Andhra Pradesh High Court - Amravati

Bajandri Siva Sankaraiah vs Smt. K. Lakshmi on 6 December, 2022

 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                M.A.C.M.A.No.2038 of 2003


JUDGMENT:

The Injured/Claimant (minor) represented by his father

B.Subbarayudu, aggrieved by the Order dated 18.10.2001

passed by the Chairman, Motor Accidents Claims Tribunal-cum-

IV Additional District Judge, Kurnool (for short „the Tribunal") in

M.V.O.P.No.586 of 2000, filed the instant appeal seeking

enhancement of the compensation.

2. For the sake of convenience, the parties are referred to as

they are arrayed before the Motor Accidents Claims Tribunal.

3. (a) The claimant/injured filed the above-mentioned

original petition claiming compensation of Rs.1,00,000/- for the

injuries sustained by him in a road accident that occurred on

28.06.1999. In the original petition, it is averred that, while the

claimant was going on a cycle to the market at Koilkuntla and

when he reached near the house of Pedda Giddanna, the

offending vehicle (car) bearing No.AP 16 V 2869 came behind the

claimant/injured, being driven by its driver in a rash and

negligent manner at a high speed and hit the cycle, due to which

the claimant has fallen, sustained fracture injuries and was

taken to the Government Hospital, Koilkuntla and from there, he

was taken to a private hospital in Nandyal for better treatment.

The matter was reported to the Police alleging that the accident

has taken place as a result of rash and negligent driving of the

said offending vehicle (car bearing No.AP 16 V 2869). Based on

the F.I.R lodged by the claimant/injured, a case in Crime No.48

of 1999 for the offence under Section 337 IPC was registered and

after investigation of the case, a charge sheet was submitted

against the accused-driver for having committed the offence

under Section 338 IPC. The claimant filed an application

claiming compensation of Rs.1,00,000/- before the Claims

Tribunal at Kurnool on account of the injuries sustained by him

in a road accident.

b) The 1st respondent/ owner of the offending vehicle (car) did

not contest the matter. The 2nd respondent / New India

Assurance Company filed a written statement contending inter

alia that the petitioner is put to strict proof of all the averments

raised in the petition, that the accident had taken place due to

the rash and negligent driving by the driver of the offending

vehicle (car) bearing No.AP 16 V 2869 due to which the

petitioner sustained injuries. It is further averred that the

compensation claimed by the injured is highly excessive,

speculative, and exorbitant. Therefore, the petition is liable to

be dismissed.

c) Based on the above pleadings, the Claims Tribunal framed

the following issues:

1) Whether the accident occurred due to rash and negligent driving of the driver of the car bearing No.AP 16 V 2869 belonging to the first respondent or the petitioner in driving his cycle?

2) Whether the petitioner is entitled to claim compensation, if so, to what amount and from whom?

      3)       To what relief?


d)    During the trial, in order to establish his claim, the injured

B. Siva Sankaraiah was examined as P.W.1, and Exs.A.1 to A.4

and B.1 were marked on behalf of the claimant/injured. The 2nd

respondent/Insurance Company neither examined any

witnesses nor adduced any documentary evidence.

e) On appreciation of the evidence of P.W.1, and placing the

reliance on Exs.A.1 to A.4 and B.1 i.e., Certified Copy of FIR,

Certified Copy of charge sheet, Certified Copy of Wound

Certificate, Medical Bills, and Copy of Insurance Policy

respectively, the learned Tribunal by impugned judgment inter

alia held that the accident took place on account of rash and

negligent driving of the offending vehicle (car) bearing No.AP 16

V 2869 by its driver, as a result of which the claimant sustained

injuries. The learned Tribunal further held that the claimant is

entitled to a compensation of Rs.14,553/- with interest @ 12%

per annum from the date of the petition till realization payable

by the 1st and 2nd respondents jointly and severally.

f) Aggrieved by the award passed by the learned Tribunal,

the instant appeal has been preferred by the appellant/claimant

seeking enhancement of compensation.

