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2003 DIGILAW 684 (AP)

A. P. S. R. T. C. v. Kathavath Gopal

2003-05-02

T.CH.SURYA RAO

body2003
T. SURYA RAO, J. ( 1 ) THE Managing Director and the Depot Manager, Zaheerabad Depot of the Andhra pradesh State Transport Corporation ( the Corporation for brevity) the appellants herein assail the award dated 21. 07. 1997 passed by the learned chairman, Motor Accident Claims Tribunal, Nizamabad, in O. P. No. 366 of 1996. The injured claimant is the respondent herein who filed his Cross-Objections claiming more compensation. ( 2 ) THE claimant being a minor at the relevant time, through his father and guardian preferred the claim for an amount of Rs. 3 lakhs for the injuries sustained by him in a motor accident on account of the rash and negligent driving of the driver of the Corporation bus. It is averred inter alia in the petition that the injured claimant who was aged about 15 years working as labourer and earned rs. 3,000/- per month met with an accident on 06. 06. 1995 at about 02. 00 P. M. when he was going on foot on the road towards his left at the place of the accident. On account of the rash and negligent driving of the driver of the Corporation bus bearing No. AP-9z-4441 he was run over on his right leg and right hand on account of which he sustained multiple fractures on his right left and his right hand was amputated upto armpit. Initially, the injured was treated in the government Hospital, Nizamabad, from where he was referred to Osmania General hospital, Hyderabad, whereat he was treated as in-patient. The father of the injured incurred an amount of Rs. 35,000/- towards medical expenses. Hence, the claim. ( 3 ) THE Corporation resisted the claim mentioning inter alia in its counter that the accident was not due to rash and negligent driving of its driver; and that it was on account of the injured himself suddenly came running on the road and collided with the Bus and, therefore, it was on account of his own negligence. It is further averred that the claim of the injured was on high side. Basing on the above pleadings, the following issues were framed by the Tribunal:1) Whether the accident was due to rash and negligent driving of the vehicle by its driver? 2) Whether the petitioner is entitled to compensation? If so, to what amount and against which of the respondents? Basing on the above pleadings, the following issues were framed by the Tribunal:1) Whether the accident was due to rash and negligent driving of the vehicle by its driver? 2) Whether the petitioner is entitled to compensation? If so, to what amount and against which of the respondents? 3) To what relief?at the time of enquiry, three witnesses were examined and Exs. A. 1 to A. 95 were got marked on the side of the claimant and one witness was examined and Ex. B. 1 was got marked on the side of the respondents. ( 4 ) APPRECIATING the evidence both oral and documentary adduced on the point, the tribunal was of the view that the accident was due to the rash and negligent driving of the driver of the Corporation Bus and, therefore, it answered the issue in the affirmative. As regards the assessment of compensation, the tribunal ultimately granted Rs. 2. 5 lakhs with proportionate costs and with interest at the rate of 12 per cent per annum from date of petition till realisation. Having been aggrieved by the said award, as aforesaid, the Corporation has preferred the present appeal. The learned standing counsel appearing for the Corporation contends that the accident was due to the own negligence of the claimant. The learned standing counsel further contends that the award of compensation of Rs. 1. 3 lakhs for permanent partial disability and an amount of Rs. 60,000/- for pain and suffering was not according to law. The points, therefore, that arise for my determination in this appeal are:1) Whether the accident was due to the rash and negligent driving of the driver of the Corporation Bus? 2) What is the just compensation to be awarded in this case?point NO. 1: the oral evidence on the point is that of P. Ws. 1 and 2. P. W. 1 is not the eyewitness to the accident. There remains the testimony of P. W. 2 who is no other than the elder brother of the injured claimant. It is he who lodged the report with the police upon which the case was registered as Crime No. 52/95 and eventually after investigation the police laid the charge sheet against the driver of the Corporation bus. Having regard to the same, the presence of this witness at or near the place of accident cannot be doubted. It is he who lodged the report with the police upon which the case was registered as Crime No. 52/95 and eventually after investigation the police laid the charge sheet against the driver of the Corporation