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2024 DIGILAW 1312 (AP)

Jaya Venkata Reddy v. Y. B. Sreedhar Reddy

2024-09-18

SUMATHI JAGADAM

body2024
JUDGMENT : SUMATHI JAGADAM, J. 1. The appellant/petitioner filed this appeal against the Judgment dated 07.09.2006 passed by the Chairman, Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool (hereinafter referred to as “the Tribunal”) in M.V.O.P. No. 766 of 2004, awarding compensation of Rs.1,64,000/- to the petitioner as against the claim of Rs.4,00,000/-. 2. For convenience and to avoid confusion, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 3. The petitioner's case is that on 19.08.2004 at about 01.30 p.m., the petitioner and his friend parked the motorcycle bearing No. AP 21J 5017 to attend nature calls. At that time, an Ambassador Car bearing No. AP-11-W-2875, which was coming in opposite direction and being driven by its driver rashly and negligently without blowing horn by violating the traffic rules, came to the extreme right side of the road and dashed the petitioner. As a result, the petitioner fell and sustained fractures and multiple injuries all over his body. He was shifted to the Government Hospital, Kurnool, for treatment, and he was inpatient from 27.10.2004 to 07.11.2004. The matter was reported to Kodumur Police, and the same was registered as a case in Crime No. 79 of 2004 under Section 337 of I.P.C. against the driver of the car bearing No. AP 11W 2875. Therefore, both the respondents are jointly and severally liable to compensate the petitioner. 4. The 1st respondent was set ex-parte. The 2nd respondent filed a counter-affidavit denying the allegations made in the claim petition. It is contended that the alleged accident was not caused by the rash and negligent acts of the car driver bearing No. AP 11W 2875, there is no fault on the part of the driver of the car. The 2nd respondent did not insure the 1st respondent’s car, and the offending vehicle's driver does not have a valid and effective driving licence as of the alleged date of accident. The compensation claimed by the petitioner is excessive and unreasonable; therefore, the claim petition is liable to be dismissed. 5. Based on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident occurred on 19.08.2004 at about 01.30 p.m. was due to rash or negligent driving of the car bearing No. AP 11W 2875 by its driver belonging to the first respondent? 2. 5. Based on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident occurred on 19.08.2004 at about 01.30 p.m. was due to rash or negligent driving of the car bearing No. AP 11W 2875 by its driver belonging to the first respondent? 2. Whether, the petitioner is entitled to claim compensation, if so, to what amount, to what extent and from whom? 3. To what relief? 6. To establish his claim, the petitioner examined himself as PW-1 and examined the Doctors as PWs. 2 and 3, respectively and marked the documents as Exs.A1 to A10 and Ex.X1. No oral or documentary evidence was adduced on behalf of the respondents. 7. The Tribunal, by an order dated 07.09.2006, allowed the claim petition in part by granting compensation of Rs.1,64,000/- with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of deposit. Seeking enhancement of the compensation, the petitioner/appellant filed the present appeal. 8. Learned counsel for the appellant/petitioner submitted that when the petitioner and his friend parked the motorcycle bearing No. AP 21J 5017 to attend nature calls, the 1st respondent drove the car rashly and negligently, came to the extreme right side of the road, and dashed the petitioner. As a result, the petitioner fell and sustained fractures and multiple injuries all over his body. The petitioner was admitted to the Government Hospital, Kurnool. PWs. 2 and 3 are the doctors who treated the petitioner from 27.10.2004 to 07.11.2004 in the hospital and opined that the petitioner suffered 40% disability, and his leg was shortened by two inches. The petitioner was about 30 years old and was doing milk business; he was earning Rs.6,000/- per month; the accident made it difficult for him to continue his business, and he lost his earnings. Police have filed a charge sheet holding that the driver of the 1st respondent’s car was negligent, and due to his rash and negligent driving of the vehicle, the accident occurred. The petitioner further submits that the Tribunal has failed to appreciate the evidence given by PW-2 and without applying the multiplier in terms of Sarla Verma's judgment based on the age and income of the petitioner, passed the award. Therefore, the respondents are jointly and severally liable to pay the compensation as sought for. 9. The petitioner further submits that the Tribunal has failed to appreciate the evidence given by PW-2 and without applying the multiplier in terms of Sarla Verma's judgment based on the age and income of the petitioner, passed the award. Therefore, the respondents are jointly and severally liable to pay the compensation as sought for. 9. On the other hand, the 2nd respondent, the Insurance Company, submits that the accident did not occur on 19-8-2004 and the vehicle bearing No. AP 11W 2875 was not involved in the alleged accident. The driver of the ambassador car is not holding a valid and effective licence as of the date of the alleged accident. It is the further contention of the 2nd respondent that the compensation claimed by the petitioner is excessive, and the second respondent is not liable to pay compensation. 