Andhra HC (Pre-Telangana)
United India Insurance Company Ltd., ... vs B.Ramesh S/O B. Rama Swamy And Another on 11 September, 2014
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
HONBLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.693 of 2005 11-09-2014 United India Insurance Company Ltd., Rep. by Divisional Manager, Divisional Office-VI, Near SBH, Gunfoundry, Hyderabad.Appellant B.Ramesh S/o B. Rama Swamy and another..... Respondents Counsel for the Appellant: Sri A. Rama Krishna Reddy Counsel for the Respondents: Sri A Vishnu Vardhan Reddy <Gist : >Head Note: ? Cases referred: 1. 2013 (9) SCC 54 HONBLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.693 of 2005 AND CROSS OBJECTIONS (SR).No.27736 of 2005 COMMON JUDGMENT:
This appeal by the Insurance Company-2nd respondent before the Tribunal challenging the award dated 23.11.2004 passed in O.P.No.542 of 1997 by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Mahabubnagar (for short the Tribunal).
The claimant before the Tribunal filed cross objections seeking enhancement of compensation. Since the appeal and cross objections arise out of the same award dated 23.11.2004, they are being disposed of by this common judgment.
The parties hereinafter referred to as arrayed before the Tribunal for the sake of convenience.
The brief facts of the case are as follows:
On 22.06.1997 at about 06.00 AM, the claimant and his friends were proceeding in a Jeep bearing No.MH-28-A-8622 belonging to the 1st respondent and insured by the 2nd respondent-Insurance Company, on their way from Wanaparthy to Hyderabad. When the jeep reached the limits of Shadnagar on NH-7 at about 08.00 AM, the driver of the said jeep drove the same in rash and negligent manner at high speed and hit a tractor coming from opposite direction. The claimant and others sustained injuries. The claimant was shifted to Osmania General Hospital, Hyderabad in the said jeep. The claimant claimed a total compensation of Rs.3,00,000/-.
The respondents filed counters and denied the material averments made by the claimant.
The Tribunal framed the following issues:
1) Whether the accident occurred on 22.06.1997 at about 08.00 AM, about 1 KM away to Shadnagar on NH-7, due to the rash and negligent driving of jeep bearing No.MH-28-A-
8622 by its driver and whether it resulted in injuries to the petitioner?
2) Whether the petitioner is entitled for compensation? If so, to what amount, and from whom?
3) To what relief?
On behalf of the claimant, the claimant himself was examined as PW.1 and PW.2 was examined and Exs.A1 to A28 were marked. On behalf of the respondents, RW.1 was examined and Exs.B1 to B3 were marked.
The Tribunal on appreciation of oral and documentary evidence on record came to the conclusion that the accident occurred due to the negligence of the jeep driver.
On issue of quantum of compensation, the Tribunal awarded a total compensation of Rs.93,308/-.
The main contention of Sri A. Ramakrishna Reddy, learned counsel for the Insurance Company is that there was no accident at all and the claimant has not sustained any injury in a motor accident. It is further submitted that FIR was lodged after 40 days from the date of accident and police after completing investigation lodged a report saying that no accident took place and the injured sustained injuries at his residence. It is also submitted that in the absence of any evidence to show that the claimant sustained injury in a motor accident, there is no need to award any compensation. It is also submitted that even in case if the Tribunal comes to a conclusion that the claimant sustained injury, the Tribunal has already awarded just and reasonable compensation, there is no need to enhance any compensation.
The learned counsel for the claimant submitted that the claimant was immediately shifted to Osmania General Hospital, Hyderabad and from there intimation was given to the police, Afzalgung. But, unfortunately Afzalgung police has not registered criminal case and in the above circumstances, the father of the claimant lodged a complaint on 01.08.1997, basing upon which the police registered case. It is also submitted that no proper investigation was done in this case and the police without proper verification has closed the case. It is further submitted that the claimant has sustained permanent disability and now he has not in a position to walk and in view of the same, the Tribunal ought to have awarded reasonable compensation.
The points that arise for consideration are:
1) Whether the claimant sustained injuries in a motor accident?
