Andhra Pradesh High Court - Amravati
Shriram General Insurance Company ... vs Gorinta Gyana Prasanna on 29 September, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
M.A.C.M.A. No.401 of 2022
JUDGMENT:
By this appeal under Section 173 of the Motor Vehicles Act, 1988 insurance company impugns the award dated 09.12.2021 of learned Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Vizianagaram (hereinafter referred to as 'the Claims Tribunal') in M.V.O.P.No.325 of 2016. By the impugned award, the learned Claims Tribunal granted compensation of Rs.4,00,000/- to be paid by the insurance company along with 12% interest per annum from the date of claim petition till the date of realization.
2. Respondent No.1 is the claimant. Respondent No.2 is the driver-cum-owner of the offending vehicle.
3. For respondent No.1/claimant, appearance is made. For respondent No.2, despite notice being served, none has entered appearance.
4. Smt. A.Jayanthi, the learned counsel for appellant- insurance company and Dr. Majji Suri Babu, the learned counsel for respondent No.1, submitted arguments. 2
Dr. VRKS, J M.A.C.M.A.No.401 of 2022
5. A girl child aged 10 years studying 6 th class was a pillion on a motorcycle driven by her father on 22.10.2015 near Kondavelagada Village and Nilagiri thop of Vizianagaram District. An auto rickshaw bearing registration No.AP-35-X- 2651 came from the opposite direction and the driver of it was driving the vehicle rashly or negligently and he dashed the motorcycle and as a result, the girl fell down on the road and sustained serious injuries on her body. On the written information lodged by her father, Crime No.173 of 2015 for an offence under Section 338 I.P.C. was registered by the police against the driver of the offending auto rickshaw. The injured girl was treated at Indus Hospital, Visakhapatnam. Doctors diagnosed fractures on right distal femur, right knee patella, right leg shaft of tibia and fibula and right thigh and hip. Doctors had to conduct three surgeries on her body. She was under treatment for some time as an inpatient and for some time as an outpatient and she took treatment for about two months. During the course of surgeries, screws and implants were inserted into her body. Though injuries were apparently healed she was found unable to walk longer distances and found herself could not stand still for a longer duration and she 3 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 was unable to squat properly. It was in those circumstances, the father as a natural guardian preferred the claim before the Claims Tribunal on behalf of his injured daughter claiming a compensation of Rs.4,00,000/- under various heads.
6. The owner-cum-driver of the offending auto rickshaw, who was respondent No.1 before the Claims Tribunal, did not choose to lay the contest and proceedings were ex parte as against him. Respondent No.2 before the Claims Tribunal is the insurance company and it filed a counter resisting the claim wherein all the facts were denied as incorrect and it contended that the driver of the offending auto rickshaw did not have driving license and that the claim made is exaggerated and it sought for dismissal of the claim.
7. On those rival pleadings, the learned Claims Tribunal settled the following issues for trial:
i) Whether the accident occurred due to rash and negligent driving of vehicle bearing No.AP 35 X 2651 causing injuries to petitioner?
ii) Whether the petitioner is entitled for compensation, if so, what amount and which of the respondents are liable to pay the same?4
Dr. VRKS, J M.A.C.M.A.No.401 of 2022
iii) To what relief?
8. On behalf of the claimant, there was the evidence of PWs.1 to 3 and Exs.A.1 to A.7 and Exs.X.1 to X.3. On behalf of the insurance company, there was the evidence of RW.1 and Ex.B.1-insurance policy.
9. One of the contentions raised by the appellant-insurance company before the Claims Tribunal was that the alleged accident occurred on 22.10.2015, but F.I.R. was registered only on 17.11.2015 with huge margin of delay and that was a fact creating suspicion about the genuineness of the claim. After referring to the evidence on record and the admission of RW.1/the officer of the insurance company, learned Claims Tribunal found that the factum of accident itself was not in dispute and could not be disputed and that the delay in lodging the F.I.R. by itself could not be a ground to doubt the claim and while arriving at such conclusions, it placed reliance on a judgment of the Hon'ble Supreme Court of India in Ravi v. Badri Narayana1.
