Andhra Pradesh High Court - Amravati
P Venkateswarlu, Kadapa Dist vs Lodugu Lakshmi Devi, Kadapa Dist Anr on 8 December, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
M.A.C.M.A. No.822 OF 2016
JUDGMENT:
This Motor Accident Civil Miscellaneous Appeal is directed
against the order, dated 24.06.2015, in M.V.O.P. No.511 of 2012
on the file of the Chairman, Motor Accident Claims Tribunal-cum-
Principal District Judge, Kadapa (for short, 'the Tribunal').
2. The appellant herein is no other than the claimant before
the Tribunal in M.V.O.P. No.511 of 2012. The respondents herein
are no other than the respondents in M.V.O.P. No.511 of 2012,
who are owner of the Tractor trolley bearing registration No.AP-
04AJ-6894 (for short, 'the offending vehicle') involved in the
accident and the insurance company respectively.
3. The parties to this Appeal will hereinafter be referred to as
described before the Tribunal, for the sake of convenience.
4. The petitioner laid a claim before the Tribunal seeking
compensation of Rs.2,50,000/- on account of the injuries caused
to him in a motor vehicle accident, which was occurred on
22.02.2012 at about 04:30 p.m. near Raja Saheb Peta on
Seetharamapuram - Porumamilla road, in which the driver of the
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offending vehicle had involved. The case of the petitioner, in
substance, according to the claim filed by him before the Tribunal,
is that he was aged about 38 years at the time of accident. He was
hale and healthy prior to the date of accident. On 22.02.2012
morning, he went to Porumamilla on a motorcycle on his personal
work. After completion of his work, he left Porumamilla on the
same motorcycle. He was proceeding on the same motorcycle on
the left side of the road. At about 04:30 p.m., when he reached
near Raja Saheb Peta on Seetharamapuram - Porumamilla road,
the offending vehicle of the first respondent bearing registration
No.AP-04-AJ-6894 came in opposite direction, driven by its driver
in a rash and negligent manner, with high speed and dashed
against the motorcycle of the petitioner. Petitioner fell down from
his motorcycle and sustained serious fracture injuries. He was
taken to RIMS Hospital, Kadapa. He lodged a report at RIMS
Hospital before the Police, which was registered as a case in Crime
No.20 of 2012 of Porumamilla Police Station, and after completion
of investigation, Police laid charge sheet against the driver of the
offending vehicle. The accident occurred was due to the rash and
negligent driving of the driver of the offending vehicle. Petitioner
sustained a fracture to his right upper thigh, over chest and other
parts of the body. From RIMS Hospital, Kadapa he was taken to
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Himalaya Multi Specialty Hospital, Kadapa where the doctors
conducted a surgery to the fractured injury by inserting rods,
plates and screws and he was in the hospital for 20 days as in-
patient. After discharge from the Himalaya Multi Specialty
Hospital, Kadapa he took treatment from private orthopedic
surgeons at Kadapa. He incurred Rs.20,000/- towards treatment,
medicines and extra-nourishment; Rs.5,000/- towards transport
charges. He also incurred transport expenses of Rs.5,000/- and
attendant charges. In spite of the treatment, the fractures are not
united properly. The petitioner is not able to perform the
agricultural operations as like he did prior to the date of accident.
5. Petitioner in his affidavit apportioned the claim of
compensation under different heads. He apportioned Rs.25,000/-
towards treatment, medicines and extra nourishment. He
apportioned Rs.5,000/- towards transport charges, Rs.15,000/-
towards attendant charges, Rs.25,000/- towards pain and
suffering, Rs.30,000/- towards permanent disability and loss of
amenities in life and further compensation of Rs.5,00,000/-
towards loss of earning power and thus he has shown the total
amount of Rs.6,00,000/- but restricted his claim to Rs.2,50,000/-.
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6. First respondent is owner of the offending vehicle and
second respondent is the insurer and both of them are jointly and
severally liable to pay the compensation of Rs.2,50,000/-.
7. The first respondent, owner, remained ex parte before the
Tribunal.
8. The second respondent, insurance company, got filed a
counter denying the averments in the Petition and resisting the
claim. The contention of second respondent in substance is that
the accident occurred was due to rash and negligent inexperienced
driving of the motorcycle by the petitioner, when he lost control
over the vehicle. The allegation that the driver of the offending
vehicle drove the same in a rash and negligent manner is all false.