bus. Having regard to the same, the presence of this witness at or near the place of accident cannot be doubted. As can be seen from the finding of the Tribunal that the report in this case was lodged promptly without there being any delay, therefore, hardly there was anytime for the witness to distort the version so as to claim more compensation. As against this oral evidence, which was buttressed by Exs. A. 1 and A. 2, the certified copy of the First Information Report and the certified copy of the charge sheet, there is the oral testimony of driver of the Corporation bus who was examined as r. W. 1 in this case and Ex. B. 1-xerox copy of the report. The evidence of R. W. 1 no doubt shows that the accident was on account of the own negligence of the claimant. Much reliance cannot be placed upon Ex. B. 1-report inasmuch as it is the outcome of a post facto enquiry conducted departmentally. The document can be considered and appreciated no doubt like any other document but no special significance can be attached to such a report. The Tribunal in this case has rightly relied on the oral evidence adduced on the side of the claimant and the documentary evidence in the shape of Exs. A. 1 and A. 2 vis--vis the testimony of r. W. 1 and Ex. B. 1-report. I do not see any illegality or irregularity that has been committed by the Tribunal in the matter of appreciation of the evidence on the point. Therefore, I am of the considered view, having regard to the material on record, that the accident in this case was on account of the rash and negligent driving of the Corporation Bus by its driver-R. W. 1. POINT NO. 2: turning to the assessment of compensation, which shall be just, indubitably in this case the injured claimant sustained bodily injuries in the accident arising out of use of motor vehicle, namely, the Corporation bus. POINT NO. 2: turning to the assessment of compensation, which shall be just, indubitably in this case the injured claimant sustained bodily injuries in the accident arising out of use of motor vehicle, namely, the Corporation bus. Having regard to the finding that the accident was due to the rash and negligent driving of the corporation bus, the entitlement of the claimant for just compensation cannot be doubted. As can be seen from Ex. A. 3-injury certificate, the injured sustained a fracture injury to the right elbow joint, multiple injuries on the face upper jaw, one laceration on the left ankle and an injury to left molar tooth. The injuries sustained to the right hand are grievous in nature whereas the injury sustained to the left ankle was shown to be simple. However, Ex. A. 89-follow up record of the Osmania General Hospital shows the amputation of right hand and fracture to right leg and the consequent deformity. Although in Ex. A. 3 the fracture to the right leg was not shown, as can be seen from Ex. A. 89 given by the Osmania General Hospital, there is least doubt about the injured sustaining fracture to his right leg and the consequent deformity to the same. P. W. 3 is the doctor who examined him far subsequent to the accident. On the nature of the injuries sustained by the claimant, his (P. W. 3) evidence may not be of any help to the claimant. But as regards the actual state of affairs as on the date of his examination of the injured, his evidence shows the amputation of right hand above the elbow level, flextion deformity of the right knee, injury scar on the left leg and swelling of the right foot with wasting of right leg mussels and multiple healed sinuses. It appears, therefore, that the claimant sustained grievous injury to the right leg and grievous injury to the right hand. Obviously, amputation of the right hand above the elbow level is a permanent disability. However, P. W. 3 was of the view that the claimant has got 95% of permanent partial disability and that the claimant was not able to stand on his right leg and was experiencing pain while sitting and squatting. The apparent age of the claimant at the time of the accident was 15 years. Exs. However, P. W. 3 was of the view that the claimant has got 95% of permanent partial disability and that the claimant was not able to stand on his right leg and was experiencing pain while sitting and squatting. The apparent age of the claimant at the time of the accident was 15 years. Exs. A. 4 to a. 88-medical bills show the prolonged treatment given to the claimant and the expenses incurred for the treatment. Having due regard to this data, the compensation is got to be assessed. ( 5 ) THERE can be no gainsaying that the injured cannot do any work on account of the amputation of his right hand above elbow joint. The Tribunal in this case awarded a compensation of Rs. 60,000/- towards medical expenses, Rs. 60,000/- towards pain and suffering; and Rs. 1. 