2) Whether the claimant is entitled for enhancement of compensation?
The injured claimant is examined as PW.1. He has categorically deposed that on the date of accident he along with his friends engaged a jeep bearing No.MH-28-A-8622 to go to Hyderabad from Wanaparthy. It is also his case that at about 06.00 AM, they started from Wanaparthy to go to Hyderabad and when they reached the limits of Shadnagar on NH-7 at about 08.00 AM, the driver of the said jeep drove the same in rash and negligent manner at high speed and hit the tractor coming from opposite direction. As a result of which, the claimant sustained injuries. His further case is that he was immediately shifted in the said jeep to Osmania General Hospital, Hyderabad. According to him, the police examined him in the hospital. Admittedly, no case was registered in the police station. It is not clear under what circumstance the case was not registered in the police station and only after lodging a complaint on 01.08.1997 by the father of the injured, the police registered the case. It is also clear from the investigation report marked as Ex.B2 that the police came to a conclusion that no accident occurred as alleged by the claimant and his father and he accidentally stumbled in his house and sustained injuries.
On behalf of the Insurance Company, RW.1 was examined and basing upon the police investigation he deposed that no accident occurred. In the above circumstances, it becomes necessary to examine the documentary evidence adduced in this case. The crucial documents would be the documents prepared in the Osmania General Hospital at the admission and Ex.A2 is the discharge card issued by the Osmania General Hospital which shows that the claimant was admitted on 22.06.1997 and discharged on 01.09.1997. It also shows that operation was conducted on 11.09.1997, I.P.No.19623 and MLC.No.11420. X-ray was obtained on 14.07.1997 and on that X-ray I.P.No.19623 was mentioned. The treatment certificate was marked as Ex.A4 and in that also the same number is noted as 19623. The other documents also reveal the same number. The crucial document is the case sheet which is marked as Ex.A10, which shows on 22.06.1997 at about 12.05 PM, the Doctor noted that the claimant alleged to have met with RTA (Road transport accident) at 08.00 AM today near Shadnagar, when he was hit by a tractor coming from opposite direction. It has to be seen that the same I.P. number is noted in Ex.A10 beneath the endorsement of the duty doctor. It appears that the Doctor during the course of discharging his duties made the above remarks regarding the history of the case basing on the statement of the injured. In any case initial endorsement noted by the doctors at the time of admission of the patient would be crucial. Normally, the doctors ascertain facts from the injured or from the person who brought the injured to the hospital. At that time no body would have any plans to manipulate the case. Normally, first version would be the best version that too when it is the statement of the injured or victim. False implication of vehicles or accused cannot be ruled out. Therefore, it becomes duty of the Court to ascertain the first version, first information with regard to any incident particularly when it is noted by a person who has no interest in the matter. Finding some contradictions here and there and giving finding on superficial verification of facts, without carefully studying the entire evidence leads to wrong conclusions. In this case, there is nothing to doubt the statement recorded by the Doctor in Ex.A10 in Osmania General Hospital which is a famous Government Hospital. In view of the above documentary evidence, I believe that the claimant sustained injuries in a motor accident. Merely because there is some delay in giving report to the police or the police investigation is otherwise that would not come in the way to find out the fact basing on the official documents.
