United India Insurance Co Ltd. v. Chapara Manjulatha Visakhapatnam
2024-09-23
NYAPATHY VIJAY, RAVI NATH TILHARI
body2024
DigiLaw.ai
JUDGMENT : NYAPATHY VIJAY, J. 1. This Appeal is filed by the Insurance Company questioning the Award and Decree dated 28.02.2017 in M.V.O.P. No. 120 of 2008 passed by the Motor Vehicle Accident Claims Tribunal-cum-III Additional District Court, Srikakulam. 2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Tribunal. 3. The brief facts so far: Appellant is the Insurance Company. The Claimant was working as an Associate Professor in the Zoology Department of Andhra University, Visakhapatnam. Subsequently, she was promoted as Professor. On 29.03.2006 at about 4.00 p.m. Claimant along with her Husband and Daughter were proceeding in car bearing No. AP 31 AM 2280 to her native place, Amadalavasa. While so, when the vehicle reached Sayannagadda near Thamminadupeta village, a lorry bearing No. AP 31 X 2899 driven by respondent No. 1 in a rash and negligent manner dashed the car and consequently, the car fell into fields. 4. In the accident, the Claimant and her husband suffered multiple fractures. The Claimant also sustained severe head injury and fracture to the left knee joint. The Claimant, her husband and their daughter were shifted to Government Hospital Srikakulam. Thereafter, for better treatment, they were shifted to Seven Hills Hospital, Visakhapatnam. The Claimant was treated as in-patient from 29.3.2006 to 19.04.2006 and had underwent a major surgery. The Claimant underwent surgery in Surya Hospital for removal of nails and screws performed by Dr. D. Laxman Rao. As her leg was not straightened, she underwent another surgery in Care Hospital, Visakhapatnam on 15.08.2007. The Doctors, who had treated the Claimant assessed the disability as 40%. 5. A case was registered in Etcherla Police Station in Crime No. 37 of 2006 under Sections 337, 338 of I.P.C. A charge sheet was filed vide C.C. No. 353 of 2006 before Judicial First Class Magistrate, Srikakulam. Subsequently, the case was transferred to Special Mobile Court, Srikakulam and the driver of the lorry was convicted for the offence. At the time of accident, the Claimant was aged 42 years and she was drawing a salary of Rs.53,360/- and a compensation of Rs.43,01,900/- was sought by the Claimant. 6. The Respondent No. 1 is the driver of the lorry and the 2nd respondent is the owner of the lorry and they remained ex parte.
At the time of accident, the Claimant was aged 42 years and she was drawing a salary of Rs.53,360/- and a compensation of Rs.43,01,900/- was sought by the Claimant. 6. The Respondent No. 1 is the driver of the lorry and the 2nd respondent is the owner of the lorry and they remained ex parte. Respondent No. 3 i.e. the Insurance Company filed its formatted written statement denying every aspect of the claim petition. In addition to the formatted denial, an additional objection was that the Claimant is working as Professor in Andhra University and as such is not entitled to compensation for any loss of income. 7. In the course of examination on behalf of the Claimant, PWs. 1 to 5 were examined and Exs.A.1 to A.126, Ex.C.1 to Ex.C.2 and Exs.X.1 were marked. 8. The Tribunal framed the following issues: 1. Whether the petitioner sustained injuries in the motor vehicle accident that took place on 29.3.2006 at about 4 pm on NH5 road, at Sayannagedda of Thamminaidupeta village limits, Srikakulam district? If so, whether the accident occurred only due to rash and negligent driving of the lorry bearing No. AP31X 2899 or due to the rash and negligent driving of the car bearing Regn. No. AP31 AM 2280 by its driver at that time? 2. Whether the Claimant is entitled to receive any compensation? If so, to what amount and from whom? 3. To what relief? 9. The Tribunal, after considering the oral and documentary evidence and applying the principles laid down in the citations, held that the accident occurred due to rash and negligent driving of the driver of the lorry and awarded an amount of Rs.44,52,000/- towards compensation. 10. Heard Sri Kotha Rama Mohan Rao, proxy counsel for Sri Srinivasa Rao Katakamsetty and Sri V. Sudhakar Reddy, learned counsel for respondents. 11. There is no dispute about the manner of accident and medical expenses incurred by the Claimant. The counsel for the Insurance Company contended that the nature of injury did not in any way impede the career progression of the Claimant nor there was any financial loss as she had been promoted as Professor from the post of Assistant Professor subsequent to the accident and is continuing to work as such.
The counsel for the Insurance Company contended that the nature of injury did not in any way impede the career progression of the Claimant nor there was any financial loss as she had been promoted as Professor from the post of Assistant Professor subsequent to the accident and is continuing to work as such. The counsel for the Claimant/respondent contended that the promotion is only a time based one and that the career progression is impeded due to her disability. 12. The only point for consideration in this appeal is, whether the methodology of compensation arrived at by the Tribunal is sustainable? 13. The multiplier method as explained in the judgments of the Hon’ble Supreme Court are primarily applicable towards loss of income that is coming under the head of pecuniary damages. In this case, there is no loss of income per se to the Claimant as she had continued in the job with promotion and with increased salary, post the accident. Therefore, compensation of Rs.35,85,792/- awarded towards loss of earning capacity taking into consideration the extent of disability by applying the multiplier method is not correct as held by Hon’ble Supreme Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 . 14. The heads under which compensation can be awarded in the cases of injuries are specified by the Hon’ble Supreme Court in Raj Kumar’s case (supra) at Para 6 and the same is extracted hereunder: “6. 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).
