Telangana High Court
Smt Thothala Rajavva vs M. Ravinder Goud Anr on 15 February, 2021
Bench: B.Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.149 of 2011
JUDGMENT:
This is a claimant's appeal for enhancement of compensation.
As against the compensation claim of Rs.4,00,000/- for the injuries
sustained by the appellant in a motor accident, the Motor Accident
claims Tribunal (IV Additional District Judge) (FTC), Nizamabad, in
OP.No.1086 of 2003 dated 02.04.2007 awarded compensation of
Rs.55,000/- by partly allowing the claim petition.
2. The facts of the case are as under:
On 02.08.20023, at about 10.30 PM, the claimant was travelling
in auto rickshaw bearing No.AP 25 U 604 towards Nizamabad and after
crossing Eenadu Office, when they reached Dharmaram (B) village
shivar, Dichpalli Mandal, the auto dashed against a culvert and turned
turtle on account of rash and negligent driving of the driver of the auto
rickshaw. As a result of which the claimant sustained fracture of left
forearm, fracture of left clavicle, fracture of right elbow, injuries on
head, chest, hands, legs, multiple and grievous injuries on other parts
of the body. The claimant spent Rs.1,00,000/- towards medical
expenses. He is still undergoing treatment. The respondent No.1 is the
owner of the crime vehicle and the respondent No.2 is the insurer and
they are jointly and severally liable to pay compensation.
3. Though the claimant claimed that she is entitled for total
compensation of Rs.24,00,000/- under various heads, she restricted
her claim for Rs.4,00,000/- only. The claimant claimed to have spent
huge amounts on account of the accident and sustained permanent
disability and loss of earnings. The respondent No.1 remained
ex parte. The respondent No.2 - insurance company - filed a counter
and denied the averments in the claim petition.
4. The claimant examined herself as P.W.1 and one Dr. Sudheer
was examined as P.W.2. Exs.A1 to A4 were marked on behalf of the
claimant. Ex.X1 is the MLC extract. The respondent No.2 examined
R.W.1 and marked Ex.B1, insurance policy.
5. The tribunal below while dealing with issue No.1, arrived at a
conclusion that the accident took place on account of the rash and
negligent driving of the driver of the auto rickshaw. Since there is no
appeal by the insurance company, there is no necessity for this Court
to deal with the said issue. The issue which remains to be answered is
with regard to the quantum of compensation.
6. Sri Y. Yellanand Gupta, learned counsel for the appellant,
submitted that the compensation awarded by the tribunal below is
grossly inadequate to the injuries sustained by the appellant.
The tribunal below having held that the claimant is entitled to
Rs.15,000/- for each of the grievous injury and Rs.2,000/- for each of
the simple injury, should have awarded Rs.45,000/- (for three
grievous injuries) and Rs.4,000/- (for two simple injuries), but the
tribunal below erroneously awarded Rs.15,000/- for grievous injuries
and Rs.2,000/- for simple injuries. Further, the tribunal below granted
meagre compensation of Rs.15,000/- towards medical expenses,
Rs.15,000/- towards pain and suffering, Rs.6,000/- towards loss of
estate and Rs.2,000/- towards transportation and extra nourishment.
The compensation awarded under various heads is inadequate and not
commensurate to the injuries sustained by the claimant. In spite of
examining the doctor, P.W.2, who treated the claimant, very meagre
compensation was awarded by the tribunal below. The claimant
suffered fractures injuries and the tribunal ought to have awarded
Rs.25,000/- for each of the grievous injury.
7. Per contra, Sri. J. Sunil Kumar, learned counsel for the
insurance company, submitted that there is no proof of medical
expenses. It is not correct to say that the tribunal held that he
claimant was entitled to Rs.15,000/- for grievous injuries; in fact,
it awarded Rs.5,000/- for each grievous injury and Rs.1,000/- for each
simple injury and thus, Rs.15,000/- (for three grievous injuries) and
Rs.2,000/- (for two simple injuries) was awarded. The crime vehicle
i.e. auto rickshaw, which is a passenger vehicle, was carrying 5+1
person and the claimant, being aware of the said fact, travelled in the
said auto. Thus, the claimant is also liable for contributory negligence.
