S Johensu Jyaneshu, West Godavari ... vs K V V Satyanarayana, West Godavari ...
2023 Latest Caselaw 189 AP

BVLNC,J                                               MACMA 591 of 2016
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           HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                    ****
                        M.A.C.M.A.No.591 OF 2016

Between:
Sandipam Johensu @ Jyaneshu,
S/o.Siddayya, Hindu, Aged 45 years,
Coolie, R/o.H.No.1, Punnam Nagar,
Lingapalem Village and Mandal,
West Godavari District.
                                              ....Appellant/ Claim Petitioner
                           Versus

1. Kolusu Veera Venkata Satyanarayana,
   S/o.Venkataswara Rao, Hindu,
   Aged 53 years, Driver of APSRTC Eluru Depot,
   R/o.Denduluru Village and Mandal,
   West Godavari District.

2. The Andhra Pradesh State Road Transport Corporation,
   Rep. By its Vice Chairman/Managing Director,
   Musheerabad, Hyderabad.
                                       ....Respondents/Respondents

DATE OF JUDGMENT PRONOUNCED                     :    18.01.2023

SUBMITTED FOR APPROVAL:

               HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers
   may be allowed to see the Judgment?                      Yes/No

2. Whether the copy of Judgment may be
   marked to Law Reporters/Journals?                        Yes/No

3. Whether His Lordship wish to see the
   fair copy of the Judgment?                               Yes/No


                                           ____________________________
                                            B.V.L.N.CHAKRAVARTHI, J
 BVLNC,J                                               MACMA 591 of 2016
Page 2 of 18                                          Dt: 18.01.2023




               * HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                        + M.A.C.M.A.No.591 OF 2016

                                % 18.01.2023

# Between:
Sandipam Johensu @ Jyaneshu,
S/o.Siddayya, Hindu, Aged 45 years,
Coolie, R/o.H.No.1, Punnam Nagar,
Lingapalem Village and Mandal,
West Godavari District.
                                           ....Appellant/ Claim Petitioner
                              Versus

1. Kolusu Veera Venkata Satyanarayana,
   S/o.Venkataswara Rao, Hindu,
   Aged 53 years, Driver of APSRTC Eluru Depot,
   R/o.Denduluru Village and Mandal,
   West Godavari District.

2. The Andhra Pradesh State Road Transport Corporation,
   Rep. By its Vice Chairman/Managing Director,
   Musheerabad, Hyderabad.
                                      ....Respondents/Respondents.

! Counsel for the Appellant        : Smt.S.V.Ramana

^ Counsel for the
   2nd Respondent                  : Sri Vinod Kumar Tarlada

< Gist:

> Head Note:

? Cases referred:

1. 2011 (1) SCC 343

2. 2019 ACJ 1849 (SC)


This Court made the following:
 BVLNC,J                                                 MACMA 591 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                     M.A.C.M.A.No.591 OF 2016

JUDGMENT:

This appeal is preferred by the Appellant/claimant,

challenging the award dated 25.11.2015 passed in

M.V.O.P.No.760/2010 on the file of Motor Accidents Claims Tribunal-

cum-VII Addl.District Judge, West Godavari, Eluru, wherein the

Tribunal while partly allowing the petition, awarded compensation of

Rs.20,000/- with interest @ 6% p.a. from the date of petition, till the

date of realisation to the petitioner, for the injuries sustained by him in

a motor vehicle accident.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioners filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.3,00,000/- on account of the injuries

sustained by the petitioner in a motor vehicle accident that occurred

on 02.12.2009.

4. The facts show that the petitioner on 02.12.2009 went to

Pathamuparru Center and waited there to board a bus to go to BVLNC,J MACMA 591 of 2016 Page 4 of 18 Dt: 18.01.2023

Pragadavaram to the hostel, where his son is studying to give money.

At that time, he saw a person going on TVS moped and asked him to

drop at Pragadavaram, and accordingly, while they were proceeding on

the extreme left side of road by observing traffic rules, and on their

reaching near Ankannagudem Center, Pragadavaram, one APSRTC

bus bearing No.AP 11Z 972 driven by the 1st respondent/driver in a

rash and negligent manner, without following traffic rules and without

blowing horn, dashed against the TVS Moped, and as a result, the

rider of TVS Moped and petitioner fell down on road, and he sustained

severe injuries over his right thigh. Immediately he was shifted to

Government Hospital, Chintalapudi, where an operation was

conducted to his right thigh and was treated as an in-patient. The

accident was occurred only due to rash and negligent driving of

APSRTC bus by the 1st respondent/driver. A case in Cr.No.207/2009

was registered by Chintalapudi Police Station against the

1st respondent/driver for the offence punishable U/secs.337, 338 of

Indian Penal Code.

