Andhra Pradesh High Court - Amravati
Katnam Narasimhamurthy vs Chikkam Eswararao 2 Others on 19 October, 2022
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BVLNC,J MACMA 122 of 2016
Page 1 of 14 Dt: 19.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.122 OF 2016
JUDGMENT:
This appeal is preferred by the Appellant/claimant, challenging the award dated 02.06.2011 passed in M.V.O.P.No.61/2007 on the file of Motor Accidents Claims Tribunal- cum-II Addl.District Judge, East Godavari at Amalapuram, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.1,16,000/- with interest @ 7.5% P.A. from 20.12.2006, till the date of deposit to the claimant for the injuries sustained by the claimant.
2. For the sake of convenience, the parties are arrayed as parties in the lower Court.
3. As seen from the record, originally the petitioner filed an application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.3,00,000/- on account of the injuries and disability sustained by the petitioner in a motor vehicle accident occurred on 25.12.2005 while the petitioner was travelling on his two wheeler by the offending Auto bearing No.AP5V 6567 belonging to the 2 BVLNC,J MACMA 122 of 2016 Page 2 of 14 Dt: 19.10.2022 2nd respondent, which met with an accident at Kapavaram Village, West Godavari District.
4. The facts show that on 25.12.2005 at about 08.30 p.m. when the petitioner was going on his motor cycle and reached Kapavaram Village, the offending Auto bearing No.AP5V 6567 came in opposite direction and dashed him, as a result of which, the petitioner fell on the road and sustained grievous injuries. The petitioner was initially shifted to Sai Orthopaedic Hospital, Tanuku, and later he was taken to Nagarjuna Hospital, Vijayawada, where he underwent surgeries. The 1st respondent is driver of the said auto, the 2nd respondent is the owner of the said auto and the 3rd respondent is insurer of the offending auto.
5. Before the Tribunal, the 3rd respondent in the appeal, who is also the 3rd respondent in the petition, filed written statement resisting while traversing the material averments with regard to proof of age, avocation, monthly earnings of the petitioner, manner of accident, rash and negligence on the part of the driver of the offending auto, nature of injuries, medical expenditure, alleged permanent disability and liability to pay compensation and contended that the 1st respondent is not the driver of the vehicle in question at the time of accident. As per the FIR, an unknown auto allegedly dashed the 3 BVLNC,J MACMA 122 of 2016 Page 3 of 14 Dt: 19.10.2022 petitioner. Respondents 1 and 2 in collusion with the petitioner, filed the petition to have wrongful gain and to cause loss to the Insurance Company. The respondents 1 and 2 remained exparte before the Tribunal.
6. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
1. Whether the accident occurred due to rash and negligent driving of the vehicle i.e., Auto bearing No.AP5V 6567 by its driver i.e., 1st respondent?
2. Whether the petitioner is entitled to any compensation? If so, to what amount and against whom?
3. To what relief?
7. To substantiate his claim, the petitioner examined P.Ws-1 to 6 and got marked Exs.A-1 to A-17 and Ex.X-1. On behalf of the 3rd respondent, R.W-1 was examined and Exs.B-1 and B-2 were marked.
8. The Tribunal, taking into consideration the evidence of P.Ws-1 to 6, coupled with Exs.A-1 to A-17, held that the accident took place due to rash and negligent driving of the driver of the Auto, and further, taking into consideration of the evidence of P.Ws-1 to 6 corroborated 4 BVLNC,J MACMA 122 of 2016 Page 4 of 14 Dt: 19.10.2022 by Exs.A-1 to A-17 and Ex.X-1, awarded a compensation of Rs.1,16,000/- with interest @ 7.5% P.A. from 20.12.2006, till the date of deposit of compensation amount.
9. The plea of the 3rd respondent/Insurance Company is that the 1st respondent is not driver of the offending Auto and as per FIR, an unknown auto dashed the petitioner.
10. The Tribunal considered the evidence on record, and based on the contentions of both parties, held that the accident occurred due to the rash and negligent driving of the 1st respondent/driver of offending auto, and that the petitioner sustained injuries in the said accident.
11. The Tribunal after considering the evidence of P.Ws-1 to 6 coupled with Exs.A-1 to A-17 and Ex.X-1, awarded an amount of Rs.60,000/- for the head injuries; Rs.50,000/- towards medical expenses; Rs.2,000/- each under the heads of pain and suffering, extra nourishment and transportation charges, total Rs.1,16,000/-.
