Tula Sesha Rao vs K. Suresh Kumar And 4 Others
2022 Latest Caselaw 9639 AP

          HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    M.A.C.M.A. No.2018 of 2012
JUDGMENT:

1. Feeling dissatisfied with the award dated 23.08.2010 in M.V.O.P.

No.95 of 2008 passed by the Chairman, Motor Accidents Claims

Tribunal-cum- Principal District Judge, East Godavari District (for

short, 'the tribunal'), whereby the Tribunal awarded compensation

amount of Rs.4,14,310/- with interest at 7.5% per annum from the

date of the petition, till realization; the claimant preferred this

appeal seeking enhancement of compensation.

2. For the sake of convenience, hereinafter, the parties will be referred

to as per their rankings in the M.V.O.P.

3. The petitioner filed a claim under section 166 of the Motor Vehicles

Act 1988 for compensation of Rs.10,00,000/- for injuries sustained

by him in a motor vehicle accident.

4. The claimant's case is that, on 16.06.2007 at about 5.00 PM, while

the claimant was going on a scooter towards Dwarapudi, he

reached Mugullabattee an auto bearing registration No. AP5Y 9831

came from the opposite side at high speed. In the meantime, one

Mitsubishi Tractor bearing registration No. AP5AK 5305 also came

in the opposite direction without its horn blown, being driven by

the 3rd respondent, and ran over the petitioner's chest. As a result

of which, the petitioner sustained severe bleeding injuries. On a

report given, the case was registered in Cr. No.65/07 on the file of

Mandapeta rural police station.

5. Respondents 2 to 5 have filed separate written statements denying

the material pleas taken by the petitioner, contending that the

petitioner has to establish the same strictly and specifically and

setting out their respective defences with a plea to dismiss the

claim petition ultimately.

6. Based on the pleadings, the Tribunal framed appropriate issues.

During the trial, P.Ws.1 to 5 got examined and marked Exs.A.1 to

A.10 on behalf of the claimant. On behalf of the respondents, R.W.

1 got examined and marked B1 to B4.

7. The Tribunal, on appreciation of oral and documentary evidence on

record, held that the accident occurred due to rash and negligent

driving of the driver of the offending vehicle auto; and fixed

compensation an amount of Rs.4,14,310/- with interest at 7.5%

per annum from the date of the petition in favour of the claimant

against the respondents 1 and 2. The claim against respondents 3

to 5 is dismissed without costs.

8. Heard learned counsel for both parties.

9. It is contended by the learned counsel for the claimant/appellant

that the Tribunal failed to see that the claimant received grievous

injuries and multiple fractures. The Tribunal should have awarded

higher compensation under the heads of Medical expenses, Extra

Nourishment, Incidental Charges, Transport and Medical charges.

He further contends that the appellant needs further surgery to

replace the hip, approximately Rs.3 to 4 lakhs. In such

circumstances, the Tribunal should have awarded higher

compensation.

10. Learned counsel for the 2nd respondent/insurer supported the

findings and observations of the Tribunal.

11. After considering the rival contentions of the learned counsel

appearing for both the parties and on perusal of the material on

record, now the point for consideration is whether the quantum of

compensation awarded by the Tribunal was just and reasonable or

required enhancement.

12. In Yadav Kumar v. Divisional Manager, National Insurance Co.

Ltd.,1the Apex Court held the Tribunal, in all cases, should adopt

equitable principles and reasonable approach for the determination

of just compensation and observed as under:

2010 ACJ 2713 (S.C.)

"(18) It goes without saying that in matters of determination of compensation, both the Tribunal and the court are statutorily charged with the responsibility of fixing a 'just compensation'. It is obviously true that the determination of a just compensation' cannot be equated to a bonanza. At the same time, the concept of 'just compensation' obviously suggests the application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the Tribunal and the Court must be on a large peripheral field. Both the courts and the Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable (See Helen C. Rebello v. Maharastra State Road Trans. Corpn., 1999 A.C.J. 10 (S.C.))."

13. From a reading of the material on record, it can observe that there

is no serious dispute as to the occurrence of the accident in

question and the liability of respondents 1 and 2 to pay the

compensation amount. The 2nd respondent-insurance company

has not preferred appeal or cross-objection questioning the

findings of the Tribunal concerning the rash and negligent driving

of the offending vehicle. So also, the liability of respondents 1 and

2 for payment of compensation has become final.

14. The claimant's case that he sustained the following injuries, as referred to in Ex.A7, is not disputed by the 2nd respondent.

a. Extensive right lung contusion.

b. Multiple left rib fractures 3-9 (7 ribs fracture) c. Left haemothorax.

d. Lacerated wound below his left 2nd toe.

e. Subluxation of his left 2nd P.I.P. joint, f. Fracture of his right acetabular floor.