Though the tribunal below followed the principle of pay and recovery,
since the crime vehicle was carrying passengers more than the seating
capacity, the tribunal below did not consider the point of contributory
negligence, as such, there has to be apportionment of compensation
and burdening the insurance company with entire compensation was
not justified.
8. Heard the learned counsel for the appellant and the learned
counsel for the respondent No.2 - insurance company.
9. It is apparent from the documentary evidence filed on behalf of
the appellant that there is no document filed by the appellant to prove
the medical expenses. It is stated by the appellant that immediately
after the accident, he was shifted to Government Hospital, Nizamabad,
where she was treated for six days and thereafter, she was treated in
Dr. Narayan Reddy Hospital and she spent Rs.40,000/- towards
medical expenses. It is averred that the claimant was attending coolie
work and earning Rs.2,000/- per month and due to the injuries,
she is not able to attend any work and sustained loss of earning.
As per Ex.A3, wound certificate, the following injuries were found:
1. Swelling and deformity over left forearm. Fracture of
left forearm.
2. Fracture of left clavicle.
3. Swelling and restricted movement of right elbow.
Fracture of right elbow.
4. Abrasion on left forearm. 10x5 cms.
5. Abrasion on right arm. 5x3 cms.
10. The contention of the learned counsel for the appellant is that
wrong calculation was done by the tribunal below with reference to the
compensation awarded for grievous injuries and simple injuries.
In para 17, the tribunal below stated that "... As per the table the
petitioner is entitled for Rs.15,000/- (Rupees Fifteen Thousand only)
for three grievous injuries and Rs.2,000/- (Rupees Two Thousand
only) for two simple injuries". The tribunal below should have been
more clear while saying so, however, it is difficult to find out that
Rs.15,000/- was awarded for three grievous injuries and Rs.2,000/-
for two simple injuries, which would mean that Rs.5,000/- was
awarded for each grievous injury and Rs.1,000/- for each simple
injury.
11. The point of contributory negligence raised by the learned
counsel for the insurance company cannot be appreciated since
negligence, if any, in carrying passengers beyond seating capacity is
attributable to the driver of the auto rickshaw and not to the
passenger. The claimant, being a passenger, will not have any say as
to the number of passengers to be carried in the vehicle.
Thus, attributing negligence to the claimant and consequently,
claiming apportionment of compensation is without any legal basis.
12. The accident took place in the year 2003. Since the claimant
sustained three grievous injuries, it would be appropriate to award
Rs.10,000/- for each grievous injury and Rs.2,000/- for each simple
injury. The claimant was though initially treated in a Government
hospital, later she was admitted in a private hospital. Hence, in spite
of there being no documentary evidence to prove medical expenses
incurred by the claimant, considering the nature of injuries the medical
expenses incurred at the time of accident and expenses incurred
subsequent to the accident towards treatment, it would be reasonable
to award Rs.30,000/- towards medical expenses. Insofar as loss of
estate is concerned, the compensation under the said head is
enhanced from Rs.6,000/- to Rs.10,000/-. Thus, in all, the claimant is
entitled to total compensation of Rs.30,000/- (grievous injuries) +
Rs.4,000/- (simple injuries) + Rs.30,000/- (medical expenses) +
Rs.10,000/- (loss of estate) + Rs.15,000/- (pain and suffering already
awarded by the tribunal below) + Rs.2,000/- (transportation and extra
nourishment already awarded by the tribunal below) = Rs.91,000/-.
13. Hence, the claimant would be entitled to total compensation of
Rs.91,000/- with proportionate costs. The award of the tribunal below
is modified as indicated above. The award shall relate back to the date
of decree and the compensation awarded shall carry the interest at the
rate and from the date specified by the tribunal below.
The civil miscellaneous appeal is allowed. As a sequel,
the miscellaneous applications, if any, shall stand closed.
__________________
B. VIJAYSEN REDDY, J
February 15th, 2021
DSK
