Andhra Pradesh High Court - Amravati

P. Lakshmidevi vs C. Pullaiah Another on 12 October, 2022

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                   MACMA. No. 1078 OF 2013
JUDGMENT:

1. Aggrieved by the order dated 11.12.2012 in MVOP No.17 of 2012

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

IV Additional District Judge, Anantapur (for short 'the Tribunal'),

the claimant has preferred this appeal seeking enhancement of

the compensation amount awarded by the Tribunal.

2. For convenience's sake, the parties will be referred to as arrayed

in the MV OP.

3. The claimant has filed the claim petition under Sections 140 and

166 of the Motor Vehicles Act, 1988, read with Rule 455 of the

AP Motor Vehicle Rules to grant compensation of Rs.4,00,000/-

for the injuries sustained by her in a motor vehicle accident that

occurred on 14.12.2010 while the claimant, along with others,

was proceeding in the auto bearing No. AP 02 W 8291 from

A.Kondapuram Village to Ramalingayanapalli village, and when

the said auto reached Surepalli Village, Putlur Mandal on

A.Kondapuram-Kodavakallu road, the Eicher van bearing No. AP

02 X 9642 (hereinafter referred to as 'offending vehicle), driven

by its driver in a rash and negligent manner, which, coming in

the opposite direction, dashed the auto, wherein the claimant

and others received grievous injuries and fractures.

MACMA 1078_2013

4. The 1st respondent has remained ex-parte. The 2nd respondent

has filed its counter by contending that the driver of the

offending vehicle holds LMV (NT) but not MMV (T) as the

offending vehicle is registered and insured as a commercial

vehicle (Goods carriage-MMV). As such, the 1st respondent has

violated the terms of the policy.

5. Based on the pleadings, the Tribunal has framed appropriate

issues. During the trial, on behalf of the claimant, P.Ws.1 to 4

got examined, marked Exs.A. 1 to A.9. On behalf of the 2nd

respondent, R.W.1 and R.W.2 got examined, marked Ex.B.1,

Ex.X.1 and Ex.X.2 . After considering the material evidence on

record, Tribunal held that due to rash and negligent driving of

the offending vehicle, the accident took place. Regarding the plea

taken by the 2nd respondent that the driver of the offending

vehicle holds LMV (NT) only, the Tribunal further held that the

defence taken by the 2nd respondent in this regard stands no

reason. At this stage, it is appropriate to note that the insurance

company has not preferred any appeal questioning the findings

recorded by the Tribunal. The Tribunal awarded a compensation

amount of Rs.1,25,646/- with proportionate costs and interest to

the petitioner from the date of the petition.

6. Heard the learned counsel for the claimant and the 2nd

respondent.

MACMA 1078_2013

7. It is contended by the learned counsel for the claimant that the

claimant was aged about 38 years at the time of the accident,

she was earning Rs.15,000/-per month, and she sustained a

permanent disability of 35%. Still, the Tribunal has awarded a

meagre amount under the said head. The learned counsel for the

2nd respondent supported the findings and observations of the

Tribunal.

8. Considering the rival contentions of both the learned counsel

and on perusal of the material on record, the point for

consideration is whether the quantum of compensation awarded

by the Tribunal was just and reasonable or required any

enhancement.

POINT:

9. As already observed in the preceding paragraphs, there is no

dispute as to the occurrence of the accident in question and the

respondents' liability to pay compensation. The 2nd respondent

insurance company has not preferred any appeal or cross-

objections questioning the findings; the Tribunal's findings about

the liability for payment of compensation have become final.

10. According to the claimant, she was doing banana business and

was earning Rs.15,000/-per month. As already observed, the 2nd

respondent has not disputed the case of the claimant that, she

sustained injuries in the accident. To prove the nature of injuries

MACMA 1078_2013

suffered by the claimant, she mainly relied on Ex.A.2-certified

copy of the wound certificate. To establish the treatment

undergone by her, she adduced the evidence of P.W.2-Dr.

B.Jagan Mohan Reddy. According to P.W.2, the claimant was

admitted to K.K.Nursing Home, Anantapur, on 14.12.2010 and

on taking X-rays, he found that she had suffered a patella knee

cap bone fracture. On 15.12.2010, after getting clearance from

the neurosurgeon, he removed the knee cap bone of P.W.1 and

repaired the tissues; on 21.12.2010, she was discharged from the

Nursing Home. According to P.W.2, he did surgery on P.W.1, and

P.W.1 has minimal disability while carrying the weights. The

evidence shows that the claimant relied on Ex.A.5 medical bills.

P.W.2 identified the medical bills. The evidence of P.W.2 coupled

with Ex.A.5 establishes that the claimant incurred an amount of

Rs.24,000/- towards medical bills. The claimant also filed

medical bills worth Rs.40,646/- vide Ex.A.5 with medical

prescriptions under Ex.A.8 and, as already noted, the value of

the bills is about Rs.24,000/- and were in the handwriting of

P.W.2 with the medical prescriptions under Ex.A.8.

11. To prove the medical bills, the claimant adduced the evidence of

P.W.4, a general physician at KK Nursing Home, Anantapur. By

considering the evidence of P.W.4 coupled with Ex.A.5, towards

medical expenses, the Tribunal has awarded an amount of

MACMA 1078_2013

Rs.40,646/-. As already observed, the said finding given by the

Tribunal is also not disputed by the 2nd respondent insurance

company. Hence, no interference warrants the medical

expenditure awarded by the Tribunal.