Coming to the aspect of compensation, in case of injuries, the nature of injuries, period of treatment, medical expenses, and disability if any sustained by the claimant have to be taken into consideration. According to PW.1-injured, he had undergone treatment for about 6 months. He sustained fracture to his right femur and injuries to his left leg below the knee. He underwent operation on 11.07.1997. The said operation is corroborated by the medical evidence. According to him, he was admitted on 22.06.1997 and discharged on 01.09.1997 and subsequently he had taken treatment as outpatient in Udai Clinic Orthopedic Centre, CDR, NIMS Hospital. He was again admitted in Padmavathi Nursing Home on 30.11.1998 and discharged on 12.01.1999. He had spent about Rs.1,00,000/- for treatment and also he sustained permanent disability. It is also his case that after the accident he could not attend his examination and continue his studies and therefore his name is removed from the law college. It is also his case that he would have earned Rs.15,000/- to Rs.20,000/- per month he had not met with an accident. He is unable to attend normal duties, cannot walk and not in a position to sit. It is also his case that there is limping and shortening. Unfortunately, no Doctor is examined in this case. However, the medical reports filed by the claimant would go to show that the claimant underwent operation and taken prolonged treatment. In case of injuries, when the injured is discharged, the Doctor should note the position of the fractured bones, they should take fresh X-ray and note whether there is mal-union, non-union or whether there is stiffness of muscles at the place of fracture and whether it resulted in any restriction of movements. Of course, the claimant has filed disability certificate issued by the medical board which shows that the claimant sustained 40% disability. Since, the claimant has filed disability certificate issued by the medical board of the Gandhi Hospital, Hyderabad which has been constituted by the Government of A.P., I consider just and reasonable to accept the disability certificate.
Anyhow, the physical disability sustained by the claimant may not result in total loss of earnings. Functional disability and the loss of earnings would depend upon the nature of job done by the injured prior to the date of the accident or the nature of job which he may secure in future. In case of labourer, artisan, mesan and all those who have to work with their limbs, if he is not able to use one limb due to restriction in movements, there may be total loss of earnings. But in case of all those who can do sedentary nature of work, there may not be total loss of earnings; they may have some difficulty while going to their office or to some other place or while moving in the society. Therefore, it cannot be said that there would be total loss of earnings in case of persons like the claimant, the claimant has already completed his degree, he has completed diploma in Civil Engineering in the year 1989-1992, he has passed degree in the year 1995, previously worked as Site Supervisor with M/s. K.P. Constructions Company Nallakunta Hyderabad and Cyber Company for Software Civil Engineering Training Consultancy at Hyderabad. It is also his case that he received interview call from Central Public Works Department, Government of India, but due to the accident, he could not attend the examination. It is also his case that he has taken admission in law college and was studying LLB in Vidyapeet Law College, but after accident he could not give attendance, his admission has been cancelled. With these above educational certificates, the claimant may secure any job of sedentary nature. Of course, he may not be able to work as Site Supervisor in future. So, in the circumstances, I consider just and reasonable to take the notional income of the claimant at Rs.10,000/- per month and the loss of earnings at 20%. Therefore, the net loss of earnings would come to Rs.2,000/- per month. The annual loss of earnings comes to Rs.24,000/-. The appropriate multiplier is 18. The total loss of earnings comes to Rs.24,000/-x18=Rs.4,32,000/-. The Tribunal awarded only Rs.10,000/- towards pain and suffering, I consider just and reasonable to award an amount of Rs.30,000/- towards pain and suffering. I also consider just and reasonable to award an amount of Rs.5,000/- towards extra nourishment, Rs.5,000/- towards attendant charges, Rs.5,000/- towards transport charges, Rs.10,000/- towards loss of expectation of life and Rs.10,000/- towards loss of amenities of life. The Tribunal has already awarded Rs.23,308/- towards medical expenses, there is no need to enhance the amount because the claimant has taken treatment from the Government Hospital. Thus, the total compensation comes to Rs.5,20,308/-.
Sri Ramakrishna Reddy submits that Order XLI Rule 11 CPC prohibits the enhancement of compensation more than the claimed amount. I am of the view that all the provisions of CPC are not applicable to the claim petitions arising out of the motor accident.
Though the claimant claimed a compensation of Rs.3,00,000/-. But in view of the settled legal position in the case Rajesh Vs. Rajbir Singh , that irrespective of the claim claimed by the claimants, the Courts have to award the compensation which appears to be just and reasonable.
Subject to the observations made supra, the appeal filed by the Insurance Company is dismissed and the cross objections filed by the claimant is allowed awarding a total compensation of Rs.5,20,308/- with interest @ 7.5% per annum. However, the claimant has to pay the deficit Court fee before drafting the decree. No costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
___________________ B. CHANDRA KUMAR, J Date: 11.09.2014