Andhra Pradesh High Court - Amravati

Tamma Reddy Pani Grahi vs Vosa Venu Prasad 2 Others on 10 September, 2024

APHC010554272011
                   IN THE HIGH COURT OF ANDHRA PRADESH
                               AT AMARAVATI                     [3470]
                        (Special Original Jurisdiction)

              TUESDAY, THE TENTH DAY OF SEPTEMBER
                   TWO THOUSAND AND TWENTY FOUR
                              PRESENT
        THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
          THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3267/2011


Between:
Tamma Reddy Pani Grahi                                    ...APPELLANT

                                 AND
Vosa Venu Prasad 2 Others and Others               ...RESPONDENT(S)

Counsel for the Appellant:
   1. Y SUDHAKAR

Counsel for the Respondent(S):
   1. GUDI SRINIVASU

   2.

The Court made the following:
                                      2

           THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                   AND
            THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
                       M.A.C.M.A.No.3267 of 2011

JUDGMENT:

(Per Hon'ble Sri Justice Nyapathy Vijay)

1. The present Appeal is filed questioning the Award and Decree

dated 24.08.2011 passed in M.V.O.P.No.192 of 2010 by the Motor

Vehicle Accident Claims Tribunal (District Judge) at Rajahmundry.

2. For the sake of convenience, the parties hereinafter are referred to

as they were arrayed before the Tribunal.

3. The brief facts so far:

The Claimant is a practicing Advocate, for the injuries received by

him in a motor accident that occurred on 06.11.2007. According to the

claimant, on 06.11.2007 at about 3.00 p.m. while the claimant along with

one M.V.V. Satyanarayana as pillion rider, were coming on his Hero

Honda motorcycle bearing No.AP5B T/R.1329 from Kakinada to

Rajahmundry after attending Court work, when they crossed Morampudi

junction and proceeding towards Bommuru, the 1st Respondent-driver of

the van bearing No.AP5W 1023 came in opposite direction in wrong route

in a rash and negligent manner and hit the motorcycle. In the accident,

both claimant and the pillion rider M.V.V. Satyanarayana fell down and

suffered grievous injuries.

4. A case in Crime No.343/2007 was registered by the Bommuru P.S.,

The claimant was shifted to APEX Hospital and later shifted to Supraja

Hospital, Rajahmundry. The claimant underwent surgeries on 10.11.2007

and 17.11.2007, implants were inserted in his right arm, deep hip screw

at his right leg hip joint and he was discharged on 26.11.2007 with advice

to take bed rest. Again, for follow up and better treatment, the claimant

was admitted at B.I.R.R.D. Hospital, Tirupati on 03.03.2009, where he

underwent treatment as inpatient for more than one month, discharged on

06.04.2009 and one more surgery was performed to his right hip joint on

25.03.2009. During the period of treatment and when the claimant was in

hospital, he had lost his earnings. The claimant claimed to have spent

more than Rs.4,50,000/- for medical expenses and requires to spend

more money towards future treatment and medicines. Hence, a

compensation of Rs.18,00,000/- was sought by the claimant.

5. Respondent Nos.1 and 2 are the driver and owner of the van

remained ex parte. Respondent No.3 i.e. the Insurance-company filed its

usual formatted counter denying every aspect of the claim petition.

6. In the course of examination on behalf of claimants,

P.Ws 1 to 5 were examined, Exs.A.1 to A.17 and Ex.X.1 were marked.

On behalf of the respondents, none were examined and no documents

were marked.

7. The Tribunal framed the following issues:

1. Whether the accident was due to rash and negligent driving of the van bearing No. AP 5 W 1023 by its driver the 1 st respondent herein?

2. Whether the Claimant is entitled for compensation amount claimed? If so, from which of the respondents?

3. To what relief?

8. The Tribunal, after considering the oral and documentary evidence,

held that the accident occurred due to contributory negligence of both the

claimant and driver of the van in the ratio of 15% and 85% respectively.

The compensation awarded was an amount of Rs.7,07,454/- towards

compensation as against the claim of Rs.18,00,000/-. Hence, this appeal

by the claimant.

