Andhra Pradesh High Court - Amravati
R Ramakrishna, Vizianagaram Dist vs Gedela Narayanarao, Vizianagaram Dist ... on 30 November, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
M.A.C.M.A. No.433 OF 2016
JUDGMENT:
The Award, dated 28.10.2014, in M.O.P. No.610 of 2012 on
the file of the Chairman, Motor Accidents Claims Tribunal, Judge,
Family Court-cum-III Additional District Judge, Vizianagaram (for
short, 'the Tribunal') is under challenge in the present Appeal filed
by the appellant/claimant.
2. The parties to this Appeal will hereinafter be referred to as
described before the Tribunal, for the sake of convenience.
3. The petitioner before the Tribunal filed a claim under
Section 166 of the Motor Vehicles Act, 1988 (for short, 'the M.V.
Act') Read with Rule 455 of the A.P. Motor Vehicles Rules, 1989
(for short, 'the M.V. Rules') alleging in substance that he is
resident of Kella Village, Gurla Mandal of Vizianagaram District.
First respondent is the driver of Auto bearing registration No.AP
35 V 5180. Second respondent herein is the owner of the said
vehicle and third respondent is the insurance company with which
the said vehicle is insured with Policy
No.62120131110100003501, which was in force from 19.11.2011
to 18.11.2012. On 19.12.2011 at about 02:00 p.m. the petitioner
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was returning to his village from Srikakulam and boarded in the
Auto bearing No.AP 35 V 5180 at Ranasthalam and when the said
Auto reached near Kondamulagam Village, the first respondent
drove the same in a rash and negligent manner with high speed.
He lost control and the said Auto overturned three times.
Therefore, the petitioner fell down on the road and received
fracture to his left thigh and injury to his left eye. Then, he was
taken to Sri Venkateswara Orthopaedic Hospital, Vizianagaram,
where he was given first aid. Later, he was shifted to Nikhila
Hospital, Visakhapatnam where he underwent treatment for some
time. He was aged about 29 years at the time of accident. He used
to work as Tailor and earn Rs.200/- per day. He was quite hale
and healthy by the date of accident. Now, he is unable to do any
work. The petitioner is suffering with permanent disability. He also
suffered with untold pain and mental agony. He incurred a sum of
Rs.25,000/- towards transport to hospital, medicines and extra-
nourishment. Therefore, the petitioner is claiming a sum of
Rs.2,50,000/- towards special and general damages.
4. The first and second respondent remained ex parte before
the Tribunal.
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5. The third respondent got filed a counter resisting the prayer
of the petitioner and contending in substance that the petitioner is
put to strict proof of the averments in the petition. Petitioner did
not suffer any permanent disability. The amount claimed by him
under various heads is not binding on the respondent. The
compensation claimed is excessive. The Auto did not involve in any
accident. The Auto is not having any valid permit, fitness and
registration. Petitioner has no occupation and he has no income.
The driver of the vehicle is not having any valid driving license.
First respondent is not the driver. Second respondent is not the
owner and the vehicle was not insured with the third respondent.
Hence, the Petition is liable to be dismissed.
6. Before the learned Tribunal, the following issues were
settled for trial:
1. Whether the motor vehicle accident took place on
19.12.2011 at about 02:00 p.m. near Konda Mulagam
village, due to rash and negligent driving of the Auto
bearing No.AP 35 V 5180 due to its driver?
2. Whether the petitioner is entitled for compensation,
if so, what amount and from whom?
3. To what relief?
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7. Before the Tribunal, the petitioner got himself examined as
PW.1 and further examined the Doctor who issued disability
certificate as PW.2 and got marked Exs.A-1 to A-8. On behalf of
the third respondent, RW.1 and RW.2 were examined and Exs.B-1
to B-3 were marked.
8. The Tribunal, on hearing both sides and after considering
the oral and documentary evidence on record, awarded a
compensation of Rs.50,000/- under the head of shock, pain,
suffering and loss of amenities of life, a sum of Rs.15,000/- on
account of the grievous injury to his left thigh and further granted
a sum of Rs.51,000/- as loss of earnings considering the disability
of 20% and annual income of the petitioner as Rs.15,000/-.
