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2023 DIGILAW 129 (AP)

Sandipam Johensu @ Jyaneshu, S/o. Siddayya v. Kolusu Veera Venkata Satyanarayana, S/o. Venkataswara Rao

2023-01-18

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : This appeal is preferred by the Appellant/claimant, challenging the award dated 25.11.2015 passed in M.V.O.P.No.760/2010 on the file of Motor Accidents Claims Tribunal-cum-VII Addl.District Judge, West Godavari, Eluru, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.20,000/-with interest @ 6% p.a. from the date of petition, till the date of realisation to the petitioner, for the injuries sustained by him in a motor vehicle accident. 2. For the sake of convenience, the parties are arrayed as parties in the lower Court. 3. As seen from the record, originally the petitioners filed an application U/s.166 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.3,00,000/- on account of the injuries sustained by the petitioner in a motor vehicle accident that occurred on 02.12.2009. 4. The facts show that the petitioner on 02.12.2009 went to Pathamuparru Center and waited there to board a bus to go to Pragadavaram to the hostel, where his son is studying to give money. At that time, he saw a person going on TVS moped and asked him to drop at Pragadavaram, and accordingly, while they were proceeding on the extreme left side of road by observing traffic rules, and on their reaching near Ankannagudem Center, Pragadavaram, one APSRTC bus bearing No. AP 11Z 972 driven by the 1st respondent/driver in a rash and negligent manner, without following traffic rules and without blowing horn, dashed against the TVS Moped, and as a result, the rider of TVS Moped and petitioner fell down on road, and he sustained severe injuries over his right thigh. Immediately he was shifted to Government Hospital, Chintalapudi, where an operation was conducted to his right thigh and was treated as an in-patient. The accident was occurred only due to rash and negligent driving of APSRTC bus by the 1st respondent/driver. A case in Cr.No.207/2009 was registered by Chintalapudi Police Station against the 1st respondent/driver for the offence punishable U/secs.337, 338 of Indian Penal Code. Due to the fracture of his right thigh sustained by him in the accident, he had to take bed rest for a period of four months and now also he is taking treatment as an out-patient. He spent more than Rs.25,000/-for treatment, tests, medicines, operation, special diet etc. Due to the fracture of his right thigh sustained by him in the accident, he had to take bed rest for a period of four months and now also he is taking treatment as an out-patient. He spent more than Rs.25,000/-for treatment, tests, medicines, operation, special diet etc. The loss caused to him due to fracture injury sustained by him in the accident is irreparable, and he is a coolie and he is the only bread earner of his entire family, and due to injury, he has lost his earning capacity. 5. Before, the Tribunal, the 2nd respondent/APSRTC filed written statement, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the injured, manner of accident, rash and negligence on the part of the driver of the offending vehicle, liability to pay compensation, and contended that the accident occurred only due to rash and negligent driving of rider of the TVS Moped, who drove the same without observing the vehicle coming from the opposite direction, and without observing the ditches on the road, fell into ditch and thereby, both rider of TVS Moped as well as petitioner sustained injuries. The petition is bad for non-joinder of proper and necessary parties, as driver, owner and insurer of TVS Moped on which petitioner travelled as pillion rider is not arrayed as respondents. The 1st respondent/driver filed memo adopting the written statement filed by the 2nd respondent/APSRTC. 6. On the strength of the pleadings of both parties, the Tribunal framed the following issues: 1. Whether the petitioner sustained injuries in motor vehicle accident dated 02.12.2009 occurred due to rash and negligent driving of APSRTC Bus bearing No. AP 11Z 972 by its driver/respondent No.1 or it was due to rash and negligent driving of TVS Moped by its driver, whereon the petitioner is pillion rider as claimed by the respondents? 2. What was the age and income of the petitioner at the time of accident? 3. Whether the petition is bad for non-joinder of proper and necessary parties? 4. Whether the petitioner is entitled for compensation? If so, for what amount and form which of the respondents? 5. To what relief? 7. To substantiate his claim, the petitioner examined P.Ws-1 to 4 and got marked Exs.A-1 to A-6 and Exs.X-1 to X-3. On behalf of the respondents, no oral or documentary evidence was adduced. 8. 4. Whether the petitioner is entitled for compensation? If so, for what amount and form which of the respondents? 5. To what relief? 7. To substantiate his claim, the petitioner examined P.Ws-1 to 4 and got marked Exs.A-1 to A-6 and Exs.X-1 to X-3. On behalf of the respondents, no oral or documentary evidence was adduced. 8. The Tribunal, taking into consideration the evidence of P.Ws-1 to 4, coupled with Exs.A-1 to A-6 and Exs.X-1 to X-3, held that the accident took place due to the rash and negligent driving of the APSRTC bus driver, and further, taking into consideration the evidence of P.Ws-1 to 4, corroborated by Exs.A-1 to A-6 and Exs.X-1 to X-3, awarded compensation of Rs.20,000/-with interest @ 6% p.a. from the date of petition, till the date of realisation. 9. This is an appeal filed by the claimant against the order, contending that the Tribunal did not award just compensation, though the claimant suffered permanent disability of 50% due to the grievous injury sustained to the right leg in the motor accident occurred on 02.12.2009. 10. In the light of above contentions of the appellant in the appeal, the points that would arise for consideration in the appeal are as under: 1. Whether the Tribunal did not award just compensation? 