Andhra Pradesh High Court - Amravati

The National Insurance Company ... vs Akula Reddemma Anr. on 12 October, 2022

      HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

      M.A.C.M.A.No.1624 of 2006 & CROSS-OBJECTIONS
                           No.37170/2006

COMMON JUDGMENT:

       This appeal under Section 173 of Motor Vehicles Act, 1988

(for short 'M.V.Act') has been filed by the appellant/Insurer

challenging the judgment and award dt.27.02.2006 delivered by

the    Motor   Accidents    Claims   Tribunal-cum-District     Judge,

Kadapa in M.V.O.P.308 of 2003 granting compensation of a sum

of Rs.1,40,000/- along with interest @ 7.5% per annum thereon

from the date of filing of the petition till the date of deposit of the

compensation amount to the claimant on account of injuries

sustained by the claimant in a road accident occurred at

Kadapa-Rayachoti Main Road on 02.12.2002.

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

they are arrayed before the Motor Accidents Claims Tribunal

(hereinafter referred to as "the Tribunal").

3.     The factual context of the case is as follows:

(a)     On 02.12.2002 the petitioner and her husband while

returning from Kadapa to their village after getting treatment on

their Hero Honda motorcycle, the petitioner was the pillion rider

and her husband was riding the motorcycle, at about 1.30 p.m.,
                                  2




when they reached near Nagireddy's house, the rider of the

motorcycle observing that a DCM lorry was ahead of them, had

blown horn and while they were crossing the said DCM lorry, in

the meanwhile the offending lorry bearing No.AP 27 T 9558

being driven by its driver, came in opposite direction in a rash

and negligent manner and dashed the motorcycle as a result,

the petitioner had fallen and sustained crush injury on right leg.

She was shifted to the Government Hospital, Kadapa and she

took treatment as in-patient from 02.12.2002 to 29.01.2003.

The matter was reported to the Police alleging that the accident

took place due to the rash and negligent driving of the offending

lorry driven by its driver and based on the F.I.R lodged by the

husband of the petitioner/injured, a case in Cr.No.105/2002

under Section 337 IPC was registered. After investigation of the

case, charge sheet was submitted against the driver of the

offending vehicle having committed the offence punishable

under Sec.338 IPC and Section 134(a)(b) read with 187 of

M.V.Act.    Later the injured filed an application claiming

compensation of Rs.3,50,000/- before the Tribunal on account

of the injuries sustained by her in the said road accident.

(b)   The 1st respondent/owner of the offending vehicle did not

contest the matter. The 2nd respondent/Insurance Company

filed written statement. It was pleaded that the petitioner is put

to strict proof of involvement of the lorry bearing No.AP 27 T

9558 in the accident and sustained injuries. It was further

pleaded that the husband of the petitioner in an effort to

overtake the vehicle going ahead, suddenly increased the speed

of the motorcycle without noticing the opposite vehicle. Even on

seeing it by the driver of the offending vehicle, he cannot save

from the accident. The husband of the petitioner suddenly

passed the motorcycle in between the two lorries, as such, the

carrier which is the last end of the motorcycle came into contact,

as a result the petitioner had fallen. It is further pleaded that

the petitioner is put to strict proof that the driver of the

offending vehicle possessed valid driving licence on the date of

accident. The petitioner had taken treatment in a Government

Hospital at free of cost. However, in any event, the quantum of

compensation claimed, is excessive. It was further pleaded that

it was not liable to pay any compensation arriving out of the said

accident.

as under:

(1) Whether the petitioner received injuries in motor

vehicle accident on 02.12.2002 due to rash or negligent driving of the 1st respondent's lorry bearing No.AP 27 T 9558 driven by its driver?

(2) Whether the petitioner is entitled for compensation, and if so, to what amount and from whom?

(3) To what relief?

(d) In order to establish the claim of the petitioner, at the

time of enquiry, P.Ws.1 and 2 were examined and Exs.A.1 to

A.12 and X.1 were got marked. None were examined and no

documents were marked on behalf of the 2nd

respondent/Insurance Company.

(e) On appreciation of the evidence of P.Ws.1 and 2 and

placing reliance on Exs.A.1 to A.12 and X.1, the certified copies

of F.I.R., Wound Certificate, Charge Sheet, Medical Bills,

Disabilities certificate etc., the learned Tribunal was of the view

that the instant case was due to the rash and negligent driving

of the driver of the vehicle of the 1st respondent. The Tribunal

then proceeded to assess the compensation and quantified it at

Rs.1,40,000/- and consequently it passed the impugned award

granting compensation of Rs.1,40,000/- in favour of the

claimant payable by the 1st and 2nd respondents jointly and

severally from the date of petition till the date of deposit of the

amount. Aggrieved by the award passed by the learned

Tribunal, the 2nd respondent/Insurance Company filed the

present appeal.

