Andhra Pradesh High Court - Amravati
Bondala Rama Rao vs Lakshmipooja Harshavardhana ... on 7 December, 2022
Bench: B V Chakravarthi
BVLNC MACMA 1345 of 2016
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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
M.A.C.M.A.No.1345 OF 2016
Between:
Bondala Rama Rao, S/o.Thirupathi Rao,
Hindu, Aged 33 years, Teacher in
Bhashyam Public School,
Sunnapu Battilu Center,
Vijayawada. ....Appellant
Versus
1. Lakshmipooja Harshavardhana Raju,
S/o.Ramaraju, Hindu,
Owner of crime auto No.AP 16X 9741,
R/o. 10-3-43, Mallikarjunavari Street,
Vijayawada, Krishna District.
2. M/s.United Insurance Company Limited,
Rep. By its Divisional Manager,
Divisional Office-II, Labbipet,
Vijayawada, Krishna District. ....Respondents
DATE OF JUDGMENT PRONOUNCED : 07.12.2022
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SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
___________________________
B.V.L.N.CHAKRAVARTHI, J
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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ M.A.C.M.A.No.1345 OF 2016
% 07.12.2022
# Between:
Bondala Rama Rao, S/o.Thirupathi Rao,
Hindu, Aged 33 years, Teacher in
Bhashyam Public School,
Sunnapu Battilu Center,
Vijayawada. ....Appellant
Versus
1. Lakshmipooja Harshavardhana Raju,
S/o.Ramaraju, Hindu,
Owner of crime auto No.AP 16X 9741,
R/o. 10-3-43, Mallikarjunavari Street,
Vijayawada, Krishna District.
2. M/s.United Insurance Company Limited,
Rep. By its Divisional Manager,
Divisional Office-II, Labbipet,
Vijayawada, Krishna District. ....Respondents
! Counsel for the Appellant : Sri V.Padmanabha Rao
^ Counsel for the
Respondent No.2 : Smt.V.Durga
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< Gist:
> Head Note:
? Cases referred:
1. 2011 (1) SCC 343
2. 2013 (12) SCC 455
3. 2017 (8) SCC 590
This Court made the following:
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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.1345 OF 2016
JUDGMENT:
This appeal is preferred by the Appellant/claimant,
challenging the award dated 03.02.2016 passed in
M.V.O.P.No.36/2013 on the file of Motor Accidents Claims Tribunal-
cum-XIII Addl.District Judge, Vijayawada, (for short 'the Tribunal'),
wherein the Tribunal while partly allowing the petition, awarded
compensation of Rs.1,33,000/- with interest @ 7.5% p.a. from the date
of petition, till the date of realisation to the respondent/claimant for
the injuries sustained by the claimant.
2. For the sake of convenience, the parties will be referred to as
parties in the M.V.O.P.
3. As seen from the record, originally the appellant/petitioner filed
an application U/s.166 of the Motor Vehicles Act, 1988 (for brevity "the
Act") claiming a compensation of Rs.5,00,000/- on account of the
injuries and disability sustained by the petitioner in a motor vehicle
accident that occurred on 01.10.2011.
4. The facts show that on 01.10.2011 at about 05.45 a.m. while the
petitioner was travelling in an auto bearing No. AP 16X 9741 from
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Sunnapubattilu Center to go to RTC Bus Stand, and when the auto
reached Sikhamani Center, at about 06.00 a.m. the driver of the auto
drove the same in a rash and negligent manner, causing turn turtle of
the said auto, by dashing against the cable wires as a result of which
the petitioner and two other passengers in the auto sustained multiple
injuries. On information, Machavaram police registered a case in
Cr.No.612/2011 for the offence punishable U/s.338 of the Indian
Penal Code against the driver of the auto. The petitioner was shifted to
Citi Orthopaedic Center, Vijayawada, for treatment. The petitioner
sustained a fracture in the left leg ankle joint and right leg 3 rd, 4th and
5th fingers were crushed in the said accident. The petitioner stayed in
hospital as in-patient and took treatment for a period of one month
and spent huge amount towards medical expenses. The petitioner was
aged 30 years, hale and healthy at the time of accident. The petitioner
is working as a Teacher in Bhashyam Public School and earning a
salary of Rs.10,000/- per month. On account of the fractures received
in the accident, the petitioner could not attend any work.
5. Before the Tribunal, the 2nd respondent/Insurance Company,
filed a counter, while traversing the material averments with regard to
proof of age, avocation, monthly earnings of the petitioner, manner of
accident, rash and negligence on the part of the driver of the crime
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vehicle, nature of injuries, medical expenditure, alleged permanent
disability, and liability to pay compensation, and contended that there
was no rash and negligent driving on part of the driver of the auto No.
