T.Hemasundara Reddy vs T.N.Jaya Narayana Reddy
2021 Latest Caselaw 2734 AP

            HON'BLE SRI JUSTICE NINALA JAYASURYA

                       M.A.C.M.A.No. 3512 of 2005

JUDGMENT:-

       The present appeal is preferred by the appellant/petitioner

aggrieved    by      the   order   and    decree     dated   05.09.2005      in

M.V.O.P.No.169 of 2003 passed by the II Additional District Judge-

cum-Chairman, Motor Accident Claims Tribunal, Madanapalle

(hereinafter referred to as 'Claims Tribunal'), wherein, an amount of

Rs.1,25,000/-        was   awarded   as    against    the    total   claim   of

Rs.4,00,000/- towards the compensation for the injuries sustained by

the appellant/petitioner.



       2.      For the sake of convenience, the parties are hereinafter

referred to as they were arrayed before the Claims Tribunal in the

original petition.


       3.      The petitioner filed the above said O.P., stating inter

alia that on 06.01.2003 when he was returning to his home, after

attending duty on his motor cycle bearing No.AP02-G-4224 and

reached Sugalimitta bus stop on Punganuru-Madanapalle main road,

a bus bearing No.AP03-U-4309 driven in a rash and negligent

manner by its driver, hit him while trying to overtake, as a result he

fell down and sustained grievous injuries including the fractures over

his left shoulder and left thigh. It is further stated that the petitioner

was shifted to Government Hospital, Punganuru and from there to an

Orthopedic Surgeon by name Dr.M.Sanjeevarayudu and again from

there to Manipal Hospital, Bangalore for expert treatment.              While

stating that he took treatment by spending Rs.1,00,000/- in addition

to Rs.15,000/- for transportation and for other expenses, he further

stated in the said O.P., that he could not regain normal health,
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sustained permanent disability and also suffered loss of earnings as

a result of the accident.   Accordingly, he claimed an amount of

Rs.4,00,000/- towards compensation along with the interest @ 18%

p.a., against the respondents.

4. The 1st respondent/owner of the vehicle remained

exparte and the 2nd respondent-insurance company filed its counter

and contested the matter. The insurance company while denying

that the accident occurred due to rash and negligent driving of the

offending vehicle contended that the petitioner himself is responsible

for the accident as he was negligent in driving the motor cycle. It is

also contended that the compensation as claimed by the petitioner is

excessive and that he is not entitled for the compensation as prayed

for.

5. On the basis of the pleadings, the Claims Tribunal

framed the relevant issues for consideration.

6. In support of his case, the petitioner examined himself

as P.W.1, got examined P.Ws.2 & 3 i.e., Dr.M.Sanjeevarayudu and

Dr.K.M.K.Varma and got marked Exs.A1 to A13.

7. The 2nd respondent-insurance company had not

adduced any oral evidence, got marked Ex.B1-Copy of policy by

consent.

8. The Claims Tribunal after considering the contentions

advanced by both the parties and examining the material on record

by an order dated 05.09.2005 has allowed the claim of the petitioner

in part. Challenging the said award to the extent which is adverse to

the petitioner, the appeal has been preferred, seeking enhancement

of compensation.