1 (2011) 4 SCC 693 5 Dr. VRKS, J M.A.C.M.A.No.401 of 2022
10. While assessing the medical expenses, the contention raised before the Claims Tribunal was that the documents produced by the claimant contained double entries thereby enlarging the amount. The learned Claims Tribunal scrutinized the evidence of two doctors/PW.2 and PW.3 and the claimant's father/PW.1 and Ex.A.7-medical bills, Ex.X.1-case sheet of the patient, Ex.X.2-X-ray reports, Ex.A.5-discharge summary and Ex.A.6-X-ray reports and MRI Scan. It observed that towards medical expenses the claim was laid for Rs.2,08,531/-. It stated that as per the medical bills issued by Indus Hospital on two occasions and Pinnacle Hospital on one occasion, the real and actual medical expenditure on part of the claimant was Rs.1,21,245/-. Thus, it accepted the contention of the insurance company and it appropriately scrutinized the medical bills and granted what was found to be the actual medical expenses. Towards diet, nourishment, transportation to the hospital and attendant charges, it granted Rs.38,755/-. Towards loss of amenities of life, Rs.30,000/-, towards loss of prospects of marriage, Rs.30,000/-, towards pain and suffering Rs.1,80,000/- were granted.
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Dr. VRKS, J M.A.C.M.A.No.401 of 2022
11. On evidence, Claims Tribunal found that Ex.B.1- insurance policy was in force by the date of accident. It found that the accident with resultant injuries to the girl child was out of rash or negligent driving of auto rickshaw by the driver-cum- owner. Therefore, it directed the insurance company to pay the compensation that was awarded. It granted 30 days time to the insurance company to comply with the award.
12. Aggrieved by the above award, insurance company preferred this appeal. Two principal contentions are raised by the appellant.
Awarding 12% interest is against law and the same has to be reduced to 7.5% since that is the interest available for fixed deposits in nationalized banks.
Claims Tribunal committed error on facts as well as law. It granted medical expenses and also granted additional amounts for each of the injuries and surgeries under the head 'pain and suffering' and that is incorrect.
13. As against above, the learned counsel for respondent No.1 submits that:
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Dr. VRKS, J M.A.C.M.A.No.401 of 2022 granting 12% interest by the Claims Tribunal cannot be stated to be against law since in various rulings similar rate of interest was granted by the superior Courts. That the injured in this case is a girl child and she had to undergo multiple surgeries on her body and the evidence of the doctor indicates disability to the limbs and that would not only effect the normal pleasures legitimately expected by a child but also would effect prospects of marriage and appropriate ability to work and earn. It is for these reasons, the learned counsel submits that the compensation awarded is just and when the compensation awarded is just, this Court may not interfere with it.
14. The following points fall for consideration:
1. Whether the compensation awarded by the Claims Tribunal is erroneous or excessive?
2. Whether awarding 12% interest by the Claims Tribunal is not in accordance with law?8
Dr. VRKS, J M.A.C.M.A.No.401 of 2022 Point No.1:
15. The fact that respondent No.1/girl child suffered serious injuries on her body because of the rash or negligent act on part of respondent No.2/driver-cum-owner of the offending auto rickshaw, that she had to undergo multiple surgeries to her grievous fractures and she had to take treatment for nearly two months and that still she is unable to sit, stand and walk properly for sufficient duration are not in dispute. The liability of driver-cum-owner and the liability of the insurance company as indemnifier by virtue of existence of valid insurance policy/Ex.B.1 is not in dispute.
16. After granting actual medical expenses, the learned Claims Tribunal at para No.17 of the impugned order stated that from the evidence of PWs.1 to 3 and the various documents filed before it, it found four fracture injuries for which surgeries were done on three occasions. Then it stated as mentioned below:
"Therefore, even if it is taken at Rs.15,000/- for each surgery, under the head of pain and suffering there would be an amount of Rs.45,000/- for three surgeries for each 9 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 injury. Thereby, for four fracture injuries the amount comes to Rs.1,80,000/- (Rs.45,000 x 4)."