AP 16X 9741. The driver of crime auto was not having a valid driving
license at the time of the accident. The compensation claimed is highly
excessive. The 1st respondent remained exparte.
6. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
1. Whether the petitioner sustained injuries in a motor vehicle
accident that occurred on 01.10.2011 at about 06.00 a.m. at
Sikhamani Center, Mogalrajapuram Area in Vijayawada, due to
the rash and negligent driving of the auto bearing No. AP 16X
9741 by the driver?
2. Whether the petitioner is entitled to the compensation as
prayed for? If so, from whom and to what amount?
3. To what relief?
7. To substantiate his claim, the petitioner examined P.Ws-1 to 3
and got marked Exs.A-1 to A-15. On behalf of the 2nd
respondent/Insurance Company, R.Ws-1 and 2 were examined and
Exs.B-1 to B-4 were marked. Exs.X-1 and X-2 were marked through
R.W-2.
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8. The Tribunal, taking into consideration the evidence of P.Ws-1 to
PW-3, coupled with Exs.A-1 to A-15, held that the accident took place
due to the rash and negligent driving of the auto driver, and further,
taking into consideration the evidence of P.Ws-1 to 3 corroborated by
Exs.A-1 to A-15, awarded a compensation of Rs.1,33,000/- with
interest @ 7.5% p.a. from the date of petition, till the date of
realisation.
9. The contention of the Appellant is that the Tribunal below failed
to see that the appellant sustained two grievous injuries and other
simple injuries in the accident, and ought to have been awarded a sum
of Rs.2,00,000/- towards compensation for permanent disability. The
appellant further contended that the Tribunal below failed to award
the amount covered by Ex.A-6 medical bills, though the doctor (P.W-3)
deposed that it was issued by their hospital towards the expenditure
incurred for the treatment. The other contentions of the appellant are
that the Tribunal granted Rs.10,000/- only towards loss of earnings,
granted only Rs.8,000/- towards pain and suffering, Rs.8,000/- only
towards mental shock and agony, Rs.20,000/- only towards service of
attendants, and therefore, the Tribunal below failed to award just
compensation entitled by the appellant/claimant.
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10. In the light of above contentions raised by the appellant in the
appeal, the points that would arise for consideration are as under:
1. Whether the appellant suffered any permanent disability as
contended? If so, is he entitled to compensation towards loss of
future earnings on account of such permanent disability?
2. Whether the Tribunal below failed to award just compensation
to the appellant/claimant?
3. To what relief?
11. POINT No.1:
12. The Tribunal on consideration of the material on record held
that the accident occurred due to the negligence of the driver of the
auto. The respondent/insurance company did not file any appeal
questioning the said finding
13. The Tribunal below considered the injuries sustained by the
appellant in the light of evidence produced and found that the
appellant sustained two grievous injuries as under:
1. Lisfranc's left foot
2. Compound injury of left foot with 2nd, 3rd, 4th and 5th proximal
phalanx.
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14. The Tribunal below on disability suffered by the claimant
observed that Ex.A-10 disability certificate was produced by the
claimant, issued by District Medical Board, Guntur, shows that the
disability suffered by the claimant is 15% permanent disability. But
the Tribunal below did not consider Ex.A-10 on the ground that the
claimant did not examine the doctor to prove Ex.A-10 disability
certificate.
15. The appellant claimed an amount of Rs.2,00,000/- under the
head general damages towards compensation for permanent disability,
contending that in the impugned accident, he suffered permanent
disability due to the fracture, and amputation of 3rd, 4th and 5th fingers
of the right leg. On account of the same, he is unable to do his day to
day activities, and has been depending upon his kith and kin to do the
same. The claimant contended that he suffered permanent disability as
15%.
16. The appellant/claimant to prove his case, examined himself as
P.W-1. In the chief-examination, he reiterated the same version. The
2nd respondent/Insurance Company contention is that he did not
suffer any permanent disability claimed by him. The appellant in
support of his contention filed Ex.A-10 disability certificate said to
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been issued by Chairman, Physical Handicapped Board of Guntur
District.
