HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO
MACMA. No. 1078 OF 2013
JUDGMENT:
1. Aggrieved by the order dated 11.12.2012 in MVOP No.17 of 2012 passed by the Chairman, Motor Accidents Claims Tribunal-cum- IV Additional District Judge, Anantapur (for short 'the Tribunal'), the claimant has preferred this appeal seeking enhancement of the compensation amount awarded by the Tribunal.
2. For convenience's sake, the parties will be referred to as arrayed in the MV OP.
3. The claimant has filed the claim petition under Sections 140 and 166 of the Motor Vehicles Act, 1988, read with Rule 455 of the AP Motor Vehicle Rules to grant compensation of Rs.4,00,000/- for the injuries sustained by her in a motor vehicle accident that occurred on 14.12.2010 while the claimant, along with others, was proceeding in the auto bearing No. AP 02 W 8291 from A.Kondapuram Village to Ramalingayanapalli village, and when the said auto reached Surepalli Village, Putlur Mandal on A.Kondapuram-Kodavakallu road, the Eicher van bearing No. AP 02 X 9642 (hereinafter referred to as 'offending vehicle), driven by its driver in a rash and negligent manner, which, coming in the opposite direction, dashed the auto, wherein the claimant and others received grievous injuries and fractures. 2
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4. The 1st respondent has remained ex-parte. The 2nd respondent has filed its counter by contending that the driver of the offending vehicle holds LMV (NT) but not MMV (T) as the offending vehicle is registered and insured as a commercial vehicle (Goods carriage-MMV). As such, the 1st respondent has violated the terms of the policy.
5. Based on the pleadings, the Tribunal has framed appropriate issues. During the trial, on behalf of the claimant, P.Ws.1 to 4 got examined, marked Exs.A. 1 to A.9. On behalf of the 2nd respondent, R.W.1 and R.W.2 got examined, marked Ex.B.1, Ex.X.1 and Ex.X.2 . After considering the material evidence on record, Tribunal held that due to rash and negligent driving of the offending vehicle, the accident took place. Regarding the plea taken by the 2nd respondent that the driver of the offending vehicle holds LMV (NT) only, the Tribunal further held that the defence taken by the 2nd respondent in this regard stands no reason. At this stage, it is appropriate to note that the insurance company has not preferred any appeal questioning the findings recorded by the Tribunal. The Tribunal awarded a compensation amount of Rs.1,25,646/- with proportionate costs and interest to the petitioner from the date of the petition.
6. Heard the learned counsel for the claimant and the 2nd respondent.
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7. It is contended by the learned counsel for the claimant that the claimant was aged about 38 years at the time of the accident, she was earning Rs.15,000/-per month, and she sustained a permanent disability of 35%. Still, the Tribunal has awarded a meagre amount under the said head. The learned counsel for the 2nd respondent supported the findings and observations of the Tribunal.
8. Considering the rival contentions of both the learned counsel and on perusal of the material on record, the point for consideration is whether the quantum of compensation awarded by the Tribunal was just and reasonable or required any enhancement.
POINT:
9. As already observed in the preceding paragraphs, there is no dispute as to the occurrence of the accident in question and the respondents' liability to pay compensation. The 2nd respondent insurance company has not preferred any appeal or cross- objections questioning the findings; the Tribunal's findings about the liability for payment of compensation have become final.
10. According to the claimant, she was doing banana business and was earning Rs.15,000/-per month. As already observed, the 2nd respondent has not disputed the case of the claimant that, she sustained injuries in the accident. To prove the nature of injuries 4 MACMA 1078_2013 suffered by the claimant, she mainly relied on Ex.A.2-certified copy of the wound certificate. To establish the treatment undergone by her, she adduced the evidence of P.W.2-Dr. B.Jagan Mohan Reddy. According to P.W.2, the claimant was admitted to K.K.Nursing Home, Anantapur, on 14.12.2010 and on taking X-rays, he found that she had suffered a patella knee cap bone fracture. On 15.12.2010, after getting clearance from the neurosurgeon, he removed the knee cap bone of P.W.1 and repaired the tissues; on 21.12.2010, she was discharged from the Nursing Home. According to P.W.2, he did surgery on P.W.1, and P.W.1 has minimal disability while carrying the weights. The evidence shows that the claimant relied on Ex.A.5 medical bills. P.W.2 identified the medical bills. The evidence of P.W.2 coupled with Ex.A.5 establishes that the claimant incurred an amount of Rs.24,000/- towards medical bills. The claimant also filed medical bills worth Rs.40,646/- vide Ex.A.5 with medical prescriptions under Ex.A.8 and, as already noted, the value of the bills is about Rs.24,000/- and were in the handwriting of P.W.2 with the medical prescriptions under Ex.A.8.
11. To prove the medical bills, the claimant adduced the evidence of P.W.4, a general physician at KK Nursing Home, Anantapur. By considering the evidence of P.W.4 coupled with Ex.A.5, towards medical expenses, the Tribunal has awarded an amount of 5 MACMA 1078_2013 Rs.40,646/-. As already observed, the said finding given by the Tribunal is also not disputed by the 2nd respondent insurance company. Hence, no interference warrants the medical expenditure awarded by the Tribunal.