12. The contention of the Appellant/claimant is that the Tribunal erred in dis-allowing the claim of medical expenditure of Rs.1,00,000/- on the ground that the hospital authorities were not examined, though claimant filed bills. The other contention of the claimant is that the Tribunal ought to have allowed a minimum amount of Rs.1,00,000/-, 5 BVLNC,J MACMA 122 of 2016 Page 5 of 14 Dt: 19.10.2022 and that the amount of Rs.2,000/- awarded towards pain and suffering is meagre, and the finding of the Tribunal in dis-allowing the claim for disability on the ground that Ex.A-16 disability certificate pertains to polio suffered by the claimant, and not due to the injuries sustained by the claimant in the accident.
13. When coming to the first contention of the Appellant/claimant that the Tribunal erred in dis-allowing his claim for Rs.1,00,000/- towards medical expenditure, though bills are produced by him is concerned, the Tribunal in its order observed that the claimant did not prefer to examine the hospital authorities, Vijayawada, to prove Exs.A-12 to A-14 bills filed by him.
14. It is an admitted fact that the claimant did not examine the concerned medical authorities to prove the contents of Exs.A-12 to A-14 bills produced by him. The contention of the claimant is that the claimant has spent amount towards medical expenditure and the Tribunal ought to have allowed the same. The Tribunal, though the claimant did not examine any witnesses to prove the bills, has considered the fact that he underwent three surgeries, and has taken treatment for a long time, and awarded a sum of Rs.50,000/- as reasonable amount towards medical expenses.
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15. It is settled principle of law that if any party filed a document in support of his case, and opposed by the opposite party, it shall be proved by examining the appropriate witness. Mere filing of a document is not sufficient to claim that same is proved, unless the opposite party admits the document. In the case on hand, the 3rd respondent/Insurance Company did not admit the medical bills filed by the Appellant. The Tribunal did not reject the entire claim of the medical bills as claimed by the Appellant. The Tribunal awarded a reasonable amount of Rs.50,000/- considering the surgeries undergone by the claimant, and also the treatment taken by him for a long period. In that view of the matter, I do not find any reason to interfere with the findings of the Tribunal on this aspect.
16. When coming to the second contention of the Appellant/claimant is that the Tribunal ought to have awarded an amount of Rs.1,00,000/- towards injuries and Tribunal awarded only Rs.2,000/- towards pain and suffering. The Tribunal taking into consideration of nature of injuries suffered by the claimant, awarded a sum of Rs.60,000/- under head of injuries, and also awarded a sum of Rs.2,000/- towards pain and suffering, and a sum of Rs.2,000/- towards extra nourishment, and a sum of Rs.2,000/- towards transport expenses and therefore, in all he was awarded a sum of 7 BVLNC,J MACMA 122 of 2016 Page 7 of 14 Dt: 19.10.2022 Rs.66,000/- towards injuries, pain and suffering, nourishment and transport expenses.
17. The Hon'ble Apex Court in the case of G.Ravindranath Vs.E.Srinivas and another1 at para 12 held as follows:
"It is settled law that compensation in personal injury cases should be determined under the following heads:
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).
1 (2013) 12 S.C.C.455 8 BVLNC,J MACMA 122 of 2016 Page 8 of 14 Dt: 19.10.2022
The Hon'ble Apex Court further held that "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 (shortening of normal longevity) and in routine personal injury cases, compensation will be awarded only under the heads of expenses relating to the treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenses, apart from loss of earning during the period of treatment and damages for pain, suffering and trauma as a consequence of injuries."
18. In the case on hand, P.W-3, who is a doctor from Nagarjuna Hospitals, Vijayawada, deposed that as per case sheet, claimant was admitted in their hospital on 26.12.2005 with injuries received in a motor vehicle accident, and he was referred by a hospital at Tanuku, and therefore, treatment was given in the hospital by Dr.U.Venkata Ramana, Consultant Orthopaedic Surgeon, and patient was discharged on 11.01.2006, and case sheet was marked as Ex.X-1.
19. P.W-4 is another doctor, who deposed that he is working as Orthopaedic Surgeon of Sri Sai Orthopaedic Hospital, Tanuku, and P.W1 was brought to his hospital on 25.12.2005, and he examined him, and found the following injuries:
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BVLNC,J MACMA 122 of 2016 Page 9 of 14 Dt: 19.10.2022
1. Cut lacerated wound of 8 x 3 x 3 cm. in size on the right thigh at supra petalla region.
2. 6 x 2 x 1 cm. CLW over dorsum of right middle finger
3. Compound commuted fracture of right femur with dislocation.
4. Commuted fracture of right tibia and fibula.
and accordingly, he issued Ex.A-2 wound certificate and as per his evidence, the claimant was found with a cut lacerated wound on right thigh, cut lacerated would over dorsum of right middle finger, compound commuted fracture of right femur with dislocation, commuted fracture of right tibia and fibula, and opined that all the injuries are grievous in nature. Therefore, the evidence of P.W-4 discloses that the claimant suffered four grievous injuries.
