Andhra Pradesh High Court - Amravati
Yacob Ali vs S. Nageswara Rao Another on 15 February, 2024
[ 3459 ]
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
THURSDAY ,THE FIFTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM
MOTOR ACCIDENT CIVIL MISCELLANEOUS
APPEAL NO: 2900 OF 2005
Between:
1. YACOB ALI, S/o. Md. Gouse Mohiddin Student, minor rep. by
his father Md. Gouse Mohiddin R/o. Rampachodavaram,
E.G.District,
...APPELLANT(S)
AND
1. S NAGESWARA RAO ANOTHER, S/o. Apparao APSRTC
Bus Driver Yeleswaram Depot, Yeleswaram, East Godavary
District.
2. The General Manager, APSRTC The General Manager
APSRTC Musheerabad,
...RESPONDENTS
The Court made the following:
2
JS,J
MACMA No.2900 of 2005
THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM
M.A.C.M.A.No. 2900 of 2005
JUDGMENT:
By way of this appeal, the appellant/minor challenges the award, dated 02.08.2005, passed by the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, East Godavari at Rajahmundry, in O.P. No. 176 of 2001, whereby and whereunder the claim petition filed by the appellant, represented by his father, seeking compensation of Rs.1,50,000/- for the injuries sustained by him in a motor vehicle accident, was allowed in part and a sum of Rs.47,581-50 ps. was granted towards compensation under various heads. According to the appellant, the aforesaid compensation is not just and fair compensation, and therefore, the same has to be enhanced.
2. The case of the appellant is that he was aged about 12 years at the time of accident. On 29.09.2000 at about 10.00 a.m. he was 3 JS,J MACMA No.2900 of 2005 proceeding to his house at Rampachodavaram after getting down a bus, at that time, one RTC bus bearing registration No. AP 9Z 5249 came in a rash and negligent manner and ran over his left leg resulting in grievous injuries to him. Due to the accident, he incurred heavy medical expenses, attendant charges, special diet charges, transportation charges and also sustained permanent disability. The accident has occurred due to the negligent driving on the part of the driver of the bus.
3. The 1st respondent was set ex parte. The 2nd respondent filed counter by denying the material averments made in the petition. It is contended that the accident occurred only due to negligence of the appellant and thus, the 2nd respondent is not liable to pay any compensation.
4. During the course of enquiry in the claim petition, on behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 and 4 JS,J MACMA No.2900 of 2005 Exs.X.1 and X.2 were marked. No oral or documentary evidence was adduced on behalf of the respondents.
5. Based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the bus and accordingly, the Tribunal has partly allowed the petition and granted compensation of Rs.47,581-50 ps. to the appellant with proportionate costs and interest at 9% p.a. from the date of petition till the date of deposit against both the respondents. Aggrieved against the said order, the appellant has preferred the instant appeal for enhancement of the compensation.
6. Smt. Sudha Rayudu, learned counsel representing Mr. K. Venkatesh, learned counsel for the appellant on record, has contended that the award passed by the Tribunal is bad in the eye of law and the Tribunal has failed to consider the fact that the appellant sustained serious injuries, due to which his big toe was amputated for which the appellant has to suffer throughout his life, moreover, 5 JS,J MACMA No.2900 of 2005 losing of one or more toes can effect balance and it disqualifies him from attending competitive exams. She further contended that the Tribunal disbelieved the evidence of P.W.2-doctor with regard to amputation of big toe of the appellant, which led to permanent disability, and skin grafting. The learned counsel, therefore, prays that the amount awarded by the Tribunal towards permanent disability and non-pecuniary damages may be enhanced.
7. On the other hand, Sri Vinod Kumar Tarlada, learned counsel for the 2nd respondent, has submitted that the Tribunal has arrived at just and proper conclusion after taking into consideration the material on record and after appreciating the evidence in proper perspective and rightly awarded compensation of Rs. 47,581.50 ps. Therefore, no further enhancement should be made and prayed for dismissal of the appeal.
8. In view of the above contentions, what is required to be seen is, whether the Tribunal while granting the aforesaid compensation 6 JS,J MACMA No.2900 of 2005 properly considered the case of the appellant for his permanent disability or not, If so, to what extent ?
