Andhra Pradesh High Court - Amravati
Cholamandalam Ms.General Insurance ... vs V.Venkata Shasank Reddy And 2 Others on 28 July, 2020
Author: G.Shyam Prasad
Bench: G. Shyam Prasad, D Ramesh
1
* HON'BLE SRI JUSTICE G. SHYAM PRASAD
AND
HON'BLE SRI JUSTICE D. RAMESH
+ MACMA No.505 OF 2018
% 28-07-2020
# Cholamandalam MS General Insurance Co.Ltd
Rep by its Br. Manager, 302, 3rd floor, SRArcade,
D No.1-2-73/2, 1-2-63 to 64, Parklane
Secunderabad.
... Appellant/ Respondent No.2.
vs.
$ 1. V. Venkata Shasank Reddy S/o Madhusudhan Reddy
Aged 26 years, R/o D.No.1-4-184, Nagarigutta
Pulivendula Villag & mandal, Kadapa District.
... Respondent/Petitioner
2. A Bhaskar Reddy S/o Krishna Reddy, aged 44 years
Owner of the Bolero No.AP-04-AD-3690 R/o D.No.1/13
Bondala Village, Lingala Mandal, Kadapa District.
3. Shaik Mohammad Rafi S/o Mahboob Basha, aged 34 years
Driver of Bolero No.AP-04-AD-3690 R/o D No.2/27
Udavagandla Village, Thonduru Mandal, Kadapa District.
(Amended as per IA No.1464/2017 dt. 4.8.2017)
... Respondents/Respondents.
!Counsel for the appellant : Sri Kota Subba Rao
^Counsel for the Respondents : Sri G. Rama Sarma
<Gist :
>Head Note :
? Cases referred : 1. Civil Appeal No. 5510 of 2005
2. 2011 ACJ 1702 = 2009(6) ALD 684
3. 2011 ACJ 2082
4. 2009(13) SCC 123
5. 2015 - STPL (web) 640 - Gujarath
6. 2011(2) -ALD -763
2
HON'BLE SRI JUSTICE G. SHYAM PRASAD
AND
HON'BLE SRI JUSTICE D. RAMESH
M.A.C.M.A.No.505 OF 2018
JUDGMENT:(Per Hon'ble Sri Justice G.Shyam Prasad) This appeal arises out of the order dated 13.09.2017 passed in M.V.O.P.No. 581 of 2014 by the Chairman, MACT-cum- Principal District Judge, Kadapa, awarding compensation of Rs.40,00,000/- on account of the injuries sustained by the 1st respondent/petitioner in a Motor Vehicle Accident that occurred on 12.08.2012 at 1.00 a.m. in front of Raghavendra Cinema Hall on Pulivendula - Parnapalli Road.
2. The appellant is the 2nd respondent-Cholamandalam MS.General Insruance Co. Ltd., in the above MVOP aggrieved by the impugned order, preferred the present appeal challenging the quantum of compensation.
3. Brief facts of the case are that the 1st respondent/petitioner has filed a petition under Section 166 of Motor Vehicles Act, 1988 before the Tribunal claiming compensation of Rs.40,00,000/- on account of injuries sustained by him in a motor vehicle accident that occurred on 12.08.2012 at 1.00 a.m. in front of Raghavendra Cinema Hall on Pulivendula - Parnapalli Road, due to rash and negligent driving of the driver of Bolero vehicle bearing No.AP04-AD-3690, belonged to 1st respondent in MVOP. The 2nd respondent is the insurer, who preferred the claim petition herein, and the respondents 2 and 3 herein are the owner and driver of the said Bolero vehicle. 3
4. The tribunal on consideration of evidence of Witnesses PWs.1 to 5, documents Ex.A1 to Ex.A9 and Ex.C1 to Ex.C3, has held that the driver was rash and negligent in driving vehicle and awarded compensation of Rs.40,00,000/- with interest @ 6% p.a. from the date of filing of petition till the date of realization, against the owner and insurer of the vehicle.
5. Aggrieved by the impugned order, the present appeal has been preferred challenging the quantum of compensation is highly excessive and arbitrary.