4. Learned counsel for the appellant/claimant would submit

that the injured is a child aged about 11 years at the time of the

accident and without his fault, the driver of the offending vehicle

dashed the cycle and caused the accident in which the

appellant/claimant sustained a fracture. It is further submitted

that the compensation awarded by the Claims Tribunal is

meager and the claimant is entitled to more compensation in

view of the evidence adduced, which was not properly

appreciated by the learned Tribunal. He would further submit

that the 2nd respondent/Insurance Company though filed a

written statement, no oral or documentary evidence is adduced

on its behalf and the appellant/claimant would urge that the

amount of compensation may be determined and just and

reasonable compensation may be awarded. He would further

submit that the appellant/injured is entitled to more

compensation than the amount claimed, in the light of the

principles laid down in Raj Kumar‟s case.

5. Per contra, the learned counsel for the 2nd

Respondent/Insurance Company would submit that the

compensation awarded by the Tribunal was arrived at by taking

into account all the relevant factors, the award is well reasoned,

and therefore, the amount awarded is just and reasonable and

the judgment and award passed by the learned Tribunal do not

suffer from any such infirmity or illegality, which may not call

for any interference by this Court.

6. In the light of the above rival arguments, the points for

determination in this appeal are:

"1. Whether the compensation awarded by the Tribunal is not in accordance with the principles of law and requires enhancement?

2. Whether the compensation awarded by the Tribunal is just and reasonable or warrants interference?"

7. POINT Nos.1 & 2: The accident, involvement of the offending

vehicle (car) bearing No.AP 16 V 2869 and the injuries sustained

by the appellant/claimant in the said accident, are not in

dispute. A perusal of the impugned judgment and Award would

show that the Tribunal had framed Issue No.1 as to whether the

accident had occurred due to rash and negligent driving of the

offending vehicle (car) bearing No.AP 16 V 2869 by its driver, to

which the Tribunal after considering the evidence of P.W.1

coupled with the documentary evidence, had observed that the

accident had occurred due to the rash and negligent driving of

the driver of the offending vehicle bearing No.AP 16 V 2869 and

had answered in favour of the Claimant and against the

respondents. Therefore, I see no reason to interfere with the

finding of the Tribunal that the accident occurred due to the

rash and negligent driving of the driver of the offending vehicle

(car) bearing No.AP 16 V 2869.

8. In so far as the quantum of compensation is concerned, a

perusal of the material on record would show, as per the X-ray

report, ankle C leg was fractured, Fibula is seen and the Doctor

opined in Ex.A.3/Wound Certificate that the above injury is

grievous in nature. It is a well-settled principle that while

determining the compensation payable to the claimant in the

claim filed under the Motor Vehicles Act, 1988, the Hon‟ble Apex

Court in the case of Kajal Vs. Jagdish and others1 observed

that it is well-settled law that in motor accident claim petitions,

the Court must award "just compensation" and in case the "just

2020 ACJ 1042

compensation" is more than the amount claimed, that must be

awarded especially when the claimant is a minor. In another

decision in the case of Ward Vs. James2, Halsbury‟s Laws of

England, 4th edition, Volume 12 (Page 446) specified three basic

principles Accessibility, Uniformity and Predictability to be

followed in the like cases and held as follows:

"Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good."

9. Further, it is relevant to refer to the judgment of the

Hon‟ble Apex Court in Rekha Jain Vs. National Insurance Co.

Ltd.,3 wherein it was held as follows:

"It is well settled principle that in granting compensation for personal injury, injured has to be compensated (1) for pain and suffering (2) for loss of amenities, (3) shortened expectation of life, if any, (4) loss of earnings or loss of earning

(1965) 1 ALL ER 563

2013 ACJ 2161 (SC)

capacity or in some cases for both, and (5) medical treatment and other special damages".

10. If the above three judgments are read together, the

intention of the Hon‟ble Apex Court is crystal clear that

whenever the impugned award passed by the learned Tribunal

should be assessed that in such cases of compensation no

amount of money can compensate the child for the injuries

suffered by him and he can never be put back in the same

position. However, compensation has to be determined in terms

of the provisions of the Motor Vehicles Act, 1988 (for short "the

Act"). The Act requires determination of payment of just

compensation and it is the duty of the Court to ensure that he is

paid compensation which is just. The compensation should not

be assessed very conservatively, but on the other hand,

compensation should also not be assessed in so liberal a fashion

as to make it a bounty to the claimant. The Court while

assessing compensation should have regard to the degree of

deprivation and the loss caused by such deprivation. Such

compensation is what is termed as "just compensation".

