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2023 DIGILAW 1521 (AP)

C. Gopi S/o P. Pandurangaiah v. V. Raja Rao

2023-12-07

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : B.V.L.N. CHAKRAVARTHI, J. 1. Heard Sri M.Venkata Ramana Reddy, learned counsel for the appellant/claimant and Smt. V.Durga, learned counsel for the respondent No. 2/Insurance Company through virtual mode. 2. This appeal directed by the appellant/claimant challenging the Order and Decree dated 13.05.2008 passed in M.V.O.P.No. 329 of 2004 passed by the Motor Accidents Claims Tribunal-cum-District Judge, Chittoor (hereinafter referred to ‘Tribunal’). 3. Parties are referred to as they were arrayed in the proceedings before the learned Tribunal, for the sake of convenience. 4. The case of the claimant is that he was travelling in a car on 15.05.2000 and when the car reached a place Gattukindapalli at about 7.00 AM, a lorry belonging to respondent No. 1 came in opposite direction in a rash and negligent manner and dashed the car, as a result, the claimant and others travelling in the car sustained injuries and petitioner was shifted to SVRR Hospital, Tirupati; police registered a case in Crime No. 78 of 2000, investigated the same and laid Report (charge sheet) against the driver of the respondent No. 1 for the offence punishable under Sections 304-A, 338 and 337 of the Indian Penal Code, 1860 (for brevity ‘IPC’); the claimant suffered five (05) injuries out of which one injury is grievous as he suffered fracture to his right toe and he suffered laceration injury to his right side of the eye, as a result he suffered deformity on his face and his visibility of right eye was decreased; he was in-patient for 2½ months and later, he took treatment in CMC Hospital, Vellore and he spent Rs.1,00,000/- for his medical expenses; he needs further surgery to his right toe for which he require Rs.25,000/- towards treatment; he is unable to walk freely; he lost right eye sight, there is deformity and he suffered Rs.10,00,000/-loss on account of injuries sustained in the accident; he filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for brevity ‘the Act’). 5. The respondent No. 1/owner of the lorry remains exparte. The respondent No. 2/Insurance Company i.e., Insurer of the respondent No. 1 filed counter contending that the accident was occurred due to head on collision between the lorry and car and therefore, the accident was occurred due to negligence of both drivers; the claimant did not suffer any disability and the compensation claimed by the claimant is highly excessive. 6. The respondent No. 2/Insurance Company i.e., Insurer of the respondent No. 1 filed counter contending that the accident was occurred due to head on collision between the lorry and car and therefore, the accident was occurred due to negligence of both drivers; the claimant did not suffer any disability and the compensation claimed by the claimant is highly excessive. 6. The respondent No. 3/owner of the car also remains exparte. The Insurer of the car i.e., respondent No. 4 filed a memo adopting the counter filed by the respondent No. 2/ Insurance Company. 7. The learned Tribunal, basing on the rival contentions, framed the following issues for trial: 1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry AP7V 3721 or due to the rash and negligent driving of the driver of the car bearing No. AP03F 990? 2. Whether the petitioner is entitled to claim any compensation, if so, to what amount and from whom? 3. To what relief? 8. During enquiry, the claimant examined himself as P.W.1 and filed four (04) documents which are marked as Ex.A.1 to Ex.A.4. The claimant also examined the Doctor, who issued Ex.A.2/Wound Certificate, as P.W.2. On behalf of the respondents, no evidence either oral or documentary was placed before the Tribunal. 9. The Tribunal, on consideration of the evidence placed before it, on issue No. 1 which is regarding rash and negligent driving held that the accident was occurred due to rash and negligent driving of the driver of the lorry only. This finding was not challenged by either of the Insurance Company or owner of the lorry. 10. The contention of the claimant is that, the Tribunal did not award just compensation for the personal injuries suffered by him in the impugned motor accident and the compensation awarded by the learned Tribunal is on the lower side; the Tribunal did not consider the medical bills and awarded lesser amount than the amount claimed by the claimant; the Tribunal did not consider the fact that the claimant took treatment in CMC Hospital, Vellore also and undergone surgery to the toe; and failed to award compensation towards transportation and other incidental expenditure. 11. 11. Learned counsel for the claimant would further submit that the Tribunal failed to consider certain facts placed by the claimant before the Tribunal with regard to his medical treatment in CMC Hospital, Vellore; the nature of injuries suffered by him and disability on account of the injuries sustained by him and the length of treatment taken by him and thereby, erred in not awarding compensation under the heads of loss of income during the period of treatment, loss of income on account of physical disability, transport charges and other incidental expenditure, medical expenses, loss of amenities etc., and therefore, the compensation to be awarded to the claimant may be reassessed to award just compensation. 