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2023 DIGILAW 963 (AP)

Gopireddy Mohan Reddy v. B. V. Mohan Reddy

2023-07-04

DUPPALA VENKATA RAMANA

body2023
JUDGMENT: This appeal has been preferred by the appellant/claimant against the judgment and award passed by the Motor Accidents Claims Tribunal-cum-III Additional District Judge (FTC), Kadapa (for short “the Tribunal”), dated 23.12.2005 in M.V.O.P.No.487 of 2003 by which the Tribunal has awarded compensation of Rs.55,000/- with interest @ 7.5% per annum from the date of the petition till realization against the 1st and 2nd respondents. 2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal. 3. The brief facts of the case are that the petitioner/injured filed a claim petition before the Tribunal seeking compensation of Rs.1,50,000/- under the Motor Vehicles Act, 1988 for the injuries sustained by him in a road accident with the averments that he was the resident of Kondapeta of Chennur Mandal, that he was aged about 35 years, that he was doing finance business and was earning Rs.5,000/- per month. On 23.07.2002, when the petitioner was going towards Chagalamarri Village on a Suzuki motorcycle and reached near Chinthakunta tank, at about 8.30 a.m., a private bus bearing No.AP 04-T-6698 driven by its driver came in an opposite direction, without blowing horn and dashed against the motorcycle of the petitioner, as a result, he fell down and sustained fractures and other injuries all over the body. Immediately he was shifted to the Government Hospital, Proddatur for treatment and after discharge, he took treatment in a private hospital and also at bone setting centre at Puttur. (ii) The matter was reported to the Police alleging that the accident took place as a result of rash and negligent driving of the said bus by its driver and based on the statement of the injured recorded by the Police, a case in Crime No.66 of 2002 was registered by Duvvur Police Station for the offence under Section 337 IPC. After investigation of the case, a charge sheet was submitted against the accused-driver for having committed the offence punishable under Sections 337 & 338 IPC read with Section 134 (a) & (b) read with Section 187 of the Motor Vehicles Act, 1988. (iii) The 1st and 3rd respondents did not contest the matter. After investigation of the case, a charge sheet was submitted against the accused-driver for having committed the offence punishable under Sections 337 & 338 IPC read with Section 134 (a) & (b) read with Section 187 of the Motor Vehicles Act, 1988. (iii) The 1st and 3rd respondents did not contest the matter. (iv) The 2nd and 4th respondents filed a written statement denying the allegations made in the petition and the petitioner was put to strict proof that the accident occurred due to rash and negligent driving of the bus by its driver. It is contended inter alia that the petitioner has to prove that the driver of the bus and the rider of Suzuki motorcycle were having a valid driving licence at the time of the accident. It is further averred that the accident occurred due to the rash and negligent driving of the injured person and these respondents are not liable to pay the compensation. Further, it is averred that the amount claimed by the petitioner is excessive and prays to dismiss the petition. (v) On the basis of the pleadings of the parties, the Tribunal framed the following issues: (i) Whether the petitioner received injuries in a motor vehicle accident occurred on 23.07.2003 at 8.30 a.m., due to collision of a private Bus bearing No.AP 04-T-6698 of R.1 and Suzuki motorcycle of R.3 by its drivers? (ii) Whether the petitioner is entitled for compensation, if so, to what amount? (iii) To what relief? (vi) During the trial, in order to establish his claim, the injured/claimant was examined himself as P.W.1 and the other two witnesses were examined as P.Ws.2 and 3 and got marked Exs.A.1 to A.9 i.e., Certified copies FIR, Wound Certificate, charge sheet, Calendar and judgment etc. The 1st and 3rd respondents neither led any evidence nor marked any documents on their behalf. No oral or documentary evidence was adduced on behalf of the 2nd and 4th respondents. The 1st and 3rd respondents neither led any evidence nor marked any documents on their behalf. No oral or documentary evidence was adduced on behalf of the 2nd and 4th respondents. (vii) The Tribunal, after analyzing the entire evidence of P.Ws.1 to 3 and Exs.A.1 to A.9, came to the conclusion that the alleged accident occurred due to the rash and negligent driving of the offending vehicle (Bus) bearing No.AP 04-T-6698 by its driver and passed the impugned Award granting compensation of Rs.55,000/- with interest @ 7.5% per annum and with proportionate costs against the 1st and 2nd respondents, from the date of petition till the date of realization. (viii) On appreciation of the evidence, the following compensation was awarded by the Tribunal. S.No. Heads of compensation Amount of compensation awarded in Rs. 1 Loss of earnings and partial disability 30,000/- 2 Medical expenses, extra nourishment and pain & suffering 25,000/- Total 55,000/- (ix) Aggrieved by the said award, the appellant/injured preferred the present appeal seeking enhancement of the compensation. 