30 lakh towards permanent partial disability sustained by the claimant. The way in which the compensation was assessed shows that the Tribunal was swayed morely on sympathetic considerations than assessing the compensation in a scientific manner. ( 6 ) IN Y. VARALAKSHMI v. M. NAGESWARA RAO1 this Court held that while computing damages, compensation shall be granted towards pecuniary damages as well as non-pecuniary damages. Non-pecuniary damages include loss of expectation of life, loss of amenities, and pain and suffering. This is common in injury cases as well as death cases. Pecuniary loss shall have to be calculated in injury cases by ascertaining the loss of past earnings upto the date of trial and then assessing the future loss of earnings by adopting the multiplier theory. The said decision was relied upon in another Judgement of this Court in UNITED INDIA insurance CO. LTD. v. P. PULLAM RAJU2 and a Division Bench Judgement of this court in M. NARASAVVA v. V. R. SHANGDE3. ( 7 ) IN K. SAPANA v. B. APPA RAO4 this Court held that damages shall be awarded for non-pecuniary damages for such as mental and physical distress including pain and suffering, shock, loss of amenities of life, loss of expectation of life, disfigurement, discomfort and inconvenience, etc. and damages shall also be awarded for pecuniary losses such as loss of earning capacity, other specifics relating to property or business and reasonable expenses for medical aid and special diet, and expenses for employing attendants and other expenses. and damages shall also be awarded for pecuniary losses such as loss of earning capacity, other specifics relating to property or business and reasonable expenses for medical aid and special diet, and expenses for employing attendants and other expenses. This court further held that non-pecuniary damages for loss of expectation of life, loss of amenities of life, and pain and suffering are awarded both in cases of injured plaintiffs as well as in cases by dependents of a person dying in a fatal accident. In case of fatal accident cases, the damages awarded for these non-pecuniary losses go into the award towards loss to the estate. It was further held that as regards the quantum to be awarded for pain and suffering it should vary from injury to injury and the Courts have been giving different amounts depending upon the nature of the injury and that the amounts are to be updated on the basis of inflation. ( 8 ) IN P. SATYANARAYANA v. I. BABU RAJENDRA PRASAD5 this Court held that the process of computation of damages for non-pecuniary losses consists mainly standardizing the amounts in upgrading the past wages in keeping with inflation to meet current values of money. In A. P. S. R. T. C. v. DAYANAND NAIDU6 this Court held thus:"on the basis that this is a case of virtual loss of the right hand, the damages have to be ascertained. It will be reasonable to estimate the damages for loss of one hand at or about Rs. 25,000/- for a man aged 45 years on date of accident, who is already married and having children. No question of deducting for lumpsum arises in cases of the sums awarded for non-pecuniary losses such as for pain, suffering and loss of amenities. Such a question of deduction is absolutely irrelevant in cases of non-pecuniary losses or even for medical expenses etc. , which are actuals. So far as past losses upto the date of trial are concerned, they have to be calculated on actuals and so far as present value of the future losses are concerned, the age at the date of trial is to be taken into account for arriving at the appropriate multiplier. , which are actuals. So far as past losses upto the date of trial are concerned, they have to be calculated on actuals and so far as present value of the future losses are concerned, the age at the date of trial is to be taken into account for arriving at the appropriate multiplier. "in ISLAVATH NAMA v. S. A. RAHEEM7 this Court held thus:"for fracture of femur and shortening of leg, the estimation of non-pecuniary loss towards pain and suffering and loss of amenities would be at least rs. 20,000/- as on 26. 02. 1981,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . So far as loss of earnings, the losses upto date of trial (in 1981) have to be estimated and worked out for the percentage of disability. Likewise, the present value of the future losses has to be estimated and the percentage of disability has to be ascertained. " ( 9 ) IN E. VIJAYAKUMAR RAO v. A. SATYANARAYANA RAJU8 the Judgements referred to above have been reviewed. In Halsbury s Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said: -"non-PECUNIARY loss: the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases. "in R. D. HATTANGADI v. M/s. PEST CONTROL (INDIA) PVT. LTD. 9 the Apex Court held in para 9 thus:"9. "in R. D. HATTANGADI v. M/s. PEST CONTROL (INDIA) PVT. LTD. 9 the Apex Court held in para 9 thus:"9. BROADLY speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages (sic non-pecuniary damages ). Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i. e. , on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i. e. , on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. "in G. JYOTI v. A. P. S. R. T. C. 10 it was held thus:"in an injury-claim case, compensation should be more than the death case. The reasoning behind such a rule is that a person who dies in an accident is dead once and for all leaving the consequences on the surviving people as against the person injured in the accident will have to suffer physically, economically and socially. There is deprivity of the fundamental pleasures, partially, totally or permanently as held in the latter case. "this Court further held thus:"as a broad enunciation of the principles of assessment of compensation in an injury-claim case, the following items of compensation to be awarded, as an illustration. Shock pain and suffering, loss of amenities of life, injury with or without disabilities, medical and incidental expenses, loss of income from the date of accident and during the proceedings, loss of future income, loss of earning capacity, shortened life due to the injuries and disabilities, loss of prospects of marriage, disfigurement, education, profession, social avocations, and cultural aptitudes etc. Shock pain and suffering, loss of amenities of life, injury with or without disabilities, medical and incidental expenses, loss of income from the date of accident and during the proceedings, loss of future income, loss of earning capacity, shortened life due to the injuries and disabilities, loss of prospects of marriage, disfigurement, education, profession, social avocations, and cultural aptitudes etc. , and any other assessable or unassessable items of compensation depending upon the facts and circumstances of each case. " ( 10 ) THAT was a case of a girl aged about 12 years who suffered fracture on the right hand and burn injuries, deformity of fingers of right hand and also skin. What emerges from a conspectus of the cases referred to supra is thus: Broadly speaking while awarding compensation to a victim of a motor accident, the tribunal should assess compensation separately as pecuniary damages and non-pecuniary damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money whereas the non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In other words, pecuniary damages may include (i) expenses incurred by the claimant for medical aid, special diet, expenses incurred for employing attendants, and other incidental expenses; (ii) loss of earnings from the date of accident down to the date of trial and during the proceedings on the basis of actuals and loss of future income adopting the multiplier theory; and (iii) other material loss. The compensation for non-pecuniary damages may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) compensation towards loss of amenities of life, which may include a variety of matters i. e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for expectation of life i. e. on account of the injury the normal longevity of the person concerned is shortened; and (iv) compensation towards inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. It may also be said that pecuniary damages would include general as well as special damages. Special damages shall be on the basis of actuals; while general damages shall have to be assessed on objective considerations. It may also be said that pecuniary damages would include general as well as special damages. Special damages shall be on the basis of actuals; while general damages shall have to be assessed on objective considerations. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. Usually the compensation towards non-pecuniary damages may be on some conventional amounts having regard to the fairness and the decisions rendered on the point by the higher Courts to be revised periodically depending upon the inflation and other relevant considerations. ( 11 ) IN the instant case, having regard to the nature of injury sustained by the claimant and the prolonged treatment given in the hospital, I am of the considered view that if an amount of Rs. 25,000/- is granted towards pain and suffering that would meet the ends of justice. Further, the compensation of rs. 60,000/- awarded towards transport to hospital, medicines and extra-nourishment is not on actuals. It should be realised that the compensation for the actuals, namely, the actual expenditure incurred by the claimant is under the head of special