MACMA_3512_2005 NJS, J

9. Heard Sri P.Rambhoopal Reddy, learned counsel for

the petitioner/appellant. While briefly narrating the facts of the case,

he inter alia contended that the accident in question occurred when

the claimant was going on his scooter and the offending lorry referred

to above hit the scooter while overtaking and due to the said

accident, the petitioner/claimant suffered fractures to his left shoulder

and left leg apart from injuries all over the body. He submitted that,

initially, the petitioner was taken to a hospital at Punganuru and

thereafter to another hospital, from there to Manipal Hospital at

Bangalore. He submits that screws were inserted to the

petitioner/claimant and he was in hospital for several months,

advised to take rest, not to lift any weights and his movement is

restricted to wheel chair due to shortening of leg. He submits that

meager amounts were awarded by the Claims Tribunal and though

the medical bills in respect of the expenditure incurred by the

petitioner/claimant were filed, the same were not considered in a

proper prospective, that amounts towards pain and suffering,

expectation of life were not granted. He further submits that though

the petitioner filed Ex.A12-Permanent Disability Certificate, the

Claims Tribunal disbelieved the same erroneously. While submitting

that the claim made by the petitioner/claimant is just and reasonable,

he submits that the Claims Tribunal grievously erred in not allowing

the claim in toto. He submits that in view of the oral and

documentary evidence adduced on behalf of the petitioner/claimant,

the Claims Tribunal ought to have taken the same into account and

allowed the total claim for Rs.4,00,000/-.

10. Per contra, Mr.M.R.K.Chakravarthy, representing the

2nd respondent-insurance company contended that the amounts

awarded to the petitioner/claimant are just and reasonable and

MACMA_3512_2005 NJS, J

warrants no interference by this Court. He submits that no

independent witness was examined to certify the veracity of the

medical bills filed by the petitioner/claimant. He submits that the

Claims Tribunal had given cogent reasons for not considering the

material on record, more particularly Ex.A12-Permanent Disability

Certificate. He submits that there is no evidence on record with

regard to shortening of petitioner's leg and further that he is able to

attend the duties as Deputy Tahsildar and therefore the question of

granting any sums towards loss of expectation of life etc., would not

arise. He submits that P.W.2 who issued Ex.A12 had not treated the

appellant, prior to issuance of the Disability Certificate and the

Claims Tribunal has recorded cogent reasons for disbelieving the

same. He further submits that as the petitioner/claimant failed to

lead evidence to substantiate his case, the Claims Tribunal had

rightly allowed the claim in part and he is not entitled to any further

amounts. The learned counsel while placing the reliance on the

judgment of the Hon'ble Supreme Court in S.Kumar V. United

Insurance Company Limited1 contends that the Award is just,

reasonable and therefore no interference is warranted.

11. In reply, the learned counsel for the petitioner/claimant

submits that the certificate issued by P.W.2, has to be believed.

While submitting that the petitioner/claimant is still limping, he

contends that the petitioner/claimant has to suffer throughout the life

and that credence has to be given to the disability certificate issued

by P.W.2. He also submits that the claim towards the pain and

suffering due to grievous injuries etc., are required to be considered

liberally and the Claims Tribunal ought to have allowed the claim by

considering the fact that the petitioner/claimant has to maintain

1 (2019) 12 SCC 242

MACMA_3512_2005 NJS, J

himself by suffering, throughout the life. He further submits that

merely because leave was granted to the petitioner/claimant, he

cannot be deprived of loss of earnings. Accordingly, he submits that

the petitioner/claimant is entitled for the amounts claimed in the O.P.,

and seeks enhancement of compensation.

12. In support of his case, the learned counsel for the

petitioner/appellant also placed reliance on the judgments in

Kanayyalal V. Divisional Controller, Karnataka State Road

Transport Corporation2, B.Anandhi V. R.Latha and another3,

Prem Narayan Sharma V. Sunil Gupta and Others4 and judgment

of Hon'ble Supreme Court in Erudhaya Priya V. State Express

Transport Corporation Ltd.,5.