4. Heard Sri D.Kodandaramireddy, learned counsel for the appellant and Smt.A.Malathi, learned Standing Counsel for the Insurance Company. 5. Learned counsel for the appellant/injured would submit that the compensation as awarded by the Tribunal is meager, though an amount of Rs.1,50,000/- was claimed. Further, he would submit that the appellant is entitled to more compensation than the amount claimed in the original petition, as his earning capacity was severely affected in view of the nature of injuries sustained by him. He would further submit that the percentage of disability was assessed at 35% by P.W.2 (Doctor), who was the practicing Orthopedic Surgeon in Kadapa, but the Tribunal failed to take the same into account while arriving at the conclusion to award compensation. He would further submit that the appellant/injured is entitled to the amounts under different heads i.e., extra nourishment, pain & suffering and loss of expectation of life etc., in the light of the principles laid down by the Hon’ble Apex Court in Raj Kumar Vs. Ajay Kumar, 2011 ACJ 1 (SC). Further, the learned counsel would urge that the amount of compensation may be determined and just and reasonable compensation may be awarded. 6. Learned Standing Counsel for Respondents 2 & 4/Insurance Company would submit that the Tribunal has taken into account of all the relevant factors while arriving at the compensation payable to the claimant. Further, the learned counsel would urge that the amount of compensation may be determined and just and reasonable compensation may be awarded. 6. Learned Standing Counsel for Respondents 2 & 4/Insurance Company would submit that the Tribunal has taken into account of all the relevant factors while arriving at the compensation payable to the claimant. The award is well-reasoned and therefore, warrants no interference by this Court. 7. In the light of the above rival arguments, the points for determination in this appeal are: 1. Whether the compensation awarded by the Tribunal is not in accordance with the principles of law and requires enhancement? 2. Whether the compensation awarded by the Tribunal is just and reasonable or need interference? POINT Nos.1 and 2: 8. A perusal of the impugned award would show that the Tribunal has framed Issue No.1 as to whether the accident occurred due to the collision of the private bus bearing No.AP- 04-T-6698 driven by its driver and rider of the Suzuki motorcycle, to which the Tribunal after considering evidence of the injured coupled with documentary evidence has categorically observed that the police investigated the case and filed charge sheet against the driver of the offending vehicle. When he was examined under Section 251 Cr.P.C., the accused pleaded guilty and admitted the offence and the learned Magistrate imposed fine and the same was paid by the accused-driver. Ex.A.4 is the certified copy of the calendar and judgment of the criminal case, which clearly shows that the accident occurred due to the rash and negligent driving of the driver of the bus bearing No.AP-04- T-6698. Therefore, there is no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle (bus) bearing No.AP-04-T-6698. 9. It is a well settled principle that while determining the compensation payable to the injured in the claim filed under the Motor Vehicles Act, 1988, this Court referred to the judgment of the Court of Appeal in Ward Vs. 9. It is a well settled principle that while determining the compensation payable to the injured in the claim filed under the Motor Vehicles Act, 1988, this Court referred to the judgment of the Court of Appeal in Ward Vs. James, (1965) 1 All ER 563 Halsbury’s Laws of England, 4th Edition, Volume 12 (Page 446) wherein, it was held as follows: “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”. 10. Further, it is relevant to refer to the judgment of the Hon’ble Apex Court in Rekha Jain Vs. National Insurance Co. Ltd., 2013 ACJ 2161 (SC) wherein it was held as follows: “It is well settled principle that in granting compensation for personal injury, in injured has to be compensated (1) for pain and suffering (2) for loss of amenities, (3) shortened expectation of life, if any, (4) loss of earnings or loss of earning capacity or in some cases for both, and (5) medical treatment and other special damages”. 11. If the above two judgments are read together, the intention of the Hon’ble Apex Court though under different contexts, is crystal clear that the impugned award passed by the learned Tribunal is not just and reasonable. 