17. The appellant did not examine the author of the said document
or any one of the Members of the Medical Board to prove the contents
of the document. Mere production of disability certificate will not prove
the extent of the disability stated therein, unless the doctor who
treated the claimant or who medically examined and assessed the
extent of disability of the claimant, is tendered for cross-examination
with reference to the certificate. The Hon'ble Apex Court in the case of
Raj Kumar Vs. Ajay Kumar and another1, in this regard held in para
12 as under:
"The Tribunal should also act with caution, if it proposed to accept
the expert evidence of doctors who did not treat the injured but
who give `ready to use' disability certificates, without proper
medical assessment. There are several instances of unscrupulous
doctors who without treating the injured, readily giving liberal
disability certificates to help the claimants. But where the
disability certificates are given by duly constituted Medical
Boards, they may be accepted subject to evidence regarding the
genuineness of such certificates. The Tribunal may invariably
make it a point to require the evidence of the Doctor who treated
the injured or who assessed the permanent disability. Mere
2011 (1) SCC 343
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production of a disability certificate or Discharge Certificate will
not be proof of the extent of disability stated therein unless the
Doctor who treated the claimant or who medically examined and
assessed the extent of disability of claimant, is tendered for cross-
examination with reference to the certificate. If the Tribunal is not
satisfied with the medical evidence produced by the claimant, it
can constitute a Medical Board (from a panel maintained by it in
consultation with reputed local Hospitals/Medical Colleges) and
refer the claimant to such Medical Board for assessment of the
disability."
18. In the case on hand, the appellant has examined the doctor, who
treated him as P.W-3. He deposed that the appellant sustained two
injuries.
1. Lisfranc's left foot
2. Compound injury of left foot with 2nd, 3rd, 4th and 5th proximal
phalynx.
19. He is of the opinion that the above injuries are grievous in
nature, and due to amputation the patient suffered permanent
disability. He did not depose about the percentage of permanent
disability. Ex.A-10 said to have been issued by the District
Handicapped Board, Govt. General Hospital, Guntur, stating that the
appellant suffered a permanent disability of 15%.
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20. The evidence of P.W-3 would not prove its content, except to say
that the appellant suffered a disability. The doctor did not speak
whether the permanent disability is to the limb or with reference to the
whole body. The doctor did not depose about functional disability with
reference to whole body or to the limb and percentage of disability.
Hence disability certificate produced by the appellant will not help to
say that he suffered any functional disability.
21. Moreover, the appellant has examined P.W-2, Principal of
Bhashyam Public School. In the chief-examination, he deposed that
the appellant is working as a Teacher in Bhashyam Public School,
Gayathri Nagar, Vijayawada, as on today also. Therefore, it establishes
that the appellant is continued in service, and discharging the duties
attached to the post of a Teacher, which he was doing earlier. It is not
the case of the appellant that he was shifted to some other lower post
with lesser emoluments. In that view of the matter, the appellant
cannot claim any amount towards loss of future earnings on account
of alleged permanent disability. Accordingly, this point is answered.
22. POINT No.2: The contention of the appellant is that the
Tribunal failed to award just compensation. As stated supra, the
Tribunal awarded Rs.1,33,000/- as just compensation under various
heads as under:
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1. Medical expenses 50,000-00
2. Compensation for two grievous injuries 36,000-00
3. Loss of earnings 10,000-00
4. Future medical expenses. 10,000-00
5. Transport charges 1,000-00
6. Medical attendant charges 5,000-00
7. Extra nourishment 5,000-00
8. Pain and suffering 8,000-00
9. Mental agony 8,000-00
TOTAL = Rs. 1,33,000-00
23. The law is well settled about the heads under which
compensation can be awarded in personal injury cases. They are as
under:
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.
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(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 because of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
24. The Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay
Kumar and another, followed by the case of G.Ravindranath Vs.
E.Srinivas and another2, wherein it was held as under:
"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 (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
(2013) 12 S.C.C.455
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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."
25. The appellant claimed a sum of Rs.1,00,000/- towards medical
bills. The Tribunal awarded a sum of Rs.50,000/- only towards
medical bills. The claimant filed Ex.A-6 cash bill for a sum of
Rs.79,440/- towards expenditure incurred by him for the treatment.
He also filed Ex.A-4 bunch of bills for a sum of Rs.10,981/-, which
were issued by pharmacy of City Orthopaedic Center, Vijayawada.
26. The appellant/claimant examined the doctor, who treated him to
prove the said bills. P.W-3 in his evidence deposed that Ex.A-4 medical
bills and Ex.A-6 were issued by their hospital to the appellant. In the
cross-examination of the insurance company, he deposed that he does
not know whether medical bills are included in the final bill. It appears
that this question is with regard to Ex.A-4 on the ground that this
amount was included in Ex.A-6 final bill.