Due to the fracture of his right thigh sustained by him in the

accident, he had to take bed rest for a period of four months and now

also he is taking treatment as an out-patient. He spent more than

Rs.25,000/- for treatment, tests, medicines, operation, special diet etc. BVLNC,J MACMA 591 of 2016 Page 5 of 18 Dt: 18.01.2023

The loss caused to him due to fracture injury sustained by him in the

accident is irreparable, and he is a coolie and he is the only bread

earner of his entire family, and due to injury, he has lost his earning

capacity.

5. Before, the Tribunal, the 2nd respondent/APSRTC filed written

statement, while traversing the material averments with regard to

proof of age, avocation, monthly earnings of the injured, manner of

accident, rash and negligence on the part of the driver of the offending

vehicle, liability to pay compensation, and contended that the accident

occurred only due to rash and negligent driving of rider of the TVS

Moped, who drove the same without observing the vehicle coming from

the opposite direction, and without observing the ditches on the road,

fell into ditch and thereby, both rider of TVS Moped as well as

petitioner sustained injuries. The petition is bad for non-joinder of

proper and necessary parties, as driver, owner and insurer of TVS

Moped on which petitioner travelled as pillion rider is not arrayed as

respondents. The 1st respondent/driver filed memo adopting the

written statement filed by the 2nd respondent/APSRTC.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

 BVLNC,J                                             MACMA 591 of 2016
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1. Whether the petitioner sustained injuries in motor vehicle accident dated 02.12.2009 occurred due to rash and negligent driving of APSRTC Bus bearing No.AP 11Z 972 by its driver/respondent No.1 or it was due to rash and negligent driving of TVS Moped by its driver, whereon the petitioner is pillion rider as claimed by the respondents?

2. What was the age and income of the petitioner at the time of accident?

3. Whether the petition is bad for non-joinder of proper and necessary parties?

4. Whether the petitioner is entitled for compensation? If so, for what amount and form which of the respondents?

5. To what relief?

7. To substantiate his claim, the petitioner examined P.Ws-1 to 4

and got marked Exs.A-1 to A-6 and Exs.X-1 to X-3. On behalf of the

respondents, no oral or documentary evidence was adduced.

8. The Tribunal, taking into consideration the evidence of P.Ws-1 to

4, coupled with Exs.A-1 to A-6 and Exs.X-1 to X-3, held that the

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

APSRTC bus driver, and further, taking into consideration the evidence

of P.Ws-1 to 4, corroborated by Exs.A-1 to A-6 and Exs.X-1 to X-3, BVLNC,J MACMA 591 of 2016 Page 7 of 18 Dt: 18.01.2023

awarded compensation of Rs.20,000/- with interest @ 6% p.a. from the

date of petition, till the date of realisation.

9. This is an appeal filed by the claimant against the order,

contending that the Tribunal did not award just compensation, though

the claimant suffered permanent disability of 50% due to the grievous

injury sustained to the right leg in the motor accident occurred on

02.12.2009.

10. In the light of above contentions of the appellant in the appeal,

the points that would arise for consideration in the appeal are as

under:

1. Whether the Tribunal did not award just compensation?

2. To what relief?

11. POINT No.1:

The appellant claimed an amount of Rs.3,00,000/- towards

compensation contending that on 02.12.2009 he was travelling on a

TVS Moped as pillion rider, and while so, when their moped reached a

place near Ankannagudem Centre, Pragadavaram, the crime vehicle

i.e., APSRTC Bus bearing No.AP 11Z 972 dashed the moped, as the

driver of the bus drove the bus in a rash and negligence manner, and

as a result, the rider of the moped and the appellant were fell down BVLNC,J MACMA 591 of 2016 Page 8 of 18 Dt: 18.01.2023

and the appellant sustained grievous injuries and he was shifted to

Government Hospital, Chinthalapudi, and an operation was conducted

to his right thigh, and he spent more than Rs.25,000/- towards

medical expenses, and due to the fracture, he suffered permanent

disability of 50%, and he is working as a coolie and due to the injury,

he lost his earning capacity and therefore, he is entitled to

compensation ofRs.3,00,000/- towards loss of earnings and medical

expenses.

12. The 2nd respondent/APSRTC contended that the accident was

not occurred due to rash or negligence of the driver of the APSRTC

bus, and that the claim made by the appellant is excessive, and he did

not suffer any disability, and there is no loss of earnings to the

claimant.

13. The Tribunal upon considering the evidence on record, held that

the accident was occurred due to rash and negligence driving of the

driver of the APSRTC Bus.

14. The contention of the appellant that he was working as a coolie

and earning Rs.4,500/- per month, and due to the injury sustained in

the accident, he suffered permanent disability of 50%, and therefore,

he lost the earning capacity, and he is entitled to compensation under BVLNC,J MACMA 591 of 2016 Page 9 of 18 Dt: 18.01.2023

the head loss of future earnings on account of permanent disability

and under the head expenses relating to treatment, hospitalization,

medicines etc.

