The New India Assurance Company ... vs Garige Nageshwar Rao 4 Ors
2022 Latest Caselaw 3763 Tel

       THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

          M.A.C.M.A.Nos.872 of 2007 and 1962 of 2008


COMMON JUDGMENT:


      M.A.C.M.A.No.872 of 2007 was filed by the claimant
seeking enhancement of the compensation while M.A.C.M.A.No.

1962 of 2008 was filed by Andhra Pradesh State Road Transport
Corporation (for short "the Corporation), questioning the award

dated 05.01.2007 in M.V.O.P. No. 679 of 2005 on the file of the

Special Judge for trial of cases under SC/ST (POA) Act-cum-V
Additional District and Sessions Judge, Medak at Sangareddy.

Since both the appeals are filed against the order dated 05.01.2007

passed in M.V.O.P.No.679 of 2005, these two appeals are
disposed of by this common judgment.

      For the sake of convenience, the parties will hereinafter be
referred to as arrayed before the Tribunal.

      The facts in issue are as under:

      The claimant filed a petition under Section 166 of the Motor
Vehicles Act, 1989 (for short "the Act") claiming compensation of

Rs.8,00,000/- for the injuries sustained by him in a motor accident
that took place on 17.01.2005. It is stated that on that day the
petitioner was going on his motor cycle along with his friend. At

about 4.30 p.m., when they reached to Mungi village an RTC bus
bearing No. AP 10 Z 3755 driven by its driver in a rash and
negligent manner with high speed came from behind and dashed

the motor cycle of the petitioner.       As a result of which the
petitioner fell down and the left rear wheel of the bus ran over the
left leg of the petitioner. Immediately the petitioner was taken to
 Government Hospital, Zaheerabad and from there he was referred
to Gandhi Hospital, Secunderabad. It is stated that due to injuries
the petitioner sustained permanent disability.    In respect of the

above incident a case in Crime No.5 of 2005 of Hadnoor Police
Station came to be registered against the driver of the bus for the
offences punishable under Section 337 and 338 IPC. Since the

accident occurred due to the rash and negligent driving of the
driver of the Corporation the present application is filed making the
Corporation liable to pay the compensation.

      The respondent Corporation filed their denying the manner

in which the accident took place and also denied the nature of

injuries sustained by the petitioner, the age, income and avocation of the petitioner. In any event it is stated that the claim made is excessive and exorbitant.

Basing on the above pleadings, the Tribunal framed the

following issues:

(1) Whether the accident occurred due to rash and negligent driving of the driver of the crime vehicle?

(2) Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?

(3) To what relief?

In support of his case, the claimant examined PWs.1 to 3 and got marked Exs.A-1 to A-11 and Ex.C1. No oral or documentary evidence has been adduced on behalf of the

respondent Corporation.

After analyzing the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the RTC bus and as

such awarded compensation of Rs.1,40,000/-with proportionate costs and interest at 7.5% p.a. from the date of petition till the date of realization. Challenging the same these appeals filed.

The short question that arises for consideration in M.A.C.M.A.No.872 of 2007 is as to whether the compensation of Rs.1,40,000/- as awarded by the Tribunal is just and reasonable, and where as in M.A.C.M.A.No.1962 of 2008 the issue is whether the accident took place due to the rash and negligent driving of the

driver of the RTC bus and whether the Corporation is liable to pay any compensation.

In order prove the manner in which the accident occurred,

the injured examined himself as PW1. In his evidence PW.1 stated that on the date of accident while he was going on his motor cycle along with his friend and when they reached Mungi, a bus bearing No. AP 10 Z 3755 driven by its driver in a rash and negligent manner with high speed came from his behind and dashed the motor cycle of the claimant. Due to which the claimant fell down and then the rear wheel of the bus ran over the left leg of the claimant. Immediately thereafter the injured was taken to

Government Hospital, Zaheerabad and from there he was referred t o Gandhi Hospital, Secunderabad. In order to prove the said

incident, PW1 placed on record Ex.A1 First Information Report and

Ex.A3 charge sheet filed against the driver of the bus. Though PW.1 was cross examined at length nothing useful was elicited to

discredit his testimony. Therefore, basing on the evidence of PW.1 coupled with Exs.A1 and A2 it can safely be held that the

accident took place due to the rash and negligent driving of the

driver of the RTC bus.

Coming to the quantum of compensation, the evidence of

PW.1 is to the effect that immediately after the accident he was taken to Government Hospital, Zaheerabad and then to Gandhi Hospital, Secunderabad. As per his evidence he has sustained

multiple fractures to left leg, crush injury to left leg, injury on left hand, injury on face and injuries all over the body. Ex.A2 is the

wound certificate issued by Gandhi Hospital, Secunderabad which establishes the nature of injuries sustained by the

claimant. A perusal of Ex.A2 would show that the

petitioner sustained fracture of both bones of left tibia and fibula and also other simple injuries.

