Andhra Pradesh High Court - Amravati

Jaya Venkata Reddy vs Y.B.Ssreedhar Reddy Anr on 18 September, 2024

     IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI

         THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM

                        M.A.C.M.A.No.2576 of 2006

Between:

Jaya Venkata Reddy
                                                    ...Appellant/Petitioner

and

Y.B.Sreedhar Reddy and another.             ... Respondents/Respondents




Counsel for appellant                :   Sri J.Janaki Rami Reddy

Counsel for 2nd respondent       :       Sri Gudi Srinivasu



This Court made the following:


JUDGMENT:

The appellant/petitioner filed this appeal against the Judgment

dated 07.09.2006 passed by the Chairman, Motor Vehicle Accidents

Claims Tribunal - cum - IV Additional District Judge, Kurnool,

(hereinafter referred to as "the Tribunal") in M.V.O.P.No.766 of 2004,

awarding compensation of Rs.1,64,000/- to the petitioner as against the

claim of Rs.4,00,000/-.

2. For convenience and to avoid confusion, the parties hereinafter

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

JS,J

3. The petitioner's case is that on 19.08.2004 at about 01.30 p.m.,

the petitioner and his friend parked the motorcycle bearing No. AP 21J

5017 to attend nature calls. At that time, an Ambassador Car bearing

No. AP-11-W-2875, which was coming in opposite direction and being

driven by its driver rashly and negligently without blowing horn by

violating the traffic rules, came to the extreme right side of the road and

dashed the petitioner. As a result, the petitioner fell and sustained

fractures and multiple injuries all over his body. He was shifted to the

Government Hospital, Kurnool, for treatment, and he was inpatient from

27.10.2004 to 07.11.2004. The matter was reported to Kodumur Police,

and the same was registered as a case in Crime No.79 of 2004 under

Section 337 of I.P.C. against the driver of the car bearing No. AP 11W

2875. Therefore, both the respondents are jointly and severally liable to

compensate the petitioner.

4. The 1st respondent was set ex parte. The 2nd respondent filed a

counter-affidavit denying the allegations made in the claim petition. It is

contended that the alleged accident was not caused by the rash and

negligent acts of the car driver bearing No. AP 11W 2875, there is no

fault on the part of the driver of the car. The 2nd respondent did not

insure the 1st respondent's car, and the offending vehicle's driver does

not have a valid and effective driving licence as of the alleged date of

JS,J

accident. The compensation claimed by the petitioner is excessive and

unreasonable; therefore, the claim petition is liable to be dismissed.

5. Based on the above pleadings, the Tribunal framed the following

issues for trial:

1. Whether the accident occurred on 19.08.2004 at about 01.30 p.m., was due to rash or negligent driving of the car bearing No. AP 11W 2875 by its driver belonging to the first respondent?

2. Whether, the petitioner is entitled to claim compensation, if so, to what amount, to what extent and from whom?

3. To what relief?

6. To establish his claim, the petitioner examined himself as P.W.1

and examined the Doctors as P.Ws.2 and 3, respectively and marked

the documents as Exs.A1 to A10 and Ex.X1. No oral or documentary

evidence was adduced on behalf of the respondents.

7. The Tribunal, by an order dated 07.09.2006, allowed the claim

petition in part by granting compensation of Rs.1,64,000/- with

proportionate costs and interest at 7.5% p.a. from the date of petition till

the date of deposit. Seeking enhancement of the compensation, the

petitioner/appellant filed the present appeal.

8. Learned counsel for the appellant/petitioner submitted that when

the petitioner and his friend parked the motorcycle bearing No. AP 21J

5017 to attend nature calls, the 1st respondent drove the car rashly and

JS,J

negligently, came to the extreme right side of the road, and dashed the

petitioner. As a result, the petitioner fell and sustained fractures and

multiple injuries all over his body. The petitioner was admitted to the

Government Hospital, Kurnool. P.Ws.2 and 3 are the doctors who

treated the petitioner from 27.10.2004 to 07.11.2004 in the hospital and

opined that the petitioner suffered 40% disability, and his leg was

shortened by two inches. The petitioner was about 30 years old and

was doing milk business; he was earning Rs.6,000/- per month; the

accident made it difficult for him to continue his business, and he lost

his earnings. Police have filed a charge sheet holding that the driver of

the 1st respondent's car was negligent, and due to his rash and

negligent driving of the vehicle, the accident occurred. The petitioner

further submits that the Tribunal has failed to appreciate the evidence

given by P.W.2 and without applying the multiplier in terms of Sarla

Verma's judgment based on the age and income of the petitioner,

passed the award. Therefore, the respondents are jointly and severally

liable to pay the compensation as sought for.

