M. Srinivasa Rao vs Sri Talakola Venkateswara Reddy ...
2022 Latest Caselaw 8592 AP

 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                 M.A.C.M.A.No.915 of 2008


JUDGMENT:

This appeal is filed by the appellant-claimant, aggrieved by

the Judgment and Decree dt.11.09.2007 passed in

M.V.O.P.No.818 of 2005 on the file of Motor Accidents Claims

Tribunal-cum-II Additional District Judge, Guntur (for short „the

Tribunal"), wherein the learned Tribunal awarded an amount of

Rs.15,000/- to the claimant with running interest @ 7.5% per

annum with proportionate costs from the date of claim petition

till realization against the respondents/Opponents jointly and

severally, seeking enhancement of compensation awarded by the

Tribunal.

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

they are arrayed before the Motor Accidents Claims Tribunal.

3. The brief facts of the case are as follows:

a) On 15-05-2005 at about 7.00 a.m., the petitioner was

proceeding to his village on foot. In the meanwhile, one tractor

bearing No.AP 7 X 3372 driven by its driver in a rash and

negligent manner at high speed, dashed the petitioner, as a

result, the petitioner sustained fracture injury on his left leg and

all over the body. Immediately he was shifted to the hospital for

treatment. The matter was reported to the Police alleging that

the accident took place as a result of the rash and negligent

driving of the said offending tractor and based on the FIR lodged

by the claimant, a case in Crime No.69 of 2005 under Section

338 IPC was registered and after investigation of the case, a

chargesheet was submitted against the accused driver for having

committed the offence under Section 338 IPC.

b) The claimant filed an application claiming compensation of

Rs.1,00,000/- before the Claims Tribunal at Guntur on account

of the injuries sustained by him in the road accident.

c) The 1st respondent who is the owner of the offending

vehicle did not contest the matter.

d) The 2nd respondent/Insurance Company filed a written

statement contending inter alia that the driver of the offending

tractor bearing No.AP 7 X 3372 was not holding a valid driving

licence at the time of the accident. It is further contended that

the offending tractor was not holding a valid permit to ply on the

road at the time of the accident. There was no rash and

negligent driving by the driver of the offending vehicle at the time

of the accident. It is further contended that the Insurance

Company is not liable to pay the compensation.

e) 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 tractor bearing No.AP 7 X 3372?

2) To what compensation the petitioner is entitled, and from whom?

3) To what relief?

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

was examined as P.W.1 and the Doctor, who treated the injured

was examined as P.W.2, and Exs.A.1 to A.3 and X.1 were

marked on behalf of the petitioner/claimant. None were

examined and no documents were marked on behalf of the

respondents/Opponents.

g) On appreciation of the evidence of P.Ws.1 and 2, and

placing the reliance on Exs.A.1 to A.3 and X.1 i.e., Certified

Copy of FIR, Certified Copy of Wound Certificate, Certified Copy

of Charge sheet, and Certified Copy of Case sheet respectively,

the learned Tribunal came to the conclusion that the accident

occurred due to the rash and negligent driving of the driver of

the tractor bearing No.AP 7 X 3372 and passed the impugned

award granting compensation of Rs.15,000/- with interest @

7.5% per annum from the date of the petition till realization

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

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

the petitioner/injured filed the instant appeal seeking

enhancement of compensation.

4. Heard both sides and perused the record.

5. A perusal of the impugned judgment and Award would

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

accident had occurred due to rash and negligent driving of the

vehicle by its driver, to which the Tribunal after considering the

evidence of P.W.1 coupled with the documentary evidence, has

categorically observed that the accident had occurred due to the

rash and negligent driving of the driver of the offending vehicle

bearing No.AP 7 X 3372 and has 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 bearing No.AP 7 X 3372.

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

perusal of the material on record would show, as per Ex.A.2

Wound Certificate, the claimant sustained a bimalleolar fracture

on the left ankle, and ankle dislocation. P.W.2 Doctor who

treated the injured has stated that the claimant was admitted in

their hospital on 15.05.2005 with compound bimalleolar

fracture on the left ankle and ankle dislocation and he was

operated on the same day and was discharged on 21.05.2005.

During the above period, the cost of the treatment was about

Rs.10,000/-. Ex.A.2 is the Wound Certificate issued by him,

which shows that injury No.1 is grievous in nature, and Ex.X.1

is the case sheet maintained by the hospital.

