HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. Nos.1557 of 2011 and 676 of 2021
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.676 of 2021 filed by the claimant
seeking enhancement of the compensation and M.A.C.M.A.No.1557
of 2011 filed by Insurance Company, are directed against the very
same award and decree, dated 03.05.2011, passed in M.V.O.P.No.166
of 2008 on the file of the Special Judge for Trial of Offences under
S.Cs. & S.Ts. (POA) Act-cum-V-Additional District and Sessions
Judge, Medak at Sangareddy.
For the sake of convenience, the parties will hereinafter be
referred to as arrayed before the Tribunal.
The facts, in issue, are as under:
The claimant filed a petition under Sections 166 of the Motor
Vehicles Act claiming compensation of Rs.15,00,000/- for the injuries
sustained by him in a road accident that occurred on 31.03.2007 at
about 15.00 hours. It is stated that on 31.03.2007 at about 15.00 hours
while the claimant was proceeding on his Pulsar motorcycle bearing
No.AP-28-AL-2915 from ODF to K.P.H.B. on project work and when
he reached near Kirby at Pashamailaram village, he gave lift to a
person on his motorcycle and thereafter when he reached near
Reliance Petrol Pump at ICRISAT, the Car bearing No.AP-09-TV-
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4413 driven by its driver in a rash and negligent manner at high
speed dashed the bike of the claimant, due to which, the claimant
and the pillion rider fell on the road and in the meanwhile, the RTC
bus bearing No.AP-11-Z-2739, which was coming in the same
direction ran over the pillion rider and the claimant and the pillion
rider received grievous injuries. The claimant and the pillion rider
of the motor cycle were shifted to Remedy Hospital, where they took
treatment. In respect of the said incident, a case in Crime No.114 of
2007 of R.C. Puram Police Station came to be registered against the
driver of the Car. Since the accident took place due to rash and
negligent driving by the driver of the Car and the driver of the
R.T.C. bus and the 1st respondent is the owner and 2nd respondent is
the insurer of the Car and the 3rd respondent is the owner bus, the claim petition came to be filed making both of them jointly and severally liable to pay compensation.
The 1st respondent remained ex parte. The 2nd respondent filed counter stating that there was no negligence on the part of the driver of the Car and on the other hand, the negligence was on the part of the driver of the R.T.C. bus, as such, the insurance company of the Car is not liable to pay any compensation. It is also stated that the claimant was not having valid driving licence to drive the motorcycle and due to his own negligent driving, the accident took place and thereby he contributed to the accident. It is further stated that the person, who drove the Car at the time of accident was not 3 having valid driving licence and the vehicle was not in road worthy condition, as such the insurance company is not liable to pay the compensation and prayed to dismiss the claim-petition.
The 3rd respondent, owner of the R.T.C. bus also filed counter denying all the allegations made in the claim-petition and stated that since the bus belonging to the 3rd respondent was not met with the accident, the 3rd respondent is not liable to pay the compensation and prayed to dismiss the claim-petition.
Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the accident occurred due to the rash and negligent driving of the driver of the crime vehicle?
2) Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?
3) To what relief?
During trial, on behalf of the claimant, P.Ws.1 and 2 were examined and Exs.A1 to A17 were marked. On behalf of the 2nd respondent, no evidence was adduced, but Exs.B1 to B3 were marked. On behalf of the 3rd respondent, R.W.1 was examined, but no documents were marked.
After analyzing the evidence available on record, the Tribunal held that the claimant has received grievous injuries only due to the negligent driving of the Car by it's driver and not by the driver of the bus and hence respondents 1 and 2, who are the owner and 4 insurer of the car, are liable to pay the compensation to the claimant and not the 3rd respondent, who is the owner of the bus and accordingly awarded an amount of Rs.9,66,000/- as compensation. Challenging the same, M.A.C.M.A.No.676 of 2011 was filed by the claimant seeking enhancement of compensation and M.A.C.M.A.No.1557 of 2011 was filed by the Insurance Company questioning its liability to pay the compensation.
Learned Counsel for the claimant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side and seeks enhancement of the same. He further submits that the Tribunal failed to award any amount under the head of pain and suffering and also loss of marriage prospects as the claimant is an Engineering Student, aged about 21 years at the time of accident, and, therefore, prayed to enhance the compensation.
Learned Counsel appearing for the Insurance Company would submit that the Tribunal wrongly fastened the entire liability on the Insurance company and also on the owner of the Car and that the Tribunal failed to see that the charge sheet clearly show that both the drivers of the Car and R.T.C. bus are equally liable for the accident. He further submits that the Tribunal passed the award excessively and out of all proportions. He also submits that the Tribunal failed to see that even under Section 168 of the M.V. Act, the liability has to be apportioned among the respondents and since 5 this is a case of joint tort feasors, it has to be specifically apportioned between the owners and insurer of both the vehicles.
In spite of service of notice, there is no representation on behalf of the 3rd respondent.
