THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.No.1423 OF 2007
AND
I.A.NO.7 OF 2007 (CROSS OBJ.No.37352 OF 2007)
COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Feeling aggrieved by the order and decree dated
30.11.2006 in O.P.No.963 of 2004 passed by the II Additional
Chief Judge, City Civil Court, Hyderabad, the United India
Insurance Co. Ltd., filed M.A.C.M.A.No.1423 of 2007,
challenging the liability and quantum of compensation. On the
other hand, the claimant in the said O.P., filed Cross Objections
vide I.A.No.7 of 2007 seeking enhancement of the
compensation.
2. For the sake of convenience, the appellant in
M.A.C.M.A.No.1423 of 2007 is referred to as 'Insurance
Company' and the Cross Objector in I.A.No.7 of 2007 is referred
to as 'claimant'.
3. Heard learned Standing Counsel for the Insurance
Company and learned counsel for the claimant.
4. The Court below, vide order dated 30.11.2006 in
O.P.No.963 of 2004 awarded an amount of Rs.29,25,000/- as
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against the claim of Rs.37,00,000/- apart from proportionate
costs and interest @ 7.5% p.a., from the date of filing of petition
till realization of the same, to the claimant on behalf of the
injured for the injuries suffered by him in a motor accident.
5. On considering the entire evidence, both oral and
documentary, the Court below held that the accident occurred
due to the rash and negligent driving of the driver of the bus
bearing No.AP 28 U 4238, hired by the RTC.
6. The Insurance Company filed the appeal contending that
the Court below failed to see that the accident occurred in an
opposite direction between the bus bearing No.AP 28 U 4238
and the Hero Honda motorcycle bearing No.AP 10L 8063, on
which the injured was riding at the time of accident. As per
charge sheet and as per the settled principles of law, the drivers
of both vehicles are equally responsible for the accident. He
further contended that the Court below awarded Rs.5,00,000/-
under the head pain and suffering which is highly excessive,
Rs.7,00,000/- under the head loss of expectation of life is
contrary to the scientific method and Rs.5,00,000/- for future
surgeries is without any evidence. As such, the same is liable to
be set aside. His further contention is also that Rs.4,08,000/-
under the head of attendant charges, is in the absence of oral
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evidence which is not maintainable and Rs.1,70,000/- under
the head of Physiotherapy is also without any evidence.
7. Further, the learned Standing Counsel also contended
that the Insurance Company did not receive premium to cover
the risk when it was given on hire to the RTC and there was no
endorsement under India Motor Tariff on the insurance policy
on the bus bearing No.AP 28 U 4238 to show that the Insurance
Company is not liable to cover the risk. He further contended
that the Court below ought to have considered that the
Insurance Company did not receive premium to cover the risk
on the bus while it was on hire. Therefore, the Insurance
Company is not liable to pay the compensation. Therefore,
prayed to set-aside the impugned order.
8. On the other hand, the claimant filed cross objections
stating that the Court below grossly erred in awarding
compensation of Rs.29,25,000/- with interest @ 7.5% p.a.
instead of awarding the claim as prayed for. It is further
contended that the Court below excluded doctor's fee for all the
three spells i.e., final bill consists of two parts, thereby not
allowing the claim of cross-objector in a total sum of
Rs.1,78,440/- from 11.11.2003 to 06.12.2003, from 07.12.2003
to 02.02.2004 and from 20.09.2004 to 01.10.2004. The Court
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below completely ignored the expenditure incurred under
medical bills for purchase of medicines of the cross-objector.
The Court below not accepted the cash memo for purchase of
medical device for Rs.43,200/- and also ignored Rs.38,675/-
bills towards various diagnostic centers, as per the vouchers
enclosed under Ex.A.10. The Court below grossly erred in
ignoring the guidelines pertaining to loss of expectation of life,
permanent disability by granting a small amount of
Rs.7,00,000/- instead of Rs.24,38,400/- as claimed by the
cross objector. Therefore, prayed the Court to enhance the
compensation.
9. To prove that the accident occurred due to rash and
negligent driving of the driver of the bus, the petitioner in O.P.,
relied on Ex.A.1-FIR, Ex.A.2-certified copy of the case diary
part-II, Ex.A.3-M.L.C. issued by Yasoda Hospital, Ex.A.4-
certified copy of charge sheet and Ex.A.5- judgment in
C.C.No.349 of 2004.
10. Now, the points that arise for consideration are :
1.
Whether the accident occurred due to the rash and negligent driving of the bus bearing No. AP 28 U 4238 ?
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2. Whether the Cross objector is entitled for enhancement of compensation as prayed for ?
3. Whether the Appellant-Insurance Company is liable to pay the compensation?
POINT NO.1 :
11. The injured in the accident was not examined to substantiate his claim, on the ground that his mental faculty was not restored and he is incapable of taking any decisions.