9. Heard Sri P.A.N.V.Ravi Teja, proxy counsel representing

Sri Y. Sudhakar, learned counsel for the appellant and Sri Gudi Srinivasu,

learned counsel for Respondent No.3.

10. The issues that fall for consideration in the present appeal are as follows:-

(a) Whether the finding of the Tribunal as regards contributory negligence of the claimant is correct?

(b) Whether the compensation awarded by the Tribunal is just and proper considering the evidence on record?

11. Issue (a): It is an admitted fact that the accident happened while

the claimant was overtaking a lorry and the offending van had hit the

vehicle of the claimant while coming on the opposite side at that time.

The Tribunal in the light of the narration of the accident by the claimant

himself held that there is contributory negligence on the part of the

claimant in the accident to the extent of 15%. Though arguments were

advanced by the counsel for the claimant that the finding of the Tribunal

on this aspect is erroneous as the charge sheet filed by the police

establishes that the accident was caused solely on account of the

negligent driving of the offending van.

12. Though it is a fact that the police had filed charge sheet against the

driver of the offending van for rash and negligent driving under Section

304-A of IPC, however, there is no evidence on record to establish said

fact, apart from the statement of the claimant himself. The eye witnesses

to the accident cited in the charge sheet (Ex.A.2) were not examined as

witnesses before the Tribunal nor the pillion rider by name M.V.V.

Satyanarayana, was examined to substantiate the plea of the claimant.

13. In the appeals under Motor Vehicles Act, the scope of interference

with regard to finding of fact as regards rash and negligent driving is

limited and unless the finding of the Tribunal is a finding which a prudent

person would not take, the finding of facts cannot be interfered. In this

case, going by the narration of the accident by the claimant, the Tribunal

had held that the claimant is responsible for contributory negligence as it

would be difficult for the driver of the van to suddenly notice and react to

the motorcycle emerging from the rear end of the lorry. This finding

cannot be said to be improbable for this Court to interfere. Therefore, in

the absence of any telling evidence against this finding of the Tribunal,

this Court is not inclined to disturb the said finding. The issue (a) is

accordingly answered.

14. Issue (b): The claimant had claimed a compensation of

Rs.18,00,000/- under various heads which is inclusive of Rs.5,00,000/-

and Rs.7,00,000/- under the head of compensation for permanent

disability and towards loss of permanent earnings on account of disability.

The claimant is a practicing Advocate and the accident had occurred

while the claimant was returning to Rajahmundry from Kakinada after

attending a Court case. The Kakinada Town is at a distance of 60 Kms.

from Rajahmundry and from the narration of facts, the claimant appears

to be a first generation Advocate.

15. The nature of injuries suffered by the claimant are grievous and to

substantiate the injuries, four doctors were examined as P.W.2, P.W.3,

P.W.4 and P.W.5.

16. P.W.2 in his evidence deposed that the claimant had suffered

Trochanter fracture of femur, fracture of both bones of right fore-arm,

lacerated wound on chin and tongue. P.W.2 deposed that the first surgery

was performed on 10.11.2007 for the fore-arm and second surgery was

performed for the fore-arm on 17.11.2007. P.W.2 further stated that due

to the accident, there is a shortening of the lower limb. P.W.3 was the

Civil Assistant Surgeon in Government Hospital, Rajahmundry and he

had stated that he had examined the claimant and that the claimant is

suffering from post traumatic stiffness of right hip joint and with right foot

stiffness. Both P.Ws 2 and 3 have stated that in the course of time, if the

implant of the right hip joint is inflicted, the claimant would have to

undergo another surgery. P.W.3 deposed that it would be difficult for the

petitioner to drive a two-wheeler.

17. P.W.4 is a Dental Doctor and he had stated that the claimant lost

three upper right teeth and lower jaw teeth in the accident and artificial

teeth were replaced in that place. P.W.5 is also a Doctor, who was

working as Director of Balaji Institute of Surgery, Research and

Rehabilitation for Disabled Persons. P.W.5 had stated that though the

claimant had intertrochanteric fracture of right femur, which was operated

one year back, but due to non-union of fracture trochanter with implants

present another operation was done on 25.03.2009, old implants were

removed and Valgus Osteotomy, DHS fixation and fibular grafting was

done. He had stated that the right lower limb is shortened by 2 inches.