6. Heard arguments of Sri Kota Subba Rao, learned counsel for the appellant. In spite of service of notices, none appeared on behalf of the respondents, and therefore, basing on the material available on record, the appeal is disposed of.
7. The points arise for determination in this appeal are :
1. Whether quantum of compensation awarded by the tribunal is just and reasonable or whether it is highly excessive and exorbitant?
2. Whether the award passed by the tribunal is in accordance with law?
POINTs 1 & 2 :
8. Learned counsel for the appellant Sri Kota Subba Rao submitted that the claimant has not proved medical expenditure to a tune of Rs.29,16,000/- and Rs.9,86,212/-by examining the author of the bills. It is further argued that the medical officer cannot say about the validity of the medical bills and therefore the granting of compensation towards medical expenditure is on higher side.
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9. As far as this contention is concerned, it is appropriate to refer to the evidence of the medical officers , and the Order passed by the tribunal in this regard.
10. On behalf of injured, PW.2 - Dr Tejaswi, PW.3-Dr L. Usha Kiran, PW.4-M Sarath Babu, and PW.5-Dr C Sanjeevaiah, Associate Professor of Orthopedics, RIMS, Kadapa, have been examined to prove the nature of injuries suffered by the petitioner, the proof of Ex.A2-wound certificate issued by the medical officer, to prove the nature of treatment undergone by the petitioner and the disability suffered by him.
11. PW.2 Dr Tejaswi, clearly stated in her deposition that, the petitioner was admitted as inpatient on 12.08.2012 and was discharged on 24.09.2012. Because of the accident, sexual function was also affected. He has testified that Ex.A4 consists of IP Admission medical bills, to a tune of Rs.5,21,455/-, and even after discharge, the patient was coming for follow up treatment, and he had incurred further medical expenditure.
12. PW.3-Dr L. Usha Kiran, Duty Doctor has deposed that the patient was admitted on 13.11.2012 and was discharged on 01.12.2012. The patient was suffering from bed sores during the period of treatment. The total hospital medical expenditure was Rs.3,00,000/-.
13. PW.4 is M. Sharath Babu, Physiotherapist has also stated that he has treated the petitioner from 02.06.2013 to 30.06.2014 and he collected fee of Rs.10,000/- per month for physiotherapy and the petitioner requires treatment in future . 5
14. PW.5-Dr C. Sanjeevaiah, has found Post traumatic paraplezia both lower limbs due to burst fracture of D-7 and D-8 invelling catheter present. The medical officer assessed the permanent disability at 90% on physical examination and discharge summary. He also suggested that attendants are necessary for the petitioner to attend his day to day activities.
15. The tribunal on consideration of the evidence of these witnesses, has given a clear and categorical finding that nothing was elicited in support of the case of respondents during the cross- examination of the witnesses PW.1 to PW.5. The tribunal has granted medical expenditure of Rs.9,86,212/- basing on Ex.A4 to Ex.A6.
16. On consideration of the evidence of these witnesses and the documents referred above, we are of the considered view that the order passed by the tribunal does not require any interference in view of the nature of injuries suffered by the petitioner, and the nature of treatment undergone by him, and his future treatment.
17. The other contention raised by the learned counsel for the appellant is about the assessment of the notional income of the petitioner. It is submitted that the notional income of the petitioner assessed as Rs.1,80,000/- is highly excessive. The council placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Arvind Kumar Mishra Vs. New India Assurance Co., Ltd., and Anr1. Where in the income of a student of engineering final year, at Birla Institute of Technology, Mesra (B.I.T) as Rs.60,000/- towards his notional income per year, for assessment 1 Civil Appeal No. 5510 of 2005 6 of the compensation. Basing on the said judgment it was urged that the compensation awarded by the tribunal is highly excessive in the present case.
18. At this juncture it is appropriate to refer to the judgments relied on by the tribunal to assess the notional income of the petitioner. The tribunal has assessed the notional income of the petitioner, who was an engineer student, by placing reliance on various decisions, referred below:
(i) In B. Ramulamma and others Vs. Venkatesh Bus Union rep., by A.M.Velu Mudaliyar and another2 the compensation for Engineering Student was assessed between Rs. 12,000/- p.m and Rs. 15,000/- p.m.