12. Pw.1 is the wife of injured. However, she is not an eyewitness to the incident. To prove rash and negligence on the part of the driver of the bus, they relied on the evidence of Pw.2, an eyewitness to the accident. Ex.A.4 charge sheet filed by the Investigation officer also shows the name of Pw.2 as an eyewitness. The investigation officer filed charge sheet stating that the accident occurred due to rash and negligent driving of the driver of the bus and in Ex.A.5 judgment also the driver admits his negligence and he was also convicted and paid fine.
13. Rw.2, the driver of the bus having admitted rash and negligence on his part, was examined to show that there was no negligence on his part, and he did not even speak about the KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 6 negligence on the part of the injured in driving the Hero Honda motor cycle.
14. A cumulative reading of evidence of Pw.2 and Ex.A.1 proves that the accident occurred due to the negligent driving of the driver of RTC bus, though it is vehemently argued that the accident occurred due to the contributory negligence on the part of the injured and driver of the bus.
15. The evidence of Rw.2 is no way helpful to the Insurance Company as he admitted that accident occurred due to his negligence under Ex.A.5 and he was convicted for the said offence. Therefore, it can be held that the accident occurred due to the rash and negligent driving of the bus. Accordingly, this point is answered.
POINT NOs.2 & 3 :
16. To prove the injuries and treatment, the wife of the injured was examined as Pw.1 and got marked Exs.A.6 to A.26 and X.1 to X.5 documents. On behalf of the injured, Pws.3 to 6 were examined. The injured was not examined before the Court below, as he is not mentally fit because of the injuries suffered in the accident.
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17. Pw.1 in her evidence stated that the injured was shifted to Yasoda Hospital, and was treated as an inpatient from 11.11.2003 to 02.02.2004. He was in coma for several days and discharged on 02.02.2004. She further stated that the injured could not regain his normalcy; he was not in a sound mind; he was physically and psychologically unfit and incapable of taking the responsibilities and decisions on his own as a result of head injury sustained by him. The head injury resulted in permanent diffuse brain damage. The injured was re-admitted in Yasoda Hospital on 20.09.2004 and underwent major neurological surgery on 21.09.2004 and discharged on 01.10.2004. The injured has spent more than Rs.14 Lakhs for his treatment, transportation, attendant charges, medicines and extra nourishment and he still requires further treatment which may go up to few more lakhs.
18. The medical experts had been ruled out the injured regaining normalcy during his life time. Due to the surgeries undergone by him, he has impaired vision, hearing and senses and he is confined to bed and needs a permanent assistance throughout his life even to attend to calls of nature, for taking food and other daily activities.
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19. The injured was highly qualified and has completed M.Sc, B.Ed. He was appointed as a lecturer in Layola Academy P.G and Degree College, Old Alwal, Secunderabad in the year 1999 and he was a part time scholar doing Ph.D in Chemistry from Osmania University an autonomous organization under the Ministry of Human Research Development, Government of India, a prestigious institution and has received appointment order after occurrence of the accident. His future was completely shattered, he lost his earnings during the period of treatment and due to the accident he was permanently disabled.
20. The evidence of Pw.3 is that he is a Neurosurgeon in Yasoda Hospital and he treated the injured. According to him, the injured had a severe brain injury with multiple areas of bleeding in the brain, right common peroneal nerve injury, aspiration pneumonitis, hydrocephalus. The general condition of the injured does not permit him to undergo surgery on his leg. At that time priority was given to management of brain injury. Soon after admission, he underwent two surgeries and thereafter three shunt surgeries were performed. According to him, the vision and hearing of the injured was impaired. Even the last CT scan shows excessive accumulation of fluid in the brain and he would require repeated brain surgeries for KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 9 treatment of hydrocephalus. The injured has permanent partial neurological disability, which was technically estimated at 60%. Professionally and in real life terms, his disability is considered to be 100%. He requires treatment throughout his life and even he requires help in his daily activities.
21. Pw.4 is the other expert in Yasoda Hospital, and his evidence is that as the injured sustained severe head injury, he was treated conservatively for the fracture of tibia. The fracture was very bad and he was not in a fit state for surgery and therefore not operated upon. The injured right knee is completely still, left knee and elbow are also stiff to a large extent as a result of malunion of tibia and subluxation of femur over tibia. It is a permanent disability and he cannot walk in his life. Pw.4 assessed the disability of the injured at 75%.
22. As seen from the evidence of Pws.3 and 4 and the documents filed by the claimant, the injured is totally bed ridden and crippled on account of injuries sustained by him in the accident. The Insurance Company is also not disputing the treatment taken by the injured and to prove the bills, the claimant examined Pw.5-Billing manager of Yasoda Hospital. His evidence is that the discharge bill dated 06.12.2003 is for an amount of Rs.3,47,136/-, the discharge bill dated 02.02.2004 is KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 10 for an amount of Rs.3,03,418/- and the third bill dated 01.10.2004 is for an amount of Rs.1,08,198/-. An amount of Rs.3,20,000/- was paid on behalf of the injured. Ex.A.10 contains the advance receipts, some personal receipts and some final bills. Therefore, the injured is entitled for an amount of Rs.5,96,894/- towards medical bills.