20. The Tribunal has awarded a sum of Rs.60,000/- towards injuries; Rs.50,000/- towards medical expenditure; Rs.2,000/- each towards pain and suffering, nourishment and transport charges; in total Rs.1,16,000/-. So, when the amount awarded towards injuries, pain and suffering is totalled, it will come to Rs.62,000/-. It can be treated as amount awarded towards pain and suffering under the head of non-pecuniary damages (general damages). Therefore, it cannot be said that only a meagre amount was awarded under the head of pain 10 BVLNC,J MACMA 122 of 2016 Page 10 of 14 Dt: 19.10.2022 and suffering. The Tribunal has awarded amount towards transport charges and for nourishment, covered by the head pecuniary damages (special damages).
21. The other contention of the Appellant/claimant is that the Tribunal did not award any amount towards 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.
22. When coming to the awarding compensation to loss of future earnings on account of permanent disability covered under the head pecuniary damages (special damages), the Tribunal did not accept Ex.A-16 disability certificate produced by the claimant for the reason that it did not disclose date of issue, and the nature of disability was mentioned as lower limb of right leg of P.W-1 was affected with polio and therefore, there is no disability due to the accident, and accordingly, no amount was awarded under the head of disability.
23. The contention of the claimant is that the observation in disability certificate that the disability is due to polio is a mistake crept in the certificate. Perusal of Ex.A-16 shows that the claimant suffered malunited fracture of right lower limb polio. The claimant did not 11 BVLNC,J MACMA 122 of 2016 Page 11 of 14 Dt: 19.10.2022 choose to examine the Orthopaedic Surgeon, who has issued Ex.A-16 disability certificate on 10.01.2009. It is pertinent to note down that the accident was occurred on 25.12.2005.
24. The claimant in his evidence also did not state that the mentioning of polio in the disability certificate filed by him, was a mistake committed by the Medical Board. Therefore, in the absence of any evidence for coming to a conclusion that mentioning the word 'polio' in Ex.A-16 disability certificate is a mistake committed by the Medical Board, the contention of the claimant cannot be accepted. Therefore, as rightly observed by the Tribunal, there is no evidence forthcoming to say that the disability was due to injuries sustained by the claimant in the accident, but not due to polio as mentioned in Ex.A-16 disability certificate. In that view of the matter, I do not find any reason to interfere with the findings of the Tribunal in rejecting the claim of the Appellant towards loss of future earnings.
25. When coming to his claim for loss of earnings during the period of treatment, the evidence of P.W-3 shows that he was admitted in Nagarjuna Hospitals, Vijayawada, on 26.12.2005 and he was discharged on 11.01.2006, and Ex.A-2 wound certificate as deposed by P.W-4 shows that the claimant sustained four grievous injuries, which included two fractures, and therefore, it may take three months time 12 BVLNC,J MACMA 122 of 2016 Page 12 of 14 Dt: 19.10.2022 for complete healing all the fractures sustained by him, and to attend his normal duties. Hence, he can be awarded compensation for loss of earnings for a period of three months covered by the treatment.
26. The Appellant/claimant case is that he was earning Rs.10,000/- per month on his self employment, but no evidence was adduced by him before the Tribunal in support of the said document. The accident was occurred in the year 2005. Therefore, the notional income of the claimant can be fixed at Rs.3,000/- per month in the year 2005. Hence, he can be awarded a sum of Rs.9,000/- towards loss of earnings during the period of treatment. To that extent, the order and decree of the Tribunal can be modified and the rest of the appeal is liable to be dismissed.
27. In the light of above discussion, I am of the considered opinion that awarding a sum of Rs.9,000/- towards loss of earnings during the period of treatment, in addition to Rs.1,16,000/- awarded towards compensation under other heads by the Tribunal (total Rs.1,25,000/-), would be just and proper.
28. In the result, the appeal is partly allowed, by modifying the award of the Tribunal, awarding a sum of Rs.9,000/- towards loss of earnings during treatment period, in addition to Rs.1,16,000/- 13
BVLNC,J MACMA 122 of 2016 Page 13 of 14 Dt: 19.10.2022 awarded towards compensation under other heads by the Tribunal. Therefore, the compensation awarded in total is Rs.1,25,000/-, with interest @ 7.5% p.a. from 20.12.2006, till the date of deposit. The 3 rd respondent/Insurance Company is directed to deposit the compensation amount of Rs.1,25,000/- with accrued interest thereon, within one month from the date of judgment. On such deposit, the Appellant/petitioner is permitted to withdraw the entire compensation amount of Rs.1,25,000/- with accrued interest thereon. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
19.10.2022
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BVLNC,J MACMA 122 of 2016
Page 14 of 14 Dt: 19.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.122 OF 2016
19th October, 2022
psk