After hearing both the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration is:
(i) Whether the liability fastened by the Tribunal on R1 and R2 is sustainable in law?
(ii) Whether the compensation awarded by the Tribunal is just and reasonable?
POINT No.1:
As seen from the record, though the charge sheet was filed against the drivers of both the Car and the R.,T.C. Bus, the contents of the charge sheet would disclose that when the motor cycle reached near Reliance Petrol Pump at Patancheru, the driver of the Car drove it in a rash and negligent manner and dashed against the motorcycle, due to which, the claimant and the pillion rider of the motorcycle fell on the road and in the meanwhile, the R.T.C. bus ran over the pillion rider, which was corroborated by the evidence of P.W.1. P.W.1 in his evidence categorically deposed that on 31.03.2007 at about 3.00 P.M. he left from ODF on his Pulsar Motorcycle bearing No.AP-28-AL-2915 to go to KPHB on his project 6 work and on the way he has given lift to one Kumar and when the motorcycle reached ICRISAT company on N.H.No.9 road, the Car bearing No.AP-09-TV-4413 came in a rash and negligent manner in opposite direction and dashed against his bike, due to which, he and the pillion rider fell on the ground and in the meanwhile, the RTC bus bearing No.AP-11Z-2739, which was coming in the same direction, ran over the pillion rider and both of them received injuries. Therefore, the Tribunal has rightly held that the driver of the Car was responsible for the injuries sustained by the claimant. As such, there is no force in the argument of the learned Counsel for the Insurance Company that the 3rd respondent-Corporation, the owner of the Bus, is also liable to pay the compensation along with the Insurance Company.
POINT No.2:
Insofar as the quantum of compensation is concerned, relying upon the evidence of P.W.2 coupled with Ex.A17, the Tribunal has rightly held that the claimant has sustained 50% disability and accordingly awarded Rs.9,00,000/- under the head of loss of earnings on account of disability sustained by the claimant; Rs.60,000/- towards treatment; Rs.4,000/- towards extra nourishment and Rs.2,000/- towards transportation charges, which appears to be reasonable.
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It is the submission of the learned Counsel for the claimant that Tribunal failed to award any compensation towards pain and suffering, loss of marriage prospects and loss of education for one year and therefore, it needs to be awarded reasonably.
Admittedly, on account of the injuries sustained by the claimant, he has taken treatment as an impatient for about one and half month in different hospitals and during the time of treatment, the left leg below the knee was amputated and implants were inserted. During the period of treatment, he would have spent considerable amount towards conveyance, nourishing food and attendant charges and that he had lost his studies as he could not attended his classes regularly. Further it can be seen that on account of the injuries sustained by him, he has suffered permanent disability. To prove the same he has examined the Doctor as P.W.2, who deposed that the injuries sustained by the claimant are grievous in nature and in spite of treatment he has deformity of right foot and his wearing on Orthosis to walk and in future he will require corrective surgery to the right foot. The claimant has also produced Ex.A17-Disability Certificate which shows that the claimant is having 50% disability due to amputation of left lower limb at below knee level. To meet the ends of justice, the Tribunal has rightly assessed the disability at 50%. Having regard to his age, qualification and the year of accident, the Tribunal assessed his income at 10,000/- per month and awarded Rs.9,00,000/- under the 8 head of loss of earnings on account of the disability, which appears to be reasonable and warrants no interference.
Admittedly, the Tribunal has not awarded any amount towards pain and suffering and also towards loss of marriage prospects.
In order to award compensation in case of personal injuries the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as under:
"5. 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). It is only in serious cases of injury, where 1 MACD 2011 (SC) 33 9 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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."
Admittedly, the claimant has sustained 50% disability on account of amputation of his left lower limb at below knee level. Discomforts and unhappiness persists through out his life, it would affect his marriage prospects. Further, as per the evidence of the Doctor-P.W.2, for considerable period, the claimant was in the hospital for the injuries sustained by him, for the surgery to his left lower limb and also for removal of 2K wires and Steinman pin from 10 right foot and as such the claimant must have suffered inconvenience and pain. Having regard to the principles laid down by the Apex Court in Raj Kumar case (1 supra) and taking into consideration the all the above said factors, it would be appropriate to award a sum of Rs.50,000/- towards pain and suffering and Rs.1,00,000/- towards loss of marriage prospects. Thus, in all the claimant is entitled to a sum of Rs.11,16,000/- as compensation.
Accordingly, M.A.C.M.A.No.676 of 2021 is allowed by enhancing the compensation from Rs.9,66,000/- to Rs.11,16,000/-. The enhanced amount will carry interest at 7.5% p.a. from the date of award passed by the Tribunal i.e. 03.05.2011 till the date of realization, payable by respondents 1 and 2 jointly and severally. Consequently, M.A.C.M.A.No.1557 of 2011 is dismissed. There shall be no order as to costs. .
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRI DEVI 10.11.2021 gkv/Gsn 11