Andhra Pradesh High Court - Amravati
Yacob Ali vs S. Nageswara Rao Another on 15 February, 2024
[ 3459 ]
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE FIFTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM
MOTOR ACCIDENT CIVIL MISCELLANEOUS
APPEAL NO: 2900 OF 2005
Between:
1. YACOB ALI, S/o. Md. Gouse Mohiddin Student, minor rep. by
his father Md. Gouse Mohiddin R/o. Rampachodavaram,
E.G.District,
...APPELLANT(S)
AND
1. S NAGESWARA RAO ANOTHER, S/o. Apparao APSRTC
Bus Driver Yeleswaram Depot, Yeleswaram, East Godavary
District.
2. The General Manager, APSRTC The General Manager
APSRTC Musheerabad,
...RESPONDENTS
The Court made the following:
2
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MACMA No.2900 of 2005
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No. 2900 of 2005
JUDGMENT:
By way of this appeal, the appellant/minor challenges the
award, dated 02.08.2005, passed by the Chairman, Motor Accident
Claims Tribunal-cum-Principal District Judge, East Godavari at
Rajahmundry, in O.P. No. 176 of 2001, whereby and whereunder
the claim petition filed by the appellant, represented by his father,
seeking compensation of Rs.1,50,000/- for the injuries sustained by
him in a motor vehicle accident, was allowed in part and a sum of
Rs.47,581-50 ps. was granted towards compensation under various
heads. According to the appellant, the aforesaid compensation is
not just and fair compensation, and therefore, the same has to be
enhanced.
2. The case of the appellant is that he was aged about 12 years
at the time of accident. On 29.09.2000 at about 10.00 a.m. he was
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proceeding to his house at Rampachodavaram after getting down a
bus, at that time, one RTC bus bearing registration No. AP 9Z 5249
came in a rash and negligent manner and ran over his left leg
resulting in grievous injuries to him. Due to the accident, he incurred
heavy medical expenses, attendant charges, special diet charges,
transportation charges and also sustained permanent disability. The
accident has occurred due to the negligent driving on the part of the
driver of the bus.
3. The 1st respondent was set ex parte. The 2nd respondent filed
counter by denying the material averments made in the petition. It is
contended that the accident occurred only due to negligence of the
appellant and thus, the 2nd respondent is not liable to pay any
compensation.
4. During the course of enquiry in the claim petition, on behalf of
the appellant, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 and
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Exs.X.1 and X.2 were marked. No oral or documentary evidence
was adduced on behalf of the respondents.
5. Based on the material available on record, the Tribunal came
to the conclusion that the accident occurred due to rash and
negligent driving of the driver of the bus and accordingly, the
Tribunal has partly allowed the petition and granted compensation of
Rs.47,581-50 ps. to the appellant with proportionate costs and
interest at 9% p.a. from the date of petition till the date of deposit
against both the respondents. Aggrieved against the said order, the
appellant has preferred the instant appeal for enhancement of the
compensation.
6. Smt. Sudha Rayudu, learned counsel representing Mr. K.
Venkatesh, learned counsel for the appellant on record, has
contended that the award passed by the Tribunal is bad in the eye of
law and the Tribunal has failed to consider the fact that the appellant
sustained serious injuries, due to which his big toe was amputated
for which the appellant has to suffer throughout his life, moreover,
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losing of one or more toes can effect balance and it disqualifies him
from attending competitive exams. She further contended that the
Tribunal disbelieved the evidence of P.W.2-doctor with regard to
amputation of big toe of the appellant, which led to permanent
disability, and skin grafting. The learned counsel, therefore, prays
that the amount awarded by the Tribunal towards permanent
disability and non-pecuniary damages may be enhanced.
7. On the other hand, Sri Vinod Kumar Tarlada, learned counsel
for the 2nd respondent, has submitted that the Tribunal has arrived at
just and proper conclusion after taking into consideration the
material on record and after appreciating the evidence in proper
perspective and rightly awarded compensation of Rs. 47,581.50 ps.
Therefore, no further enhancement should be made and prayed for
dismissal of the appeal.
8. In view of the above contentions, what is required to be seen
is, whether the Tribunal while granting the aforesaid compensation
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properly considered the case of the appellant for his permanent
disability or not, If so, to what extent ?
9. POINT: The Professor of Orthopedics, Rangaraya Medical
College, Kakinada, was examined as P.W.2. In his evidence, he
deposed that he conducted surgery on the appellant called
Debridement and k-wire fixation was done and observed that blood
supply was doubtful to the big toe of the appellant. On 30.10.2000
appellant's toe was amputated, skin grafting operation was done to
cover the wound and observed that there was ulcer and puss
formation. P.W.2 further deposed that the appellant feels difficulty
while walking, standing and running and also cannot participate in
games. The disability can be assessed at 20% and it is permanent
disability and stiffness of the ankle joints of left side will be 6%
disability and amputation of big toe is 14% disability, and that the
appellant also suffers while folding legs, climbing staircase because
of skin grafting. No rebuttal evidence was adduced by the
respondents to disbelieve the evidence of P.W.2.
