1) ALD 45l

4. 2011 (1) SCC 343

5. (2013) 12 S.C.C.455

6. 2009 ACJ 1298

7. 2022 LiveLaw (SC) 734

This Court made the following:

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2680 OF 2016

JUDGMENT:

 This appeal is preferred by the Appellant/Insurance Company,

challenging the award dated 06.01.2016 passed in

M.V.O.P.No.91/2012 on the file of Motor Accidents Claims Tribunalcum-I Addl.District Judge, Ongole, (for short ‘the Tribunal’), wherein

the Tribunal allowed the petition, awarded compensation of

Rs.16,08,939/- with interest @ 6% p.a. from the date of petition, till

the date of deposit for the injuries sustained by him in a motor vehicle

accident.

2. For the sake of convenience, the parties will be referred to as

parties in the M.V.O.P.

3. As seen from the record, the petitioner filed the application

U/s.166 of the Motor Vehicles Act, 1988 (for brevity “the Act”) claiming

a compensation of Rs.12,00,000/- on account of the injuries and

disability sustained by the petitioner in a motor vehicle accident that

occurred on 07.07.2011.

4. The facts would show that on 07.17.2011 the petitioner being an

advocate, after completion of court work at Ongole, started to go to

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attend court work at Addanki, and when he reached near Hero Honda

Showroom at 01.30 p.m. on NH-5 road, at that time, the driver of auto

bearing No.AP 27X 8673 drove the said auto in a rash and negligent

manner, with high speed and dashed the petitioner, as a result, the

petitioner sustained multiple injuries, and immediately he was shifted

to Venkata Ramana Hospital, Ongole, and after giving first aid, he was

shifted to Government General Hospital, Guntur, and he underwent

several operations for fracture injuries, and spent huge amount, and

on the report, the Station House Officer, Ongole Taluk Police Station

registered a case against the driver of auto bearing No.AP 27X 8673 as

case in Cr.No.198/2011 U/s.337 of Indian Penal Code. The accident

was occurred due to rash and negligent driving of driver of auto

bearing No. AP 27X 8673.

5. Before the Tribunal, the 2nd respondent/owner of auto bearing

No. AP 27X 8673 filed written statement, denying the material

averments of the petition, and submitted that the 1st

respondent/driver never drove the said auto in a rash and negligent

manner, and caused the accident.

6. The 3rd respondent/Insurance Company, filed written statement,

while traversing the material averments with regard to manner of

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accident, rash and negligence on the part of the driver of the crime

vehicle, nature of injuries, medical expenditure, alleged permanent

disability, liability to pay compensation, and contended that the 1st

respondent/driver of auto bearing No.AP 27X 8673 never drove the

said auto in a rash and negligent manner and caused the accident,

and that he was not having valid and effective driving license at the

time of accident.

7. The 4th respondent/possessor of auto bearing No.AP 27X 8673

filed counter by denying the averments of the petition, and contended

that the 1st respondent/driver of auto bearing No.AP 27X 8673 never

drove the said auto in a rash and negligent manner and caused the

accident. The 5th respondent filed a memo, adopting the counter filed

by the 4th respondent.

8. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident occurred due to rash and negligent

driving of the auto bearing No.AP 27X 8673 by its driver/1st

respondent?

2. Whether the respondents 4 and 5 are entitled to pay

compensation, as they took the crime vehicle on lease from the

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2nd respondent or 2nd respondent being owner of the vehicle is

only liable to pay compensation?

3. Whether the petitioner is entitled for compensation? If so, to

what amount and from whom?

4. To what relief?

9. To substantiate his claim, the petitioner examined P.Ws-1 to 5

and got marked Exs.A-1 to A-17 and Exs.X-1 and X-2. On behalf of the

2nd respondent, R.Ws-1 and 2 were examined and Ex.B-1 was marked.

On behalf of the 3rd respondent/Insurance Company, R.Ws-3 to 5 were

examined and Exs.B-2 to B-4 and Exs.X-3 to X-6 were marked. On

behalf of the 1st respondent, respondents No.4 and 5, no oral or

documentary evidence was adduced.

10. The Tribunal, taking into consideration the evidence of P.Ws-1 to

5, coupled with Exs.A-1 to A-17 and Exs.X-1 and X-2, held that the

accident took place due to the rash and negligent driving of the driver

of auto bearing No. AP 27X 8673 only, and further taking into

consideration the evidence of P.Ws-1 to 5, coupled with Exs.A-1 to

A-17 and Exs.X-1 and X-2, awarded a compensation of Rs.16,08,939/-

with interest @ 6% p.a. from the date of petition, till the date of

deposit.

