Andhra Pradesh High Court - Amravati
Gopisetty Narasimha Murthy, W.G. Dist. vs Eli Konda, W.G. Dist. 2 Others on 25 January, 2024
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1832 OF 2016
JUDGMENT:
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Challenge in this M.A.C.M.A. is to the award, dated
14.07.2010 in M.V.OP.No.21 of 2008, on the file of Motor
Accident Claims Tribunal-cum-VII Additional District Judge, West
Godavari, Eluru (for short "Tribunal"), where under the Tribunal
as against the claim of compensation of Rs.2,00,000/-, awarded
a sum of Rs.13,338/-. The appellant herein is no other than the
claimant in M.V.O.P.No.21 of 2008.
2) The parties to this MACMA will hereinafter be
referred to as described before the learned Tribunal for the sake
of convenience.
3) The case of the petitioner in M.V.O.P.No.21 of 2008,
in brief, is that on 28.07.2007 morning hours, the petitioner and
his wife Balamma and another person engaged the first
respondent's Car bearing No.AP-37-U-8444 ("offending vehicle"
for short) to go from Tanuku to Jangareddigudem. During the
course of journey they reached Chebrolu Center. At that time
first respondent/driver drove the said Car with high speed,
negligently without following rules and suddenly diverted the Car
towards Railway Gate side and dashed against Skoda Car
bearing No.AP-9-DH-144, as a result, both the Cars met with
damage. The petitioner, his wife and another sustained injuries.
Immediately, they were shifted to Government Headquarters
Hospital, Eluru and they got treatment. The Station House
Officer, Chebrolu, registered a case in Crime No.129 of 2007 for
the offence under Section 338 of the Indian Penal Code and
investigated into. The first respondent is the driver of the
offending vehicle bearing No.AP-37-U-8444. The second
respondent is owner of the said Car. It was insured with the
third respondent. Hence, the respondent Nos.1 to 3 are jointly
and severally liable to pay the compensation.
remained exparte.
5) The third respondent-insurance company got filed a
counter denying the case of the petitioner and putting to the
strict proof of age, income, manner of accident and expenditure
incurred by him. According to FIR, driver of Skoda Car bearing
No.AP-9-DH-144 was at fault. There was no rash and negligent
act on the part of the first respondent in driving the offending
vehicle. Hence, the third respondent is not liable to pay the
compensation. The petition is also bad for non-joinder of proper
and necessary parties. The petitioner did not implead the driver,
owner and insurer of the Skoda Car bearing No.AP-9-DH-144.
Hence, the petition is to be dismissed.
6) On the basis of the above pleadings, the Tribunal
settled the following issues:
(1) Whether the accident occurred on 28.07.2007 was on
account of the rash and negligent driving of the Car
bearing No.AP-37-U-8444 by the first respondent?
(2) Whether the accident occurred was due to rash and
negligent driving of the Skoda Car bearing No.AP-9-DH-
144 by its driver as alleged in the written statement of
third respondent?
(3) Whether the petitioner is bad for non-joinder of
necessary parties as alleged in para No.6 of the written
statement of third respondent?
(4) Whether the petitioner is entitled for compensation
and if so for what amount and from which of the
respondent?
(5) To what relief?
7) The petitioner examined himself as P.W.1 and got
marked Ex.A.1 to Ex.A.5 and further he examined P.W.2, the
Doctor, who treated him. On behalf of the contesting third
respondent, no witnesses were examined. However, Ex.B.1-the
copy of insurance policy was marked with consent. Further
Ex.X.1 was also marked through the examination of P.W.2 which
was the case-sheet of the petitioner.
8) The Tribunal on hearing both sides and on
considering the oral as well as documentary evidence, answered
the issues 1 and 2 in favour of the petitioner and against third
respondent and further issue No.3 also answered as against the
contention of the third respondent, but awarded compensation
of Rs.13,338/- only. Felt aggrieved that the compensation was
awarded is totally inadequate, the claimant filed the present
appeal.
9) Now, in deciding the MACMA, the point that arises
for consideration is as to whether the compensation that was
awarded in favour of the petitioner by the Tribunal is just and
reasonable?
Point:
10) Sri B.V. Krishna Reddy, learned counsel appearing
for the appellant, would strenuously contend that the petitioner
claimed compensation of Rs.50,000/- as regards grievous injury
coupled with surgical intervention, but the Tribunal awarded
Rs.10,000/-. Further with regard to the simply injury, the
Tribunal awarded Rs.2,000/- and it needs to be enhanced at
least to a sum of Rs.10,000/-. He would submit that the
petitioner was handicapped for about four months in the hospital
and the Tribunal did not consider the loss of earnings. Even the
Tribunal did not consider awarding anything for extra
nourishment for the treatment period. The compensation that
was awarded to the petitioner was totally inadequate, as such, it
needs to be enhanced.
11) Smt. Jayanthi, learned counsel appearing for the
third respondent, would contend that the Tribunal rightly
awarded compensation of Rs.13,338/- and there is no need to
interfere with the award of the Tribunal.
12) P.W.1 is no other than the petitioner, who adverted
to his case in accordance with the contents of the petition in his
chief examination affidavit. Through his examination, Ex.A.1 to
Ex.A.5 were marked. Ex.A.1 was attested copy of FIR in Crime
No.129 of 2007 of Chebrolu Police Station. Ex.A.2 was attested
copy of Charge sheet. Ex.A.3 was attested copy of wound
certificate. Ex.A.4 was bunch of medical bills. Ex.A.5 was bunch
of X-rays (12 in number).