Petitioner has to prove the factum of receipt of injuries, including
permanent disability as pleaded, and he has to prove the medical
expenditure incurred and his source of income prior to the
accident and loss of earnings. He has to further prove the
allegation that the fracture was not united properly. Hence the
Petition is liable to be dismissed.
9. On the basis of the above pleadings, the Tribunal settled the
following issues for trial:
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1. Whether the petitioner sustained injuries in a
vehicular accident occurred on 22.02.2012 at 04:30
p.m., near Raja Sahebpeta on Seetharamapuram -
Porumamilla main road due to the rash and negligent
driving of the driver of tractor and trolley bearing
No.AP 04AJ 6894 belonging to first respondent which
is insured with the second respondent?
2. Whether the petitioner is entitled for compensation
for the injuries sustained by petitioner, if so to what
extent?
3. Whether the respondents 1 and 2 are jointly and
severally liable to pay the compensation to the
petitioner?
4. To what relief?
10. Before the Tribunal, the petitioner got himself examined as
PW.1 and further examined PW.2 and got marked Exs.A-1 to A-7.
On behalf of the second respondent, RW.1 and RW.2 were
examined and Exs.B-1 to B-3 and Exs.X-1 to X-6 were marked.
11. The Tribunal, on hearing both sides and after considering
the oral and documentary evidence on record, answered the issue
Nos.1 and 2 in favour of the petitioner but granted a sum of
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Rs.1,01,000/- towards compensation. The Tribunal, while
awarding the said compensation, apportioned Rs.25,000/-
towards pain and suffering; Rs.25,000/- towards medical
expenses; Rs.6,000/- towards loss of earnings during the period of
treatment; Rs.25,000/- in the shape of future medical expenses
under the count of permanent disability; Rs.10,000/- towards
extra-nourishment and transportation and Rs.10,000/- for loss of
amenities in life.
12. Feeling that the compensation so awarded is not just and
reasonable, the petitioner therein filed the present Appeal with a
prayer to enhance the compensation.
13. In the light of the contentions advanced, in deciding this
Appeal, now the points that arise for consideration are as follows:
1. Whether the quantum of compensation under
various heads awarded by the Tribunal in favour of the
petitioner is just and reasonable? If not so, whether the
compensation is liable to be interfered with by
enhancing the same?
2. To what relief?
POINT Nos.1 & 2:
14. Sri D. Kodanda Rami Reddy, learned counsel for the
appellant/petitioner, would contend that though the appellant
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raised various contentions under various heads with regard to
awarding of compensation but the main grievance of the appellant
is that, as against 40% of permanent disability under Ex.A-4, the
Tribunal could only grant Rs.25,000/- under the guise of future
medical expenses, which is meager according to the petitioner. His
another submission is that though the petitioner filed Exs.A-5 and
A-6, which are the medical receipts, claiming the medical
expenditure of Rs.9,899.28 (rounded off to Rs.9,900/-) +
Rs.26,700/- but the Tribunal without furnishing any reasons only
awarded a sum of Rs.25,000/- towards medical expenses. The
factum of the treatment to the petitioner in the form of surgical
intervention and further surgery to remove the implants is not in
dispute. The expenditure under Exs.A-5 and A-6 was on account
of the surgical procedure and there is no justification on the part
of the Tribunal to deny the medical expenditure as claimed under
Exs.A-5 and A-6. He would further submit that though the
petitioner claimed compensation of Rs.2,50,000/- but he could not
show the compensation under proper heads and when the
petitioner underwent two surgical procedures, awarding
compensation of Rs.25,000/- only for the grievous injury on
account of the pain and suffering is not justified and it is liable to
be interfered with. With the above submissions, learned counsel
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for the appellant would seek to enhance the compensation towards
permanent disability, medical expenditure and further towards
pain and suffering.
15. Sri K. Srinivasa Rao, learned counsel, appearing on behalf of
learned Standing Counsel for the 2nd respondent/insurance
company, would submit that on thorough analyzation of the
evidence on record, the learned Tribunal arrived at a just
conclusion to award compensation of Rs.1,01,000/- to the
petitioner, which is not liable to be enhanced.
16. It is a case where the petitioner (PW.1) filed his chief-
examination affidavit putting forth the facts in tune with his
pleadings. Through his chief-examination, Exs.A-1 to A-7 were
marked. Ex.A-1 is certified copy of FIR in Crime No.20 of 2012 of
Porumamilla Police Station. Ex.A-2 is certified copy of wound
certificate. Ex.A-3 is the certified copy of charge sheet. Ex.A-4 is
the disability certificate issued by District Medical Board, Kadapa.
