HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
M.A.C.M.A.No.915 of 2008
JUDGMENT:
This appeal is filed by the appellant-claimant, aggrieved by the Judgment and Decree dt.11.09.2007 passed in M.V.O.P.No.818 of 2005 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, Guntur (for short „the Tribunal"), wherein the learned Tribunal awarded an amount of Rs.15,000/- to the claimant with running interest @ 7.5% per annum with proportionate costs from the date of claim petition till realization against the respondents/Opponents jointly and severally, seeking enhancement of compensation awarded by the Tribunal.
2. For the sake of convenience, the parties are referred to as they are arrayed before the Motor Accidents Claims Tribunal.
3. The brief facts of the case are as follows:
a) On 15-05-2005 at about 7.00 a.m., the petitioner was proceeding to his village on foot. In the meanwhile, one tractor bearing No.AP 7 X 3372 driven by its driver in a rash and negligent manner at high speed, dashed the petitioner, as a result, the petitioner sustained fracture injury on his left leg and all over the body. Immediately he was shifted to the hospital for 2 treatment. The matter was reported to the Police alleging that the accident took place as a result of the rash and negligent driving of the said offending tractor and based on the FIR lodged by the claimant, a case in Crime No.69 of 2005 under Section 338 IPC was registered and after investigation of the case, a chargesheet was submitted against the accused driver for having committed the offence under Section 338 IPC.
b) The claimant filed an application claiming compensation of Rs.1,00,000/- before the Claims Tribunal at Guntur on account of the injuries sustained by him in the road accident.
c) The 1st respondent who is the owner of the offending vehicle did not contest the matter.
d) The 2nd respondent/Insurance Company filed a written statement contending inter alia that the driver of the offending tractor bearing No.AP 7 X 3372 was not holding a valid driving licence at the time of the accident. It is further contended that the offending tractor was not holding a valid permit to ply on the road at the time of the accident. There was no rash and negligent driving by the driver of the offending vehicle at the time of the accident. It is further contended that the Insurance Company is not liable to pay the compensation. 3
e) Based on the above pleadings, the Claims Tribunal framed the following issues:
1) Whether the accident occurred due to rash and negligent driving of the driver of the tractor bearing No.AP 7 X 3372?
2) To what compensation the petitioner is entitled, and from whom?3) To what relief?
f) During the trial, in order to establish his claim, the injured was examined as P.W.1 and the Doctor, who treated the injured was examined as P.W.2, and Exs.A.1 to A.3 and X.1 were marked on behalf of the petitioner/claimant. None were examined and no documents were marked on behalf of the respondents/Opponents.
g) On appreciation of the evidence of P.Ws.1 and 2, and placing the reliance on Exs.A.1 to A.3 and X.1 i.e., Certified Copy of FIR, Certified Copy of Wound Certificate, Certified Copy of Charge sheet, and Certified Copy of Case sheet respectively, the learned Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the tractor bearing No.AP 7 X 3372 and passed the impugned award granting compensation of Rs.15,000/- with interest @ 7.5% per annum from the date of the petition till realization payable by the 1st and 2nd respondents jointly and severally. 4
h) Aggrieved by the award passed by the learned Tribunal, the petitioner/injured filed the instant appeal seeking enhancement of compensation.
4. Heard both sides and perused the record.
5. A perusal of the impugned judgment and Award would show that the Tribunal has framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, to which the Tribunal after considering the evidence of P.W.1 coupled with the documentary evidence, has categorically observed that the accident had occurred due to the rash and negligent driving of the driver of the offending vehicle bearing No.AP 7 X 3372 and has answered in favour of the Claimant and against the respondents. Therefore, I see 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 bearing No.AP 7 X 3372.
6. In so far as the quantum of compensation is concerned, a perusal of the material on record would show, as per Ex.A.2 Wound Certificate, the claimant sustained a bimalleolar fracture on the left ankle, and ankle dislocation. P.W.2 Doctor who treated the injured has stated that the claimant was admitted in their hospital on 15.05.2005 with compound bimalleolar 5 fracture on the left ankle and ankle dislocation and he was operated on the same day and was discharged on 21.05.2005. During the above period, the cost of the treatment was about Rs.10,000/-. Ex.A.2 is the Wound Certificate issued by him, which shows that injury No.1 is grievous in nature, and Ex.X.1 is the case sheet maintained by the hospital.