Therefore, the Court/Tribunal should follow the above principles

while awarding compensation to the claimants.

11. A perusal of Ex.A.3/certified copy of the Wound Certificate

would show that, as per the X-ray report, ankle C leg was

fractured, Fibula is seen and the Doctor expressed his opinion

that the above injury is grievous in nature and might have been

caused in the accident. The injured is a minor aged about 11

years and he might have suffered a lot, but he might not have

expressed his pain and sufferance and may not able to

communicate with his parents and due to the said injury to his

ankle, he might not have moved from home during the period of

treatment.

12. Further, a perusal of Ex.B.1 which is the copy of the

insurance policy would show that the same was in force till

04.02.2000. The accident occurred on 28.06.1999. Therefore,

the offending vehicle (car) bearing No.AP 16 V 2869 was covered

with an insurance policy by the time of the accident, therefore,

the Insurance Company has not taken any plea in the written

statement that by the date of the accident, neither the driver of

the offending vehicle possessed a valid driving licence nor the

offending vehicle possessed valid policy. The plea taken in the

written statement by the Insurance Company that the

petitioner/claimant is put to strict proof that the accident took

place due to rash and negligent driving of the offending vehicle

(car) and the petitioner sustained injuries. The learned Tribunal

held in Para 5 of the judgment that there is sufficient evidence

on record to prove that the accident was caused due to the fault

of the driver of the offending vehicle. Therefore, I see no reason

to interfere with the finding of the learned Tribunal that the

accident occurred due to the rash and negligent driving of the

driver of the offending vehicle.

13. Coming to the aspect of liability of payment of

compensation, the Insurance Company has not come forward to

examine the officials of the Insurance Company and from the

Transport Department to prove its defence that the driver of the

offending vehicle was not holding a valid driving licence and the

said offending vehicle was not having a valid policy at the time of

the accident, as such the onus would shift on the Insurance

Company only to prove the above basic facts and that too the

driver of the offending vehicle was authorized by the owner to

drive the vehicle and was not having a valid licence. But, the

Insurance Company failed to discharge its burden by examining

any of them from the respective departments. Therefore, the fact

remains that, by the time of the accident, the offending vehicle

was having a valid policy with the 2nd respondent/Insurance

Company and the said policy was in force and the driver of the

offending vehicle was having a valid licence.

14. So far as the quantum of compensation is concerned, the

Tribunal awarded Rs.10,000/- towards pain and suffering and

Rs.4,553/- towards medical bills, which appear to be meager.

15. In the facts and circumstances of the case, this Court feels

that the claimant is entitled to the following amounts under

various heads by applying the principles in the case of Raj

Kumar Vs. Ajay Kumar4.

"In Raj Kumar (supra), the Supreme Court has held that award of compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This would include compensation for his inability to lead a full life, enjoy those normal amenities which he would have enjoyed but for the injuries, as also his inability to earn as much as he used to earn or could

Supreme Court further laid down the heads under which the compensation is to be awarded in personal injury cases as under:

"(5) The heads under which the compensation is awarded in personal injury cases are the following:

Pecuniary Damages (Special Damages)

2011 ACJ 1 (SC)

(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 there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads Iii) (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."

16. The Tribunal awarded Rs.4,553/- towards medical bills to

the claimant. The parents of the injured who are labourers are

not supposed to be that much meticulous so as to maintain the

bills for any future use. They might have produced the bills that

were available to them. When an injured sustained fracture as

stated above, definitely he used to spend more money for his

treatment. Therefore, it needs to enhance the compensation

from Rs.4,553/- to Rs.50,000/- towards medical bills,

transportation, and extra nourishment.