He had also deposed that in future, the claimant may require total

replacement of the right hip joint, which would cost about Rs.3,00,000/-. It

is also stated that the claimant would not be in a position to squat or sit

cross legged on the floor and also not able to climb the stairs without

support.

18. The consistent feature in the depositions of P.Ws 2, 3 and 5 is that

there is shortening of the right limb of the claimant by 2 to 3 inches and

the claimant may require another surgery in future. P.Ws 2 and 3 have

stated that the permanent disability of the right limb of the claimant

@ 50% while P.W.5 has stated that the permanent disability would be

@ 60%.

19. Reasoning of the Court: The multiplier method as adopted by the

Tribunal is primarily applicable towards loss of income i.e. coming under

the head of pecuniary damage. Therefore, the methodology of

compensation adopted by the Tribunal in this case is not correct as there

is no loss of income in totality per se. This is all the more strange as the

Tribunal had referred to the Judgment of the Hon'ble Supreme Court in

Rajkumar vs. Ajay Kumar and another1.

[(2011) 1 SCC 343]

20. Coming to the pecuniary damages, the claimant would be entitled

to medical expenses. The compensation under this head should be

classified into past medical expenses and future medical expenses.

Compensation towards Medical expenses

(a) Past Medical Expenses: The Tribunal taking into consideration had

awarded Rs.1,10,803/- towards medical expenses as they were

supported by Ex.A.7 (Bunch of Medical Bills). There is no serious dispute

of Ex.A.7 (Bunch of Medical Bills) and as such the amount awarded by

the Tribunal towards past medical expenses @ Rs.1,10,803/- is left

undisturbed. However, what is to be visualized by the Court while

granting medical expenses is the traveling expenses incurred by the

claimant while going around hospitals in the Rajahmundry town as well as

follow up action in B.I.R.R.D. Tirupati. The traveling and incidental

expenses need to be visualised by the Court under this head. Therefore

is awarding an amount of Rs.50,000/- for the same. The claimant would

be entitled to Rs.1,10,803/-+Rs 50,000/-+Rs 1,60,803/-.

(b) Future Medical Expenses: As stated above, the consistent opinion of

the Doctors i.e. P.Ws 2, 3 and 5 is that the claimant would have to

undergo another operation in course of time. P.W.5 had also stated that

the expenses to be incurred for replacement of hip are @ Rs.3,00,000/-.

Therefore, taking into consideration the fact that the claimant cannot

come back to the Court and ask for compensation every time he incurs

the expenditure, this Court has to visualize the situations and put the

claimant in a position of comfort so that he could undergo the necessary

operations so as to keep him in the position closest to what he was before

the accident. Therefore, this Court is awarding compensation of

Rs.3,00,000/- apart from the expenses for the operation, they would be

travelling and incidental expenses, which would be incurred by the

claimant. In the opinion of this Court an amount of Rs.50,000/- is awarded

towards travelling and incidental expenses. Therefore, the claimant would

be entitled to Rs.3,50,000/- under the head of future medical expenses.

21. Loss of Income: The claimant appears to be a first generation

Advocate. A lot of running is required for an Advocate especially in

moffusil areas to develop good quality and quantity of work. The claimant

is bound to suffer huge professional loss on account of the injuries as he

is not in a position to move as quickly and swiftly as his peers. The

Hon'ble Supreme Court in Abhimanyu Partap Singh vs. Namita

Sekhon & Another2 while considering the compensation to an Advocate

had opined at Para 17 of the Judgment held as under:-

"....... A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to

2022 LiveLaw (SC) 569

complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e. lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectation of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified."

