Palakonda Ajaya Kumar vs Sankabattula Trinadha Rao 2 Ots
2022 Latest Caselaw 9598 AP

BVLNC                                              MACMA 458 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                    M.A.C.M.A.No.458 OF 2016

JUDGMENT:

This appeal is preferred by the claimant, challenging the

award dated 10.02.2012 passed in M.V.O.P.No.609/2007 on the file of

Motor Accidents Claims Tribunal-cum-District Judge, Vizianagaram,

(for short 'the Tribunal'), wherein the Tribunal while partly allowing the

petition, awarded compensation of Rs.75,900/- with interest @ 6% p.a.

from the date of petition, till the date of realisation for the injuries

sustained by him in a motor vehicle accident.

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 petitioner filed an

application U/s.166 of the Motor Vehicles Act, 1988 (for brevity "the

Act") claiming a compensation of Rs.2,00,000/- on account of the

injuries and disability sustained by the petitioner in a motor vehicle

accident that occurred on 19.08.2006 under the following heads:

Special damages:

1. Compensation for medicines, transport to 25,000-00 hospital and extra nourishment.

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General Damages:


1.        Compensation for pain and suffering                  15,000-00

2.        Compensation for loss of earnings due to           1,60,000-00
          permanent disability

                                         TOTAL = Rs.         2,00,000-00

4. The facts would show that the petitioner is a minor boy, aged 8

years. On 19.08.2006 the petitioner was bringing water from tap to his

house at about 09.30 a.m., and while crossing the bypass road, the

1st respondent coming from Nellimerla to Vizianagaram drove the car

bearing No.AP35D 0298 in a rash and negligent manner, at high speed

and dashed against the petitioner, as a result, the petitioner fell down

and received injuries on his left foot, right thigh and parietal region.

The petitioner was taken to Sri Sai Orthopaedic Hospital,

Vizianagaram, where doctor found fractures to left femur, right thigh,

and parietal region, and other injuries all over the body. The doctor

conducted operation to left ankle, right thigh, applied plaster of paris

and plates. The doctor advised the petitioner to take further treatment

using medicines and extra nourishment. Two persons also attended

the petitioner to meet his daily routine duties. The father of petitioner

spent heavy amount towards medicines. The petitioner was hale and BVLNC MACMA 458 of 2016 Page 3 of 15 Dt: 14.12.2022

healthy at the time of accident. Due to the accident, the petitioner lost

all his future studies and income. The petitioner lost all his amenities,

and pleasure of life. The Traffic Police Station, Vizianagaram P.S.

registered a case in Cr.No.148/2006 for the offence punishable

U/s.338 of Indian Penal Code against the 1st respondent.

5. Before the Tribunal, the 2nd respondent owner filed counter

denying the material averments of the petition, contended that she

handed over the crime vehicle to the 1st respondent, who is having a

valid driving license to drive light motor vehicle. The crime vehicle was

insured with the 3rd respondent. If any liability if fixed against this

respondent, the 3rd respondent has to indemnify the same. There was

gross negligence on the part of petitioner and he did not take proper

care while crossing the road. The accident occurred due to negligence

of the petitioner.

6. Before the Tribunal, the 3rd respondent/Insurance Company,

filed a counter, while traversing the material averments with regard to

manner of accident, rash and negligence on the part of the driver of

the crime vehicle, nature of injuries, medical expenditure, alleged

permanent disability, and liability to pay compensation, and contended

that the petitioner has to prove that the 2nd respondent is owner of the BVLNC MACMA 458 of 2016 Page 4 of 15 Dt: 14.12.2022

crime vehicle and she insured the same with 3 rd respondent and there

is valid and subsisting insurance policy at the time of accident. The 1 st

respondent/driver was not having valid driving license at the time of

accident.

7. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident occurred due to the rash and negligent driving of the 1st respondent?

2. Whether the petitioner is entitled for compensation? If so, at what amount he is entitled?

3. To what relief?

8. To substantiate his claim, the petitioner examined P.Ws-1 to 4

and got marked Exs.A-1 to A-6 and Ex.X-1. No oral or documentary

evidence was adduced on behalf of the 2nd and 3rd respondents.

9. The Tribunal, taking into consideration the evidence of P.Ws-1 to

4, coupled with Exs.A-1 to A-6 and Ex.X-1 held that the accident took

place due to the rash and negligent driving of the car driver; and

further taking into consideration the evidence of P.Ws-1 to 4

corroborated by Exs.A-1 to A-6 and Ex.X-1, awarded a compensation BVLNC MACMA 458 of 2016 Page 5 of 15 Dt: 14.12.2022

of Rs.75,900/- with interest @ 6% p.a. from the date of petition, till the

date of deposit under fallowing heads.

