Smt. K. Anasuya vs P. Durgaprasad
2022 Latest Caselaw 5471 Tel

  HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI DEVI

                  M.A.C.M.A. No.1430 of 2019

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded by the Motor Accidents Claims Tribunal-cum-Special

Judge for Trial of Offences under SCs/STs (POA) Act-cum-V

Additional District Judge, Medak at Sangareddy, dated

30.11.2015, in M.V.O.P.No.141 of 2015, the claimant preferred

the present appeal seeking enhancement of compensation.

The facts, in issue, are as under:

The claimant, appellant herein, filed the O.P. under

Section 166 of the Motor Vehicles Act claiming compensation of

Rs.5,00,000/- for the injuries sustained by her in a road

accident that occurred on 10.03.2015. It is stated that on the

fateful day, while the claimant, along with her husband, was

waiting for auto at Sangareddy new auto bus stand, the

offending vehicle i.e., motorcycle bearing No. AP 23AD 7661,

owned by respondent No. 1, who is also rider of the motorcycle

and insured with respondent No. 2, came in a rash and

negligent manner at high speed and dashed the claimant. As a

result, the claimant sustained grievous injuries and was treated

at Udai Omni Hospital, Hyderabad. According to her, she was

aged 55 years, doing Swagruha Home Foods business and

earning Rs.30,000/- per month and due to the injuries

sustained in the accident, she has lost her income. Therefore,

she laid the claim for Rs.5.00 lakhs towards compensation

against both the respondents.

Before the Tribunal, while the respondent No. 1 remaind

ex parte, the respondent No. 2, Insurance Company, filed

counter denying the averments made in the claim-petition.

After analyzing the evidence available on record, the Tribunal

held that the appellant had sustained grievous injuries in the

accident caused due to the rash and negligent driving of the

motorcycle by its rider and accordingly awarded an amount of

Rs.1,70,000/- as compensation to be paid by the respondents.

Challenging the quantum of compensation awarded, the present

appeal is filed by the claimant.

Learned counsel for the appellant, claimant, has

submitted that the quantum of compensation awarded by the

Tribunal is on lower side. It is further submitted that the

claimant has suffered grievous injuries to left thigh, left leg knee

joint and ankle and according to the evidence of P.W.2, open

reduction and internal fixation with locking plates and bone

grafting was done. Thus, the injury is grievous in nature and

though P.W.2, doctor who gave treatment to PW-1, has

specifically deposed that the claimant has suffered 20%

disability on account of the injury, the tribunal did not award

any amount under the loss of income due to disability. It is

further contended that the claimant had to undergo treatment

as inpatient at Omni Hospital, Hyderabad and has incurred

Rs.1,09,537/-, towards treatment as seen from Ex.A.8,

discharge bill issued by Udai Omni Hospital, and incurred

Rs.1,67,845/- towards medicines as seen from Ex.A.11, but

however, the tribunal has awarded only Rs.1,00,000/- towards

treatment and medicines. It is further contended that

considering the length of treatment and the nature of injuries

suffered by the claimant, the amounts granted by the tribunal

towards injury, pain and suffering, transportation, attendant

charges and extra nourishment are meagre and need to be

enhanced.

On the other hand, the learned Standing Counsel

appearing for the 2nd respondent-Insurance Company submits

that inasmuch as P.W.2/doctor, has specifically admitted in the

cross-examination that he has not issued any disability

certificate to the claimant, the tribunal has rightly rejected the

claim made under disability. It is contended that although the

claimant has claimed altogether Rs.2,77,382/-under Rs.A.8 &

Ex.A.11, discharge bill and medical bills respectively, as no

person, either the billing manager or administrative staff, was

examined to prove the same, the tribunal has rightly restricted

the claim to Rs.1,00,000/- and the same needs no interference

by this Court. It is lastly contended that considering the nature

of injury, the tribunal has rightly awarded the amounts under

the other heads such as pain & suffering, transportation etc.

Heard both the learned counsel and perused the material

available on record.