(f) Having dissatisfied with the award, the claimant also filed

Cross-Objections seeking enhancement of the compensation.

4. Learned counsel for the appellant/Insurance Company

would contend that the Tribunal committed error in awarding an

amount of Rs.50,000/- towards permanent disability though the

claimant failed to produce Disability Certificate issued by the

Medical Board. It is further contended that the Tribunal is erred

in granting an amount of Rs.10,000/- towards medical

expenditure against Ex.A.4 medical bills produced by the

claimant for Rs.5,385/-. It is further contended that the

Tribunal ought to have seen that the evidence of P.W.2 who

issued Disability Certificate, is untrustworthy. It is further

contended that the Tribunal is also erred in awarding excess

amount of Rs.20,000/- towards attendant charges, though the

claimant failed to establish the percentage of disability. Taking

into consideration all the above aspects, the appeal has to be

allowed setting aside the award dt.27.02.2006 passed by the

Tribunal.

5. Learned counsel for the Cross Objector/claimant

contended that the Tribunal did not take into consideration the

future prospects that the injured sustained two fractures, crush

injury and injuries all over the body and she may not work as

she did prior to the accident. It is further contended that the

Tribunal ought to have granted compensation as prayed in the

petition and taken a view that the petitioner is the earning

member of the family and she was getting Rs.15,000/- per

month by selling milk prior to the accident. Finally sought for

grant of compensation as claimed in the petition.

6. In the light of the above rival arguments, the points for

determination in this appeal are:

1. Whether the compensation awarded by the learned

Tribunal is just and reasonable or needs interference?

2. Whether the compensation awarded by the Tribunal

is not in accordance with the principles of law and requires

enhancement?

7. POINT Nos.1 & 2: The accident, involvement of the

motorcycle and lorry bearing No.AP 27 T 9558 belongs to the 1st

respondent and the injuries sustained by claimant are not in

dispute, as stated supra. The appellant/Insurance Company is

mainly challenging the quantum of compensation awarded by

the Tribunal and sought for interference. The Tribunal going by

the evidence on record, observed that the accident occurred due

to rash and negligent driving of the offending lorry bearing No.AP

27 T 9558 driven by its driver, awarded an amount of

Rs.30,000/- towards pain and suffering, Rs.15,000/- towards

other grievous injuries, Rs.15,000/- for disfigurement of right

leg, Rs.10,000/- towards medical and other incidental expenses,

Rs.50,000/- for physical as well as functional disability and

Rs.20,000/- towards help due to the disability in total

Rs.1,40,000/-, to the claimant/injured.

8. Learned counsel for the Cross-Objector/Claimant would

submit that the amount awarded by the Tribunal is meager and

the claimant is entitled to more compensation than the amount

claimed as the earning capacity of the injured is severely affected

in view of the nature of the injuries.

9. At this juncture it is necessary to look into the evidence of

P.W.2, the doctor who treated the injured. He deposed that he

worked as Civil Surgeon (Specialist) in Orthopedic Department

in Government Head Quarters Hospital, Kadapa and he assessed

the Physical Disability of the claimant at 45% which is

permanent in nature. In cross examination he deposed that

there is a Medical Board in Kadapa. He further deposed that the

claimant suffered two fractures and a crush injury. A

suggestion was put to him that the petitioner was not suffering

disability more than 25%.

10. In view of the evidence of the Doctor/P.W.2 to the effect

that the injured is having partial permanent disability and she

can walk to small distance and can sit. As per Ex.A.8 Disability

Certificate the injured was aged 40 years and her permanent

disability was assessed to the extent of 45% per each. The

permanent partial disability was assessed by P.W.2 on the

physical examination, Wound Certificate and X-rays. In view of

the evidence of P.W.2, the Tribunal ought to have granted not

only medical expenses but also other amounts under various

conventional heads i.e., extra nourishment, loss of amenities,

and transportation charges. However, it is relevant to refer the

ratio rendered by the Hon'ble Supreme Court of India in Raj

Kumar Vs. Ajay Kumar1 has held that the 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 the compensation for

2011 ACJ 1 (SC)

his inability to lead a full life, enjoy those normal amenities

which he would have enjoyed but for the injuries, and his

inability to earn as much as he used to earn or could have

earned. The Hon'ble Supreme Court further laid down the heads

under which the compensation need to be awarded in personal

injury cases as under:

Pecuniary Damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines,

transporation, 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)

(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).

