K.Venkatamma 3 Ors vs Aster Teleservices Private Ltd ...
2023 Latest Caselaw 315 Tel

               THE HON'BLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.1644 of 2012

JUDGMENT:

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

order and decree, dated 11.02.2013, passed in MVOP No.759 of 2010

on the file of the Motor Accidents Claims Tribunal-cum-XI

Additional District Judge (FTC), Ranga Reddy.

2. The brief facts of the case are that on the fateful day i.e.

10.06.2010 at about 10.00 p.m the appellant-petitioner along with

other relatives were proceeding to Chervuguttu village from

Polampally village by engaging a Tata Sumo bearing No.AP-09-Q-

9954 and at about 12.30 a.m (midiinght)when they reached

Panthangi village, a lorry bearing No.AP-16-TU-9394, driven by its

driver in a rash and negligent manner and at high speed came in the

opposite direction and dashed the sumo, as a result of which the

petitioner and other inmates of the Sumo sustained injuries.

Immediately after the accident the injured was shifted to Kamala

Hospital, Dilsukhngar, Hyderabad for treatment,where she was

treated for about 16 days, during which period a surgery was

conducted to her. Basing on the complaint, the Police, Choutuppal

P.S registered a case in Crime No.142 of 2010 against the driver of

the offending lorry for the offence under Sections 337 and 304-A

IPC. The appellant filed aforesaid O.P. against respondent Nos.1

and 2, being the owner and insurer of the offending lorry, claiming

compensation of Rs.4,00,000/- for the injuries sustained by her.

GSD, J MACMA_759 of 2010

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

the 2nd respondent-insurer filed counter denying the averments of

the claim petition and contended that the driver of the offending

vehicle was not holding valid and effective driving license and that

the amount of compensation claimed is excessive and prayed to

dismiss the claim petition.

4. Basing on the above pleadings, the following issues were

framed before the Tribunal:-

1) Whether the driver of the lorry No.AP-16-TU_9394 drove the same in a rash and negligent manner and caused the accident?

2) Whether the petitioner is entitled to claim any compensation as prayed for?

3) To what relief?

5. Before the Tribunal, on behalf of the petitioner, P.Ws.1 to 3

were examined and Exs.P1 to P10 were marked. On behalf of the

respondent, RW1 was exmined and Ex.R1 and R2 were marked.

6. 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.97,300/-with interest @ 7.5%

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

under various heads. Dissatisfied with the quantum of

GSD, J MACMA_759 of 2010

compensation, the appellant-claimant filed the present appeal

seeking enhancement of the same.

7. Heard both sides.

8. 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.

9. The point that arises for consideration is whether the

compensation awarded by the Tribunal is just and reasonable? s

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).

MACD 2011 (SC) 33

GSD, J MACMA_759 of 2010

(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)."

10. In order to establish his case, the appellant examined himself

as PW.1 and the Doctor, who treated him, as PW.2 and PW3 is the is

the Billing incharge. PW.1 in his evidence deposed that she

sustained injuries in the accident and immediately after the accident

she was shifted to Kamala Hospital, Dilsuknnagar, Hyderabad and

there she underwent surgery. In order prove the injuries sustained

and the treatment taken by him, the appellant got examined PW2

(doctor) and marked Exs.P4 to P10. PW.2, deposed in his evidence

that the appellant sustained fracture of right humorous, fracture of

GSD, J MACMA_759 of 2010

right lower third radius, compound fracture lower right ulna with

bone loss and she was treated with plaiting right humorous on

14.06.2010 and PUP application for right radius ulna and she was

operated on 14.06.2010 and was discharged on 19., 06.20201 and as

per Ex.P8 and P9 the appellant spent Rs.95, 668/- towards treatment

charges. In order to prove the bills, PW3 billing in charge of the

said hospital is examined and in her evidence it is elicited that the

actual amount paid by the appeal was only Rs.48,300/- and the

Tribunal restricted the same to the said amount. Apart from that the

amount the Tribunal awarded an amount of Rs.35,000/- for fracture

injuries and other simple injuries, Rs.4,000/- towards transportation

charges, Rs.5,000/- towards extra nourishments and Rs.5,000/-

towards pain and suffering, and thus awarded an amount of

Rs.97,300/-. Looking into nature of injuries, the Tribunal awarded

an amount of Rs.20,000/- for each facture injuries. Since the

appellant sustained three factures she is entitled to Rs.60,000/-,

instead of RS.35,000/-. Further the Tribunal ought to have awarded

a sum of Rs.10,000/- towards exranourhsment charges instead of

Rs.5,000/-.

In the facts and circumstances of the case, this Court feels

that the appellant is entitled to the following amount towards

compensation under various heads:

GSD, J MACMA_759 of 2010

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

1. Medical expenses Rs.48,300-00 Rs.48,300-00

2. For fracture injuries Rs.35,000-00 Rs.60,000-00

3. Transportation Rs.4,000-00 Rs.4,000-00 charges

4. Extra nourishment Rs.5,000-00 15,000.00 charges

5. Pain and suffering 5,000.00 5,000.00

TOTAL 97,300-00 Rs.1,32,300.00

In the result, the M.A.C.M.A. is partly allowed by enhancing

the compensation amount awarded by the Tribunal from

Rs.97,300/- to Rs.1,32,300/-. The enhanced amount will 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 G. SRI DEVI

20.06.2022.

trr

10., 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 sustained three fracture injuries.

According to him, immediately after the accident he was shifted to

GSD, J MACMA_759 of 2010

Government Hospital, Kodad, where he was given first aid and

from there he was shifted to Sunshine hospital, Secunderabad,

where he was treated as in patient, during which period surgeries

were conducted. In the evidence of the doctor, PW2, he stated that

the appellant-petitioner was admitted in their hospital on 18.04.2012

and on examination of the appellant he found fracture of right ulna

and crush injury on right elbow joint, internal fixation of mandible

and reduction of internal fixation ulna with A.O and the Tribunal

has considered Exs.A5 to A7 and awarded a sum of Rs.1,64,000/ ,

but not considered Ex.A9, which is the amount spent by the

appellant/claimant for physiotherapy and Ex.A10 which are the

transportation charges bills issued by a City Travels for going to

physio therapy at Khammam, which the Tribunal ought to have

awarded, and now this Court inclined to award a sum of

Rs.10,000/- towards physiotherapy charges. Moreover, looking into

nature of injuries, the Tribunal ought to have awarded Rs.20,000/-

towards extra nourishments charges, transportation charges instead

of Rs.5,000/- and Rs.25,000/- towards pain and suffering instead of

Rs.15,000/- and Rs.5,000/- towards attendant charges. In the facts

and 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.

                                                               GSD, J
                                                     MACMA_759 of 2010


1.       Expenses for treatment Rs.1,64,000-00          Rs.1,64,00-00
2.       Loss of income during Rs. 9,000-00             Rs. 9,000-00
         the      period    of
         treatment
3.       Pain and Suffering         Rs. 15,000-00       Rs. 25,000-00
4.       Transportation, extra      Rs. 5,000-00        Rs. 20,000-00
         nourishment and
         miscellaneous charges
6.       Physiotherapy charges         -                Rs. 10,000-00
7        Attendant charges             -                Rs. 5,000-00

         TOTAL                      1,93,000-00         Rs.2,33,000-00

In the result, the M.A.C.M.A. is partly allowed by enhancing

the compensation amount awarded by the Tribunal from

Rs.1,93,000/- to Rs.2,33,000/-. The enhanced amount will 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 G. SRI DEVI

20.06.2022.

trr