22. A similar view was also taken by the Hon'ble Supreme Court in

N. Manjegowda vs. Manager, United India Insurance Company

Limited3 at Para 12 as under:-

"....... Unlike many other professions, legal profession requires not only sharp and focused mind but also good health and ability to put in hard work within a limited time-frame. The requirement of impressing the client at the age of 36 is much more. It is only when a young advocate has built a good impression and reputation, then in the evening of his life he may continue to command professional work on the basis of his acquired knowledge and reputation. A young advocate is bound to suffer huge professional loss on account of injuries as have been sustained by the appellant and the condition in which the doctor found him."

[(2014) 3 Supreme Court Cases 584

23. An Advocate, who has difficulty in movement, especially in moffusil

areas, will have extreme effort of his income. Though it is difficult to

assess or gauge the quantity of income, which the individual may suffer,

especially for an Advocate, this Court fixes an amount of Rs 7,500/-

towards partial loss of income per month after deductions.Considering the

age of the claimant as '36', the multiplier of '15' is adopted and the

compensation towards loss of income is as under:-

Rs 7,500 x15x12=13,50,000/-

24. Compensation towards pain, suffering and loss of amenities : While

considering the pain, suffering and loss of amenities,

the Tribunal awarded compensation of Rs.50,000/-. This Court finds the

amount awarded by the Tribunal is grossly low. This Court while

considering grant of compensation under this head in the case of an

amputation in M.A.C.M.A.No.2281 of 2017 held at Paras 22, 23 and 24 as

under:-

"22. Pain, suffering and loss of amenities: The determination of damages towards this head is not easy and there is no accepted methodology in giving compensation under this head. While awarding compensation under this head, the physical disability alone is not the criteria, but the psychological impact caused by amputation on the life of the claimant should also be factored in.

23. The amputation to the claimant and persons similarly situated is medically acknowledged, in various journals as leading to depression, anxiety, loss of self-esteem and eventually to isolation from the social life. With advancing age, these problems would only become more acute. The normal joys of life like going to a movie, restaurant, travel, a stroll in the park or bazaar etc., with his family and friends are difficult to enjoy and a concentrated effort has to be made by people around the claimant in spending a normal evening like others.

24. This reduced quality of life and emotional distress have a traumatic impact on the quality of life of the individual. Therefore, this Court is inclined to grant an amount of Rs.7,50,000/- towards pain, physical and psychological suffering and loss of amenities. Though no material compensation can negate the trauma of the claimant, the law only knows the language of monetary compensation."

25. In this case, though there is no amputation, there is a shortening of

the right leg and the quality of life of the claimant is not the same as it was

before. Therefore, this Court is inclined to grant an amount of

Rs.3,00,000/- towards pain, physical and psychological sufferings and

loss of amenities.

26. Conveyance Charges: Coming to the conveyance charges,

the consistent opinion of P.Ws 2, 3 and 5 is that the claimant would not

be in a position to ride a motorcycle. However, this Court is of the opinion

that appropriate modified vehicles suitable for the claimant could be used

while going to the concerned places by the claimant. Considering the age,

the claimant would require a modified vehicle. Therefore, Rs.1,00,000/-

be awarded for the modified vehicle suitable to the claimant.

27. The Revised Compensation: Therefore, the revised

compensation payable to the claimant is as under:-

       (1) Conveyance Charges :                              Rs.1,00,000/-

       (2) Loss of Monthly income :                          Rs.13,50,000/-

(3) Pain, Suffering and Loss of Amenities : Rs.3,00,000/-

       (4) Medical Expenses:                                Rs.1,60,803/-

       (5) Future Medical Treatment :                       Rs.3,50,000/-

                                                 Total : Rs.22,60,803/-

28. Interest: The interest @ 9% awarded by the Tribunal is fair and is

supported by the Judgments of Hon'ble Supreme Court in Rahul Sharma

& Another vs. National Insurance Company Limited and others4 and

Kirthi and another vs. Oriental Insurance Company Limited5 on this

aspect.

29. The revised compensation is higher than the compensation

claimed, however, the grant of "just compensation" is an obligation on the

Courts considering the scheme of the Act.

30. Result: The appeal is partly allowed. The Insurance Company shall

deposit the balance amount within a period of one month from today

before the Tribunal and the claimant is entitled to withdraw the amount.

No order as to costs. As a sequel, the miscellaneous petitions, if any,