(ii) In Ahswanikumar Bhandari Vs. Darshana and others3 it was held that the income of B.Pharmacy Student in a case of death was taken into consideration as Rs. 10,000/- p.m.
(iii) In Oriental Insurance Company Ltd., Vs. Deopatodi & others4, it was held that the income of M.B.A student at a foreign country was assessed at Rs. 25,000/- p.m.
19. The tribunal has rightly relied on the judgments referred above for assessing the notional income. Apart from those precedents the tribunal also placed reliance on other two cases, National Insurance Co., Ltd., Vs. Manjula Ben Batuk Bai magatpara & Ors5, and in K. Raghu Babu Vs. C. Veerasekhar6, where it was observed that :
"------ Physical disability suffered by a victim in motor vehicle Accident, cannot adequately be measured and compensated in monetary terms. However the disability which carries all through the life of the claimant, can, at best be solaced to a limited extent by awarding just compensation so as to give moral boost , and to instill confidence in the claimant to lead rest of 2 2011 ACJ 1702 = 2009(6) ALD 684 3 2011 ACJ 2082 4 2009(13) SCC 123 5 2015 - STPL (web) 640 - Gujarath 6 2011(2) -ALD -763 7 life with some sort of satisfaction. The court should be liberal and sometimes more liberal, in cases of injuries than the cases of death".
20. It is obvious that the petitioner was a final year engineering student aged about 20 years. He received grievous injuries in the accident and suffered 90% disability. The medical officer-PW.2 clearly stated that there was no improvement in the lower limbs, power sensation and bladder bowel disturbances post- surgery. In future also patient might not recover from those problems. Because of the accident, sexual function was also affected.
21. Considering this aspect, it can be understood that the future marital prospectus of the petitioner would be effected because of the injuries sustained by him in the accident. No doubt, the tribunal has not awarded any separate compensation under that head. However as there was no claim by the petitioner, in the interest of justice, the petitioner is entitled for just and reasonable compensation. Since the Motor Vehicles Act is a beneficial legislation, and the petitioner being an engineering student, who has suffered 90% disability, and also suffered sexual disability, the notional income assessed by the tribunal at, Rs.15,000/- per month, which comes Rs.1,80,000/- per annum, is just and reasonable. In fact there can be no exact uniform rule in measuring the value of the human life or limb or the sufferance in terms of damages. This proposition of law was laid down by this Court in the case of B. Sivaleela Vs. National Insurance Company Limited, in M.A.C.M.A.No.181 of 2005. 8
22. Keeping in view the facts and circumstances of this case, we are of the considered view that there is no need to interfere with the findings of the tribunal in assessing the compensation basing on notional income at Rs.1,80,000/- p.a., which ordinarily an engineering student may get, if he was not suffering with 90% disability. Moreover, the future loss of prospects in his job, and functional disability he has to suffer through out his life which he cannot make any claim later. On consideration of all these aspects we are of the considered opinion that the notional income assed by the tribunal at Rs.1,80,000/- per annum is not at all on higher side.
23. In the light of the facts and circumstances of this case, Judgment referred by the learned counsel for the appellant is not applicable to the facts of the present case.
24. In the result, this appeal is dismissed confirming the order passed in M.V.O.P.No. 581 of 2014 by the Chairman, MACT- cum- Principal District Judge, Kadapa. There shall be no order as to costs.
The appellant is directed to deposit the entire balance amount within two (02) months from the date of receipt of a copy of this order, and on such deposit, the 1st Respondent/ Claimant is permitted to withdraw the same.
Miscellaneous petitions, if any, pending shall also stand closed.
_______________________ G. SHYAM PRASAD, J _____________ D.RAMESH, J Date: 28 -07-2020 Kk/Gvl 9 HON'BLE SRI JUSTICE G. SHYAM PRASAD AND HON'BLE SRI JUSTICE D.RAMESH M.A.C.M.A.No.505 OF 2018 Date: 28 -07-2020 KK/Gvl 10