9. On the other hand, the 2nd respondent, the Insurance Company,

submits that the accident did not occur on 19-8-2004 and the vehicle

bearing No. AP 11W 2875 was not involved in the alleged accident.

The driver of the ambassador car is not holding a valid and effective

licence as of the date of the alleged accident. It is the further contention

JS,J

of the 2nd respondent that the compensation claimed by the petitioner is

excessive, and the second respondent is not liable to pay

compensation.

10. Now, the point for consideration is:

Can the tribunal exonerate the insurance company from its liability for compensating the accident victim who suffered 40% disability due to the accident? If so, to what extent?

11. The accident took place on 19-8-2004. The petitioner/appellant

was admitted to Vishwa Bharathi Super Specialist Hospital with injuries

of compound commuted fracture of the right femur and was operated

on at Government General Hospital, Kurnool, by plate and screw

fixation and fracture of tibia and fibula on the right, left compound

commuted with tibia bone about 4 inches. He was also operated on the

right femur because of the presence of an infection of the bone, and the

doctors found two inches of shortening and stiffness in the right knee

joint and a malunion of the right fibula. With this, he cannot walk without

any support, cannot perform his normal duties and cannot do his

regular work, and the disability is 40%, which is permanent.

12. To assess the quantum of compensation to be awarded, the

Court must examine whether the permanent disability caused has any

adverse effect on the earning capacity of the claimant, as held by the

JS,J

Hon'ble Supreme Court in the case of Sandeep Khanuja vs. Atul

Dande and Anr1. The relevant paragraph of the judgment is extracted

hereunder:-

"The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. We feel that the conclusion of the MACT on the application of aforesaid test is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and therefore his working capacity is not impaired..... A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily able. Movements of the appellant have been restricted to a large extent and that too at a young age."

13. While dealing with different heads of compensation in injury cases,

the Hon'ble Supreme Court in the case of R.D. Hattangadi v. Pest

Control (India) (P) Ltd.2 held that:

"Broadly speaking while fixing the 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 damages are those which are incapable of being assessed by arithmetical calculations. In

(2017) 3 SCC 351

(1995) 1 SCC 551

JS,J

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 as non pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the 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 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."

The petitioner suffered 40% of permanent disability as per the above

judgments. The Court should see whether the disability suffered by the

petitioner will hinder his day-to-day activities (or) whether he is

prevented or restricted from discharging his previous activities and

functions. The doctors who treated the petitioner have stated that the

petitioner cannot walk without any support, cannot perform his regular

work, and the disability is 40%, which is permanent. Without considering

the same, the Tribunal has awarded meagre compensation insofar as

non-pecuniary damages. Given the above judgment, the petitioner is

entitled to Rs.3,00,000/- towards permanent disability, Rs.2,00,000/-

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

amenities of life.

JS,J

14. The petitioner is 30 years old and is in the milk business; free

movement is involved in performing such a function. A person who is

engaged and cannot freely move to attend to his duties may not be able

to match the earnings compared to the one who is healthy and bodily

abled. Movement of the petitioner has been restricted to a large extent

and that too at a young age. The doctors opined that it is difficult for the

petitioner to attend his work as usual. As the petitioner was earning

Rs.6,000/- per month by doing milk business, he cannot place any

evidence before this Court to show his earning capacity. Since the

accident was in 2004, the minimum wages on that day have been

considered, and this Court has taken the earning capacity of the

petitioner as Rs.4,000/- per month.

15. In Sri Anthoni alias Anthony Swamy vs. The Managing

Director K.S.R.T.C.3, the Hon'ble Supreme Court held that:

"The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs.5,500/- with multiplier of 14 at Rs.6,93,000/-."

16. Therefore, the petitioner's income is taken as Rs.4,000/- per

month. The loss of earnings comes to Rs.3,26,400/- (Rs.4,000/- x 12 x

multiplier '17' as per Sarla Verma case x disability 40%). In addition,

the petitioner is entitled to Rs.3,00,000/- towards permanent disability,

Civil Appeal No.2551 of 2020 dated 10.06.2020

JS,J

Rs.2,00,000/- towards pain and suffering and Rs.2,00,000/- towards the

loss of amenities of life. The total compensation to which the petitioner

is entitled is Rs.10,26,400/-.

17. Accordingly, the appeal is allowed and the compensation

awarded by the Tribunal is enhanced from Rs.1,64,000/- to

Rs.10,26,400/-. The 2nd respondent/Insurance company is directed to