15. The appellant claimed a sum of Rs.22,500/- towards loss of

earnings during the period of treatment, Rs.32,500/- towards

expenses relating to hospitalization, medicines, transportation,

nourishing food and miscellaneous expenditure etc. He also claimed

Rs.10,000/- towards compensation for pain and suffering and

Rs.2,35,000/- towards compensation for loss of future earnings, total

Rs.3,00,000/-.

16. The Tribunal awarded a sum of Rs.20,000/- only towards injury

sustained by the claimant and refused to award any amount towards

expenses relating to treatment, and towards loss of future earnings,

disbelieving the case of the appellant regarding permanent disability

and the certificate issued by the Medical Board.

17. The appellant in support of his case, he examined himself as

P.W-1. In the chief-examination affidavit, he deposed about the way in

which the accident was occurred, and that he sustained fracture

injury to the right thigh, and he was shifted to Government Hospital,

Chinthalapudi, and operation was conducted for the fracture, and he BVLNC,J MACMA 591 of 2016 Page 10 of 18 Dt: 18.01.2023

also took treatment in NIIMS at Hyderabad. He filed Ex.A-6 medical

bills claiming that he incurred Rs.22,751.32 paise towards medical

expenses and treatment. The Tribunal held that though the petitioner

filed out-patient slips of NIIMS, Hyderabad, they do not indicate dates

and the appellant did not examine any person from NIIMS Hospital,

Hyderabad, to prove the said bills covered by Ex.A-6 and expressed

doubt over the genuineness of the Ex.A-6 medical bills and did not

award any amount.

18. The appellant has examined Civil Assistant Surgeon of

Government Hospital, Chinthalapudi as P.W-2. As per her evidence,

the appellant was admitted in the hospital and treated for the injuries

sustained by him and as per Ex.X-1 Accident Register of the hospital,

the appellant sustained two injuries as under:

1. Crush injury above the right knee upto middle thigh with bones exposes and bleeding

2. Abrasion injury 2 x 1 ½ cm with bleeding

She also deposed that Ex.A-2 wound certificate was issued by

Dr.S.V.Siva Kumr, who worked in Community Health Centre,

Chintalapudi, and as per Ex.A-2, it is a grievous injury, and that the

patient cannot do hard work. In the cross-examination, she admitted

that she did not treat the patient, and the doctor who treated him is BVLNC,J MACMA 591 of 2016 Page 11 of 18 Dt: 18.01.2023

now working at Jangareddygudem. The appellant did not examine

Dr.S.V.Sivakuar who treated him, though he is very much available

and working at Jangareddygudem.

19. The appellant examined Civil Surgeon, working in District

Hospital, Khammam, who worked in Government Hospital at Eluru as

P.W-3, and as per his evidence, he issued Ex.A-4 disability certificate

to the appellant assessing that due to shortening of right femur, with

stiff knee, the disability was assessed as 50% of permanent nature,

and he deposed that the appellant cannot do any hard work, because

of disability, but he can attend his normal activities, and he has to be

accompanied by another person. In the cross-examination, he deposed

that he cannot say what injury the patient was affected with and when

he examined the injured, he was not having any infectious injuries and

he did not produce any hospital records.

20. The appellant examined Medical Superintendent, District

Hospital, Eluru as P.W-4. He deposed that the injured was admitted

in District Hospital, Eluru, and Ex.X-2 is the X-ray and Ex.X-3 is the

Radiologist Report, and as per Exs.X-2 and X-3, the patient suffered

fracture.

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21. Therefore, the appellant did not examine the doctors who treated

him at NIIMS, Hyderabad. The appellant also did not examine the

Pharmacist or the author of the bills to speak that the appellant

purchased the medicines as per the prescriptions issued by NIIMS

Hospital at Hyderabad. In that view of the matter, the Tribunal did not

award any amount covered by Ex.A-6 bills. Therefore, there are no

grounds to interfere with the finding of the Tribunal on that aspect.

22. When coming to the claim of the appellant towards loss of

earnings on account of permanent disability, the evidence produced by

the appellant shows that he suffered crush injury which is a grievous

in nature and as a result, and an operation was conducted to his right

leg in Govt. Hospital, Chinthalapudi, and the disability is post

operated one due to shortening of right femur with stiff knee, and it

was assessed 50% of permanent nature. It is the case of the appellant

that he was working as a coolie before the accident. The appellant in

his evidence, did not depose that due to the disability to the right limb,

as mentioned in Ex.A-4, he is unable to do the coolie work.

