THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.149 of 2011
JUDGMENT:
This is a claimant's appeal for enhancement of compensation. As against the compensation claim of Rs.4,00,000/- for the injuries sustained by the appellant in a motor accident, the Motor Accident claims Tribunal (IV Additional District Judge) (FTC), Nizamabad, in OP.No.1086 of 2003 dated 02.04.2007 awarded compensation of Rs.55,000/- by partly allowing the claim petition.
2. The facts of the case are as under:
On 02.08.20023, at about 10.30 PM, the claimant was travelling in auto rickshaw bearing No.AP 25 U 604 towards Nizamabad and after crossing Eenadu Office, when they reached Dharmaram (B) village shivar, Dichpalli Mandal, the auto dashed against a culvert and turned turtle on account of rash and negligent driving of the driver of the auto rickshaw. As a result of which the claimant sustained fracture of left forearm, fracture of left clavicle, fracture of right elbow, injuries on head, chest, hands, legs, multiple and grievous injuries on other parts of the body. The claimant spent Rs.1,00,000/- towards medical expenses. He is still undergoing treatment. The respondent No.1 is the owner of the crime vehicle and the respondent No.2 is the insurer and they are jointly and severally liable to pay compensation.
3. Though the claimant claimed that she is entitled for total compensation of Rs.24,00,000/- under various heads, she restricted her claim for Rs.4,00,000/- only. The claimant claimed to have spent huge amounts on account of the accident and sustained permanent disability and loss of earnings. The respondent No.1 remained 2 ex parte. The respondent No.2 - insurance company - filed a counter and denied the averments in the claim petition.
4. The claimant examined herself as P.W.1 and one Dr. Sudheer was examined as P.W.2. Exs.A1 to A4 were marked on behalf of the claimant. Ex.X1 is the MLC extract. The respondent No.2 examined R.W.1 and marked Ex.B1, insurance policy.
5. The tribunal below while dealing with issue No.1, arrived at a conclusion that the accident took place on account of the rash and negligent driving of the driver of the auto rickshaw. Since there is no appeal by the insurance company, there is no necessity for this Court to deal with the said issue. The issue which remains to be answered is with regard to the quantum of compensation.
6. Sri Y. Yellanand Gupta, learned counsel for the appellant, submitted that the compensation awarded by the tribunal below is grossly inadequate to the injuries sustained by the appellant. The tribunal below having held that the claimant is entitled to Rs.15,000/- for each of the grievous injury and Rs.2,000/- for each of the simple injury, should have awarded Rs.45,000/- (for three grievous injuries) and Rs.4,000/- (for two simple injuries), but the tribunal below erroneously awarded Rs.15,000/- for grievous injuries and Rs.2,000/- for simple injuries. Further, the tribunal below granted meagre compensation of Rs.15,000/- towards medical expenses, Rs.15,000/- towards pain and suffering, Rs.6,000/- towards loss of estate and Rs.2,000/- towards transportation and extra nourishment. The compensation awarded under various heads is inadequate and not commensurate to the injuries sustained by the claimant. In spite of examining the doctor, P.W.2, who treated the claimant, very meagre compensation was awarded by the tribunal below. The claimant 3 suffered fractures injuries and the tribunal ought to have awarded Rs.25,000/- for each of the grievous injury.
7. Per contra, Sri. J. Sunil Kumar, learned counsel for the insurance company, submitted that there is no proof of medical expenses. It is not correct to say that the tribunal held that he claimant was entitled to Rs.15,000/- for grievous injuries; in fact, it awarded Rs.5,000/- for each grievous injury and Rs.1,000/- for each simple injury and thus, Rs.15,000/- (for three grievous injuries) and Rs.2,000/- (for two simple injuries) was awarded. The crime vehicle i.e. auto rickshaw, which is a passenger vehicle, was carrying 5+1 person and the claimant, being aware of the said fact, travelled in the said auto. Thus, the claimant is also liable for contributory negligence. Though the tribunal below followed the principle of pay and recovery, since the crime vehicle was carrying passengers more than the seating capacity, the tribunal below did not consider the point of contributory negligence, as such, there has to be apportionment of compensation and burdening the insurance company with entire compensation was not justified.
8. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2 - insurance company.
9. It is apparent from the documentary evidence filed on behalf of the appellant that there is no document filed by the appellant to prove the medical expenses. It is stated by the appellant that immediately after the accident, he was shifted to Government Hospital, Nizamabad, where she was treated for six days and thereafter, she was treated in Dr. Narayan Reddy Hospital and she spent Rs.40,000/- towards medical expenses. It is averred that the claimant was attending coolie work and earning Rs.2,000/- per month and due to the injuries, 4 she is not able to attend any work and sustained loss of earning. As per Ex.A3, wound certificate, the following injuries were found:
1. Swelling and deformity over left forearm. Fracture of left forearm.
2. Fracture of left clavicle.
3. Swelling and restricted movement of right elbow. Fracture of right elbow.
4. Abrasion on left forearm. 10x5 cms.
5. Abrasion on right arm. 5x3 cms.
10. The contention of the learned counsel for the appellant is that wrong calculation was done by the tribunal below with reference to the compensation awarded for grievous injuries and simple injuries. In para 17, the tribunal below stated that "... As per the table the petitioner is entitled for Rs.15,000/- (Rupees Fifteen Thousand only) for three grievous injuries and Rs.2,000/- (Rupees Two Thousand only) for two simple injuries". The tribunal below should have been more clear while saying so, however, it is difficult to find out that Rs.15,000/- was awarded for three grievous injuries and Rs.2,000/- for two simple injuries, which would mean that Rs.5,000/- was awarded for each grievous injury and Rs.1,000/- for each simple injury.
11. The point of contributory negligence raised by the learned counsel for the insurance company cannot be appreciated since negligence, if any, in carrying passengers beyond seating capacity is attributable to the driver of the auto rickshaw and not to the passenger. The claimant, being a passenger, will not have any say as to the number of passengers to be carried in the vehicle. Thus, attributing negligence to the claimant and consequently, claiming apportionment of compensation is without any legal basis. 5
12. The accident took place in the year 2003. Since the claimant sustained three grievous injuries, it would be appropriate to award Rs.10,000/- for each grievous injury and Rs.2,000/- for each simple injury. The claimant was though initially treated in a Government hospital, later she was admitted in a private hospital. Hence, in spite of there being no documentary evidence to prove medical expenses incurred by the claimant, considering the nature of injuries the medical expenses incurred at the time of accident and expenses incurred subsequent to the accident towards treatment, it would be reasonable to award Rs.30,000/- towards medical expenses. Insofar as loss of estate is concerned, the compensation under the said head is enhanced from Rs.6,000/- to Rs.10,000/-. Thus, in all, the claimant is entitled to total compensation of Rs.30,000/- (grievous injuries) + Rs.4,000/- (simple injuries) + Rs.30,000/- (medical expenses) + Rs.10,000/- (loss of estate) + Rs.15,000/- (pain and suffering already awarded by the tribunal below) + Rs.2,000/- (transportation and extra nourishment already awarded by the tribunal below) = Rs.91,000/-.
13. Hence, the claimant would be entitled to total compensation of Rs.91,000/- with proportionate costs. The award of the tribunal below is modified as indicated above. The award shall relate back to the date of decree and the compensation awarded shall carry the interest at the rate and from the date specified by the tribunal below.
The civil miscellaneous appeal is allowed. As a sequel, the miscellaneous applications, if any, shall stand closed.
__________________ B. VIJAYSEN REDDY, J February 15th, 2021 DSK