17. Further, the Tribunal awarded Rs.10,000/- towards pain

and suffering. Since the injured is a minor, he may not express

his sufferance and when he was suffering from a fracture to the

ankle, definitely one must assist him during the treatment. The

Tribunal had observed that the injury suffered by the claimant is

grievous in nature. This is a case where the departure has to be

made from the normal rule and the pain and suffering suffered

by the child is such that no amount of compensation can

compensate. But, no amount was awarded to the above

grievous injury which is not just and tenable. It is unfortunate

that the Tribunal has not properly appreciated the evidence

available in this case. The age of the child and the sustained

grievous injury have not been duly taken note of, as held in the

judgment of R.D.Hattangadi Vs. Pest Control (India) Private

Limited5 while assessing the non-pecuniary damages i.e., the

damages for mental and physical shock, pain and suffering

already suffered or likely to be suffered in the future.

1995 ACJ 366 (SC)

18. The Hon‟ble Supreme Court in the case of K.Suresh Vs.

New India Assurance Co., Ltd.,6 also held as follows:

"2...There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity „the Act‟) stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."

19. Applying the aforesaid principle, Courts/Tribunals proceed

to assess the compensation.

20. Therefore, it is relevant to refer to another decision in the

case of Master Mallikarjun Vs. Divisional Manager, National

Insurance Company Limited and another7. This is a case

where the departure has to be made from the normal rule and

the pain and suffering suffered by the child is such that no

amount of compensation can compensate.

21. While awarding compensation by the Court/Tribunal one

of the factors which must be careful while assessing the

compensation in a case like the present one is that the claim can

be awarded only once. The claimant cannot come back to the

2012 ACJ 2694 (SC)

2013 ACJ 2445 (SC)

Court for enhancement of the award at a later stage praying that

something extra has been spent. Therefore, the Court should

take a liberal view of the matter when awarding compensation

and the amount of Rs.10,000/- granted towards pain and

suffering needs to be enhanced to Rs.50,000/- towards pain and

suffering already undergone and to be suffered in future, mental

and physical shock, hardship, inconvenience, discomforts.

22. Therefore, in the light of the principles laid down in

Rajkumar‟s case (referred supra), this Court is of the view that

having failed to consider the same, the Claims Tribunal has

committed an illegality in awarding a meager amount of

compensation under the above conventional heads payable to

the claimant. Though the Insurance Company filed its written

statement, as no oral or documentary evidence was adduced on

its behalf, definitely, they are liable to pay the compensation

amount which is claimed by the claimant. Nothing prevented

the Insurance Company to adduce any evidence to prove their

defence which was taken in the written statement. In such a

case, the learned Tribunal should be more cautious while

awarding the compensation when the Insurance Company failed

to prove their defence, by following the above principles laid

down in the cases referred supra.

23. Though the learned counsel for the appellant submitted

that the appellant/claimant is entitled to more compensation

than claimed, a perusal of the record would show that the

appellant neither examined the Doctor who treated him, nor

produced any disability certificate. In absence of any such

evidence, I am of the view that awarding compensation as

claimed by the appellant/claimant in the claim petition, is just

and proper.

24. Therefore, the claimant is entitled to the compensation

under the conventional heads in terms of the judgments stated

supra. On an overall re-appreciation of the pleadings, material

on record, and the law laid down by the Hon‟ble Supreme Court,

I am of the definite opinion that the appellant/claimant is

entitled to the enhancement of compensation as modified and

recalculated above and given in the table below for easy

reference.

1.    Pain and Suffering                 ....    Rs. 50,000/-
2.    Medical Expenses,
      Transportation, conveyance,
      extra nourishment and
      other expenses                     ....    Rs. 50,000/-
                                              ------------------
                                               Rs.1,00,000/-
(-) Compensation already awarded
by the Tribunal                          .... Rs. 14,553/-
                                        -------------------
                               Total ..... Rs. 85,447/-
                                        -------------------

25. The Motor Vehicles Act is a beneficial legislation aimed at

providing relief to the claimant. The compensation is only the

means to grant some support for the loss he has suffered with

which he is expected to live and the amount awarded under the

above heads has to be commensurate with the injury and its

impact on the claimant.

26. It is seen that, at the time of filing the claim petition as

well as the appeal, the appellant was a minor and was

represented by his father as guardian. Now, he would have

attained the majority. As such, the appellant can be directed to

file an appropriate petition before the Claims Tribunal to declare

him as major and after declaring him as major and after