PW.1 in his evidence further stated that in Gandhi Hospital

his left leg was operated and steel rod was inserted by a team of Orthopaedic Surgeons. Plastic surgery was also done by

Dr.Mohan Krishna. His evidence is to the effect that due to fracture and crush injury he was forced to apply leave for months

together and that he sustained huge loss. According to him, his absence has impact on his promotions and upgradation. The

Corporation did not cross examine the witness on the above

aspect.

PW.2 who was an Orthopaedic Surgeon deposed that on

19.11.2005 i.e. nearly ten months after the accident, the petitioner

was admitted in Susheela Hospital. PW.2 in his evidence deposed that the petitioner was having "8 months old infected non union left

tibia with "V" Nail in SITU". According to him, he operated the petitioner, and ILIZAROV (external ring fixation) was done on

20.11.2005. According to him, it was a major surgery and the petitioner was in-patient in the hospital for a period of ten days.

Thereafter, he was advised to take bed rest for four weeks or till

the union of fracture. He admits the issuance of Exs.A4 to A6 from his hospital. According to him the injury mentioned in Ex.A4 was also mentioned in Ex.A2 wound certificate. He states that in the month of August, 2006 the petitioner came to him for removal

of external fixator. His evidence is to the effect that PW.1 is unable to walk and even on the date of giving evidence by PW.2,

he was found limping. His evidence also shows that PW.1 was

unable to attend to his routine works as his left leg was shortened by two inches. The doctor noticed anterior bowing of tibia with

non-union and stiffness in knee joint and ankle joint. He assessed the disability at 40%. During his cross examination he

admits that he has not treated the patient immediately after the

accident.

PW.3 is also one of the doctors who performed operation on

the injured in Gandhi Hospital, Secunderabad. His evidence is to the effect that the petitioner was admitted in Gandhi Hospital,

Secunderabad by the Police, Hadnoor and at the time of

examination he noticed Grade-II compound segmental fracture of both bones of left leg with degloving injury to left leg. He is said to

have performed the surgery on the same day with Open reduction with internal fixation with "V" nail and debridement. Thereafter a

plastic surgery was done. According to him the petitioner was

discharged on 31.01.2005 with an advise to follow up treatment. On the date of giving evidence i.e. 18.11.2006 he examined the

petitioner and found that the wound healed but PW.1 was not able to walk independently because of mild shortening of left leg and

knee joint stiffness. Further, PW.1 was not able to bend his left leg completely. He assessed the disability at 40%. Though PW.3

was subjected to lengthy cross examination nothing useful was

elicited to discredit his testimony.

Basing on the evidence available on record, taking the income of the claimant at Rs.6,169/- per month and the disability

at 10%, the Tribunal awarded a sum of Rs.1,28,586/- towards loss of earnings. The claimant was also awarded a sum of Rs.11,410/-

towards medical expenses. Thus, in all the Tribunal awarded a sum of Rs.1,40,000/- as compensation.

I n R.D.Hattangadi Vs. Pest Control India Private [1] Limited the Apex Court held that in its very nature whenever a

Tribunal or Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with

the nature of the disability causes.

In order to award compensation in case of personal injuries [2] t he Apex Court in Raj Kumar Vs. Ajay Kumar and another

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.

(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 cases, it is suffice to say that in determining the quantum of 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 he would have enjoyed but

for the disability caused due to the accident.

PW.3 is the doctor who examined the petitioner at the

earliest point of time was a government doctor working in Gandhi Hospital, Secunderabad. His evidence is to the affect that the petitioner was admitted in the hospital on 18.01.2005 and

discharged from hospital on 31.01.2005. During the said period he is said to have performed an operation on PW.1. His evidence also shows that the injury sustained by the petitioner was grievous

in nature. That being the position the Tribunal ought to have awarded the compensation towards transportation charges, attendant charges and other incidental expenses.

Apart from the evidence of PW.1, the evidence of PW.3 which remain un-impeached would go to show that because of the

crush injury PW.1 was forced to go on leave for long period and that his chances of promotion and upgradation are diminished.

In view of the evidence of PWs.1 and PW.3 where he was hospitalized for a period of 15 days as in-patient in Gandhi Hospital and the evidence of PW.2 wherein he underwent another

operation in the month of November, 2005 which made him to take bed rest for more than one month, this Court is of the view that a sum of Rs.5,000/- can be awarded towards attendant charges.

Apart from that the evidence on record clearly discloses that the petitioner was moving from hospital to hospital in search of better treatment. As stated above, immediately after the accident PW.1 was taken to Government Hospital, Zaheerabad and from there

shifted to Gandhi Hospital, Secunderanbad. After discharge from Gandhi Hospital he was advised to take follow up treatment for some time till the wound gets healed. Further he was forced to

under go second operation in the month of November, 2005. Definitely he must have spent some money towards transportation charges. Under the above circumstances, I deem it appropriate to award a sum of Rs.7,500/- towards transportation charges.