13) During cross examination P.W.1 denied the defence
of the third respondent. He denied that the accident occurred
was due to rash and negligent act of the driver of Skoda Car
bearing No.AP-9-DH-144 and that the petition is bad for non-
joinder of necessary parties.
14) It is to be noted that the police after due
investigation filed charge sheet. As seen from Ex.A.1 and A.2
the police completed the investigation and filed charge sheet
alleging rash and negligent act against the first respondent, who
is the driver of offending vehicle. It is a case that the first
respondent and second respondent remained exparte. The third
respondent did not enter into witness box. Hence, the evidence
of P.W.1 coupled with Ex.A.1 and Ex.A.2 remained uncontested.
Apart from this, when the police laid charge sheet alleging rash
and negligent act against the first respondent, there is no need
for the petitioner to join the driver and owner of Skoda Car
bearing No.AP-9-DH-144. It is a case where the claimant
approached this Court saying that the compensation is
inadequate. There are no cross objections on behalf of the third
respondent so as to challenge the findings of the Tribunal that
the accident occurred was due to rash and negligent driving of
the first respondent i.e., driver of the offending vehicle.
15) It is to be noted that the whole controversy in the
appeal is to decide the quantum of compensation. The accident
occurred was due to rash and negligent act of the first
respondent. The second respondent was the owner of the
vehicle and third respondent was the insurer said vehicle. As
there was no dispute that Ex.B.1 policy covers the offending
vehicle and the period of accident, the petitioner is entitled to
compensation as against the respondent Nos.1 to 3.
16) As seen from the evidence of P.W.2, he testified that
on 27.07.2007 at 7-50 a.m., the petitioner was admitted in
Orthopedic Ward with the history of pain and deformity left hip
joint. On 28.07.2007 X-ray left hip was taken with MLC 607. It
shows fracture extra capcil of neck of femur left. On 21.08.2007
patient was operated for the fracture and he was discharged on
04.09.2007 at 2-00 p.m. He issued Ex.A.3-wound certificate.
Therefore, the evidence of P.W.2 coupled with Ex.A.3, shows
that the petitioner sustained fracture extra capcil of neck of
femur left and it was operated. So, the injury received by the
petitioner was a fracture which was surgically intervened. Apart
from this, the petitioner also received simple injury according to
Ex.A.3. There is no dispute about the nature of injuries received
by the petitioner and further the surgical intervention. There
was no dispute that when the petitioner was admitted in the
hospital on 28.07.2007 even according to Ex.X.1-case sheet, he
was operated on 21.08.2007. Further according to Ex.X.1 from
the date of discharge on 04.09.2007, the petitioner was advised
to have a bed rest for a period of three months. Therefore, the
compensation with respect to the grievous injury was to be
awarded looking into pain and suffering prior to the surgery and
after the surgery. If those things are considered, absolutely, a
sum of Rs.10,000/- awarded by the Tribunal is totally
unreasonable. In my considered view, the Tribunal committed
an error in just awarding Rs.10,000/- towards the grievous
injury received by the petitioner which was treated with a
surgical intervention, for which the petitioner was handicapped
for a period of four months.
17) Having regard to the nature of injury which was
treated with surgical intervention and taking into consideration
the petitioner sustained with the said injury in the year 2007, a
sum of Rs.30,000/- is just and reasonable under the head of
grievous injury. Further, it is appropriate to award a sum of
Rs.10,000/- instead of Rs.2,000/- towards simple injury
received by the petitioner. There is no denial of fact that
according to the evidence available on record, the petitioner was
handicapped with the injury for a period of four months.
Therefore, during the period of four months, there was loss of
earnings admittedly. The petitioner claimed that he used to earn
a sum of Rs.6,000/- per month. However, considering the period
of accident, I am of the considered view that it is just and
reasonable to consider the income of the petitioner on
reasonable basis as Rs.4,000/- per month, as such, as the
petitioner was handicapped for a period of four months, it is just
and reasonable to award a sum of Rs.16,000/- towards loss of
earnings. Apart from this, the Tribunal did not consider to award
any amount towards extra nourishment. Considering the same,
it is appropriate to award a sum of Rs.5,000/- towards extra
nourishment. With regard to the medical expenditure claimed by
the petitioner, the Tribunal rightly looked into Ex.A.4-medical
bills which only reveals the medical expenditure of Rs.838/-. It
appears that the petitioner availed the benefits under
Aroghyasri, etc., as such the Tribunal rightly looked into
Rs.838/- which was incurred by the petitioner. The Tribunal
awarded a reasonable sum of Rs.500/- towards transport.
18) Having regard to the above, the compensation is
liable to be modified as follows:
(1) A sum of Rs.30,000/- as against Rs.10,000/- towards
grievous injury.
(2) A sum of Rs.10,000/- as against Rs.2,000/- towards
simple injury.
(3) A sum of Rs.16,000/- towards loss of earnings.
(4) A sum of Rs.5,000/- towards extra nourishment.
Therefore, the differential amount counts are Rs.20,000/- +
Rs.8,000/- + Rs.16,000/- + Rs.5,000/- = Rs.49,000/- (Rupees
forty nine thousand only). Hence, the compensation is liable to
be enhanced accordingly.
19) In the result, the MACMA is allowed in part with
costs enhancing the compensation from Rs.13,338/- to
Rs.62,338/- by holding that the respondent Nos.1 to 3 are
jointly and severally liable to pay the difference of the
compensation of Rs.49,000/- with interest at 6% per annum
from the date of petition till the date of realization. The third
respondent is directed to deposit the differential amount within
one month from the date of this judgment. On such deposit, the
petitioner is entitled to withdraw the differential amount.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.25.01.2024.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date:25.01.2024
PGR