2. To what relief? 11. POINT No.1: The appellant claimed an amount of Rs.3,00,000/-towards compensation contending that on 02.12.2009 he was travelling on a TVS Moped as pillion rider, and while so, when their moped reached a place near Ankannagudem Centre, Pragadavaram, the crime vehicle i.e., APSRTC Bus bearing No.AP 11Z 972 dashed the moped, as the driver of the bus drove the bus in a rash and negligence manner, and as a result, the rider of the moped and the appellant were fell down and the appellant sustained grievous injuries and he was shifted to Government Hospital, Chinthalapudi, and an operation was conducted to his right thigh, and he spent more than Rs.25,000/-towards medical expenses, and due to the fracture, he suffered permanent disability of 50%, and he is working as a coolie and due to the injury, he lost his earning capacity and therefore, he is entitled to compensation ofRs.3,00,000/-towards loss of earnings and medical expenses. 12. 12. The 2nd respondent/APSRTC contended that the accident was not occurred due to rash or negligence of the driver of the APSRTC bus, and that the claim made by the appellant is excessive, and he did not suffer any disability, and there is no loss of earnings to the claimant. 13. The Tribunal upon considering the evidence on record, held that the accident was occurred due to rash and negligence driving of the driver of the APSRTC Bus. 14. The contention of the appellant that he was working as a coolie and earning Rs.4,500/-per month, and due to the injury sustained in the accident, he suffered permanent disability of 50%, and therefore, he lost the earning capacity, and he is entitled to compensation under the head loss of future earnings on account of permanent disability and under the head expenses relating to treatment, hospitalization, medicines etc. 15. The appellant claimed a sum of Rs.22,500/-towards loss of earnings during the period of treatment, Rs.32,500/-towards expenses relating to hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure etc. He also claimed Rs.10,000/-towards compensation for pain and suffering and Rs.2,35,000/-towards compensation for loss of future earnings, total Rs.3,00,000/-. 16. The Tribunal awarded a sum of Rs.20,000/-only towards injury sustained by the claimant and refused to award any amount towards expenses relating to treatment, and towards loss of future earnings, disbelieving the case of the appellant regarding permanent disability and the certificate issued by the Medical Board. 17. The appellant in support of his case, he examined himself as P.W-1. In the chief-examination affidavit, he deposed about the way in which the accident was occurred, and that he sustained fracture injury to the right thigh, and he was shifted to Government Hospital, Chinthalapudi, and operation was conducted for the fracture, and he also took treatment in NIIMS at Hyderabad. He filed Ex.A-6 medical bills claiming that he incurred Rs.22,751.32 paise towards medical expenses and treatment. The Tribunal held that though the petitioner filed out-patient slips of NIIMS, Hyderabad, they do not indicate dates and the appellant did not examine any person from NIIMS Hospital, Hyderabad, to prove the said bills covered by Ex.A-6 and expressed doubt over the genuineness of the Ex.A-6 medical bills and did not award any amount. 18. The appellant has examined Civil Assistant Surgeon of Government Hospital, Chinthalapudi as P.W-2. 18. The appellant has examined Civil Assistant Surgeon of Government Hospital, Chinthalapudi as P.W-2. As per her evidence, the appellant was admitted in the hospital and treated for the injuries sustained by him and as per Ex.X-1 Accident Register of the hospital, the appellant sustained two injuries as under: 1. Crush injury above the right knee upto middle thigh with bones exposes and bleeding 2. Abrasion injury 2 x 1 ½ cm with bleeding She also deposed that Ex.A-2 wound certificate was issued by Dr.S.V.Siva Kumr, who worked in Community Health Centre, Chintalapudi, and as per Ex.A-2, it is a grievous injury, and that the patient cannot do hard work. In the cross-examination, she admitted that she did not treat the patient, and the doctor who treated him is now working at Jangareddygudem. The appellant did not examine Dr.S.V.Sivakuar who treated him, though he is very much available and working at Jangareddygudem. 19. The appellant examined Civil Surgeon, working in District Hospital, Khammam, who worked in Government Hospital at Eluru as P.W-3, and as per his evidence, he issued Ex.A-4 disability certificate to the appellant assessing that due to shortening of right femur, with stiff knee, the disability was assessed as 50% of permanent nature, and he deposed that the appellant cannot do any hard work, because of disability, but he can attend his normal activities, and he has to be accompanied by another person. In the cross-examination, he deposed that he cannot say what injury the patient was affected with and when he examined the injured, he was not having any infectious injuries and he did not produce any hospital records. 20. The appellant examined Medical Superintendent, District Hospital, Eluru as P.W-4. He deposed that the injured was admitted in District Hospital, Eluru, and Ex.X-2 is the X-ray and Ex.X-3 is the Radiologist Report, and as per Exs.X-2 and X-3, the patient suffered fracture. 21. Therefore, the appellant did not examine the doctors who treated him at NIIMS, Hyderabad. The appellant also did not examine the Pharmacist or the author of the bills to speak that the appellant purchased the medicines as per the prescriptions issued by NIIMS Hospital at Hyderabad. In that view of the matter, the Tribunal did not award any amount covered by Ex.A-6 bills. Therefore, there are no grounds to interfere with the finding of the Tribunal on that aspect. 