23. The injured is further entitled for medical equipments like Alfa Bed Beptamix & Urine case, back rest, folding wheel chair, elbow crutches pair and back splints and calipers. As the injured requires the said equipments throughout his life, it is just and proper to grant an amount of Rs.27,920/- towards medical equipments.
24. The injured has undergone physiotherapy. Though he did not examine anyone on this aspect, but as deposed by Pw.3, the injured requires physiotherapy. Admittedly, the injured has paid an amount of Rs.1,17,250/- towards Physiotherapy charges, which is evident from Ex.A.10-medical bills. Therefore, the injured is entitled for an amount of Rs.1,17,250/- towards Physiotherapy charges.
25. The injured has also taken treatment in NIMS by paying an amount of Rs.60/- per sitting per day. The evidence of Pws.3 KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 11 and 4 as well as Pw.1 is that petitioner requires an attendant throughout his life. Therefore granting of consolidated amount of Rs.50,000/- towards treatment for future physiotherapy from the date of petition would serve the purpose.
26. As Pws.3 and 4, categorically asserted that there is no chance of the injured regaining normalcy and as he has undergone surgeries and is totally disabled, he is entitled to Rs.7,00,000/- under the head pain and suffering. As the injured is permanently disabled, under the head permanent disability, he is entitled for just compensation. As seen from the record, the evidence of Pws.3 and 4 speaks about the disability of the injured. Both the witnesses Pw.3-Neuro surgeon and Pw.4-Orthopaedic surgeon categorically deposed that injured is permanently disabled and he will continue to require help even in daily routine activities like eating, bathing and attending to nature calls. Therefore, loss of earning capacity is taken as 100%. The injured was earning Rs.23,840/- per month as a lecturer in Chemistry in Loyola Academy P.G and Degree College as per Ex.A.23 and was aged about 31 years at the relevant time as per Ex.A.14. Hence, the appropriate multiplier to be applied is '17'. Therefore, the injured is entitled to Rs.48,63,360/- (Rs.23,840/- x 12 x17) towards permanent disability.
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27. As the injured is not able to sit, squat or to attend to any of his normal daily functions and his conjugal happiness has been snatched away and permanently became disabled, he is entitled to an amount of Rs.10,00,000/- towards loss of expectation of life. As the injured was bed ridden, he requires attendant to attend to his daily necessities. Though the claimant claimed Rs.3000/- per month, the Court below awarded Rs.2000/-. As such, by applying multiplier 17, it comes to Rs.4,08,000/- (Rs.2000/- x 12 x17) which is sufficient. The further evidence of Pw.3 is that the injured requires future surgeries. The Court below awarded an amount of Rs.5,00,000/- under the head future surgeries which meets the ends of justice and there is no need to interfere with the same.
28. The Court below awarded an amount of Rs.25,000/- towards transportation as the injured was shifted to the hospital for three to four times and he also went to NIMS, therefore, it is not exorbitant and there is no need to interfere with the said amount. Hence, he is entitled to Rs.25,000/- towards transportation charges.
29. Thus, in all the claimant is entitled to Rs.82,88,424/- as compensation under the following heads :
KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 13 Medical expenses : Rs. 5,96,894/-
Medical equipments : Rs.27,920/-
Physiotherapy : Rs.1,17,250/-
Future Physiotherapy : Rs.50,000/-
Pain and suffering : Rs.7,00,000/-
Permanent disability : Rs.48,63,360/-
Loss of expectation of life : Rs.10,00,000/-
Attendant charges : Rs.4,08,000/-
Future surgeries : Rs.5,00,000/-
Transportation : Rs.25,000/-
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Total : Rs.82,88,424/-
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30. Further, the contention of learned Standing counsel for the Insurance Company is that the subject vehicle was hired by the RTC and therefore, the Insurance Company is not liable to pay the compensation. But at the time of arguments, the learned Standing counsel has withdrawn the said statement, as it is settled law. Hence, the Insurance Company is liable to pay the compensation. Accordingly, point Nos.2 and 3 are answered.
31. IN THE RESULT, M.A.C.M.A.No.1423 of 2007 is dismissed and I.A.No.7 of 2007 (Cross-Objection No.37352 of 2007) is allowed. The order and decree dated 30.11.2006 in O.P.No.963 KL,J &SKS,J Macma_1423_2007 & I.A._7_2007 14 of 2004 passed by the II Additional Chief Judge, City Civil Court, Hyderabad, is modified by enhancing the compensation from Rs.29,25,000/- to Rs.82,88,424/- with interest @ 7.5% per annum from the date of petition till realization. As the policy is in force, the respondents in Cross-Objection No.37352 of 2007 are jointly and severally liable to pay the compensation. The respondents in Cross-Objections are directed to deposit the above said amount with interest and costs, after deducting the amount, which was already deposited, within one month from the date of receipt of certified copy of this judgment. No order as to costs.
Miscellaneous applications, if any, pending in this appeal, shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date :23.09.2023 Rds