Andhra Pradesh High Court - Amravati
K R Reddy, Eluru, W.G.Dist vs Jinjirala Venkanna, Nalgonda Dist 4 ... on 3 April, 2024
APHC010078792020
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
3364
WEDNESDAY, THE THIRD DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HON'BLE SRI JUSTICE A V RAVINDRA BABU
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.1396 OF 2016
Between:
Kondapally Raghava Reddy,
S/o.Late Anki Reddy, Hindu,
Male, Age 36 Years, Employee
in Bellagrave Logistics at Londa,
R/o.Door No.25-1-10, N.R. Pet,
Eluru, West Godavari District. --- Appellant
and
1. Jingirala Venkanna,
S/o.Gopayya, Hindu, Male,
Age 45 Years, Rajaka by caste,
Driver of Lorry No.AP 29V 808,
R/o.Nakhirekhal Village and Mandal,
Nalgonda District.
2. A. Krupakara Reddy,
S/o.Ramakrishna Reddy,
Hindu, Male, Age 46 Years,
Owner of Lorry No.AP 29V 808,
R/o.H.No.1-2-270/89, Suryapet,
Nalgonda District.
3. The New India Assurance Company
Limited, Rep. by its Divisional Manager,
Divisional Office, I Floor, Powerpet,
Eluru-534-002, West Godavari District.
4. The Oriental Insurance Company Limited,
Rep. by its Divisional Manager,
Divisional Office, Powerpet,
Station Road, Eluru-534-002,
West Godavari District.
5. M. Narayana Reddy, S/o.Narapu Reddy,
Hindu, Male, Age 58 Years,
R/o.D.No.11-128B, Eluru Road,
Gudiwada, Krishna District. --- Respondents
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AVRB,J MACMA No.1396/2016 The Court made the following Judgment:
Challenge in this Motor Accident Civil Miscellaneous Appeal is to the order, dated 08.12.2015, in M.V.O.P. No.517 of 2010 on the file of Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari, Eluru (for short, 'the Tribunal') whereunder the Tribunal, while dealing with the claim of compensation sought by the claimant towards the injuries sustained by him in a motor vehicle accident, which was occurred on 04.06.2009, awarded a sum of Rs.5,30,344/- towards compensation.
2. The appellant/claimant, aggrieved by the aforesaid order, filed the present Appeal.
3. The parties to this Appeal will hereinafter be referred to as described before the Tribunal, for the sake of convenience.
4. The case of the claimant, in brief, according to the averments set out in the claim, before the Tribunal, is that the petitioner was aged 30 years by the date of accident. He was hale and healthy, working in Belgrave Logistics at London and used to earn 3600 pounds = Rs.3,02,400/- (3600 x 854 = Rs.3,02,400/-) and maintaining his family with utmost love and affection. The 3 AVRB,J MACMA No.1396/2016 petitioner was M.C.A. postgraduate and working at London. On 04.06.2009 the petitioner, his wife - Kalpana, his one kid and his mother Kondapalli Samrajyam and M. Nagendra Reddy attended his brother's marriage function at Hyderabad. While they were on return journey on 05.06.2009 at about 05:00 a.m. they reached near Garikapadu check-post on NH-9 very cautiously by following all traffic rules on their Tata Safari bearing No.AP 16 AS 2727. The first respondent drove his Lorry bearing No.AP 29 V 808 in a rash and negligent manner, without blowing horn and without following traffic rules, dashed against the petitioner's travelling new Safari Car in opposite direction, as a result of which the petitioner received grievous injuries. The co-travelers viz., the wife of the petitioner Kondapally Kalpana, K. Samrajyam, Mamillapaddi Narendra Reddy and driver of car received multiple grievous injuries. Immediately, they were shifted to Kodada Hospital for first aid. Later he was shifted to Vijetha Hospital, Vijayawada, where he underwent surgeries for his injuries. The one month kid of the petitioner escaped from the injuries. The accident occurred only due to rash and negligent driving of the first respondent, driver of the offending vehicle. SHO, Chillakallu PS of Krishna District registered a case in Crime No.155 of 2009 for the offences under Sections 337 and 338 IPC against the first respondent. It is 4 AVRB,J MACMA No.1396/2016 due to the above accident the Safari car was badly damaged. The petitioner underwent major operation on 05.06.2009, conducted by a team of Doctors in Vijetha Hospital, Vijayawada. Subsequently, on 07.06.2009 the petitioner's right ankle was operated. The petitioner spent more than Rs.2,50,000/- towards treatment, medicines, operations etc., and he is incurring day-to- day medical expenses for his injuries. He is still suffering both physically and mentally and unable to attend his duties from the date of accident. Thus, he lost his earning capacity. The petitioner has wife and children. After the accident no one looked after his welfare. It is due to the above accident, the petitioner's family set- up was ruined. The petitioner's loss cannot be compensated in terms of money but he is claiming an amount of Rs.9,00,000, which is just and reasonable and necessary compensation to his livelihood. The petitioner has not filed any application under Section 140 of the MV Act under no fault liability. The first respondent is the driver of crime lorry bearing No.AP 29 V 808. Second respondent is the owner of the lorry. Third respondent is insurer of the said crime lorry and fourth respondent is the insurer of the Tata Safari bearing No.AP 16 AS 2727. The first respondent is holding valid driving license. Second respondent has valid vehicular documents and the third and fourth respondents 5 AVRB,J MACMA No.1396/2016 are insurers of the car and lorry at the time of accident. The fifth respondent is owner of Tata Safari Car. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioner's livelihood.