12. Learned counsel for respondent No. 2/Insurance Company through virtual mode would submit that the claimant did not place any evidence with regard to the treatment taken by him before the CMC Hospital, Vellore and there is no evidence placed before the Tribunal with regard to the physical disability and the Tribunal, upon consideration of Ex.A.3/Medical Bills produced by the claimant, awarded the amount as per Ex.A.3/Medical Bills and further, the Tribunal awarded reasonable amount towards ‘pain and suffering’ and there is no evidence with regard to the charges incurred by the claimant towards transport and other miscellaneous expenditure and as such, there are no grounds to interfere with the finding of the Tribunal on the quantum of amount awarded by the Tribunal towards compensation. 13. Considering the above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the compensation awarded by the Chairman-cum-District Judge, Motor Accident Claims Tribunal, Chittoor, in M.V.O.P.No. 329 of 2004 vide Order and Decree dated 13.05.2008 is a just compensation in the circumstances of the case and does it warrants interference of this Court? 2. To what relief? 14. POINT NO. Whether the compensation awarded by the Chairman-cum-District Judge, Motor Accident Claims Tribunal, Chittoor, in M.V.O.P.No. 329 of 2004 vide Order and Decree dated 13.05.2008 is a just compensation in the circumstances of the case and does it warrants interference of this Court? 2. To what relief? 14. POINT NO. 1: The claimant, admittedly was examined as P.W.1 and in his evidence before the Tribunal, he deposed that on account of the accident he suffered certain injuries and on account of the said injuries he is unable to work freely and on account of the injury on the right eye he could not see the sunlight during day time and his eye-sight was reduced during night time; he was bedridden for six months on account of the injuries suffered in the accident and therefore, he lost income during the said period; he was doing hotel and cable business prior to the date of accident and earning Rs.10,000/- per month. 15. The claimant, to support his claim, filed four (04) documents; among them, Ex.A.2 is the Wound Certificate; Ex.A.3 is the bunch of Medical Bills. The claimant examined the Doctor, who treated him, as P.W.2. The evidence of P.W.2 would disclose that he was working as Civil Assistant Surgeon in SVRR Government General Hospital, Tirupati at the relevant time and he examined the claimant on 15.05.2000 i.e., on the date of accident and found five (05) injuries on the person of the claimant. According to his evidence, injury No. 1 was grievous in nature i.e., swelling and tenderness over lower 1/3rd of right thigh with swelling of right knee. The evidence of P.W.2 would further disclose that X-ray of right thigh revealed that there was a fracture to right femur middle 1/3rd and therefore, he issued Ex.A.2. Hence, the evidence of P.W.2 would establish regarding his examination of the claimant in SVRR Government General Hospital, Tirupati only and issuing of Ex.A.2/ Wound Certificate and the nature of injuries suffered by the claimant in the accident. 16. The claimant contention is that he was later treated in CMC Hospital, Vellore for better treatment of injuries. It is not known why the Doctor from the CMC Hospital, Vellore was not examined or the case-sheet pertaining to the treatment of the claimant issued by the CMC, Vellore was not filed before the Tribunal. 16. The claimant contention is that he was later treated in CMC Hospital, Vellore for better treatment of injuries. It is not known why the Doctor from the CMC Hospital, Vellore was not examined or the case-sheet pertaining to the treatment of the claimant issued by the CMC, Vellore was not filed before the Tribunal. Therefore, there is no material placed before the Tribunal to establish that he took treatment for better management of the injuries at CMC Hospital, Vellore subsequent to the examination by P.W.2 at Tirupati. In those circumstances, the learned Tribunal, considering Ex.A.3/Medical Bills and on verification of the same, awarded a sum of Rs.25,547/- though, claimant contended that he incurred Rs.1,00,000/- for medical treatment. In the given circumstances, this Court is of the opinion that in the absence of evidence regarding the treatment at CMC, Vellore, there are no grounds to interfere in the finding of the learned Tribunal in awarding the said amount only towards medical expenses basing on Ex.A.3. 17. While coming to the other amounts awarded by the Tribunal, the learned Tribunal awarded a sum of Rs.30,000/- for the fracture suffered by the claimant and Rs.1,000/- each for the remaining five (05) simple injuries. The Tribunal also awarded a sum of Rs.5,000/- towards ‘pain and suffering’. At this juncture, this Court would like to refer the Judgment of the Hon’ble Apex Court rendered in Raj Kumar vs. Ajay Kumar and Another, 2011 (1) SCC 343 one of the celebrated Judgments of the Hon’ble Apex Court as to how to consider the case of compensation in a case of ‘Personal Injuries’. As per the said Judgment, in a case of compensation for ‘Personal Injuries’ sustained in a motor accident, the heads under which compensation is awarded are as under: 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). (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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii) (a). Assessment of future loss of earnings due to permanent disability. 