12. The Tribunal has observed that the claimant received treatment

and follow-up treatment in the nursing home. She would have

depended on some others. As such, dependant charges, a sum of

Rs.15,000/- can be assessed, and the compensation amount

awarded under the said head is just and quite reasonable. It is

also not disputed by the other side. According to the evidence of

P.W.1, she sustained disability due to injuries caused in the

accident. To establish the said fact, she adduced the evidence of

P.W.3-Dr.Jagannath, who is working as a civil surgeon and one

of the Medical Board members. He deposed that he issued Ex.A.3

disability certificate. He assessed the disability under Ex.A.3 at

35% permanent. According to P.W.3, there is a reduced range of

right knee joint movements, with flexion limited to 100 degrees,

limping due to extensor lag, difficulty climbing stairs, getting

down from stairs, long-distance walking, sitting in squatting and

cross-legged positions, including running. Thus, it is clear from

the evidence of P.W.3 that, after examining P.W.1, he issued

Ex.A.3 disability certificate assessing the disability at 35%, which

is permanent, and there is a restriction in the movements of the

MACMA 1078_2013

right knee joint. Considering the evidence on record, the Tribunal

awarded Rs.35,000/- towards disability. Though the respondent

cross-examined at length P.W.3, nothing elicited to discredit his

evidence. This court holds that when the claimant sustained

disability at 35%, the Tribunal ought to have considered the

evidence on record and has not given any reason for awarding

only Rs.35,000/-.

13. According to the evidence of P.W.1, she was doing banana

business and household work. Though she claimed that she was

earning an amount of Rs.15000/-per month, she did not place

any evidence to support the said contention. The occupation of

P.W.1 is not seriously disputed. This court is of the view that the

Tribunal has reasonably assessed the claimant's monthly

earnings. There is every possibility of the claimant getting

monthly earnings of Rs.4,000/-per month. As seen from the

order of the Tribunal, the Tribunal has not fixed the age of the

claimant, and without concluding the claimant's age, the

Tribunal has granted a lump sum amount towards permanent

disability. In the petition, she claimed that she was aged 45

years. Given the same, can consider the said age.

MACMA 1078_2013

14. The Division Bench of the Hon'ble Apex Court in a case between

Raj Kumar Vs. Ajay Kumar and another1 held that the courts,

which are enjoined with a duty of arriving at just compensation,

will have to decide the same following well-accepted principles of

determination of compensation. The reading of the said judgment

shows that the doctor who treated the injured or who examined

him subsequently to his permanent disability can give evidence

only concerning the extent of permanent disability. The loss of

earning capacity is something that will have to be assessed by the

Tribunal regarding the evidence in its entirety. It is also a settled

principle that the provisions of the motor vehicle act make it clear

that the award must be just; it means that compensation should

be paid to the extent possible to fully and adequately restore the

claimant to the position before the accident.

15. Given the above principles, this court has no hesitation in

holding that functional disability can be assessed at 15%. The

relevant multiplier for the person age group of 41 to 45 is 14.

Because of the preceding discussion, this court holds that the

claimant is entitled the compensation under the permanent head

disability as Rs.48,000/-x15%x14=Rs.1,00,800/-.

16. As seen from the order of the Tribunal, it has not awarded any

amount towards transport charges; as such, this court is of the

2011(1) SCC, 343

MACMA 1078_2013

view that an amount of Rs.5,000/- can be awarded under the

said head. Further, the Tribunal awarded only R.20,000/-

towards pain and suffering. Considering the nature of injuries

sustained by the claimant, this court is of the view that the

claimant is entitled to an amount of Rs.30,000/- towards pain

and suffering.

17. As seen from the order of the Tribunal, no amount is awarded

towards loss of earnings. Considering the nature of the injuries,

this court believes that an amount of Rs.16,000/- can be

awarded towards loss of earnings. As seen from the record, the

Tribunal awarded an amount of Rs.15,000/- towards extra

nourishment. The 2nd respondent does not dispute the said

findings given by the Tribunal through any appeal or cross

objection. This court believes that an amount of Rs.15,000/- can

be awarded towards extra nourishment. In all, the claimant is

entitled to the compensation under the following heads:-

Towards permanent disability Rs.1,00,800/-

  Towards medical expenditure            Rs.40,646/-
  Towards attendant expenses             Rs.15,000/-
  Towards extra nourishment              Rs.15,000/-
  Transport expenses                     Rs. 5,000/-
  Pain and suffering                     Rs.30,000/-
  Loss of earnings                       Rs.16,000/-
                              Total:     Rs.2,22,446/-

                                                           MACMA 1078_2013

18. For the reasons stated above, this court is of the view that the

claimant is entitled to compensation of Rs.2,22,446/- from

Rs.1,25,646/-.

19. In the result, the appeal is allowed in part, enhancing the

compensation to an amount of Rs.2,22,446/-from Rs.1,25,646/-

with interest at 7.5% per annum. The respondents are directed to

deposit the compensation amount within one month from the

date of receipt of a copy of this order. The claimant is entitled to

withdraw the compensation amount. There shall be no order as

to costs.

20. Miscellaneous Petitions, if any, pending in this appeal shall

stand closed.