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27. Perusal of Ex.A-6 cash bill shows that the pharmacy charges of
Rs.10,494/- is included at column No.15. Therefore, Ex.A-5 bunch of
bills issued by pharmacy of the said hospital were included in Ex.A-6
final bill. In that view of the matter, the appellant/claimant is not
entitled to amount covered by Ex.A-4. The appellant/claimant is
entitled to the amount covered by Ex.A-6 final bill only i.e., an amount
of Rs.79,440/- towards medical expenses.
28. The Tribunal below in its order failed to discuss the above facts
and also evidence, and simply observed that an amount of Rs.90,000/-
was claimed towards medical expenses, which is highly excessive, and
awarded a sum of Rs.50,000/- as reasonable amount. This finding of
the Tribunal below is not based on evidence in the case. Hence, the
Tribunal grossly erred in awarding Rs.50,000/- only, though the
claimant filed Ex.A-6 and proved the same by examining P.W-3. The
2nd respondent/Insurance Company did not dispute the same in the
cross-examination of P.W-3. Its contention is only that Ex.A-4 amount
was included in Ex.A-6. In that view of the matter, the finding of the
Tribunal is erroneous.
29. The Presiding Officer of the Tribunal below did not bestow any
attention to the evidence on record and dealt the matter very casually,
and awarded a sum of Rs.50,000/- on the ground that it is a
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reasonable amount, without assigning any reasons whatsoever. It
appears that Presiding Officer is under an impression that he can
award any amount to his liking by ignoring evidence.
30. The evidence on record shows that the injured was admitted as
an in-patient in City Orthopaedic Center, Vijayawada, and he was
there for a period of one month from 01.10.2011 to 03.11.2011. The
evidence of P.W-2 shows that the management of the school did not
pay any amount to the appellant towards leave salary and medical
reimbursement. Ex.A-8 shows that the appellant was receiving a sum
of Rs.10,004/- per month towards salary as Teacher. In that view of
the mater, the appellant/claimant is entitled to Rs.11,000/- towards
loss of earnings during the period of treatment, as he would get the
said amount towards salary for the period from 01.10.2011 to
03.11.2011 (33 days) had accident not been occurred.
31. In view of finding on point No.1, the appellant/claimant is not
entitled to any amount towards compensation under the head loss of
future earnings on account of permanent disability.
32. P.W-3 in the cross-examination of 2nd respondent/Insurance
Company deposed that the patient was discharged after healing of the
would completely. He did not depose that the claimant requires further
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treatment. In that view of the matter, the appellant is not entitled to
any amount under the head future medical expenses.
33. Coming to the non-pecuniary damages (general damages), the
Tribunal awarded a sum of Rs.5,000/- towards extra nourishment,
Rs.1,000/- towards transport charges, Rs.8,000/- towards attendant
charges. Hence, the total amount entitled by the appellant/claimant
towards expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure is
Rs.79,440 + 5,000 + 1,000 + 8,000 = Rs.93,440/-.
34. The evidence of the doctor/P.W-3 shows that the claimant
suffered two grievous injuries i.e., 1.Lisfranc's left foot; 2.Compound
injury of left foot with 2nd, 3rd, 4th and 5th proximal phalynx, and the
claimant was operated for the purpose of amputation and for internal
fixation of k-wires for left foot as he sustained fracture of ankle. The
Tribunal awarded a sum of Rs.8,000/- towards pain, suffering and
trauma and Rs.36,000/- towards grievous injuries, and also awarded a
sum of Rs.8,000/- towards mental agony, though the amount has to
be awarded under the head damages for pain, suffering and trauma as
a consequence of injuries. The Tribunal has split this head into
various sub-heads like pain and suffering, grievous injuries and
mental agony. It is pertinent to note down that the Tribunal delivered
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judgment on 03.02.2016. The Hon'ble Apex Court delivered judgment
in Raj Kumar's case on 18.10.2010. It appears that the Tribunal
below is not aware of the judgment of the Hon'ble Apex Court
regarding the heads under which the compensation has to be awarded
in personal injury cases.
35. The appellant claimed an amount of Rs.50,000/- towards pain
and suffering and Rs.50,000/- towards shock and agony covered by
this head. The Tribunal as stated supra, awarded a total sum of
Rs.52,000/-.
36. In the light of evidence of the doctor, which establish that the
claimant has suffered two grievous injuries and underwent surgery to
the said injuries. He might have suffered a lot of pain on account of
injuries and surgery. Considering the same, I do not find any ground
to interfere with the amount i.e., Rs.52,000/- awarded by the Tribunal
under this head.