Though PW.1 claims to have spent a sum of Rs.3.00 lakhs

towards medical expenses but Ex.A9 the medical bills filed by him would show only an amount of Rs.11,410/- being spent towards treatment. Relying upon Ex.A9, the Tribunal rightly awarded a sum of Rs.11,410/- which in my view warrants no interference.

Having regard to the nature of injuries sustained, the period for which he was in the hospital and the place where he took treatment one cannot loose sight of other incidental expenses

which the petitioner would have incurred during the period of his hospitalization. Therefore I deem it appropriate to award a sum of Rs.5,000/- towards extra nourishment and other incidental

expenses during the period of hospitalization and during the period of rest at his house.

Coming to the loss of earnings during the period of treatment, the evidence of Pws.1 to 3 clearly establish that the incident took place in the month of January, 2005, he underwent

operation and discharged on 31.01.2005 and thereafter he was advised to follow up with the treatment. As the wound did not get healed he got himself admitted in the hospital of PW.2 in the month of November, 2005 and got re-operated. Though PWs.2 and 3

were cross examined by the Corporation nothing useful was elicited to show that the operation which the petitioner has undergone in the month of November, 2005 was nothing to do with

the accident which occurred in the month of January, 2005. Therefore, it can safely be held that the petitioner might have been out of employment for not less than six to eight months or that he was not regular to his job due to his frequent visits to the hospital.

Taking into consideration the above aspects, I deem it appropriate to award a sum of Rs.45,000/- towards loss of earnings during the period of treatment and for some time thereafter.

Taking the income of the petitioner at Rs.6,169/- per month

and by adopting multiplier 17.37 arriving the disability at 10% the Tribunal computed the loss of earning at Rs.1,28,586/-. The learned counsel for the petitioner strenuously contended that when

the doctor has assessed the disability at 40%, the Tribunal erred in taking the disability at 10%. No evidence is placed on record to show that the petitioner had sustained any functional disability. His evidence was only to the effect that due to crush injury he was

forced to apply leave for months together. His evidence is silent as to the period for which he was on leave and his evidence is also silent as to the loss in his future earnings. His evidence does

not anywhere show that because of these injuries he was transferred to a post where he was getting less salary or that his promotion chances are affected except making a stray sentence that he sustained huge loss and it will have an impact on his

promotions and upgradations. In the absence of any evidence, it cannot be said that there was a total loss in his future earnings.

Coming to the compensation under non-pecuniary damages the Tribunal did not specifically awarded any amount towards pain

and suffering and also towards loss of amenities in life. The evidence on record as indicated above clearly establish pain and trauma which the petitioner would have undergone from January to November, 2005 ie. during the period of his treatment at Gandhi

Hospital, Secunderabad and also in the hospital of PW.2. Definitely no amount of money can compensate for the pain and trauma undergone by the petitioner. The unimpeached evidence of

PW.3 goes to show that the petitioner's left leg was shortened by two inches. Apart from that his evidence also indicate that he was not able to walk independently because of shortening of leg and stiffness of knee joint. This was noticed by both PWs.2 and 3

when they came to Court to depose evidence. Their evidence was also to the effect that PW.1 was not able to bend his left leg completely. Definitely PW.1 must have been put to great inconvenience and hardship in his day today activities. In view of evidence of PW.3, PW.1 must have been taking the help of an attendant to attend while walking though he might not have lost the job. Further, shortening of leg by two inches and stiffness of knee

joint must have definitely prevented him from leading a life which he would have lived otherwise. As stated above he was not be in a position to participate freely in his day today activities, enjoy the

life, drive the vehicle and apart from that he was forced to spend money by engaging a person to attend on to his daily needs.

In view of the above circumstances, I deem it appropriate to award a sum of Rs.2.00 lakhs towards pain and suffering and loss

of amenities in life which would be inclusive of Rs.1,28,586/-

awarded by the Tribunal. Thus in all the petitioner is entitled to a sum of Rs.2,73,910/- as compensation rounding it of to

Rs.2,74,000/-.

In view of the above discussion, M.A.C.M.A.No.872 of 2007 is allowed by enhancing the compensation from Rs.1,40,000/- to

Rs.2,74,000/- while M.A.C.M.A.No.1962 of 2008 is dismissed.

The enhanced amount shall carry interest at 6% p.a. from the date of petition till the date of realization.

There shall be no order as to costs.

Consequently, miscellaneous petitions, if any, pending in

these appeals shall stand closed.

____________________ C. PRAVEEN KUMAR,J

23.07.2014 gkv [1] 1995 (1) ACC 281 [2] MACD 2011 (SC) 33