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11. The appeal is filed by the Insurance Company questioning the

award dated 06.01.2012 in MVOP No.91/2012 on the file of MACTcum-I Addl.District Judge, Ongole, on the ground that the Tribunal

erred in holding that the appellant is liable to indemnify the owner of

the crime vehicle, though the driver of the insured vehicle was not

having valid and effective driving license at the time of accident, and

further, the Tribunal awarded excessive compensation to the claimant

without evidence.

12. In the light of above contentions in the appeal, the points that

would arise for consideration in this appeal are as under:

1. Whether the driver of the crime vehicle was not having valid

and effective driving license to drive the vehicle on the date of

accident?

2. Whether the Tribunal awarded excessive compensation to the

claimant?

3. To what relief?

13. POINT No.1:

 The contention of the appellant is that the driver of the crime

vehicle was not having valid and effective driving license to drive the

crime vehicle at the time of accident. The undisputed fact is that the

crime vehicle involved in the accident is an auto bearing No.AP 27 X

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8673. The appellant/Insurance Company in support of its case,

examined its Legal Officer as R.W-3. He deposed that as per

Registration Certificate of the vehicle, it is a “goods carriage-L.M.V.”

vehicle and that the driver was not having driving license to drive the

said vehicle on the date of accident. Ex.B-3 is the copy of Registration

Certificate of the crime vehicle. Ex.B-4 is copy of driving license of the

1st respondent, who was driver of the crime vehicle at the time of

accident.

14. R.W-3 in the cross-examination of the claimant deposed that

the crime vehicle is a goods carrying vehicle, and the insured paid the

premium covering the risk of third party, and that the claimant is a

third party to the policy, and the Insurance Company did not file any

document to show that the vehicle is not in a fit condition or there is

no permit at the time of accident, and that on the date of accident,

Ex.B-2 policy is in force.

15. The appellant has examined a Senior Assistant working in

Deputy Transport Commissioner’s Office, Ongole, as R.W-4. He

deposed that Ex.X-4 is a copy of Registration Certificate of the crime

vehicle, and that as per Ex.X-4 the auto is light motor vehicle goods

carrier.

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16. The appellant also examined a Junior Assistant working in

Deputy Transport Commissioner’s Office, Guntur, as R.W-5. He

deposed that Ex.X-6 is the copy of driving license of the driver i.e., 1st

respondent in the case, and who was driving the crime vehicle at the

time of accident.

17. As per his evidence, the driver is not having L.M.V.Transport

driving license, and that he is not competent to drive the crime vehicle.

In the cross-examination of the claimant, he admitted as per Ex.X-6,

the driver is having heavy vehicle driving license, but he denied the

suggestion that a person who possesses license to drive heavy vehicle,

can also drive light motor vehicle.

18. Ex.X-4 is a copy of registration certificate of the crime vehicle

bearing No.AP27X 8673. It shows that class of vehicle is “goods

carriage-L.M.V”. Ex.X-6 is a copy of driving license of the 1st

respondent, who was driving the vehicle covered by Ex.X-4 on the date

of accident. Ex.X-6 shows that the 1st respondent was having license

to drive a heavy motor vehicle-transport, and license was valid on the

date of accident.

19. In the light of above evidence, and established facts in the case,

the Tribunal relying upon the judgment of the Hon’ble Apex Court in

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the case of National Insurance Company Limited Vs. Annappa

Irappa Nasaria and others1 and judgments of this Court in New India

Assurance Company Limited, Kadapa District Vs. Siddarapu

Gangaiah (died) per L.Rs. and others2 and E.Rajeswari Vs.

T.S.Sekhar and another3, rejected the contention of the appellant,

and held that the driver possessing Ex.X-6 driving license, which

authorises him to drive a heavy vehicle-transport, can also drive the

class of vehicle covered by Ex.X-4, which is only a light motor vehicletransport. In that view of the matter, I do not find any ground to

interfere with the finding of the Tribunal on this aspect. Accordingly,

this point is answered against the appellant.

20. POINT No.2:

 The Tribunal has awarded Rs.6,36,739/- towards expenses

relating to treatment, hospitalisation, medicines etc. basing on Ex.A-12

and Ex.A-16 medical bills supported by the evidence of P.W-1, who is

claimant, and P.W-2 to 4, who are the doctors treated the claimant for

the injuries sustained by him in the accident. The appellant during the

cross-examination of P.W-1, P.Ws-2 to 4 did not elicit anything to say

1

 2008 (3) ALD 7 (SC)

2

 2013 (4) ALD 60

3

 2011 (1) ALD 45l

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that the bills covered by Ex.A-12 and Ex.A-16 are not genuine or not

related to the treatment of the claimant. The amount covered by

Ex.A-12 and Ex.A-16 comes to Rs.6,36,739/-. The Tribunal has

awarded the said amount only under the head pecuniary damages

(special damages) relating to treatment, hospitalisation, and

medicines.