37. Regarding loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life, the contention of the claimant
is that on account of the injuries sustained by him, he is unable to do
his day to day activities and depending on his kith and kin. The
evidence of the doctor shows that the appellant suffered two grievous
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injuries, and as a result a k-wire was fixed in the right leg for the
fracture of the ankle, and further, 3rd, 4th and 5th of the right leg were
amputated due to crush injury. The doctor further deposed that due to
amputation patient suffered permanent disability. Hence, the appellant
would feel some inconvenience in his day to day life, while attending
duty as Teacher, since he has to stand sometimes during teaching in
the class, and moving in and around in the class, on account of
amputation. He may not do those activities comfortably as he was
doing earlier to the accident.
38. Therefore, the physical activities of the appellant will be
restricted to some extent during standing or walking, though he is able
to work as a Teacher, which he was doing earlier. Hence, he is entitled
to some compensation under the head loss of amenities as a
consequence of amputation to 2nd, 3rd, 4th and 5th fingers of right leg.
39. In view of the facts and circumstances of the case discussed
above, I feel that a sum of Rs.2,00,000/-(2 Lakhs) can be awarded
towards compensation under the head for the loss of amenities, in
addition to the above amounts awarded.
40. Regarding loss of expectation of life (shortening of normal
longevity), it is not the case of the appellant/claimant that his
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longevity period is reduced on account of the injuries sustained by him
in the accident. Therefore, he is not entitled to any amount under this
head.
41. In the light of above discussion, the claimant is entitled to a total
amount of Rs.3,63,400/- towards just compensation. Accordingly,
this point is answered
42. POINT NO.3: To what relief?
43. The contention of the 2nd respondent/Insurance Company is
that the driver of the auto was not having a valid license at the time of
accident. The Insurance Company has examined R.W-2 in support of
its contention and marked Ex.X-2 in his evidence i.e., extract of license
register of Andhra Pradesh Transport Department pertaining to the
license issued in favour of the driver of the auto. R.W-2 in his evidence
deposed that a person can drive an auto rickshaw only when he holds
a license to drive auto rickshaw and as per Ex.X-2, the driver was
having light motor vehicle non-transport motor cycle with gear and
motor can driving license and he was also having badge and on the
date of accident, he was not having a license to drive the transport
vehicle. In the cross-examination, he deposed that the driver has to
first obtain light motor vehicle non-transport driving license and
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subsequently, he has to obtain auto rickshaw non-transport license
and driver has capacity to drive auto rickshaw transport vehicle and
driver has also got capacity to drive auto rickshaw transport passenger
vehicle.
44. Ex.X-2 shows that the driver in the case was holding light motor
vehicle non-transport license apart from he is having a badge to drive a
motor cab. In the said circumstances, the Tribunal below applied pay
and recovery principle against the 2nd respondent/Insurance Company
considering the judgments of the Hon'ble Apex Court.
45. The Hon'ble Apex Court in the case of Sant Lal Vs. Rajesh and
others3, held that "driver having licence to drive light motor vehicle can
drive such a transport vehicle of LMV class and there is no necessity to
obtain separate endorsement." In that view of the matter, there are no
reasons to interfere with the findings of the Tribunal on this aspect.
46. The Tribunal awarded interest at 7.5% p.a. from the date of
petition, till the date of deposit. I do not find any ground to interfere
with the rate of interest awarded by the Tribunal at 7.5% p.a., from the
date of petition, till the date of deposit.
2017 (8) SCC 590
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47. In the light of above discussion and in view of the findings on
points No.1 to 3, the appeal has to be allowed partly.
48. In the result, the appeal is partly allowed, the impugned order is
set aside. It is held that the appellant/claimant is entitled to a total
compensation of Rs.3,63,400/- (Rupees Three Lakhs Sixty Three
Thousand and Four Hundred only) with interest @ 7.5% p.a., from the
date of petition, till the date of deposit. There shall be no order as to
costs.
49. The 2nd respondent/Insurance Company is directed firstly to
deposit the compensation amount of Rs.3,63,400/- (Rupees Three
Lakhs Sixty Three Thousand and Four Hundred only) with accrued
interest thereon, within one month from the date of judgment. In the
event of 2nd respondent/Insurance Company already having had
deposited some amount, the said amount be excluded, and the
balance amount shall be deposited within one month from the date of
judgment, and later can recover from the owner of the crime vehicle in
the same proceedings as per law. On such deposit the
appellant/claimant is permitted to withdraw the said compensation
amount with accrued interest thereon.
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50. As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_____________________________
B.V.L.N.CHAKRAVARTHI, J
07.12.2022
psk
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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.1345 OF 2016
Note: Mark L.R. Copy
psk
7th December, 2022
psk