Ex.A-5 is the bunch of medical bills and prescriptions issued by
Vidya Sagar Hospital, Kadapa. Ex.A-6 is the final bill along with
receipt and Ex.A-7 is the discharge summary issued by Vidya
Sagar Orthopedic and Joint Replacement Hospital, Kadapa. The
petitioner further examined PW.2, who claimed to have issued the
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disability certificate under Ex.A-4. According to him, the petitioner
suffered the following injuries:
1. Malunited fracture shaft of right femur with an
evidence of removal of the implant.
2. Osteoporosis of the surrounding bones of right hip.
3. Painful and restricted movements of right hip and
knee.
4. Difficulty to stand on the affected limb, difficulty to
squat and cross legged.
5. Antalgic gait present.
17. Basing on the above injuries, PW.2 testified that the
disability of the petitioner is 40%.
18. The representative of the second respondent i.e., B.
Kamalakannan, Claims Officer - RW.1, got filed his chief-
examination affidavit and his evidence is that there were violations
of policy terms and conditions and the insurance company did not
issue any policy with regard to the trailer and the trailer was
attached with the tractor at the time of accident and as there were
violations, first respondent alone is liable to pay compensation.
Through his examination in chief, Exs.B-1 to B-3 were marked.
Ex.B-1 is attested true policy copy along with terms and
conditions. Ex.B-2 is the letter addressed by second respondent to
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the insured and driver along with a receipt. Ex.B-3 is the
corresponding acknowledgment cards (2).
19. The second respondent got examined RW.2, the Senior
Assistant in the Office of RTO, Proddatur. Through his examination
in chief, Exs.X-1 to X-6 are marked. Ex.X-1 is the authorization
letter authorizing him to give evidence. Ex.X-2 is the R.C. extract of
vehicle bearing No.AP 04 AJ 6894. Ex.X-3 is the extract of R.C. of
Trailer bearing No.AP 04 TT 4353. Ex.X-4 is the extract of F.C.
Ex.X-5 is the extract of goods carriage permit for the trailer. Ex.X-6
is the extract of driving license of person by name Adusumalli
Madhava, driver of offending vehicle.
20. It is to be noted that the facts and circumstances are such
that basing on the report of PW.1, Police registered the FIR against
the driver of offending vehicle and, after due investigation, filed the
charge sheet. PW.1 is the injured victim. His evidence coupled with
the wound certificate proves the nature of injuries received. Insofar
as the findings of the Tribunal that the accident was occurred due
to the rash and negligent act of the driver of the offending vehicle
and that first respondent being the owner of the offending vehicle
and the second respondent being the insurer are jointly and
severally liable to pay compensation, they are not under challenge
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by the contesting second respondent by way of any cross-appeal.
So the scope of the Appeal is limited one, in the light of the
grounds of Appeal and the contentions advanced, as to whether the
compensation that was awarded to the petitioner is just and
reasonable or not.
21. Even during the course of hearing on behalf of the second
respondent/insurance company, the findings of the Tribunal as
regards issue Nos.1 and 2 are not at all sought to be disturbed. So,
there was convincing evidence adduced by the petitioner insofar as
the contention that the accident was occurred on account of the
rash and negligent act of the driver of the offending vehicle and
that the petitioner received grievous injuries and both the
respondents are jointly and severally liable to pay the
compensation.
22. Though the petitioner claimed compensation under various
heads to a tune of Rs.2,50,000/- but, while adjudicating, the
Tribunal has every power to award just and reasonable
compensation under different heads. Firstly, I would like to deal
with the medical expenditure. As seen from Ex.A-5, the medical
expenditure was to a tune of Rs.9,900/-. As seen from Ex.A-6, the
medical expenditure was to a tune of Rs.26,700/- According to
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Ex.A-5, the medicines were purchased on the prescription of Dr. C.