10. Now, the point for consideration is: Can the tribunal exonerate the insurance company from its liability for compensating the accident victim who suffered 40% disability due to the accident? If so, to what extent? 11. The accident took place on 19-8-2004. The petitioner/appellant was admitted to Vishwa Bharathi Super Specialist Hospital with injuries of compound commuted fracture of the right femur and was operated on at Government General Hospital, Kurnool, by plate and screw fixation and fracture of tibia and fibula on the right, left compound commuted with tibia bone about 4 inches. He was also operated on the right femur because of the presence of an infection of the bone, and the doctors found two inches of shortening and stiffness in the right knee joint and a malunion of the right fibula. With this, he cannot walk without any support, cannot perform his normal duties and cannot do his regular work, and the disability is 40%, which is permanent. 12. To assess the quantum of compensation to be awarded, the Court must examine whether the permanent disability caused has any adverse effect on the earning capacity of the claimant, as held by the Hon’ble Supreme Court in the case of Sandeep Khanuja vs. Atul Dande and Another, (2017) 3 SCC 351. The relevant paragraph of the judgment is extracted hereunder: “The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. The relevant paragraph of the judgment is extracted hereunder: “The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. We feel that the conclusion of the MACT on the application of aforesaid test is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and therefore his working capacity is not impaired......A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily able. Movements of the appellant have been restricted to a large extent and that too at a young age.” 13. While dealing with different heads of compensation in injury cases, the Hon’ble Supreme Court in the case of R.D. Hattangadi v. Pest Control (India) (P) Ltd. (1995) 1 SCC 551 held that: “Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are 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 as non pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the 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 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.” The petitioner suffered 40% of permanent disability as per the above judgments. The Court should see whether the disability suffered by the petitioner will hinder his day-to-day activities (or) whether he is prevented or restricted from discharging his previous activities and functions. The doctors who treated the petitioner have stated that the petitioner cannot walk without any support, cannot perform his regular work, and the disability is 40%, which is permanent. Without considering the same, the Tribunal has awarded meagre compensation insofar as non-pecuniary damages. Given the above judgment, the petitioner is entitled to Rs.3,00,000/- towards permanent disability, Rs.2,00,000/- towards pain and suffering and Rs.2,00,000/- towards the loss of amenities of life. 14. The petitioner is 30 years old and is in the milk business; free movement is involved in performing such a function. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earnings compared to the one who is healthy and bodily abled. Movement of the petitioner has been restricted to a large extent and that too at a young age. The doctors opined that it is difficult for the petitioner to attend his work as usual. As the petitioner was earning Rs.6,000/- per month by doing milk business, he cannot place any evidence before this Court to show his earning capacity. Since the accident was in 2004, the minimum wages on that day have been considered, and this Court has taken the earning capacity of the petitioner as Rs.4,000/- per month. 15. In Sri Anthoni alias Anthony Swamy vs. The Managing Director K.S.R.T.C. Civil Appeal No. 2551 of 2020 dated 10.06.2020, the Hon’ble Supreme Court held that: “The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs.5,500/- with multiplier of 14 at Rs.6,93,000/-.” 16. Therefore, the petitioner's income is taken as Rs.4,000/- per month. The loss of earnings comes to Rs.3,26,400/- (Rs.4,000/- x 12 x multiplier ‘17’ as per Sarla Verma case x disability 40%). In addition, the petitioner is entitled to Rs.3,00,000/- towards permanent disability, Rs.2,00,000/- towards pain and suffering and Rs.2,00,000/- towards the loss of amenities of life. The total compensation to which the petitioner is entitled is Rs.10,26,400/-. 17. Accordingly, the appeal is allowed and the compensation awarded by the Tribunal is enhanced from Rs.1,64,000/- to Rs.10,26,400/-. In addition, the petitioner is entitled to Rs.3,00,000/- towards permanent disability, Rs.2,00,000/- towards pain and suffering and Rs.2,00,000/- towards the loss of amenities of life. The total compensation to which the petitioner is entitled is Rs.10,26,400/-. 17. Accordingly, the appeal is allowed and the compensation awarded by the Tribunal is enhanced from Rs.1,64,000/- to Rs.10,26,400/-. The 2nd respondent/Insurance company is directed to deposit the entire compensation amount, with costs and interest as awarded by the Tribunal, before the Tribunal within two months from the date of this judgment. On such deposit, the petitioner is permitted to withdraw their respective compensation with accrued interest by filing the proper application. The petitioner shall pay the requisite court fee for the amount awarded over and above the compensation claimed. No order as to costs. 18. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.