5. First and second respondents remained ex parte.
6. Third respondent got filed a counter contending in substance that the petitioner has to prove the rash and negligent act in the manner as set out and the petitioner has to prove the medical treatment and expenditure in accordance with law and that there was no fault on the part of the driver of Tata Safari car and the compensation and the rate of interest claimed is excessive.
7. Fourth respondent got filed a counter denying the claim and contending in substance that claimant has to prove strictly his age, income, occupation and involvement of the offending vehicle. The Police laid a charge sheet against the first respondent, who was the driver of the lorry alleging rash and negligent act and 4th respondent cannot be made liable to pay any compensation. Hence, the Petition is liable to be dismissed.
8. The Tribunal, on the basis of the aforesaid pleadings, settled the following issues for trial:
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AVRB,J MACMA No.1396/2016
1. Whether the petitioner sustained injuries in motor vehicle accident dated 05.06.2009 occurred due to rash and negligent driving of Lorry bearing No.AP 29 V 808 by its driver 1st respondent?
2. Whether the petitioner is entitled for compensation?
If so, for what amount and from which of the respondents?
3. To what relief?
9. During the course of trial on behalf of the claimant before the Tribunal, PWs.1 to PW.3 were examined and Exs.A-1 to A-14 were marked. The third respondent did not let in any evidence but Ex.B-1 was marked with consent. On behalf of the 4th respondent, Ex.X-1 was marked by consent, RW.1 was examined and Ex.B-2 was marked through his examination.
10. The Tribunal, on hearing both sides and after considering the oral and documentary evidence on record, answered the issues in favour of the claimant and against the contesting respondents and awarded a sum of Rs.5,30,344/- as compensation. 7
AVRB,J MACMA No.1396/2016
11. Feeling that the compensation so awarded is not just and reasonable, the claimant filed the present Appeal seeking to enhance the compensation.
12. As against the finding of the Tribunal that the accident occurred was on account of the rash and negligent driving made by the driver of the offending vehicle, there is no cross-objection filed by the concerned insurance company or by the driver or owner of the offending vehicle. So, the scope of the present Appeal is confined as to the prayer of the claimant seeking enhancement of compensation.
13. Now in deciding the present Appeal, the point that arises for consideration is:
Whether the order of the Tribunal in M.VO.P. No.517 of 2010, dated 08.12.2015, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari, Eluru in awarding compensation of Rs.5,30,344/- against the original claim of Rs.9,00,000/- is sustainable under law and facts and whether there are any grounds to interfere with the same?8
AVRB,J MACMA No.1396/2016 POINT:
14. Sri B.V. Krishna Reddy, learned counsel for the appellant, would contend that the compensation under the heads of pain and suffering and nervous shock to an extent of Rs.1,10,000/- for two grievous injuries is not just and reasonable. Even according to the documents placed by the claimant under Ex.A-8 his salary was Rs.3,02,400/- p.m. The Tribunal should have awarded the said sum for the loss of earnings for the period of two months instead the Tribunal only considered an amount of Rs.1,25,000/- each month. He would submit that the compensation is to be enhanced accordingly.