21. The Tribunal has awarded a sum of Rs.9,07,200/- under the

head pecuniary damages (special damages) relating to loss of future

earnings on account of permanent disability suffered by the claimant.

It is the case of the claimant that on account of the accident, he

sustained two fractures to the right leg apart from other injuries, and

that initially he was admitted in Venkata Ramana Nursing Home,

Ongole, and later shifted to Government General Hospital, Guntur on

07.07.2011, and three operations were conducted, and later, he was

shifted to Coimbatore, and admitted in Ganga Medical Centre and

Hospital (P) Limited, and there again operations were conducted to the

fracture injuries, and he visited the said hospital on several occasions

for about two years till June, 2015 for removal of implants, and on

account of the two fractures of the right leg, he suffered permanent

disability of 63%. The claimant to prove permanent disability has

examined a Member from Medical Board as P.W-5, and relied on

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Ex.A-14 issued by the Medical Board, Ongole, apart from the evidence

of P.Ws-2 to 4.

22. The evidence of claimant is that he could not do his legal

profession i.e., advocate for two years and further, he is unable to walk

as usually, and he requires supporting stick and help of others to

attend his duties, and he claimed a sum of Rs.12,00,000/- towards

compensation, which includes expenses relating to hospitalisation,

treatment and medicines etc.

23. The Tribunal has awarded Rs.9,07,200/- as compensation for

63% disability, Rs.50,000/- towards two fracture injuries and

Rs.15,000/- towards pain and suffering, relying on Ex.A-14 disability

certificate, and Ex.A-2 wound certificate, apart from Rs.6,36,739/-

awarded towards hospitalisation and medical expenses.

24. The Tribunal in its order referred the contention of the claimant

that the claimant is a practising advocate, sustained multiple injuries,

and became disabled and lost his earning capacity. The Tribunal

awarded the above amount of Rs.9,07,200/-. The Tribunal did not

assign any reason as to how it considered 63% disability covered by

Ex.A-14 applies to the whole body of the claimant, and the functional

disability suffered by the claimant, and how it has affected his earning

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capacity to award compensation under the head pecuniary damages

(special damages) towards loss of future earnings on account of

permanent disability.

25. It is pertinent to mention that the Tribunal delivered its order on

06.01.2016. The Hon’ble Apex Court delivered judgment in the case of

Rajkumar Vs. Ajay Kumar and another4 case in the year 2010 laying

down principles as how to determine compensation in cases of

personal injuries U/s.166 of M.V.Act, 1988. Further, the Hon’ble Apex

Court again reiterated the said principles in the year 2013 in the case

of G.Ravindranath Vs. E.Srinivas and another5. Inspite of the said

landmark judgments of the Hon’ble Apex Court, on how to determine

compensation in a case of personal injury and serious injuries and the

heads under which compensation has to be determined, the Tribunal

completely ignored the said principles and simply calculated the

compensation, basing on Ex.A-14, though disability is to the limb only,

and the claimant is an advocate, and without any finding as to how the

said disability come in the way of the profession to carry as an

advocate i.e., functional disability, and how he would lose earnings on

account of the said disability. This Court in several cases noticed that

4

 2011 (1) SCC 343

5

 (2013) 12 S.C.C.455

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the Tribunals are not following the principles laid down by the Hon’ble

Apex Court in Rajkumar’s case and Ravindranath’s case, while

determining compensation under various heads in the case of claim

petitions filed for compensation in personal injury cases, sustained in

the motor vehicle accident cases. The Tribunals shall bear in mind the

principles laid down by the Hon’ble Apex Court in the above cases

while determining compensation for personal injuries sustained in the

motor vehicle accident cases.

26. The Tribunal did not discuss anything about the permanent

disability and functional disability suffered by the claimant and simply

calculated the compensation amount, as if it is a case of awarding

compensation for death, relying upon the principles laid down by the

Hon’ble Apex Court in the case of Sarla Verma and another Vs. Delhi

Road Transport Corporation and others6. In the said circumstances,

the compensation awarded by the Tribunal has to be re-determined by

applying the principles laid down by the Hon’ble Apex Court for a case

of personal injuries.