13. The contentions of both the counsel are examined in

the light of material available on record and the judgments relied on

by them. The principal contention advanced by the learned counsel

for the petitioner/claimant is that the Claims Tribunal erred in

disbelieving Ex.A12-Permanent Disability Certificate. The said

Certificate was issued by P.W.2-Dr.Sanjeevarayudu, assessing the

permanent disability of the petitioner at 25%. However, P.W.2 in his

cross examination categorically admitted that he has not treated

P.W.1/claimant prior to issuance of Ex.A12. The other doctor P.W.3

who treated the petitioner/claimant in Manipal Hospital though

deposed that the claimant suffered disability at 25%, no permanent

disability certificate to that effect was issued by him. In this regard, it

is to be noted that the Claims Tribunal recorded valid and cogent

reasons in Para Nos.9 to 11 of the Award pointing out inter alia that

2 2004 ACJ 653 3 2002 ACJ 233 4 2003 ACJ 1584 5 2020 SCC Online SC 601

MACMA_3512_2005 NJS, J

though the Medical Board is constituted in Sri Venkateswara

Ramanarayana Ruya Government General Hospital, Tirupathi, which

is competent to issue permanent disability certificates to the

concerned patients, no such certificate was obtained by the

petitioner/appellant from the said hospital, so as to create confidence

in the mind of the Court. The Claims Tribunal also pointed out that in

Ex.A4-Discharge Summary issued by the Manipal Hospital,

Bangalore, there is no mention with regard to the disability of the

petitioner/claimant. Under the said circumstances, the findings of the

Claims Tribunal with regard to Ex.A12-Permanent Disability

Certificate, cannot be said to be perverse and calls for no

interference.

14. But the evidence of P.W.3, who treated the injuries

sustained by the petitioner/claimant and conducted surgery cannot

simply be ignored merely because he has not issued the disability

certificate. In his evidence, he categorically deposed with regard to

insertion of screws, shortening of petitioner's left leg by one inch,

also the need for another surgery in future and that the cost of the

same approximately in a semi special ward would be about

Rs.75,000/-. In his cross examination, he categorically stated that

the petitioner can attend his sedentary work, but he cannot attend

executive work where walking or climbing of stairs is required. He

also testified about issuance of medical bills i.e., Ex.A5, Ex.7, Ex.A11

and Ex.A13-X Ray/bone scan taken in their hospital. However, the

Claims Tribunal on the ground that the concerned person/persons

who issued such bills were not examined, granted Rs.50,000/- as

against the total claim of medical expenditure for Rs.1,00,000/-.

MACMA_3512_2005 NJS, J

15. Considering the evidence of the P.W.3 and the injuries

sustained by the petitioner/claimant, this Court is of the considered

view that the Claims Tribunal committed a grave error in awarding

meagre sums towards compensation apart from restricting the

amount towards medical bills.

16. At this juncture, it would be apposite to refer to the

judgments relied on by the learned counsel for the

petitioner/appellant.

In Erudhaya Priya's case(5 supra), the Hon'ble Supreme

Court while referring to the principles set out in Jagdish v. Mohan

[reported in (2018) 4 SCC 571] regarding determination of

compensation in respect of victim who suffered permanent or

temporary disability occasioned by an accident enhanced the

compensation.

In Kanayyalal's case(2 supra), a Division Bench of the High

Court of Karnataka, after referring to a catena of judgments in

respect of cases pertaining to injuries and determination of

compensation with regard to the same, found fault with the

conservative manner in which the Claims Tribunal awarded the

compensation and inter alia held as follows:

"..........It is quite often said and reiterated that no amount of compensation in personal injury cases would compensate the pain and suffering sustained by the injured. However, the only way an injured can be redressed is by way of awarding reasonable compensation. Therefore, the MACT is under a solemn legal obligation to award just, reasonable and adequate compensation to an injured. Of course, the adequacy of compensation is not in the perception of the injured, but adequacy of compensation should be the outcome of the application of judicious mind of the Court to

MACMA_3512_2005 NJS, J

the facts and circumstances of the case and evidence on record........"

17. The Hon'ble Division Bench while enhancing the

compensation also granted compensation towards attendant

charges, transportation charges, special food and nutrition etc;

18. Dealing with a case of injuries, a Division Bench of High

Court of Madhya Pradesh in Prem Narayana Sharma's case(4

supra) held as follows:

"the award of compensation in the injury cases has to be more compared to fatal cases, since in the former case, the amount of compensation is for suffering of the injuries and the injured has to bear the pain throughout the remaining period of his life and has to utilize the compensation for himself."