9. POINT: The Professor of Orthopedics, Rangaraya Medical College, Kakinada, was examined as P.W.2. In his evidence, he deposed that he conducted surgery on the appellant called Debridement and k-wire fixation was done and observed that blood supply was doubtful to the big toe of the appellant. On 30.10.2000 appellant's toe was amputated, skin grafting operation was done to cover the wound and observed that there was ulcer and puss formation. P.W.2 further deposed that the appellant feels difficulty while walking, standing and running and also cannot participate in games. The disability can be assessed at 20% and it is permanent disability and stiffness of the ankle joints of left side will be 6% disability and amputation of big toe is 14% disability, and that the appellant also suffers while folding legs, climbing staircase because of skin grafting. No rebuttal evidence was adduced by the respondents to disbelieve the evidence of P.W.2. 7
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11. By taking into consideration the evidence of P.W.2, the Tribunal opined that 20% disability assessed by P.W.2-doctor is to the left toe only, and not to the entire body. The Tribunal failed to show compassion to the appellant whose toe was amputated due to the accident while awarding compensation. The Tribunal ought to have seen that if a big toe is amputated, it will have more dramatic impact as it bears the brunt of his weight and while walking, this can affect the general day to day life especially during sports and regular exercises.
12. The provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that the compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The claimant is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such 8 JS,J MACMA No.2900 of 2005 injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
13. The Hon'ble Apex Court in Mallikarjun vs. Divisional Manager, National Insurance Company Limited1, has stated that the age of the child and deformities of his body resulting in disability has to be duly taken note of.
14. In R.D. Hattangadi vs. Pest Control (India) (P) Ltd.2, the Hon'ble Apex Court held as under:
"While fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary 1 (2014) 14 SCC 396 2 (1995) 1 SCC 551 9 JS,J MACMA No.2900 of 2005 damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance;
(ii) loss of earning of profit up to the date of trial: (iii) other material loss. So far non-pecuniary damages are concerned, they made include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
15. In the instant case, the appellant/minor was 12 years old and studying VII Class at the time of accident. He suffered immense physical pain as well as mental shock and trauma at a very tender age. The trauma undergone by him due to the accident could have severe and long lasting effect. Therefore, the parents of the 10 JS,J MACMA No.2900 of 2005 appellant will have to make arrangements to support his disability in future. No amount of monetary benefit will compensate the pain and suffering and the appellant has to endure and overcome the probable shackles of his disability in future. Therefore, when the question of awarding compensation arises in the case of permanent disablement suffered by the appellant due to a motor vehicle accident, the principles laid down by the Hon'ble Apex Court in the case of R.D. Hattangadi (2 supra) shall be applied.
16. The Tribunal, while granting Rs.15,000/- towards non- pecuniary compensation and Rs.10,000/- towards permanent disability, grossly failed to appreciate that non-pecuniary damages include mental and physical shock, pain and suffering already suffered or likely to be suffered in future and damages to compensate for the loss of amenities of life which may include a variety of matters i.e., on account of injury the appellant may not be able to walk or run. Because of amputation or disfiguration, he cannot reach the goal he intends too.
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JS,J MACMA No.2900 of 2005
17. Thus, the appellant will be entitled for a sum of Rs.1,50,000/- towards non-pecuniary damages and permanent disability instead of Rs.10,000/- awarded by the Tribunal towards permanent disability and Rs.15,000/- towards non-pecuniary damages, apart from Rs.22,581.50 ps. awarded under other heads. In all, the appellant is entitled to compensation of Rs.1,72,581.50 ps.
18. In the result, the appeal is allowed enhancing the compensation of Rs.47,581.50 ps. awarded by the Tribunal to Rs.1,72,581.50 ps. The appellant is entitled to the enhanced compensation of Rs.1,25,000/- along with interest as ordered by the Tribunal. The 2nd respondent shall deposit the entire amount of compensation together with interest within a period of eight weeks on receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the amount, in accordance with law. However, the appellant shall pay the requisite Court fee in 12 JS,J MACMA No.2900 of 2005 respect of the amount awarded over and above the compensation claimed. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.
________________________ SUMATHI JAGADAM, J th 15 February, 2024 cbs 13 JS,J MACMA No.2900 of 2005 HON'BLE SMT. JUSTICE SUMATHI JAGADAM M.A.C.M.A.No. 2900 of 2005 15th February, 2024 cbs 14 JS,J MACMA No.2900 of 2005