(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.” 15. As per the above judgment, the compensation will be awarded in routine injury cases only for medical expenses, loss of earning during hospitalization and damages for pain, suffering and trauma as a consequence of the injuries. For compensation to be awarded under other heads, there should be a serious injury with corroborating medical evidence, that compensation would be awarded for loss of future earnings, future medical expenses, loss of amenities and expectation of life. 16. The primary aspect now is to determine whether the injury was seriously debilitating the ability of the claimant to earn. The Claimant though filed a claim for Rs 43,01,900/- but in her chief-affidavit filed on 03.03.2015 at paragraph 5 thereof, had sought for compensation of Rs 15,00,000/- only. The Claimant in all fairness has sought for reduced compensation and in her cross-examination, the claimant had admitted that she was attending her job as Professor. 17. The PW-4 is Dr. P. Satish Kumar, who had treated the Claimant and in his deposition/ chief-affidavit had stated that he had performed knee replacement surgery on left knee of Claimant on 24.08.2007 and Claimant was discharged on 01.09.2007. It was also stated that on examination on 08.01.2016, the Claimant was having residual lack of knee movement with little pain. The relevant portion of the chief-examination of PW-4 is extracted below for ready reference: “Now I examined the patient on 08-01-2016 and I observed that she is having a residual lack of knee movements with little pain. The patient is present before me and Identified by me here as Ch. Manjulatha.” 18.
The relevant portion of the chief-examination of PW-4 is extracted below for ready reference: “Now I examined the patient on 08-01-2016 and I observed that she is having a residual lack of knee movements with little pain. The patient is present before me and Identified by me here as Ch. Manjulatha.” 18. In the light of evidence of PW-4, after examining the Claimant as latest as on 08.1.2016, the injury suffered by the Claimant has been normalized to a large extent. The evidence of PW-4 is clear indication that the petitioner is going about her routine life albeit with little pain. In the light of evidence of PW-4, the disability certificate fixing the disability @ 40% under Ex.A.5 dated 20.3.2007 is of no relevance. These factual and legal aspects were totally ignored by the Tribunal and compensation was fixed even after referring to the judgment of Hon’ble Supreme Court in Raj Kumar’s case (supra). 19. However, this Court is of the opinion that the Claimant would be entitled to compensation for conveyance charges and attendant charges for a brief period of two (2) years from the date of accident. 20. Coming to the conveyance charges, though the claimant has a job in the University, it is visualisable that she could not attend Office on his own considering the nature of injury nor is she in a position to attend the Office by availing any public transport at least for a period of two (2) years from the date she started attending work. Conveyance charges do not come under the salary given to the Claimant and therefore, this Court is of the opinion that the conveyance charges have to be provided to the Claimant by adopting an amount of Rs.5,000/- per month i.e. Rs.5,000/- x 24 = Rs.60,000/-. 21. Similarly, the Claimant would have needed an attendant to attend to her needs for a brief period of two (2) years from the date of accident to attend to her household works as well as in her Office by adopting an amount of Rs 5,000/- per month. Though the compensation as regards pain and suffering is purely a guess work, in the facts of this case, this Court is of the opinion that an amount of Rs.5,00,000/- be awarded to the claimant. 22. The re-worked compensation payable to the Claimant is as under: (1) Conveyance Charges [Rs. 5,000/- x 24] Rs.
Though the compensation as regards pain and suffering is purely a guess work, in the facts of this case, this Court is of the opinion that an amount of Rs.5,00,000/- be awarded to the claimant. 22. The re-worked compensation payable to the Claimant is as under: (1) Conveyance Charges [Rs. 5,000/- x 24] Rs. 1,20,000.00 (2) Attendant Charges [Rs. 5,000/- x 24] Rs. 20,000.00 (3) Pain and suffering and loss of amenities Rs. 5,00,000.00 (4) Loss of Income during the period of Treatment for a period of 6 months form the date of accident till the date of knee surgery [Rs. 53,360 x 6] Rs. 3,20,160.00 (5) Medical expenses Rs. 3,08,025.00 (6) Transport Charges i.e. petrol and lodge Charges from 03.04.2006 to 19.04.2006 Rs. 8,223.00 (7) Miscellaneous expenses Rs. 50,000.00 Total Rs. 14,26,408.00 23. Interest: In the recent past, the Hon’ble Supreme Court in Rahul Sharma and Another v. National Insurance Company Limited and Others, (2021) 6 SCC 188 , Kirthi and Another v. Oriental Insurance Company Limited, (2021) 2 SCC 166 , Anjali and Others v. Lokendra Rathod and Others, 2022 SCC Online SC 1683 and R. Valli v. Tamil Nadu State Transport Corporation Ltd. (2022) 5 SCC 107 has been consistently awarding interest of 9%. Following the same principle, the interest rate is enhanced to 9% and the claimants are entitled for the enhanced interest from the date of claim petition till realization. 24. Result: The appeal is, therefore, partly allowed. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.