A perusal of the impugned order discloses that the

Tribunal having framed Issue No.1 as to whether the accident

had occurred due to rash and negligent riding of the motorcycle

by its driver, considering the evidence of P.W.1 coupled with the

documentary evidence, has categorically observed that the

appellant sustained grievous injuries in the accident caused due

to the rash and negligent riding of the motorcycle by its rider,

respondent No. 1 and has answered the issue in favour of the

claimant and against the respondents. Further, neither the

owner of the motorcycle nor the insurance company has

produced any evidence to show that there was no negligence on

the part of the rider of the motorcycle. Therefore, I see no

reason to interfere with the finding of the Tribunal in holding

that the accident occurred due to the rash and negligent riding

of the motorcycle by the respondent No. 1.

Coming to the quantum of compensation, 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.

(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,

MACD 2011 (SC) 33

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 light of the principles laid down in the aforementioned

case, 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 would have been enjoyed but for disability caused due to

the accident.

In order to establish his case, the appellant examined

herself as PW.1 and the doctor as P.W.2. According to the

evidence of P.W.2, the claimant had sustained comminuted

fracture distal femur left thigh, which is grievous in nature,

open reduction and internal fixation with locking plates and

bone grafting was done on 12.03.2015. Although he deposed

that he had estimated the disability at 20%, but admitted in the

cross-examination that he did not issue any disability certificate

to that effect. In such circumstances, the tribunal was right in

rejecting the claim made by the claimant under the head of

disability. However, considering the evidence of P.W.2 and

considering the fact that the injury suffered by the claimant is

grievous in nature and considering the length of treatment, this

Court is inclined to enhance the amount of Rs.20,000/- to

Rs.50,000/- under the head of injury. Since the evidence of

P.W.2 reflects that the claimant has to take follow up treatment,

the tribunal has rightly awarded a sum of Rs.20,000/- towards

future medical expenses. However, considering the nature of

injury, which is grievous in nature, this Court is inclined to

enhance the amount of Rs.10,000/- to Rs.20,000/- under the

head of pain and suffering. By way of Ex.A.13, transport bills,

the claimant has claimed a sum of Rs.20,300/-. However,

without there being any contra evidence, the tribunal has

restricted the same to Rs.10,000/- and therefore, under the

head of transport expenses, this Court is inclined to award a

sum of Rs.20,300/-. The amount of Rs.10,000/- awarded by

the tribunal towards extra nourishment and attendant charges

is not interfered with.

There remains the amount granted by the tribunal under

the head of treatment and medical bills. By way of examining

P.W.2, coupled with Ex.A.8, discharge bill, the claimant has

claimed that she had incurred Rs.1,09,537/- towards treatment

at Udai Omni Hospital. So also, by producing Ex.A.11, bunch

of medical bills, she has claimed a sum of Rs.1,67,845/-

towards expenditure for purchase of medicines. Without there

being any reason, the tribunal has restricted the said amount to

Rs.1,00,000/- on the mere ground that the medical bill

submitted by the claimant is on higher side. When the claim in

this regard is supported by the evidence of P.W.2 and Exs.A.8 &

A.11, the tribunal is not justified in restricting the claim to

Rs.1,0,000/- under the head of treatment and medicines.

Therefore, this Court is inclined to award a sum of

Rs.2,77,382/- towards treatment and medicines.

In the facts and circumstances of the case, this Court

feels that appellant is entitled the following amount under

various heads.

Sl.   Name of Head                  Awarded          by Awarded by this
                                    Tribunal            Court
No.                                 Rs.                  Rs.

1.
      Pain and suffering                      10,000/-             20,000/-

2.
      Injuries                                20,000/-             50,000/-

3.
      Treatment & Medical               1,00,000/-        2,77,382/-
      Bills
4.
      Transportation                          10,000/-             20,300/-

5.
      Extra nourishment &                     10,000/-             10,000/-
      attendant charges
6.
      Expenses      for   future              20,000/-             20,000/-
      treatment

             TOTAL                       1,70,000/-          3,97,682/-

In the result, the appeal is allowed in part enhancing the

compensation from Rs.1,70,000/- to Rs.3,97,682/-. The

enhanced amount shall carry interest at 7.5% p.a. from the date

of order passed by the Tribunal 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 M.G. PRIYADARSINI 29.10.2022 tsr