Further, the Tribunal granted a sum of Rs.5,000/- towards
medical expenditure and extra nourishment. Accordingly, the
Tribunal granted a total sum of Rs.1,21,000/- to the petitioner
with a direction to the respondents 1 to 3 to deposit the said
amount with interest at the rate of 7.5% p.a. from the date of
petition till the date of realization. Further, the respondents 1 to 3
were directed to deposit the said amount within one month there
from and on such deposit, the petitioner can withdraw
Rs.61,000/- with entire interest and costs and the rest of the
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amount has to be kept in any Nationalized Bank for a period of six
months and after maturity, the petitioner can withdraw the said
amount with accrued interest.
9. Feeling that the compensation so awarded is not just and
reasonable, the petitioner filed the present Appeal with a prayer to
enhance the compensation.
10. Now in deciding this Appeal, the only point that arises for
consideration is:
Whether the petitioner is entitled for enhancement of
the compensation, as prayed for?
11. POINT: Sri G. Sai Narayana Rao, learned counsel for the
appellant/petitioner, would contend that the Tribunal failed to
award just and reasonable compensation under the head of pain,
suffering and loss of amenities in life. The Tribunal awarded only a
meager amount for the grievous injuries suffered. The Tribunal
ought to have considered the notional income by calculating the
compensation for the disability suffered. The annual income of
Rs.15,000/- as fixed by the Tribunal in awarding compensation
considering the disability of 20% is not appropriate and the
Tribunal ought to have considered more income even on notional
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theory. Apart from that, the learned Tribunal did not award
reasonable compensation under the count of medical expenses
and extra nourishment and transportation. His contention is that
the claim of the petitioner to a tune of Rs.2,50,000/- was just and
reasonable, which can be considered by this Court.
12. Smt. A. Jayanthi, learned Standing Counsel for the third
respondent/insurance company, while resisting the claim of the
appellant/petitioner, would submit that the compensation
awarded by the Tribunal is not liable to be interfered with by way
of any enhancement. If the order of the Tribunal is considered,
there is every reason to say that the compensation was under
duplicity of heads. When the learned Tribunal awarded
Rs.50,000/- under grievous injury, further it was not justified in
awarding a sum of Rs.15,000/- under the same head. At any rate,
the overall compensation that was granted by the Tribunal is just
and reasonable as such there are no grounds enhance the same.
With the above submissions, learned Standing Counsel seeks to
dismiss the Appeal.
13. Insofar as the findings of the Tribunal that the accident
occurred was due to rash and negligent act of the driver of the
offending vehicle is concerned, it is not under dispute in the
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present Appeal. Respondents 1 and 2, who were the driver and
owner of the offending vehicle, remained ex parte before the
Tribunal without any contest. Even there is no cross appeal filed
by the third respondent disputing the finding of the Tribunal that
the accident occurred was on account of the rash and negligent
act of the driver of offending vehicle. Though the third respondent
before the Tribunal raised various contentions vaguely as if second
respondent was not the owner of the vehicle and that first
respondent was not the driver and there was no valid insurance
policy but the same were negatived by the Tribunal with proper
reasons. So, the scope of this Appeal is very limited as to whether
the quantum of compensation awarded by the Tribunal is not just
and reasonable and if so, whether it is liable to be interfered with?
14. Coming to the evidence of PW.1, by virtue of his chief-
examination, he put forth the facts in tune with the pleadings.
Through his chief-examination, Exs.A-1 to A-8 were marked. The
petitioner further examined PW.2, who is the Civil Surgeon.
According to him on 17.07.2013, the petitioner attended before the
District Medical Board, Vizianagaram. As a member of the District
Medical Board, he examined the petitioner and advised him to
take latest x-ray and on clinical examination. He found deformity
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and implants inside the left femur. He assessed the disability at
20% which is partial and permanent in nature. He was one of the
signatories to Ex.A-5 - disability certificate issued by the District
Medical Board. Due to the disability, petitioner cannot walk long
distance and cannot squat properly. During cross-examination, he
denied that the disability so assessed is excessive.