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11. By taking into consideration the evidence of P.W.2, the
Tribunal opined that 20% disability assessed by P.W.2-doctor is to
the left toe only, and not to the entire body. The Tribunal failed to
show compassion to the appellant whose toe was amputated due to
the accident while awarding compensation. The Tribunal ought to
have seen that if a big toe is amputated, it will have more dramatic
impact as it bears the brunt of his weight and while walking, this can
affect the general day to day life especially during sports and regular
exercises.
12. The provisions of the Motor Vehicles Act, 1988 makes it clear
that the award must be just, which means that the compensation
should, to the extent possible, fully and adequately restore the
claimant to the position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of wrong
done as far as money can do so, in a fair, reasonable and equitable
manner. The claimant is not only to be compensated for the physical
injury, but also for the loss which he suffered as a result of such
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injury. This means that he is to be compensated for his inability to
lead a full life, his inability to 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.
13. The Hon'ble Apex Court in Mallikarjun vs. Divisional
Manager, National Insurance Company Limited1, has stated that
the age of the child and deformities of his body resulting in disability
has to be duly taken note of.
14. In R.D. Hattangadi vs. Pest Control (India) (P) Ltd.2, the
Hon'ble Apex Court held as under:
"While fixing an amount of compensation payable to a
victim of an accident, the damages have to be assessed
separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has
actually incurred and which are capable of being
calculated in terms of money; whereas non-pecuniary
(2014) 14 SCC 396
(1995) 1 SCC 551
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damages are those which are incapable of being
assessed by arithmetical calculations. In order to
appreciate two concepts pecuniary damages may include
expenses incurred by the claimant; (i) medical attendance;
(ii) loss of earning of profit up to the date of trial: (iii) other
material loss. So far non-pecuniary damages are
concerned, they made include (i) damages for mental and
physical shock, pain and suffering, already suffered or
likely to be suffered in future; (ii) damages to compensate
for the loss of amenities of life which may include a
variety of matters i.e., on account of injury the claimant
may not be able to walk, run or sit; (iii) damages for the
loss of expectation of life, i.e., on account of injury the
normal longevity of the person concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."
15. In the instant case, the appellant/minor was 12 years old and
studying VII Class at the time of accident. He suffered immense
physical pain as well as mental shock and trauma at a very tender
age. The trauma undergone by him due to the accident could have
severe and long lasting effect. Therefore, the parents of the
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appellant will have to make arrangements to support his disability in
future. No amount of monetary benefit will compensate the pain and
suffering and the appellant has to endure and overcome the
probable shackles of his disability in future. Therefore, when the
question of awarding compensation arises in the case of permanent
disablement suffered by the appellant due to a motor vehicle
accident, the principles laid down by the Hon'ble Apex Court in the
case of R.D. Hattangadi (2 supra) shall be applied.
16. The Tribunal, while granting Rs.15,000/- towards non-
pecuniary compensation and Rs.10,000/- towards permanent
disability, grossly failed to appreciate that non-pecuniary damages
include mental and physical shock, pain and suffering already
suffered or likely to be suffered in future and damages to
compensate for the loss of amenities of life which may include a
variety of matters i.e., on account of injury the appellant may not be
able to walk or run. Because of amputation or disfiguration, he
cannot reach the goal he intends too.
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17. Thus, the appellant will be entitled for a sum of Rs.1,50,000/-
towards non-pecuniary damages and permanent disability instead of
Rs.10,000/- awarded by the Tribunal towards permanent disability
and Rs.15,000/- towards non-pecuniary damages, apart from
Rs.22,581.50 ps. awarded under other heads. In all, the appellant is
entitled to compensation of Rs.1,72,581.50 ps.
18. In the result, the appeal is allowed enhancing the
compensation of Rs.47,581.50 ps. awarded by the Tribunal to
Rs.1,72,581.50 ps. The appellant is entitled to the enhanced
compensation of Rs.1,25,000/- along with interest as ordered by the
Tribunal. The 2nd respondent shall deposit the entire amount of
compensation together with interest within a period of eight weeks
on receipt of a copy of this judgment. On such deposit, the
appellant is permitted to withdraw the amount, in accordance with
law. However, the appellant shall pay the requisite Court fee in
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respect of the amount awarded over and above the compensation
claimed. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the
appeal shall stand closed.
________________________
SUMATHI JAGADAM, J
th
15 February, 2024
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HON'BLE SMT. JUSTICE SUMATHI JAGADAM
15th February, 2024
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