The evidence of PW-4 Dr Latha Sharma, a doctor

(consultant pulmonologist), shows that he treated the petitioner

in his hospital from 19.06.2007 to 04.07.2007. At the time of the

admission of the petitioner into the hospital, he was in

respiratory distress due to type-II respiratory failure, extensive

right lung contusion, multiple rib fractures on the left side and

left haemothorax, for which ventilator support was given,

I.C.D.T. was inserted on the left side thorax. A bronchoscopy was

performed for the bronchial toilet, and he was extubated on the

5th day and received non-invasive ventilatory support and oxygen

for 5 days. Ex.A7 medical record supports the said evidence of

PW4. PW's 4 evidence further shows that the petitioner

developed extensive right lung contusion and left haemothorax,

and left lower lobe collapse consolidation due to chest trauma.

15. The Evidence of PW 2 Dr, D.V. Rama Krishna, Surgical

gastroenterologist and laparoscopic surgeon Appollo Hospitals,

Kakinada, shows that the petitioner was admitted to the hospital

with acute cholecystitis and was treated by conservative

management (medical management) up to 3-8-2007 as an

inpatient. He issued Ex.A.8 discharge summary dated 02-08-2007

for him.

16. The evidence of P.W 3 Dr R Murali, consultant doctor of Alert

Emergency Hospital, Rajahmundry, shows that he, along with

another team of doctors, attended to the petitioner, and the case

was referred to a higher centre for further management because of

suspicion of aspiration pneumonia and the possibility of

pulmonary embolism.

17. The aforesaid evidence of P.Ws. 2 to 4 establishes the treatment

undergone by the petitioner in different hospitals. The Tribunal

also has accepted the said case of the petitioner, and it has also

not been disputed by the 2nd respondent. As seen from the order of

the Tribunal, it has granted an amount of Rs. 45,000/- towards

pain and suffering of injuries 1 and 2 as shown in Ex. A 7-wound

certificate. Upon considering the nature of injuries and treatment

undergone by the petitioner, this Court views that an additional

amount of Rs.15,000/- to be awarded towards pain and suffering

in respect of injuries 1 and 2. Though injury No.7 is shown to be a

fracture injury but perhaps due to oversight, the Tribunal awarded

an amount of Rs.2,000/- towards pain and suffering by

considering it as a fracture injury. This Court views an additional

compensation of Rs.13,000/- towards pain and suffering regarding

injury No.7. Regarding the simple injuries compensation amount

as awarded by the Tribunal is confirmed.

18. The Tribunal has awarded an amount of Rs. 3,07,221/- covered by

Ex. A 4 and an amount of Rs. 42,089/- covered by Ex. A5 towards

medical expenses. The 2nd respondent did not dispute the said

finding.

19. The Tribunal awarded an amount of Rs. 10,000/- towards

transportation to the hospital and extra nourishment. Considering

the facts of the case, this Court views an additional amount of

Rs.20,000/- under the said heads.

20. This Court views that an amount of Rs. 10,000/- to be awarded

towards attendant charges as no amount is awarded under this

head by this Tribunal. This Court also views an amount of Rs.

50,000/- towards loss of amenity and nervous shock as no amount

is awarded under the heads.

21. The Tribunal is not inclined to award the amount under the head

of the disability as there is no medical evidence. Tribunal referred

to the evidence of PW 4 that the petitioner was stable at the time of

discharge and there is no follow-up treatment. There is no chance

of the petitioner getting any respiratory problems. Based on the

evidence of PW 4, no amount is awarded under the head of the

disability and further medical treatment. This Court does not

incline to interfere with the said finding of the Tribunal.

22. The Tribunal has awarded an amount of Rs. 55,000/- towards pain

and suffering. It also awarded an amount of Rs. 10,000/- towards

extra nourishment and transportation. It awarded an amount of

Rs. 3,07,221/- and Rs.42,089/- towards medical expenses. It

altogether comes to 4,14,310/-. The Tribunal observed that the

petitioner could not have done any work for 6 months' loss of his

earnings comes to 30,000/-. But the Tribunal failed to include the

said amount while calculating the compensation amount; this

Court finds that an amount of Rs. 30,000/- is to be included while

calculating the compensation amount.

23. Altogether, apart from the compensation awarded by the Tribunal, this Court views that the claimant is also entitled to an amount as detailed below:

Towards attendant charges                                        Rs.10,000/-

Towards transportation,                                          Rs.20,000/-
 extra nourishment
Towards the pain and suffering of the injuries                   Rs.28,000/-

Towards loss of amenities and nervous shock                      Rs.50,000/-

Towards the treatment for the loss of earnings                   Rs.30,000/-

                         Total                             Rs.1,38,000/-

24. As a result, the appeal is partly allowed against respondents 1

and 2 with interest as awarded by the Tribunal, enhancing the

compensation an amount of Rs.5,52,310/- (Rs.4,14,310/- as

awarded by the Tribunal (plus) Rs.1,38,000/- as enhanced by this

Court). The 2nd respondent is directed to deposit the balance

amount within two months from the date of receipt of a copy of this

order. The claimant is entitled to withdraw the entire compensation

amount by filing an appropriate application before the Tribunal.

25. Consequently, miscellaneous petitions, if any, pending in this

appeal shall stand closed.

--------------------------------------- T.MALLIKARJUNA RAO, J Dt.15.12.2022 BV HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

M.A.C.M.A. No.2018 of 2012

Dated 15.12.2022

BV