15. Insofar as the finding of the Tribunal that the petitioner
suffered disability of 20% is concerned, it is not under dispute
during the course of argument by learned Standing Counsel for
the respondent/insurer. As seen from the claim of the petitioner,
petitioner claimed a sum of Rs.25,000/- towards transportation to
hospital, medicines and extra nourishment. He claimed a sum of
Rs.15,000/- towards pain, suffering and mental agony. He further
claimed a sum of Rs.2,10,000/- towards permanent disability.
There is no dispute that the disability suffered by the petitioner
was 20%, according to the medical evidence available on record.
The learned Tribunal by placing reliance on a decision of the
erstwhile High Court of A.P. in U.K.Durgamma v.
Suryanarayana Raju1, decided to award a compensation of
Rs.1,21,000/-. It is to be noted that the Tribunal awarded a sum
1 (1997) 1 ALD 658
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of Rs.50,000/-, while considering the disability of 20%, under the
head of shock, pain suffering and loss of amenities of life. Again, it
awarded a sum of Rs.15,000/- for the grievous injury suffered. It
is to be noted that the claim of the petitioner is to award a sum of
Rs.15,000/- towards grievous injury, Rs.25,000/- towards
transportation to hospital, medicines and extra nourishment and
Rs.2,10,000/- towards loss of earnings due to permanent
disability. It is to be noted that whenever a person receives a
grievous injury, Tribunal will have occasion to consider
compensation under various heads for the grievous injury, which
may be on account of the pain and suffering which the injured felt
at the time of receipt of injuries and thereafter. Thereafter, another
contingency may be to reimburse the medical expenditure and the
loss of earnings due to permanent disability. These are not
exhaustive but are illustrative. While adjudicating the
compensation, there cannot be any duplicity of the heads. If the
order of the Tribunal is concerned carefully, the learned Tribunal
awarded a sum of Rs.50,000/- considering the disability of 20%
towards shock, pain, suffering and loss of amenities of life. Though
the Tribunal relied upon a decision of the erstwhile High Court in
U.K.Durgamma (supra), but the categorization of compensation
under various heads is not literally in tune with the illustrations in
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the above referred citation. It is to be noted that when the Tribunal
awarded a sum of Rs.50,000/- towards shock, pain, suffering and
loss of amenities of life, again it awarded a sum of Rs.15,000/-
towards injuries received by the petitioner. Though the amount of
compensation awarded under the heads, as above, is somewhat
excessive but the fact remained is that while assessing the loss of
future earnings, the Tribunal could only took into consideration
the annual income of the petitioner as Rs.15,000/-. There were no
reasons assigned by the Tribunal in fixing a meager amount of
Rs.15,000/- as annual income of the petitioner though the
petitioner was said to be a Tailor. However, even the evidence of
the petitioner was not so clear as to how much amount he was
getting per month as a Tailor.
16. Under the circumstances, the excessive compensation, if
any, as above, can be adjusted towards the loss of earnings. So,
though the act of the Tribunal in awarding a sum of Rs.51,000/-
as if the annual income of the petitioner was only Rs.15,000/-
appears to be less as it was not supported with any reasons but
the compensation of Rs.65,000/- for a single fracture is also
appears to be excessive. So, the excessive amount under the two
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heads, as above, can be adjusted under the head of loss of
earnings.
17. On over all appreciation of the evidence and looking into the
facts and circumstances, the overall amount of Rs.1,21,000/- as
against the original claim of Rs.2,50,000/- awarded by the
Tribunal can be taken as just and reasonable compensation.
18. Under the circumstances, there are no grounds to interfere
with the overall compensation of Rs.1,21,000/- awarded by the
Tribunal. The learned Tribunal rightly considering the nature of
injury and treatment taken, awarded a sum of Rs.5,000/- for
medical expenditure and extra nourishment. In fact, the pleadings
of the petitioner were vague. Even the evidence was not clear as to
how much time the petitioner was bedridden. However, he was
able to prove the disability only. So, there is no question of
awarding any compensation under the head of loss of earnings
during the period of treatment, especially when the compensation
was awarded under the head of permanent disability.
19. Having considered the over all facts and circumstances and
looking into the evidence on record, I do not find any reason to
enhance the compensation, as claimed by the petitioner.
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20. In the result, the Appeal is dismissed. No order as to costs.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 30.11.2023
DSH