Admittedly, P.W-2 and P.W-3 evidence discloses that they did not treat

the injured at any time, and they simply deposed that appellant cannot

do hard work. They did not depose that the appellant cannot do coolie

work, which he was doing prior to the date of accident. The appellant BVLNC,J MACMA 591 of 2016 Page 13 of 18 Dt: 18.01.2023

could not establish the functional disability faced by him, on account

of the alleged permanent disabilities suffered to his right leg. In that

view of the matter, and in view of the principles laid down by the

Hon'ble Apex Court in Rajkumar's case, regarding assessment of

functional disability with reference to permanent disability and loss of

earnings, this Court do not find any grounds to interfere with the

findings of the Tribunal that he is not entitled to any compensation

towards loss of future earnings on account of permanent disability.

23. The Tribunal has awarded Rs.20,000/- only towards injuries. It

appears that the Tribunal has granted this amount under the head

damages for pain, suffering and trauma because of injuries. The

Tribunal in its order did not refer the case of Hon'ble Apex Court in

Rajkumar's case, while dealing the case for compensation relating to

personal injuries.

24. A person can claim compensation under the head non-pecuniary

damages (general damages) also in addition to pecuniary damages

(special damages) as per the principles laid down by the Hon'ble Apex

Court in the case of Raj Kumar Vs. Ajay Kumar and another1,

wherein, it was held at para No.5 as follows:

2011 (1) SCC 343 BVLNC,J MACMA 591 of 2016 Page 14 of 18 Dt: 18.01.2023

5. The heads under which 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).

(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 (ii)(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.

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25. In the case on hand, the evidence on record shows that the

appellant suffered one grievous injury i.e., crush injury to the right leg

on account of the motor accident, and as a result, operation was

performed and post operation, he is suffering from inconvenience due

to shortening of right femur bone. Therefore, the appellant is entitled

to reasonable amount towards compensation under the head damages

for pain, suffering and trauma as a consequence of injuries and also

under the head loss of amenities (and/or loss of prospects of

marriage), though he is not entitled to any compensation under the

head loss of future earnings on account of permanent disability under

the head pecuniary damages (special damages).

26. Considering the nature of injury and trauma faced by the

appellant, this Court is of the opinion that an amount of Rs.50,000/-

can be awarded towards compensation under the head damages for

pain, suffering and trauma because of injuries sustained by the

appellant in the motor accident.

27. Further, another sum of Rs.1,00,000/- can also be awarded to

the appellant under the head loss of amenities, considering the

inconvenience that would be faced by the appellant due to shortening

of right femur bone, post operation, due to the crush injury sustained BVLNC,J MACMA 591 of 2016 Page 16 of 18 Dt: 18.01.2023

by him in the motor accident. Therefore, the just compensation

entitled by the appellant for the injuries sustained by him in the motor

accident would be at Rs.1,50,000/-.

28. The claimant is entitled to interest on Rs.1,50,000/- reasonable

as per section 174 of M.V.Act. This Court is of the opinion that interest

can be awarded @ 7.5% p.a. on the compensation amount, from the

date of petition, till the date of deposit, in view of the judgment of the

Hon'ble Apex Court in the case of National Insurance Company

Limited Vs. Mannat Johal2. Accordingly, this point is answered.

29. POINT No.2: To what relief?

In the light of finding on point No.1, the order passed by the

Tribunal has to be modified.

30. In the result, the appeal is partly allowed, modifying the award

dated 25.11.2015 passed in M.V.O.P.No.760/2010 on the file of Motor

Accidents Claims Tribunal-cum-VIII Addl. District Judge, West

Godavari, Eluru. It is held that the claimant is entitled to a

compensation of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand

only) with interest @ 7.5% p.a. from the date of petition, till the date of

2019 ACJ 1849 (SC) BVLNC,J MACMA 591 of 2016 Page 17 of 18 Dt: 18.01.2023

deposit, instead of Rs.20,000/- (Rupees Twenty Thousand only). The

respondents 1 and 2 are jointly and severally liable to pay the

compensation amount.

31. The 2nd respondent/APSRTC is directed to deposit the

compensation amount of Rs.1,50,000/- (Rupees One Lakh and Fifty

Thousand only), along with the accrued interest thereon, within one

month from the date of judgment. In the event of the

2nd respondent/APSRTC already deposited some amount, the said

amount has to be excluded, and the balance amount shall be

deposited within one month from the date of judgment. On such

deposit, the appellant/claimant is permitted to withdraw the

compensation amount of Rs.1,50,000/- (Rupees One Lakh and Fifty

Thousand only) along with accrued interest thereon. There shall be no

order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                            _________________________________
                                           B.V.L.N.CHAKRAVARTHI, J
18.01.2023

psk
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                M.A.C.M.A.No.591 OF 2016




Note: Mark L.R.Copy

psk



                   18th January, 2023

psk