12. In the present case of nature, the injured sustained 35% disability as per Ex.A.7/Disability Certificate issued by P.W.2(Doctor), who treated the injured and deposed that he has examined the injured and disability corresponding to the injuries described in the Wound Certificate. He found healed fracture, lateral condyle of left tibia (tibial platian) with implants incise (2 cannulated cancellaous screws and one cardinal screw), depression of lateral condyle and osteoporosis of the surrounding bones of left knee. The permanent disability assessed to the extent of 35%. The disability was assessed on the basis of physical examination and the X-ray. 13. When P.W.2 assessed the disability of 35%, what prevented the injured to get the disability certificate from the Medical Board and file into Court, for which there was no explanation from the claimant. The permanent disability assessed to the extent of 35%. The disability was assessed on the basis of physical examination and the X-ray. 13. When P.W.2 assessed the disability of 35%, what prevented the injured to get the disability certificate from the Medical Board and file into Court, for which there was no explanation from the claimant. Therefore, much weight cannot be given to Ex.A.7/Disability Certificate which was not issued by the Medical Board. However, the learned Tribunal erred in awarding meager compensation under the heads of pain & suffering, extra-nourishment and medical expenses etc. 14. In the present case, the claimant/injured was an agent working in Kishan Agro Agencies from 21.03.2000 and was drawing salary of Rs.5,000/- per month apart from T.A and D.A. Ex.A.9 is the salary certificate of the injured. It would be appropriate to reconsider the quantum by taking the income of the injured at Rs.5,000/- per month at the time of the accident for awarding loss of past earnings. 15. Insofar as the injuries sustained by the injured are concerned, the Tribunal has considered the evidence on record and awarded meager compensation of Rs.30,000/- towards loss of earnings by ignoring the disability assessed by P.W.2. If really such disability was sustained by the injured, definitely, he would have obtained disability certificate from the Medical Board. Therefore, the disability of 35% cannot be considered. However, taking into consideration of the evidence of P.W.2 (Doctor), it is clear that the injured received fractures as well as simple injuries and also found healed fracture lateral condyle of left tibia with implants incise. Therefore, when the implants were inserted in the left tibia, definitely he would have sustained pain and suffering and medical expenses are spent more than the bills produced by him. In such circumstances, the provisions of Motor Vehicles Act are benevolent in nature. In view of the gravity of injuries sustained by the injured, the Appellate Court has power to enhance the compensation. 16. Under the provisions of the Motor Vehicles Act, 1988, there is no restriction that the compensation could be awarded only upto the amount claimed by the claimants. But, in an appropriate case, where from the evidence brought on record, if the Tribunal/Court considers that the claimant is entitled to get more compensation than the awarded, the Tribunal/Court may pass such award. 17. But, in an appropriate case, where from the evidence brought on record, if the Tribunal/Court considers that the claimant is entitled to get more compensation than the awarded, the Tribunal/Court may pass such award. 17. In the instant case, the claimant/injured, who was an agent working in Kishan Agro Agencies is not supposed to be that much of meticulous to maintain the bills for future use. Definitely he might have spent huge amount than the bills produced by him. 18. In Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 (SC) the Hon’ble Apex Court, while elaborating the concept of “just compensation” observed as under: “Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.” 19. On an overall re-appreciation of the pleadings, material on record and the law laid down by the Hon’ble Supreme Court in the afore-cited decisions, I am of the definite opinion that the appellant/claimant is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. S.No. Head of Compensation Amount in Rupees 1 Pain & Suffering 35,000/- 2 Grievous injuries 50,000/- 3 Medical Expenses 40,000/- 4 Transport Expenses 5,000/- 5 Extra-nourishment 5,000/- 6 Loss of past earnings 15,000/- Total (-) Compensation awarded by the Tribunal Enhanced Compensation 1,50,000/- 55,000/- 95,000/- 20. Having regard to the facts and circumstances of the case and in view of the law laid down by the Hon’ble Apex Court, this Court is of the opinion that the award passed by the Tribunal warrants interference and needs to be enhanced and thereby, enhanced the compensation from Rs.55,000/- to Rs.1,50,000/-. 21. Resultantly, the appeal is hereby allowed, enhancing the compensation from Rs.55,000/- to Rs.1,50,000/- with costs and interest at 7.5% per annum from the date of the petition till the date of realization against the Respondents 1 and 2 jointly and severally. (ii) Respondents are directed to deposit the compensation amount, within a period of two months from the date of this judgment, failing which execution can be taken out against them. (ii) Respondents are directed to deposit the compensation amount, within a period of two months from the date of this judgment, failing which execution can be taken out against them. (iii) The petitioner is entitled to withdraw the entire amount by filing proper application before the Tribunal. (iv) The impugned award of the learned Tribunal stands modified to the aforesaid extent and in the terms and directions as above. As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.