damages. It should be awarded based on the evidence adduced on the point but not on hypothetical considerations. Here in this case, Ex. A. 4 to A. 88 are the bills produced by the claimant showing the expenditure incurred for the purchase of medicines. P. W. 1 deposed that he spent rs. 1 lakh towards medicines, traveling and extra-nourishment. It must be remembered that the treatment in the Osmania General Hospital was free of cost except the medicines purchased by the claimant on the prescriptions given by the doctors. The expenditure incurred towards extra-nourishment cannot be denied eventhough the treatment was given in the Government Hospital. The expenditure incurred towards transport shall have also to be considered. Except the word of mouth of P. W. 1 and the bills produced by him i. e. Exs. A. 4 to A. 88, there has been no other evidence to show that the actual expenditure incurred by him. The expenditure incurred towards transport shall have also to be considered. Except the word of mouth of P. W. 1 and the bills produced by him i. e. Exs. A. 4 to A. 88, there has been no other evidence to show that the actual expenditure incurred by him. Giving allowance to the fact that in cases of this sort particularly when the claimant belonging to rural community, hardly one can expect positive evidence proving the actual expenditure. Having regard to the same, some reasonable hypothesis particularly in regard to the expenditure for extra-nourishment, transport, etc. cannot be ruled out. In that view of the matter, the actual expenditure incurred by the claimant under Ex. A. 4 to A. 88, i. e. Rs. 6,164. 72 ps. rounded off to Rs. 6,200/-, plus an amount of Rs. 10,000/- towards extra-nourishment, transport, etc. should be granted having regard to the fact that the treatment was extended upto nearly 8 months. That should, in my considered view, constitute the special damages towards non-pecuniary loss. As regards the loss of amenities of life, the loss of expectation of life, disfigurement, discomfort, and inconvenience, an amount of rs. 35,000/- shall have to be granted in the interests of justice coming to the pecuniary damages, the injured was aged 15 years at the time of the accident. The case of claimant was that he was a labourer and earning rs. 3,000/- per month. This is quite unacceptable. There is no cogent evidence adduced on the point. Having regard to the fact that the boy was aged 15 years and belonging to rural background and without any proper education, and the other fact that the daily earnings would not be through out the year, it is expedient to fix the daily earnings at Rs. 10/- on an average during those days. On that basis, from 06. 06. 1996 on which he met with an accident, till the date of trial, namely, i. e. 13. 07. 1997 when the father of the claimant was examined as P. W. 1, for a period of 25 months the actual loss of earnings shall have to be calculated on that basis. If so calculated, it comes to Rs. 7,500/ -. By the date of commence of the trial, he was 17 years old. Therefore, the suitable multiplier to that age would be 19 for the purpose of future loss of earnings. If so calculated, it comes to Rs. 7,500/ -. By the date of commence of the trial, he was 17 years old. Therefore, the suitable multiplier to that age would be 19 for the purpose of future loss of earnings. The annual pecuniary loss of earning comes to Rs. 3,600/ -. This amount is to be multiplied by 19 multiplier. If it is so calculated, it comes to Rs. 68,400/ -. For the foregoing reasons, the injured claimant is entitled to an amount of rs. 25,000/- towards pain and suffering; an amount of Rs. 35,000/- towards the other heads of non-pecuniary damages, namely, loss of amenities of life, the loss of expectation of life, disfigurement, discomfort, and inconvenience, an amount of Rs. 16,200/- towards medical expenses, extra-nourishment, transport, etc. ; an amount of Rs. 7,500/- towards loss of earnings from the date of accident till the date of trial; and an amount of Rs. 68,400/- from the date trial towards loss of future earnings. Thus, in all, the injured claimant is entitled to rs. 1,52,100/ -. The appellants should pay this amount with interest at 12 per cent per annum from the date of accident till the date of realisation. ( 12 ) IN the result, the Civil Miscellaneous Appeal is allowed in part with proportionate costs and the impugned award is hereby modified to the extent that the claimant is entitled to a compensation of Rs. 1,52,100/- (Rupees one lakh fifty two thousand and one hundred) which shall be paid by the appellants with interest at 12 (twelve) per cent per annum from the date of petition till the date of realisation. Consequently, the Cross-Objections filed by the injured claimant are hereby dismissed.