12. The Tribunal has observed that the claimant received treatment and follow-up treatment in the nursing home. She would have depended on some others. As such, dependant charges, a sum of Rs.15,000/- can be assessed, and the compensation amount awarded under the said head is just and quite reasonable. It is also not disputed by the other side. According to the evidence of P.W.1, she sustained disability due to injuries caused in the accident. To establish the said fact, she adduced the evidence of P.W.3-Dr.Jagannath, who is working as a civil surgeon and one of the Medical Board members. He deposed that he issued Ex.A.3 disability certificate. He assessed the disability under Ex.A.3 at 35% permanent. According to P.W.3, there is a reduced range of right knee joint movements, with flexion limited to 100 degrees, limping due to extensor lag, difficulty climbing stairs, getting down from stairs, long-distance walking, sitting in squatting and cross-legged positions, including running. Thus, it is clear from the evidence of P.W.3 that, after examining P.W.1, he issued Ex.A.3 disability certificate assessing the disability at 35%, which is permanent, and there is a restriction in the movements of the 6 MACMA 1078_2013 right knee joint. Considering the evidence on record, the Tribunal awarded Rs.35,000/- towards disability. Though the respondent cross-examined at length P.W.3, nothing elicited to discredit his evidence. This court holds that when the claimant sustained disability at 35%, the Tribunal ought to have considered the evidence on record and has not given any reason for awarding only Rs.35,000/-.
13. According to the evidence of P.W.1, she was doing banana business and household work. Though she claimed that she was earning an amount of Rs.15000/-per month, she did not place any evidence to support the said contention. The occupation of P.W.1 is not seriously disputed. This court is of the view that the Tribunal has reasonably assessed the claimant's monthly earnings. There is every possibility of the claimant getting monthly earnings of Rs.4,000/-per month. As seen from the order of the Tribunal, the Tribunal has not fixed the age of the claimant, and without concluding the claimant's age, the Tribunal has granted a lump sum amount towards permanent disability. In the petition, she claimed that she was aged 45 years. Given the same, can consider the said age. 7
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14. The Division Bench of the Hon'ble Apex Court in a case between Raj Kumar Vs. Ajay Kumar and another1 held that the courts, which are enjoined with a duty of arriving at just compensation, will have to decide the same following well-accepted principles of determination of compensation. The reading of the said judgment shows that the doctor who treated the injured or who examined him subsequently to his permanent disability can give evidence only concerning the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal regarding the evidence in its entirety. It is also a settled principle that the provisions of the motor vehicle act make it clear that the award must be just; it means that compensation should be paid to the extent possible to fully and adequately restore the claimant to the position before the accident.
15. Given the above principles, this court has no hesitation in holding that functional disability can be assessed at 15%. The relevant multiplier for the person age group of 41 to 45 is 14. Because of the preceding discussion, this court holds that the claimant is entitled the compensation under the permanent head disability as Rs.48,000/-x15%x14=Rs.1,00,800/-.
16. As seen from the order of the Tribunal, it has not awarded any amount towards transport charges; as such, this court is of the 1 2011(1) SCC, 343 8 MACMA 1078_2013 view that an amount of Rs.5,000/- can be awarded under the said head. Further, the Tribunal awarded only R.20,000/- towards pain and suffering. Considering the nature of injuries sustained by the claimant, this court is of the view that the claimant is entitled to an amount of Rs.30,000/- towards pain and suffering.
17. As seen from the order of the Tribunal, no amount is awarded towards loss of earnings. Considering the nature of the injuries, this court believes that an amount of Rs.16,000/- can be awarded towards loss of earnings. As seen from the record, the Tribunal awarded an amount of Rs.15,000/- towards extra nourishment. The 2nd respondent does not dispute the said findings given by the Tribunal through any appeal or cross objection. This court believes that an amount of Rs.15,000/- can be awarded towards extra nourishment. In all, the claimant is entitled to the compensation under the following heads:- Towards permanent disability Rs.1,00,800/-
Towards medical expenditure Rs.40,646/-
Towards attendant expenses Rs.15,000/-
Towards extra nourishment Rs.15,000/-
Transport expenses Rs. 5,000/-
Pain and suffering Rs.30,000/-
Loss of earnings Rs.16,000/-
Total: Rs.2,22,446/-
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18. For the reasons stated above, this court is of the view that the claimant is entitled to compensation of Rs.2,22,446/- from Rs.1,25,646/-.
19. In the result, the appeal is allowed in part, enhancing the compensation to an amount of Rs.2,22,446/-from Rs.1,25,646/- with interest at 7.5% per annum. The respondents are directed to deposit the compensation amount within one month from the date of receipt of a copy of this order. The claimant is entitled to withdraw the compensation amount. There shall be no order as to costs.
20. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
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T. MALLIKARJUNA RAO, J Dt.12.10.2022 BV