6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 18. If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 18. The Hon’ble Apex Court in the above Judgment has considered the concept of awarding compensation regarding loss of earnings during the period of treatment, loss of future earnings on account of permanent disability and how to assess the permanent disability, the importance of functional disability and how to determine functional disability basing on physical disability, evidence required to be placed before the Tribunal to ascertain the functional disability vis-a-vis physical disability and the importance of certificates issued towards permanent disability sustained by various people, to show the Doctors or Medical Boards and how to award compensation under the head loss of amenities etc. 19. In the appeal on hand, admittedly, the claimant did not place any evidence before the Tribunal in support of the his contention that he suffered permanent physical disability on account of the injuries sustained in the motor accident. Therefore, this Court is of the considered opinion that the finding of the Tribunal that he is not entitled to any compensation towards loss of future earnings on account of permanent disability does not suffer from any infirmity either on facts or in law. 20. When coming to pecuniary damages, the claimant can ask for granting compensation towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. But, the said claim must be supported by evidence. As already discussed above, except Ex.A.3 no other evidence was placed before the Tribunal. Learned Tribunal considering Ex.A.3 and on verification of Ex.A.3/Medical Bills came to conclusion that the claimant is entitled to Rs.25,547/-. In those circumstances, there are no grounds to interfere with the finding of the Tribunal on the said aspect. 21. The other claim of the claimant is concerned, with regard to loss of earnings during the period of treatment, it is curious to note down that in the claim petition, the claimant claimed Rs.10,00,000/- as a lumpsum amount towards compensation. He did not specify how much he is claiming under each head. He did not specify the amount claimed towards loss of earnings during the period of treatment. He did not specify how much he is claiming under each head. He did not specify the amount claimed towards loss of earnings during the period of treatment. Considering the same and the evidence as well as the evidence of the Doctor and the nature of injuries which includes a fracture to his right leg, this Court is of the opinion that he might have taken treatment as in-patient in the hospital for a few days for surgery to the fracture and on account of the fracture he could not attend the work for three to four months. Here, it is pertinent to note down that he contended that he was having income of Rs.10,000/- per month by doing hotel and cable business at that point in time. Except the self-serving statement of P.W.1, there is no other evidence to prove it. Therefore, his income can be assessed notionally considering his nature of work as an unskilled labour. In those circumstances, this Court is of the considered opinion that his income per month can be assessed at Rs.5,000/- per month as the accident occurred in the year 2000. Therefore, he can be awarded a sum of Rs.15,000/- towards loss of earnings during the period of his treatment, for three months including the period of bed rest. 22. The claimant in his chief-examination categorically deposed he suffered laceration injuries to his right eye, and it was corroborated by P.W.2, supported by Ex.A.2/Wound Certificate. It would establish that he is unable to see the sun light during day time and his eye sight was reduced during night time at that time. Hence, this Court is of the considered opinion that he can be awarded some amount under the head of loss of amenities. This Court is of the considered opinion that a sum of Rs.50,000/- can be awarded to the claimant under the head of ‘Loss of amenities’ considering the nature of injuries and inconvenience faced by him, in addition to the amounts already awarded by the Tribunal. 23. Therefore, the claimant in all entitled to a sum of Rs.1,30,547/- (i.e., Rs.65,547/- already awarded by the Tribunal by adding a sum of Rs.15,000/- towards loss of earnings and Rs.50,000/- towards loss of amenities) towards just compensation for the personal injuries sustained by the claimant in the motor accident. 24. 23. Therefore, the claimant in all entitled to a sum of Rs.1,30,547/- (i.e., Rs.65,547/- already awarded by the Tribunal by adding a sum of Rs.15,000/- towards loss of earnings and Rs.50,000/- towards loss of amenities) towards just compensation for the personal injuries sustained by the claimant in the motor accident. 24. So far as the interest is concerned, the Tribunal awarded interest at 9% per annum. Admittedly, the accident was occurred in the year 2000. Considering Section 171 of the Act which stipulates granting of interest on the compensation amount and 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) this Court is of the considered opinion that interest can be awarded on the compensation amount to the claimant at 7.5% per annum from the date of petition till the date of deposit. Accordingly, point No. 1 is answered. 25. POINT NO. 2: In the light of finding on point No. 1, the appeal in M.A.C.M.A.No. 1706 of 2012 is liable to be ‘partly allowed’. 26. IN THE RESULT, the Appeal in is ‘partly allowed’ by modifying the Order and Decree dated 13.05.2008 passed in M.V.O.P.No. 329 of 2004 on the file of Motor Accidents Claims Tribunal-cum-District Judge, Chittoor, holding that the appellant/claimant is entitled to a compensation of Rs.1,30,547/- (Rupees one lakhs thirty thousand five hundred and forty seven only) with interest @ 7.5% per annum from the date of petition till the date of deposit, instead of Rs.65,547/-, as awarded by the learned Tribunal. 27. The 2nd respondent/Oriental Insurance Company Limited is directed to deposit the compensation amount within six (06) weeks from the date of the judgment, and in the event of the 2nd respondent/Insurance Company already deposited some amount, the said amount has to be excluded, and the balance amount shall be deposited within above said period from the date of Judgment. 28. On such deposit, the appellant/claimant is permitted to withdraw the amount along with accrued interest thereon. There shall be no order as to costs. 29. As a sequel, miscellaneous applications pending, if any, shall stand closed.