11. But, in the present case, the learned Tribunal has not

awarded amounts towards loss of earnings for the period of

treatment and medical expenses are not properly awarded by the

Tribunal. The learned counsel for the appellant/Insurance

Company argued that the Tribunal committed error in awarding

Rs.10,000/- towards medical and other incidental expenses. I

find no justification in the arguments advanced by the counsel

for the appellant/insurance company and that the

claimant/injured who is a labourer is not supposed to be much

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

claimant has remained in the hospital for a period of nearly two

months and must have incurred much more expenses, as such,

interference is required on the compensation awarded on the

above account, since the claimant suffered two grievous injuries

and one crush injury. Therefore, it is appropriate to award a

sum of Rs.50,000/- towards medical expenses. Therefore, grant

of Rs.10,000/- towards medical expenses is not sufficient and it

needs to be enhanced to Rs.50,000/-. The Tribunal should also

award attendant charges, extra nourishment, loss of amenities,

apart from future earnings. The compensation under the above

four conventional heads is also to be awarded. The attendant

charges for 58 days at Rs.200/- per day which comes to Rs.200

x 58 = Rs.11,600/- has to be awarded to the claimant, as the

claimant was in-patient for a period of 58 days. Further, an

amount of Rs.15,000/- towards extra nourishment,

Rs.20,000/- towards loss of amenities have to be granted to the

claimant for her sufferance in the hospital due to the injuries

sustained by her. Transportation charges need not be granted

as the husband of the claimant admitted her in the hospital and

got her treated.

12. Admittedly, P.W.2, the Doctor who treated the claimant

had deposed that the injured sustained partial permanent

disability of 45%. The counsel for the appellant/Insurance

Company did not deny the disability in toto but suggested that

the injured sustained disability not more than 25%. Taking into

consideration of the partial permanent disability average at 30%,

compensation has to be awarded to the claimant under the head

of loss of earnings during the period of treatment and loss of

future earnings on account of the permanent disability. Since

the claimant was a labourer, even according to the Minimum

Wages Act, she may get Rs.100/- per day. Hence, loss of

earnings for 58 days during which she was inpatient comes to

Rs.100 x 58 = Rs.5,800/- and the claimant is entitled for the

same. The injuries sustained by the injured was quantified as

45% disability, as per Ex.A.8. The loss of earning capacity is

however assessed by this Court at 15% based on the Disability

Certificate issued by P.W.2. Since the income of the injured is

taken as Rs.100/- per day, the annual income comes to

Rs.36,000/- (Rs.100 x 30 x 12), out of which loss of future

earning per annum (15% of the prior annual income) comes to

Rs.5,400/-. After applying the multiplier with reference to the

age of the claimant the compensation under the head loss of

future earnings would come to Rs.5,400/- x 15 = Rs.81,000/-.

13. Therefore, compensation under those conventional heads

has to be granted to the injured in view of the judgment

rendered by the Hon'ble Supreme Court of India in the case of

Kavita Vs. Deepak and Others2, wherein it was held that

whenever any amount is determined as the compensation

payable for any injury suffered during an accident, the object is

to compensate such injury "so far as money can compensate"

because it is impossible to equate the money with the human

sufferings or personal deprivations. Money cannot renew a

broken and shattered physical frame. Efforts should be made to

award adequate compensation. Accordingly for the physical

injury and treatment and also for the loss of earnings and

(2012) 8 SCC 604

inability to lead normal life and enjoy the benefits which would

have been enjoyed but for the disability caused in the accident.

14. Based on the above observation the Hon'ble Apex Court

granted various amounts under different conventional heads as

shown in Para 5 in Raj Kumar case which was followed in Kavita

case.

15. Therefore, in view of the above judgments, this Court is of

the view that the learned Tribunal failed to consider the

compensation on some of the conventional heads stated supra.

The Tribunal had committed an illegality in awarding a meager

amount of compensation under the above conventional heads

payable to the claimant. The Tribunal had not taken into

consideration of loss of income during the period of treatment,

when the injured was totally incapacitated. Hence, keeping in

view the partial permanent disability of the claimant/injured,

this Court is of the view that she is entitled to a further sum of

Rs.1,73,400/- under the following heads.



1.      Medical Expenses              .... Rs.40,000/-   (Tribunal

                                                       Already granted
                                                       Rs.10,000/-)



2.      Attendant charges             .... Rs.11,600/-
3.      Extra Nourishment             .... Rs.15,000/-





4.    Loss of amenities                 .... Rs.20,000/-
5.    Loss of earnings

During the period of treatment.... Rs. 5,800/-

6. Loss of future earnings .... Rs.81,000/-