Vidya Sagar Reddy of Vidya Sagar Hospital, Kadapa. Apart from
this, Ex.A-6 is the receipt issued by Dr.C.Vidya Sagar Reddy i.e.,
Vidyasagar Hospitals. The two bills under Ex.A-5 and A-6 were
relating to the surgery done on the petitioner for removal of
implants and screws. Learned Tribunal made a finding that the
bills under Ex.A-5 cannot be considered as the petitioner did not
examine any person to prove the same. It is very difficult to agree
with the view expressed by the Tribunal. It is not the finding made
by the Tribunal that the petitioner did not undergo second surgery
for removal of implants. When the petitioner claimed medical
expenditure of Rs.9,900/- under Ex.A-5, the Tribunal granted only
Rs.25,000/- towards medical expenses. So, when the petitioner
produced medical bills in the form of medical expenditure under
Exs.A-5 and A-6, without proper reasons, the Tribunal disallowed
the same but granted a sum of Rs.20,000/-. So, the Tribunal could
only award Rs.20,000/- at one hand and further awarded a sum of
Rs.5,000/- on the ground that the petitioner must have purchased
medicines for healing of his injury. In my considered view, the
Tribunal ought to have allowed the medical expenditure as claimed
by the petitioner both under Exs.A-5 and A-6.
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23. Turning to the contention of petitioner that the Tribunal only
awarded a sum of Rs.25,000/- towards pain and suffering, there is
no dispute that the petitioner claimed Rs.25,000/-. The facts are
such that under some heads the petitioner claimed lesser amount
and under some heads he claimed higher amounts. There is no
denial of the fact that the petitioner received grievous injury to his
right thigh i.e., fracture. He underwent two surgical procedures.
Rods and screws were fixed in his right thigh for a period of two
years. On account of non-healing of the fracture or for whatever
reason he was compelled to undergo second surgery in the year
2014 for removal of the rods. So, when the petitioner underwent
two surgical procedures, awarding a sum of Rs.25,000/- towards
pain and suffering, in my considered view, is not sufficient and not
at all reasonable.
24. Having regard to the overall facts and circumstances and
looking into the fracture to his right thigh, this Court is of the
considered view that it is just and reasonable to allow a sum of
Rs.50,000/- under the head of pain and suffering instead of
Rs.25,000/-.
25. Coming to the permanent disability, as rightly held by the
Tribunal, there was no functional disability proved by the
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petitioner. However, looking into the fact that the petitioner has to
undergo physiotherapy etc., to his right thigh, for better
progression, Tribunal was inclined to grant a sum of Rs.25,000/-
towards the future medical expenditure. Though there was no
functional disability but looking into the fact that the petitioner felt
inconvenience in his right thigh and he has to go for physiotherapy
etc., the Tribunal awarded a sum of Rs.25,000/-. As there was no
functional disability, absolutely, there is no likelihood of loss of
future earnings. Hence, the contention of the appellant that the
compensation under the head of permanent disability is to be
enhanced deserves no merit.
26. Coming to the other heads of compensation, the Tribunal
awarded a sum of Rs.6,000/- towards loss of earnings during the
period of treatment, which is quiet reasonable. Further, the learned
Tribunal duly awarded an amount of Rs.10,000/- towards extra-
nourishment and transportation and further a sum of Rs.10,000/-
for loss of amenities.
27. Having regard to the overall facts and circumstances, the
compensation needs to be enhanced under the count of medical
expenditure looking into Exs.A-5 and A-6. Further towards pain
and suffering, the medical expenditure under Ex.A-5 is Rs.9,900/-
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and the medical expenditure under Ex.A-6 is Rs.26,700/-, which
comes to Rs.36,600/-. The Tribunal already awarded a sum of
Rs.25,000/- i.e., Rs.20,000/- + Rs.5,000/- separately under the
count of medical expenditure. Now the difference amount to be
enhanced is Rs.11,600/-. The difference amount towards pain and
suffering for two surgical interventions is Rs.25,000/-. So, the
enhanced compensation, as above, is Rs.36,600/-. Hence, the
compensation is liable to be interfered with by enhancing the same
from Rs.1,01,000/- to Rs.1,37,600/-. The points are answered
accordingly.
28. In the result, the Motor Accident Civil Miscellaneous Appeal
is allowed in part enhancing the compensation awarded by the
Tribunal from Rs.1,01,000/- to Rs.1,37,600/-. The respondents
are directed to deposit the difference of the enhanced
compensation amount within one month from this day with
interest at the rate of 7.5% p.a. from the date of Petition till the
date of deposit. On such deposit, the appellant is permitted to
withdraw the same in lump sum. No order as to costs.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
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JUSTICE A.V.RAVINDRA BABU
Date: 08.12.2023
DSH
