Shaik Khaja Miya vs Prathanapu Venkatanarayana Anr
2021 Latest Caselaw 4432 Tel

              THE HON'BLE JUSTICE G. SRI DEVI

                   M.A.C.M.A. No.2508 of 2006

JUDGMENT:

This appeal is filed by the appellant-claimant aggrieved by the

order and decree, dated 19.10.2005, passed in O.P.No.773 of 2002 on

the file of the Motor Accidents Claims Tribunal-cum-I Additional

District and Sessions Judge, Khammam.

The brief facts of the case are that on 28.03.2002 at 2.00 P.M.,

after attending work at Pandurangapuram, the appellant was

returning on a Luna moped along with his cousin and when they

reached near Pragathi School, one APSRTC bus bearing No. AP 10 Z

288 of Khammam Depot, driven by the 1st respondent in a rash and

negligent manner with high speed and dashed against the appellant,

due to which the appellant sustained multiple fractures to his right

leg at knee joint. Immediately after the accident, the appellant was

shifted to Government Hospital, Khammam and was given first-aid

and later, he was shifted to Dr.P.N.V.S.V.Prasad Hospital,

Khammam, where fourteen sutures were applied and two major

surgeries were conducted and the claimant spent Rs.60,000/- for his

treatment and while discharging, the doctor advised him to take bed

rest for one year. Basing on the complaint, the Police, Khanapuram

Haveli, registered a case in Crime No.67 of 2002 against the 1st

respondent. The appellant filed aforesaid O.P. against respondent

Nos.1 and 2, being driver and owner of the RTC bus respectively,

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claiming compensation of Rs.3,00,000/- for the injuries sustained by

him.

Before the Tribunal, the 1st respondent remained ex parte and

the 2nd respondent filed counter denying the averments of the claim

petition and contended that the claimant drove the Luna Moped in a

zig-zag manner and dashed against the RTC Bus and due to the

negligence of the claimant only, the accident occurred and that the

amount of compensation claimed is excessive and prayed to dismiss

the claim petition.

Basing on the above pleadings, the following issues were

framed before the Tribunal:-

1) Whether Sk. Khaja Miya was injured in a motor accident occurred on 28.03.2002 due to rash and negligent driving of APSRTC bus bearing No. AP 10 Z 288 by its driver? Or Whether the accident occurred due to rash and negligent driving of Luna Moped by its driver? Or Whether the accident occurred due to negligence of both the drivers of the vehicles?

2) Whether the APSRTC Bus No.AP 10 Z 288 is owned by R-2 on the date of accident? If so, what is the quantum of compensation payable to petitioner by the respondents jointly and severally?

3) To what relief?

During trial, on behalf of the appellant-claimant, P.Ws.1 and 2

were examined and Exs.A1 to A10 were marked. On behalf of the

respondent, R.W.1 was examined, but no documents were marked.

GSD, J Macma_2508 _2006

After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the accident

occurred due to the rash and negligent driving of the 1st respondent

and awarded total compensation of Rs.79,500/- with interest @ 9%

per annum from the date of filing of O.P. till the date of realization,

under various heads viz., Rs.45,000/- for the injuries and 20%

disability caused to him; Rs.12,000/- towards loss of earnings;

Rs.2,500/- towards pain and suffering and Rs.20,000/- towards

medical expenses. Dissatisfied with the quantum of compensation,

the appellant-claimant filed the present appeal seeking enhancement

of the same.

Heard both sides.

The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged either of the respondents.

The point that arises for consideration is whether the

compensation awarded by the Tribunal is just and reasonable?

In order to establish his case, the appellant examined himself

as PW.1 and the Doctor, who treated him, as PW.2. PW.1 in his

evidence deposed that he received one grievous injury and one

simple injury. According to him, he took First-aid in the

Government Hospital, Khammam and later he took treatment in a

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private nursing home, where the doctor conducted operation and he

spent Rs.60,000/- towards medicines. His evidence is also to the

effect that he was doing agricultural work and was earning

Rs.50,000/- per annum and due to the accident, he is not able to

make any livelihood. In order prove the injuries sustained and the

treatment taken by him, the appellant got marked Ex.A3-Medical

Certificate, Ex.A6-discharge summary, Ex.A7-Medical Receipt

issued P.W.2 and Ex.A9-Medical Bills. PW.2, who was working as an

Orthopedic Surgeon at Khammam, deposed in his evidence that the

appellant sustained one grievous injury over right knee and one

simple injury over right foot and the appellant took treatment in his

hospital from 29.03.2002 to 30.04.2002 and during the said period,

the appellant underwent operation. P.W.2 categorically deposed

that the appellant suffered 20% disability. He further deposed that

on account of such disability, the appellant could not work for one

and half year.

In order to award compensation in case of personal injuries,

the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as

under:

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

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

MACD 2011 (SC) 33

GSD, J Macma_2508 _2006

(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. 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. Decision of this Court and 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)(b)."

In the light of the principles laid down in the aforementioned

case, it is suffice to say that in determining the quantum of

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compensation payable to the victims of accident, who are disabled

either permanently or temporarily, efforts should always be made to

award adequate compensation not only for the physical injury and

treatment but also for the loss of earning, inability to lead a normal

life and enjoy amenities, which would have been enjoyed but for

disability caused due to the accident.

A perusal of the material on record, as per Ex.A.3-wound

certificate the appellant had sustained one grievous injury and one

simple injury. P.W.2, the doctor, who treated the appellant,

deposed that the appellant took treatment in his hospital from

29.03.2002 to 30.04.2002. P.W.2 categorically deposed that the

appellant had undergone operation in his hospital and the appellant

has suffered 20% disability and he was advised to take bed rest for

eight months. Admittedly, the appellant has sustained one grievous

injury and one simple injury and he took treatment from 29.03.2002

to 30.04.2002 i.e., more than one month and P.W.2 also supported

the disability sustained by the appellant, but the Tribunal did not

award any amount towards attendant charges, extra nourishment

and transportation charges etc. The Tribunal awarded Rs.2,500/-

only towards pain and suffering which appears to be on lower side.

Further, though P.W.2 stated that he issued Ex.A5-Receipt for

Rs.45,000/- towards hospital charges, but the same is not considered

by the Tribunal while awarding medical expenses. In the facts and

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circumstances of the case, this Court feels that the appellant is

entitled to the following amount towards compensation under

various heads:

Sl.    Name of Head                 Awarded      by Awarded        by
No.                                 Tribunal        this Court
                                    Rs.        Ps. Rs.         Ps.
1.        Injuries and disability         45,000.00        45,000.00
2.       Attendant charges                           --            1,000.00
3.        Extra nourishment                          --            1,000.00
4.       Transportation                             ---            1,000.00
5.        Pain and suffering                2,500.00             15,000.00
6.        Medical Expenses                 20,000.00             65,000.00
7.       Loss of earnings                  12,000.00             12,000.00

          TOTAL                             79,500.00        Rs.1,40,000.00

In the result, the appeal is partly allowed by enhancing the

compensation amount awarded by the Tribunal from Rs.79,500/- to

Rs.1,40,000/-. The enhanced amount will carry interest at 7.5% p.a.

from the date of order passed by the Tribunal i.e.19.10.2005 till the

date of realization, payable by respondents 1 and 2 jointly and

severally. There shall be no order as to costs.

Miscellaneous petitions, if any pending, shall stand closed.

_____________________ JUSTICE G. SRI DEVI

17.12.2021 Gsn