Andhra Pradesh High Court - Amravati

Talabuttala Koteswara Rao, S/O.Sri ... vs M.Venkateshwara Rao on 6 August, 2024

       IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI

            THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM

                          M.A.C.M.A.No. 1206 of 2005

Between:

Talabuttala Koteswara Rao (died)
per L.Rs. T.Satyaraju and another                ... Appellants/
                                                     Claimant
and

M.Venkateshwara Rao and others                   ... Respondents/
                                                     Respondents

Counsel for the appellants          : Sri D. Goverdhana Chary

Counsel for 4th respondent          : Sri K. Madhusudhan Reddy


This Court made the following:


JUDGMENT:

This appeal is preferred by the claimant in M.O.P.No.1952 of 2003

aggrieved by the order dated 24.02.2005 passed by the Chairman, Motor

Vehicle Accidents Claims Tribunal - cum - VI Additional District Judge,

Visakhapatnam, (hereinafter referred to as "the Tribunal") awarding

compensation of Rs.21,000/- as against his claim of Rs.1,50,000/-.

2. For the sake of convenience and to avoid confusion, the parties

hereinafter will be referred to as they are arrayed before the Tribunal.

3. Briefly, the facts of the case are:

On 07.10.2003, the claimant was travelling in an A.P.S.R.T.C. bus

bearing registration No.AP 11Z 2188, and when the bus reached Arikithota

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junction, a lorry bearing registration No. AP 16T 3741 came in opposite

direction at high speed in a rash and negligent manner and dashed the right

side of the bus, due to which, four passengers in the bus died on the spot,

and some of the passengers, including the claimant, sustained grievous

injuries. The claimant sustained simple injuries on his chin, lips and other

parts of the body, and his right leg was fractured. On a report,

Ramabhadrapuram P.S. registered a case in Crime No.59 of 2003 against

the driver of the lorry. The 1st respondent is the driver, the 2nd respondent is

the owner, the 4th respondent is the insurer of the lorry, the 3rd respondent is

the driver, and the 5th respondent is the owner of the bus. Therefore, all the

respondents are jointly and severally liable to pay compensation to the

claimant.

4. Respondent Nos.1, 2, and 4 were set ex parte, and the 5th respondent

filed a counter, which was adopted by the 3rd respondent, denying the

material averments in the claim petition.

5. Based on the material available on record, by an order dated

24.02.2005, the Tribunal came to the conclusion that the accident occurred

due to rash and negligent driving of the driver of the lorry and, accordingly,

granted an amount of Rs.21,000/- with proportionate costs and interest at 9%

p.a. from the date of petition till the date of deposit. Being aggrieved by the

same, the petitioners preferred the instant appeal seeking enhancement of

the compensation.

6. Heard both sides.

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7. Learned counsel for the appellants argued that the Tribunal ought to

have considered Ex.A.7-Physically Handicapped Certificate, as respondent

Nos.1, 2, and 4 did not dispute the same having been set ex parte, and

awarded compensation as sought for.

8. Now, the point for consideration is, whether the compensation

awarded to the claimant is just and reasonable or not, and if so, it needs

enhancement?

POINT:

9. It is the case of the claimant that due to the accident, he had suffered

fractures to his right leg, injuries to his teeth and multiple injuries all over his

body. After the accident, he was shifted to the Government Hospital, Salur,

and from there, he was again shifted to K.G.Hospital, Visakhapatnam, for

better treatment. He was treated as an inpatient for three days at

K.G.Hospital, Visakhapatnam, and P.O.P. was applied to his right leg, after

20 days, again he went to K.G.Hospital for treatment as the fracture was not

united, and thereafter, for further treatment, he was referred to Parvatipuram

where the father of the claimant had spent Rs.60,000/- towards treatment.

The hospital where the claimant was treated has also issued a physically

handicapped certificate, which was marked as Ex.A.7.

10. The claimant was 15 years old as on the date of accident and suffered

20% disability. The 2nd appellant is a Goldsmith and the 2nd appellant is a

housewife and the claimant is their only son. Due to the accident, their entire

dreams have shattered. The surgery performed to the claimant by the

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doctors was unsuccessful. So, the claimant went to K.G. Hospital,

Visakhapatnam, for further treatment. The Tribunal has failed to appreciate

Ex.A.7-Physically Handicapped Certificate on the ground that the Doctor, who

treated the claimant, was not examined in proof of the contents of Ex.A.7. But,

a perusal of Ex.A.7 clearly shows that the certificate was issued by the Civil

Surgeon, K.G. Hospital, Visakhapatnam. Therefore, considering Ex.A.7 and

the facts and circumstances of the case, this Court is of the opinion that the

claimant suffered 10% disability.

11. After filing the appeal, the claimant died on 08.01.2008, and his

parents were brought on record as appellant Nos.1 and 2 being his legal

representatives. This Court feels that because of the accident, the claimant

might have faced a lot of trauma, and he might not have come out of the said

accident and died. This Court also visualises the conditions of the

parents/appellants as they lost their only son, and feels it appropriate to

award just compensation.

12. The Hon'ble Supreme Court in Mallikarjun Vs. Divisional Manager,

National Insurance Company Limited1 held as under:

"8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children, there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a

(2014) 14 SCC 396

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non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. The appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.

12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."

13. In the aforesaid judgment, the Apex Court considered the case of a 12-

year-old child and concluded that compensation should be paid based on the

percentage of disability. The original claimant in the case on hand was a child

and was about 15 years old at the time of the accident. Therefore, taking the

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above judgment into consideration, this Court considers it appropriate to fix

Rs.3.00 lakhs for the disablement the claimant has suffered.

14. In Raj Kumar Vs. Ajay Kumar 2 , the Hon'ble Supreme Court has

succinctly explained the guidelines and heads for awarding compensation in

cases of disability due to a motor accident. The relevant paragraphs are

extracted below:

"6. The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (special damages)

(i) Expenses relating to treatment, hospitalisation, 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.

4 (2011) 1 SCC 343:2011)1 SCC (civ) 164

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7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv),

(v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a)."

15. In view of the foregoing discussion, the claimant is entitled to

Rs.3,00,000/- towards permanent disability, Rs.2,00,000/- towards pain and

suffering, and Rs.2,00,000/- towards loss of amenities and loss of

expectation of live, apart from Rs.21,000/- awarded by the Tribunal for the

injuries sustained by the claimant and medicines and treatment. Thus, the

claimant is entitled to a total compensation of Rs.7,21,000/-.

16. Accordingly, the appeal is allowed enhancing the compensation from

Rs.21,000/- awarded by the Tribunal to Rs.7,21,000/-. Respondent Nos.1, 2

and 4 are directed to deposit the entire compensation amount, with costs and

interest as awarded by the Tribunal, before the Tribunal within two months

from the date of this judgment. On such deposit, the appellants are permitted

to withdraw the compensation amount with accrued interest by filing the