15. Sri P.L.V.S. Prasad, learned counsel, representing learned counsel for the fourth respondent/insurer, would contend that the Tribunal considered the monthly income of the injured on overall average basis under Ex.A-8 and rightly fixed the average income as Rs.1,25,000/- p.m. The Tribunal awarded appropriate compensation even for the two grievous injuries under the count of pain and suffering and nervous shock. The Tribunal awarded just compensation as such the order needs no interference. 9
AVRB,J MACMA No.1396/2016
16. The evidence of PW.1, PW.2 coupled with Exs.A-2 - wound certificate and Ex.A-4 discharge summary reveals that he sustained two grievous injuries i.e., comminuted olecranon fracture with displaced ulna fracture and hemoperitoneum (blunt trauma). According to the evidence available on record, he was admitted on 05.06.2009 and was discharged on 15.06.2009. Further, Ex.A-4 discloses that the emergency abdominal operation was conducted to the petitioner. According to Ex.A-5 - another discharge summary, he underwent operation for brand wiring for the fractures by Dr. Sumanth Babu. PW.2 confirmed issuance of Exs.A-4 and A-5 by Vijetha Hospital. According to the testimony of PW.2, the abdominal operation was conducted in laparoscopic method. So, even according to Exs.A-4 and A-5 the fact remained is that there were two surgical procedures attended on PW.1 by the concerned hospital. The Tribunal considered the fact that for a period of two months there was loss of income to the claimant. The Tribunal granted a sum of Rs.60,000/- towards pain and suffering for the two fractures and a sum of Rs.50,000/- towards nervous shock and loss of amenities. The Tribunal awarded for loss of earnings Rs.2,50,000/-, Rs.10,000/- towards food and nutrition and Rs.5,000/- towards attendant charges. It considered the future medical expenditure of Rs.15,000/-. The Tribunal 10 AVRB,J MACMA No.1396/2016 considered the medical bills to a tune of Rs.1,40,344/-. In all, the Tribunal awarded compensation of Rs.5,30,344/-
17. The main contention of learned counsel for the appellant is that the Tribunal did not award proper compensation for the two grievous injuries which were intervened with surgical procedure and further did not consider the loss of earnings for the period of two months as mentioned in Ex.A-8 to a tune of Rs.3,02,400/- p.m.
18. With regard to the salary as seen from Ex.A-8, one cannot deny the fact that the petitioner was getting income on weekly basis. As seen from Ex.A-4, there was no uniformity with regard to the earnings of the injured for every week. So, the Tribunal having looked into Ex.A-8, rightly considered the income of the injured on average basis and fixed the income of the injured as Rs.1,25,000/- p.m. which is reasonable in the set of circumstances. When the petitioner was not able to explain as to the exact amount which he is getting every week, thereby every month, the act of the Tribunal in considering the income on average basis cannot be found fault with.
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AVRB,J MACMA No.1396/2016
19. Coming to the compensation under the two grievous injuries, the Tribunal considered a sum of Rs.60,000/- towards the pain and suffering and Rs.50,000/- towards nervous shock and loss of amenities. A sum of Rs.30,000/- awarded by the Tribunal for each grievous injury appears to be not reasonable, in the considered view of this Court. It was a case where the injured received two grievous injuries, as pointed out. He was operated on emergency basis on his abdomen, which is proved by Ex.A-4. Further, he was operated for brand wiring. Though it was in laparoscopic method but the fact remained is that for two grievous injuries petitioner underwent surgeries twice. Having regard to the over all facts and circumstances, this Court is of the considered view that under the head of pain and suffering for two fractures, which were surgically intervened on different dates, a sum of Rs.1,00,000/- should be reasonable (Rs.50,000/- each for two fractured injuries with surgical procedure). With regard to the other heads of compensation, the Tribunal awarded reasonable compensation. Hence, having regard to the above, this Court is of the considered view that the compensation has to be enhanced to an extent of Rs.40,000/-.
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AVRB,J MACMA No.1396/2016
20. In the result, the Motor Accident Civil Miscellaneous Appeal is allowed in part enhancing the compensation awarded by the Tribunal from Rs.5,30,344/- to that of Rs.5,70,344/- with proportionate costs and interest at the rate of 7.5% p.a. from the date of petition till the date of deposit on the enhanced amount of Rs.40,000/-. The third respondent/insurer is directed to deposit the enhanced amount within a period of one month from this date with up to date interest and costs. No order as to costs.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 03.04.2024 DSH