1.        Medical expenses                                   15,900-00

2.        Loss of amenities                                  25,000-00

3.        Pain and suffering                                 35,000-00

                                         TOTAL = Rs.         75,900-00

10. The contention of the appellant/claimant is that the Tribunal

ought to have seen that the appellant suffered grievous injuries to his

left foot, right thigh and parietal region in the accident, and that the

appellant suffered 25% partial permanent disability, and should have

awarded compensation for loss of earnings. Further contention of the

appellant is that he underwent operation to set right the fractures and

implants were fixed in both legs, and on account of the accident, he

incurred Rs.25,000/- towards medical expenses, but the Tribunal

awarded only Rs.15,900/- towards medical expense; The Tribunal

erred in awarding Rs.35,000/- only towards pain and suffering,

though he sustained grievous injuries; The Tribunal also erred in

awarding only Rs.25,000/- towards loss of amenities, and thereby the

Tribunal erred in awarding only a sum of Rs.75,900/- instead of

Rs.2,00,000/- claimed by the appellant/claimant.

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11. In the light of above grounds urged in the appeal, the points that

would arise for consideration in this appeal are as under:

1. Whether the Tribunal did not award just compensation to the appellant/claimant?

2. To what relief?

12. POINT No.1: The case of the appellant is that on 19.08.2006 at

about 09.30 a.m. the claimant was bringing water from a tap near to

his house, and crossing bypass road, the 1st respondent/driver drove

the car in a rash and negligent manner while coming from Nellimerla

to Vizianagaram, as a result, he dashed the appellant, who received

injuries to his left foot, right thigh and parietal region. He was shifted

to Sri Sai Orthopaedic Hospital, Vizianagaram. It was found that the

appellant sustained fractures to his left femur bone, right thigh bone

and parietal region, and operation was conducted to the left ankle, and

right thigh, implanting plates to set right the fractures. The father of

the claimant spent huge amount towards medical expenditure. The

claimant was hale and healthy prior to the accident. The claimant

suffered partial permanent disability on account of the accident, and

he lost all his amenities and pleasure of life. Police registered a case

against the driver of the car, and laid police report (charge sheet) after

investigation for the offence punishable U/s.338 of Indian Penal Code.

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The 2nd respondent is the owner of the car. The 3rd respondent is the

insurer, and therefore, the respondents 1 to 3 are jointly and severally

liable to pay compensation.

13. The Tribunal upon considering the evidence of P.W-2, who is an

eye witness, and basing on the FIR and copy of charge sheet filed by

the police held that the accident was occurred due to rash and

negligent driving of the driver of the car. No contra evidence was

adduced by the insurance company. In that view of the matter, there

are no grounds to interfere with the finding of the Tribunal on that

aspect.

14. The claimant has examined two doctors as P.W-3 and P.W-4 in

support of his case to prove the injuries sustained by him and

treatment. The claimant filed Ex.A-3 copy of wound certificate, Ex.A-4

medical bills and Ex.A-5 X-ray and Ex.A-6 disability certificate, and

also Ex.X-1 case sheet relating to the treatment of the claimant.

15. P.W-3 evidence shows that he treated the claimant on

19.08.2006, and the claimant sustained injuries as under:

1. Fracture of left foot

2. Femur right thigh and parietal region BVLNC MACMA 458 of 2016 Page 8 of 15 Dt: 14.12.2022

16. His evidence also established that after taking x-ray, he

conducted operation to set right the above fractures, and fixed steel

rods, and thereafter, he discharged the claimant on 28.08.2006, and

he was advised to take further treatment, and also to take

nourishment, and later the claimant was treated as out-patient, and

he issued Ex.A-3 wound certificate, and also Ex.A-4 medical bills, and

they are genuine, and Ex.X-1 is the case sheet and three x-rays issued

by his hospital. He further deposed that patient require further

operation of both legs for removal of steel rods, and it would cost

Rs.25,000/- for removal of steel rods, and medicines, and Ex.A-6 is the

disability certificate. He denied the suggestion of Insurance Company

that the injured can walk freely as prior to the accident.

17. P.W-4 deposed that he is working as Civil Asst. Surgeon in Govt.

Hospital, Vizianagaram, and he is one of the members of the Medical

Board of Vizianagaram, and on 26.04.2011 the claimant attended the

hospital, and he has examined the injured person, and that he

sustained injuries, which are found in Ex.A-5 x-ray taken at the time

of examination, and he thoroughly examined the patient, and wound

certificate and came to a conclusion that the patient has 25%

disability, and accordingly, issued Ex.A-6 disability certificate, and on BVLNC MACMA 458 of 2016 Page 9 of 15 Dt: 14.12.2022

account of the disability, the patient cannot do any work, as he was

doing prior to the accident.

18. It appears that the certificate was issued by him in the year

2011, whereas the accident was occurred in the near 2006. So, he

issued it nearly 5 years after the accident, when M.V.O.P. which was

filed in the year 2007 is pending for evidence. It is pertinent to note

down that P.W-3, who treated the claimant in his evidence did not say

anything that on account of the injuries sustained by the claimant,

he cannot do the works, which he was doing prior to the accident. He

also did not depose specifically that the injured was facing

inconvenience on account of the fractures sustained by him.

Therefore, P.W-3 did not depose anything about the functional

disability suffered by the claimant on account of the injuries.