19. In the case of S.Kumar(DEAD)(1 supra), relied on by

the learned counsel for the insurance company, the victim therein

had tried to falsify the nature and extent of his injuries and the

Hon'ble Supreme Court was not inclined to interfere with the order of

the High Court. The facts and circumstances of the present case are

different and therefore the said judgment would not apply to the

same.

20. In the light of the above legal position coupled with the

oral and documentary evidence on record, the compensation as

awarded by the Claims Tribunal deserves to be enhanced.

21. Accordingly, this Court is inclined to enhance the

compensation, keeping in view the grievous nature of injuries, which

is just and reasonable in the facts and circumstances of the case. As

per the evidence on record, the petitioner/claimant suffered

"Displaced left Intertrochanteric fracture + Displaced proximal

MACMA_3512_2005 NJS, J

humerus fracture of left side" and plates and screws were fixed. The

Claims Tribunal though treated the said injuries as grievous, awarded

only Rs.25,000/- which is very meagre and therefore the same is

enhanced to Rs.50,000/-. The Claims Tribunal awarded a lump sum

of Rs.25,000/- towards permanent disability, but taking into account

the evidence of P.W.3-Doctor that there is shortening of leg and the

petitioner/claimant would not be in a position to work freely or climb

steps etc., and since the petitioner has to suffer throughout the life,

keeping in the expression of the Hon'ble Division Benches referred to

supra, it would be appropriate to enhance the same to Rs.1,00,000/-.

So far as medical expenses are concerned, the Claims Tribunal

without quantifying the amount under the said head, awarded a sum

of Rs.50,000/- towards medical expenses, transportation, extra

nourishment and other expenses. The Claims Tribunal is not justified

in awarding the said sum though Exs.A5 and A11-medical bills for

Rs.77,027/- and Rs.5,781.30 ps., were supported by the evidence of

P.W.3-Doctor. Accordingly, the petitioner is entitled to an amount of

Rs.82,808/- rounded off to Rs.83,000/- towards medical expenses

exclusively. Apart from the same, as is evident from the record, the

petitioner/claimant visited the Hospital at Bangalore on several

occasions for treatment and accompanied by attendants. Though,

the Claims Tribunal without quantifying the amounts, awarded

transportation charges, extra nourishment and other expenses as

mentioned above, it would reasonable to award a sum of

Rs.30,000/- towards transportation, extra nourishment and attendant

charges. The Claims Tribunal awarded Rs.15,000/- towards pain

and suffering and the same is reasonable. The Claims Tribunal

awarded Rs.10,000/- towards loss of earnings and the same is

enhanced to Rs.20,000/-. It is clear from the evidence on record that

MACMA_3512_2005 NJS, J

the petitioner is required to undergo second surgery and the

approximate costs as per the evidence of P.W.3 is Rs.75,000/-. In

view of the same, the petitioner/claimant is awarded the said sum of

Rs.75,000/- and Rs.15,000/- towards transportation, medicines, extra

nourishment charges.

22. Thus, the compensation is enhanced from

Rs.1,25,000/- to Rs.3,88,000/- together with interest @ 9% p.a., as

awarded by the Claims Tribunal, from the date of claim petition till

the date of realisation against respondent Nos.1 and 2 jointly and

severally. The enhanced compensation together with interest shall

be deposited within a period of eight (8) weeks from the date of

receipt of a copy of this judgment and on such deposit, the

petitioner/claimant is entitled to withdraw the same.

23. Accordingly, the appeal is allowed to the extent

indicated above. No costs.

Miscellaneous Petitions, if any, pending in this appeal shall

stand dismissed.

__________________ NINALA JAYASURYA, J 30.07.2021.

BLV

MACMA_3512_2005 NJS, J

HON'BLE SRI JUSTICE NINALA JAYASURYA

M.A.C.M.A.No.3512 of 2005 Dated 30.07.2021

BLV