7. 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. Though the

Insurance Company has taken a plea that the driver of the

offending vehicle was not holding a valid driving licence and the

said offending vehicle was not having a valid permit at the time

of the accident, the onus would shift on the Insurance Company

only to prove the basic facts that the driver of the offending

vehicle was authorized by the owner to drive the vehicle and was

not having a valid licence and the offending vehicle was not

having valid permit at the relevant time. But, the insurer failed

to discharge their burden by examining any of them from the

respective departments. During the cross-examination of P.W.1

no suggestion is put to him that there was no valid permit for

the offending vehicle at the time of the accident. In the present

case, the owner of the offending vehicle did not contest the

matter. Though the insurance company filed a written

statement, none were examined on behalf of the Insurance

Company. Therefore, the respondents cannot escape from their

liability to pay the compensation.

8. Therefore, the fact remains that, by the time of the

accident, the offending vehicle was insured with the 2nd

respondent and the policy was in force and the driver of the

offending vehicle was having a valid licence.

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

Tribunal awarded a sum of Rs.10,000/- for the injuries

sustained by the claimant and a sum of Rs.5,000/- towards pain

and suffering which appears to be meager. The Disability

Certificate is not produced by the claimant. P.W.2 (Doctor)

stated in his evidence that the injured had partial and

permanent disability of 10% to 15%. In the absence of a

Disability Certificate issued by the Medical Board, it is difficult

to assess the disability on the oral evidence of P.W.2 much

weight cannot be given. 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 Kumar1.

"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)

(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)

2011 ACJ 1 (SC)

(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."

10. In the present case, the Tribunal awarded a sum of

Rs.5,000/- towards pain and suffering is in the lower side. As

per Ex.A.2 one of the injuries is grievous in nature. Hence, this

Court enhanced the amount from Rs.5,000/- to Rs.35,000/-

towards pain and suffering.

11. The injured failed to produce medical bills. P.W.2 Doctor

who treated the injured had categorically deposed that the cost

of the treatment was about Rs.10,000/-. The Tribunal failed to

award the compensation under this head towards medical

expenses. The claimant is a labourer is not supposed to be that

much meticulous so as to maintain the bills for any future use.

Therefore, granting of compensation of Rs.15,000/- towards

medical expenses, the cost of the treatment would be just and

proper.

12. As per the Wound Certificate, the injury No.1 sustained by

the injured is grievous in nature and another one is simple in

nature. As such, Rs.25,000/- and Rs.10,000/- for the grievous

and simple injury are awarded. Further, an amount of

Rs.15,000/- towards transportation, conveyance, extra

nourishment, and other incidental expenses is awarded to the

petitioner.

13. 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. Therefore, the claimant is entitled to the

compensation under the conventional heads in terms of the

judgment 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/petitioner 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.35,000/-
2.    Medical Expenses                ....     Rs.15,000/-
3.    Grievous & Simple Injuries      ....     Rs.35,000/-
4.    Transportation, conveyance,
      extra nourishment and
      other expenses                  .... Rs. 15,000/-
                                           ----------------
                                           Rs.1,00,000/-
(-) Compensation already awarded
by the Tribunal                        ....Rs. 15,000/-
                                        -----------------
                              Total ..... Rs. 85,000/-
                                        -----------------

14. 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.

15. Therefore, in view of the foregoing discussion, the appeal is

allowed, enhancing the compensation from a sum of

Rs.15,000/- to Rs.1,00,000/- with interest @ 7.5% per annum

and costs from the date of the petition till the date of realization

against the respondents 1 and 2 jointly and severally. The

respondents are directed to deposit the compensation amount

within two months from the date of this judgment, failing which

execution can be taken out against them. Rest of the directions

given by the Tribunal with regard to the entitlement of the

Claimant in withdrawing the amount shall remain unaltered.

The impugned award of the learned Tribunal stands

modified to the aforesaid extent and in the terms and directions

as above.

As a sequel, interlocutory applications pending for

consideration, if any, shall stand closed.

                           JUSTICE DUPPALA VENKATA RAMANA

Date:    09.11.2022

Dinesh

HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

M.A.C.M.A.No.915 OF 2008

09.11.2022

Dinesh