27. The claimant in his evidence deposed that on account of the

injuries, he has lost his profession nearly for two years and still he is

6

 2009 ACJ 1298

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unable to walk and work as usually, and he needs help of others and

also the support of a stick to walk. Exs.A-4, A-5, A-6, A-7, A-8, A-9,

A-10, A-11, A-13 and Ex.A-15 would show that the claimant has been

taking treatment from the date of accident till June, 2015 for the

fracture injuries sustained by him in the accident. The evidence of

P.Ws-2 to 4 supported his case that he has been taking treatment for

about two years due to the injuries sustained in the accident. It

appears that under Ex.A-15 he was admitted in Ganga Hospital,

Comimbatore, on 17.2.2015 and discharged on 15.6.2015 for removal

of the implants and for bone grafting. Therefore, the period covered by

07.07.2011 to 15.06.2015 nearly four years can be considered as a

period of treatment undergone by the claimant, visiting various

hospitals to set right the fractures sustained to the right leg, and

finally after several operations conducted for implanting steel rods,

they were removed in June, 2015 and skin grafting was conducted to

close the open wound suffered by him, on account of the bone

fractures. This period of four years can be considered as period during

which the claimant could not attend the courts to carry on his

profession as an advocate, and lost income, to award compensation

under the head pecuniary damages (special damages) under the subhead, loss of earning during the period of treatment.

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28. The Tribunal has fixed the income of the claimant at Rs.7,500/-

per month as an advocate, though he claimed it as Rs.15,000/- per

month. If Rs.7,500/- is taken into consideration as monthly income of

the claimant as fixed by the Tribunal, he is entitled to an amount of

Rs.7,500 x 48 = Rs.3,60,000/- towards loss of earning during the

period of treatment.

29. The claimant in his evidence did not depose that subsequent to

his discharge in June, 2015 he is not attending to the courts to carry

on his profession as an advocate, and thereby he suffered loss of

future earnings. The evidence of doctors would establish that the

injuries sustained by him are grievous in nature i.e., both bones of

right leg were fractured, and that he cannot walk without support, and

he has limp on walking, and his knee bending is restricted at 90

degrees, and he cannot walk long distance, and he cannot go public

transport, and cannot sit cross legged or squat. Therefore, the evidence

of doctors examined by the claimant show that he suffered loss of

amenities in his life on account of the above injuries sustained by him

in the accident, and he also suffered lot of pain and trauma as a

consequence of injuries. Therefore, in the light of principles laid down

by the Hon’ble Apex Court in Rajkumar’s case, the claimant is entitled

to claim compensation towards damages for pain, suffering and

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trauma and also under the head loss of amenities under the category

of non-pecuniary damages (general damages), instead of loss of future

earnings on account of permanent disability.

30. Considering the period of treatment, nature of injuries, pain,

suffering and trauma, suffered by the claimant, as a consequence of

injuries, he can be awarded a sum of Rs.1,00,000/- under the head

damages for pain, suffering and trauma.

31. He is also entitled for compensation under the head loss of

amenities due to the consequences suffered by him on account of

injuries and permanent disability to his limb, and discomfort that

would be faced by him throughout his life. Therefore, a sum of

Rs.5,00,000/- can be awarded to him under the head loss of

amenities. Hence, the total compensation entitled by the claimant

would be Rs.6,36,739 + 3,60,000 + 1,00,000 + 5,00,000 =

Rs.15,96,739/-. The Tribunal awarded a sum of Rs.16,09,739/-. The

difference is only a small amount.

32. The Hon’ble Apex Court in the case of Mona Baghel and others

Vs. Sajjan Singh Yadaav and others7, held that in the matter of

compensation, the amount actually due and payable is to be awarded

7

 2022 LiveLaw (SC) 734

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despite the claimants having sought for a lesser amount and the claim

petition being valued at a lesser value. The law is well settled that in

the matter of compensation, the amount actually due and payable is to

be awarded despite the claimants having sought for a lesser amount

and the claim petition being valued at a lesser value. Therefore, though

the claimant sought for a lesser amount, and the claim petition being

valued at lesser value for Rs.12,00,000/-, the amount actually due

and payable is to be awarded is Rs.16,09,739/-.

33. In view of the above judgment of the Hon’ble Apex Court, the

Court can award compensation beyond the claim, if it is a just

compensation, subject to payment of court fee. The Tribunal has

already directed the claimant to pay balance court fee for the excess

amount awarded by the Tribunal. In that view of the matter, the

compensation awarded by the Tribunal cannot be held as excessive

amount, as contended by the appellant/Insurance Company.

Accordingly, this point is answered.

34. POINT No.3: To what relief?

 In the light of the findings on points No.1 and 2, there are no

grounds to interfere with the award passed by the Tribunal. Therefore,

the appeal is liable to be dismissed.

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35. In the result, the appeal is dismissed, confirming the award

dated 06.01.2016 passed in M.V.O.P.No.91/2012 on the file of Motor

Accidents Claims Tribunal-cum-I Addl.District Judge, Ongole. There

shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________

B.V.L.N.CHAKRAVARTHI, J

19.01.2023

psk

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2680 OF 2016

Note: Mark L.R.Copy

psk

19th January, 2023

psk

2023:APHC:1314