7. Coming to the aspect of liability of payment of compensation, the Insurance Company has not come forward to examine the officials of the Insurance Company and from the Transport Department to prove its defence. Though the Insurance Company has taken a plea that the driver of the offending vehicle was not holding a valid driving licence and the said offending vehicle was not having a valid permit at the time of the accident, the onus would shift on the Insurance Company only to prove the basic facts that the driver of the offending vehicle was authorized by the owner to drive the vehicle and was not having a valid licence and the offending vehicle was not having valid permit at the relevant time. But, the insurer failed to discharge their burden by examining any of them from the respective departments. During the cross-examination of P.W.1 no suggestion is put to him that there was no valid permit for the offending vehicle at the time of the accident. In the present 6 case, the owner of the offending vehicle did not contest the matter. Though the insurance company filed a written statement, none were examined on behalf of the Insurance Company. Therefore, the respondents cannot escape from their liability to pay the compensation.
8. Therefore, the fact remains that, by the time of the accident, the offending vehicle was insured with the 2nd respondent and the policy was in force and the driver of the offending vehicle was having a valid licence.
9. So far as the quantum of compensation is concerned, the Tribunal awarded a sum of Rs.10,000/- for the injuries sustained by the claimant and a sum of Rs.5,000/- towards pain and suffering which appears to be meager. The Disability Certificate is not produced by the claimant. P.W.2 (Doctor) stated in his evidence that the injured had partial and permanent disability of 10% to 15%. In the absence of a Disability Certificate issued by the Medical Board, it is difficult to assess the disability on the oral evidence of P.W.2 much weight cannot be given. In the facts and circumstances of the case, this Court feels that the claimant is entitled to the 7 following amounts under various heads by applying the principles in the case of Raj Kumar Vs. Ajay Kumar1.
"In Raj Kumar (supra), the Supreme Court has held that award of compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This would include compensation for his inability to lead a full life, enjoy those normal amenities which he would have enjoyed but for the injuries, as also his inability to earn as much as he used to earn or could have earned. The WP(C) No.7856/2010 Page 5 Supreme Court further laid down the heads under which the compensation is to be awarded in personal injury cases as under:
"(5) The heads under which the 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) 1 2011 ACJ 1 (SC) 8
(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 Iii) (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."
10. In the present case, the Tribunal awarded a sum of Rs.5,000/- towards pain and suffering is in the lower side. As per Ex.A.2 one of the injuries is grievous in nature. Hence, this Court enhanced the amount from Rs.5,000/- to Rs.35,000/- towards pain and suffering.
11. The injured failed to produce medical bills. P.W.2 Doctor who treated the injured had categorically deposed that the cost of the treatment was about Rs.10,000/-. The Tribunal failed to award the compensation under this head towards medical expenses. The claimant is a labourer is not supposed to be that much meticulous so as to maintain the bills for any future use. Therefore, granting of compensation of Rs.15,000/- towards medical expenses, the cost of the treatment would be just and proper.
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12. As per the Wound Certificate, the injury No.1 sustained by the injured is grievous in nature and another one is simple in nature. As such, Rs.25,000/- and Rs.10,000/- for the grievous and simple injury are awarded. Further, an amount of Rs.15,000/- towards transportation, conveyance, extra nourishment, and other incidental expenses is awarded to the petitioner.
13. Therefore, in the light of the principles laid down in Rajkumar's case (referred supra), this Court is of the view that having failed to consider the same, the Claims Tribunal has committed an illegality in awarding a meager amount of compensation under the above conventional heads payable to the claimant. Therefore, the claimant is entitled to the compensation under the conventional heads in terms of the judgment stated supra. On an overall re-appreciation of the pleadings, material on record, and the law laid down by the Hon‟ble Supreme Court, I am of the definite opinion that the appellant/petitioner is entitled to the enhancement of compensation as modified and recalculated above and given in the table below for easy reference.
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1. Pain and Suffering .... Rs.35,000/-
2. Medical Expenses .... Rs.15,000/-
3. Grievous & Simple Injuries .... Rs.35,000/-
4. Transportation, conveyance,
extra nourishment and
other expenses .... Rs. 15,000/-
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Rs.1,00,000/-
(-) Compensation already awarded
by the Tribunal ....Rs. 15,000/-
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Total ..... Rs. 85,000/-
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14. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the claimant. The compensation is only the means to grant some support for the loss he has suffered with which he is expected to live and the amount awarded under the above heads has to be commensurate with the injury and its impact on the claimant.
15. Therefore, in view of the foregoing discussion, the appeal is allowed, enhancing the compensation from a sum of Rs.15,000/- to Rs.1,00,000/- with interest @ 7.5% per annum and costs from the date of the petition till the date of realization against the respondents 1 and 2 jointly and severally. The respondents are directed to deposit the compensation amount 11 within two months from the date of this judgment, failing which execution can be taken out against them. Rest of the directions given by the Tribunal with regard to the entitlement of the Claimant in withdrawing the amount shall remain unaltered.
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.
JUSTICE DUPPALA VENKATA RAMANA
Date: 09.11.2022
Dinesh
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HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA M.A.C.M.A.No.915 OF 2008 09.11.2022 Dinesh