22. In that view of the matter, the Tribunal did not award any amount covered by Ex.A-6 bills. Therefore, there are no grounds to interfere with the finding of the Tribunal on that aspect. 22. When coming to the claim of the appellant towards loss of earnings on account of permanent disability, the evidence produced by the appellant shows that he suffered crush injury which is a grievous in nature and as a result, and an operation was conducted to his right leg in Govt. Hospital, Chinthalapudi, and the disability is post operated one due to shortening of right femur with stiff knee, and it was assessed 50% of permanent nature. It is the case of the appellant that he was working as a coolie before the accident. The appellant in his evidence, did not depose that due to the disability to the right limb, as mentioned in Ex.A-4, he is unable to do the coolie work. Admittedly, P.W-2 and P.W-3 evidence discloses that they did not treat the injured at any time, and they simply deposed that appellant cannot do hard work. They did not depose that the appellant cannot do coolie work, which he was doing prior to the date of accident. The appellant could not establish the functional disability faced by him, on account of the alleged permanent disabilities suffered to his right leg. In that view of the matter, and in view of the principles laid down by the Hon’ble Apex Court in Rajkumar’s case, regarding assessment of functional disability with reference to permanent disability and loss of earnings, this Court do not find any grounds to interfere with the findings of the Tribunal that he is not entitled to any compensation towards loss of future earnings on account of permanent disability. 23. The Tribunal has awarded Rs.20,000/-only towards injuries. It appears that the Tribunal has granted this amount under the head damages for pain, suffering and trauma because of injuries. The Tribunal in its order did not refer the case of Hon’ble Apex Court in Rajkumar’s case, while dealing the case for compensation relating to personal injuries. 24. A person can claim compensation under the head non-pecuniary damages (general damages) also in addition to pecuniary damages (special damages) as per the principles laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs. 24. A person can claim compensation under the head non-pecuniary damages (general damages) also in addition to pecuniary damages (special damages) as per the principles laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343 , wherein, it was held at para No.5 as follows: 5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 25. In the case on hand, the evidence on record shows that the appellant suffered one grievous injury i.e., crush injury to the right leg on account of the motor accident, and as a result, operation was performed and post operation, he is suffering from inconvenience due to shortening of right femur bone. Therefore, the appellant is entitled to reasonable amount towards compensation under the head damages for pain, suffering and trauma as a consequence of injuries and also under the head loss of amenities (and/or loss of prospects of marriage), though he is not entitled to any compensation under the head loss of future earnings on account of permanent disability under the head pecuniary damages (special damages). 26. 26. Considering the nature of injury and trauma faced by the appellant, this Court is of the opinion that an amount of Rs.50,000/-can be awarded towards compensation under the head damages for pain, suffering and trauma because of injuries sustained by the appellant in the motor accident. 27. Further, another sum of Rs.1,00,000/-can also be awarded to the appellant under the head loss of amenities, considering the inconvenience that would be faced by the appellant due to shortening of right femur bone, post operation, due to the crush injury sustained by him in the motor accident. Therefore, the just compensation entitled by the appellant for the injuries sustained by him in the motor accident would be at Rs.1,50,000/-. 28. The claimant is entitled to interest on Rs.1,50,000/-reasonable as per section 174 of M.V.Act. This Court is of the opinion that interest can be awarded @ 7.5% p.a. on the compensation amount, from the date of petition, till the date of deposit, in view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC) . Accordingly, this point is answered. 29. POINT No.2: To what relief? In the light of finding on point No.1, the order passed by the Tribunal has to be modified. 30. In the result, the appeal is partly allowed, modifying the award dated 25.11.2015 passed in M.V.O.P.No.760/2010 on the file of Motor Accidents Claims Tribunal-cum-VIII Addl. District Judge, West Godavari, Eluru. It is held that the claimant is entitled to a compensation of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.20,000/-(Rupees Twenty Thousand only). The respondents 1 and 2 are jointly and severally liable to pay the compensation amount. 31. The 2nd respondent/APSRTC is directed to deposit the compensation amount of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only), along with the accrued interest thereon, within one month from the date of judgment. In the event of the 2nd respondent/APSRTC already deposited some amount, the said amount has to be excluded, and the balance amount shall be deposited within one month from the date of judgment. On such deposit, the appellant/claimant is permitted to withdraw the compensation amount of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) along with accrued interest thereon. In the event of the 2nd respondent/APSRTC already deposited some amount, the said amount has to be excluded, and the balance amount shall be deposited within one month from the date of judgment. On such deposit, the appellant/claimant is permitted to withdraw the compensation amount of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) along with accrued interest thereon. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.