19. P.W-4, who issued Ex.A-6 disability certificate after 5 years of

the accident, opined that the patient cannot do any work which he was

doing as prior to the accident. He did not speak in detail what was the

works he was doing prior to the accident, and how he is unable do the

same after the accident. He did not state that patient cannot walk

properly, cannot stand or sit properly and cannot do any physical

activities or play games, as he was doing earlier etc. He did not speak BVLNC MACMA 458 of 2016 Page 10 of 15 Dt: 14.12.2022

anything about the affect of partial permanent disability of 25% on

functioning of the whole body.

20. Admittedly, the claimant was not examined as a witness to

speak about the difficulties faced by him on account of the injuries

sustained in the accident.

21. In the light of above circumstances, no evidence is available on

record about functional disability or loss of future earnings on account

of partial permanent disability. In view of the principles laid down by

the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and

another1, no amount can be awarded to the claimant under the head

pecuniary damages (special damages), (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 and (b)

Loss of future earnings on account of permanent disability.

22. The Tribunal has awarded a sum of Rs.25,000/- towards loss of

amenities, basing on the evidence of P.W-3, who deposed that the

claimant sustained two fractures, and he is facing difficulty to walk

freely due to these injuries. In the said circumstances, considering the

evidence of P.W-3, who deposed about the injuries sustained by the

2011 (1) SCC 343 BVLNC MACMA 458 of 2016 Page 11 of 15 Dt: 14.12.2022

claimant in the accident, and also considering the injuries and age of

the claimant, an amount of Rs.50,000/- instead of Rs.25.000/- can be

awarded under the head loss of amenities.

23. The Tribunal has awarded a sum of Rs.35,000/- towards pain

and suffering on account of injuries under the head non-pecuniary

damages (general damages)-damages for pain, suffering and trauma as

a consequence of the injuries. Admittedly, the petitioner/claimant

sustained two grievous injuries as per Ex.A-3 wound certificate. The

same was also corroborated by the evidence of P.W-3 doctor, who

treated the claimant. The evidence on record also establish that the

claimant underwent surgeries and steel rods were fixed to set right the

fractures and he needs further surgery for removal of said steel rods.

In that view of the matter, an amount of Rs.50,000/- can be awarded

under the head (iv) damages for pain, suffering and trauma because of

the injuries, instead of Rs.35,000/- awarded by the Tribunal.

24. The Tribunal awarded a sum of Rs.15,900/- under the head

Pecuniary damages (Special Damages)-Expenses relating to treatment,

hospitalization, medicines, transportation, nourishing food, and

miscellaneous expenditure. The claimant contended that he is entitled

to Rs.25,000/- towards medical expenses, transport charges and extra

nourishment charges. He filed Ex.A-4 medical bills and proved the BVLNC MACMA 458 of 2016 Page 12 of 15 Dt: 14.12.2022

same in the evidence of P.W-3. No contra evidence was adduced by the

Insurance Company. As per Ex.A-4, claimant established that a sum of

Rs.15,900/- was incurred towards medical expenditure. The Tribunal

rightly awarded said amount only under the head expenses relating to

treatment, hospitalization, medicines, transportation, nourishing food,

and miscellaneous expenditure.

25. When coming to the head pecuniary damages (Special Damages)-

future medical expenses, P.W-3 deposed that the claimant needs

another surgery for removal of steel plates fixed in the operation to set

right the fractures and it will cost around Rs.25,000/-. Considering

the same, an amount of Rs.25,000/- can be awarded to the claimant

under the head future medical expenses.

26. Therefore, the total amount of just compensation entitled

comes to (25,000 + 15,000 + 25,000=Rs.65,000/-, in addition to

Rs.75,900/- compensation awarded by the Tribunal. Hence, the total

amount of compensation entitled by the claimant is (Rs.65,000 +

75,900) is Rs.1,40,900/- (Rupees One Lakh Forty Thousand and Nine

Hundred only) towards just compensation, for the personal injuries

sustained by him in the accident. Accordingly, this point is answered.

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POINT No.2: To what relief?

27. In the light of findings on point No.1, I am of the considered

opinion that it is a fit case to modify the judgment passed by the

Tribunal.

28. In the result, the appeal is partly allowed and held that the

appellant/claimant is entitled to a compensation of Rs.1,40,900/-

(Rupees One Lakh Forty Thousand and Nine Hundred only) with

interest @ 7.5% p.a. from the date petition till the date of deposit.

There shall be no order as to costs.

29. The 3rd respondent/Insurance Company is directed to the

deposit the compensation amount of Rs.1,40,900/- (Rupees One Lakh

Forty Thousand and Nine Hundred only) with accrued interest

thereon, within one month from the date of judgment. In the event of

3rd respondent/Insurance Company already deposited some amount,

the said amount has to be excluded, and the balance amount shall be

deposited within one month from the date of judgment. On such

deposit, the appellant/claimant is permitted to withdraw the said

compensation amount with accrued interest thereon.

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As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                    _____________________________
                                     B.V.L.N.CHAKRAVARTHI, J
14.12.2022

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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                M.A.C.M.A.No.458 OF 2016




                  14th December, 2022


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