17. It is this part of the order this is seriously challenged in this appeal by the insurance company.
18. Be it noted, by the above paragraph, the Claims Tribunal was considering the amount to be granted as compensation towards pain and suffering. To arrive at such conclusion, it offered certain reasons and it is those reasons, which find place in the above extracted paragraph. The fact that law mandates grant of compensation towards pain and suffering under the head non-pecuniary damages is undisputed before this Court. As to how much could be granted under that head is a matter for consideration and the conclusions are to be arrived at based on the evidence available on record and further by way of some guess work since the amount of pain a girl child suffers could not possibly be demonstrated in any clear terms. Putting a price tag on pain and suffering is in a way very challenging. The more severe the injuries the more is the pain and suffering. The mental anguish and emotional distress are partly subjective and partly objective. The length of treatment, the nature of injuries, failure to regain the healthy body even after prolonged 10 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 treatment, the harrowing thoughts of accident that linger in the mind of a child for a long time after the accident are all factors that shall fall for consideration when one quantifies compensation towards pain and suffering. The evidence on record indicates surgeries on three occasions for the fractures suffered by the girl child. Money that was spent actually towards surgeries was already granted by the Claims Tribunal as it dealt with it under the head actual medical expenses. When it comes to pain and suffering, the calculations so made by the Claims Tribunal are neither happily worded nor happily considered. However, the estimation of the Claims Tribunal that out of each surgery the girl child had to endure serious pain and suffering and quantifying Rs.45,000/- for each of those surgeries cannot be said to be incorrect or unreasonable. It is bitter for a child to know that surgery one was not enough for her and she would have to face the knife and scalpel on the surgical table on more occasions after the first one was over. It may be stated that even according to the medical men who treated her/PWs.2 and 3 that complete healing may be possible for this girl child only in future. If that be the case, for quite some time to come this young girl could not live the normal life 11 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 of a young girl and she would be deprived of her natural amenities in life and childhood pleasures that are available in childhood only. Their deprivation is apparent. Despite all that the Claims Tribunal had granted only Rs.30,000/- towards loss of amenities which could never be considered as an appropriate assessment in such circumstances. Viewed in those terms what was granted by the Claims Tribunal for pain and suffering need not be disturbed. Thus, Rs.1,80,000/- granted towards pain and suffering by the Claims Tribunal is to be upheld, though for slightly different reasons and the contentions raised by the insurance company do not have any merit.
Point No.2:
19. Section 171 of the Motor Vehicles Act, 1988 is relevant to be noticed:
"171. Award of interest where any claim is allowed:--
Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."12
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20. The above provision mandates the Claims Tribunal to grant simple interest over the amount of compensation it arrived at. How much is the rate of interest is not mentioned in the statute. That means legislature granted discretion to the Claims Tribunal to award reasonable rate of interests. What could be a reasonable rate is a matter of fact. However, discretion that is vested with the Tribunal had to be exercised by some known standards. It is in those circumstances; one would find that granting interest at the rates offered by the nationalized banks on fixed deposits could be applied. However, the precedent cited before this Court would indicate varying rate of interests being granted by the Courts. The precedent pertains to different periods of time. It is undisputed that rates of interest granted by nationalized banks varied from time to time. It is in the light of these facts of realty, one has to notice the contentions raised here. According to the appellant- insurance company, the interest granted at 12% by the Claims Tribunal cannot be sustained. Learned counsel for appellant cited Sarla Verma v. Delhi Transport Corporation 2. That is 2 (2009) 6 SCC 121 13 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 a case where their Lordships considered the facts which include the date of accident on 18.04.1988. At para 51 their Lordships granted 6% interest per annum over the compensation awarded. Learned counsel for appellant also cited Andhra Pradesh State Road Transport Corporation v. Gaguloth Keema3. That was a case of an accident occurred on 19.01.2010. After referring to the above cited Sarla Verma's case (supra 2), this Court granted 6% interest per annum over the compensation awarded.
21. As against the above, learned counsel for respondent No.1 cited R.L.Gupta v. Jupitor General Insurance Company4. That was a case where the Tribunal awarded 6% interest and their Lordships had raised it to 12% interest.
22. One could also notice in Dr. K.R.Tandon v. Om Prakash5, the Hon'ble Supreme Court of India held that it is relevant to notice the galloping inflation and in view of that their Lordships granted 12% interest over the compensation awarded. In Kaushnuma Begum (Smt.) v. New India Assurance 3 2013 LawSuit(AP) 283 4 (1990) 1 SCC 356 5 (1998) 8 SCC 421 14 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 Company Limited6, their Lordships have stated that the proper rule to consider rate of interest is to grant what is provided by nationalized banks on fixed deposits.
23. In the case at hand, the accident occurred in the year 2015 and the claim was preferred in the year 2016 and the Claims Tribunal passed the award in the year 2021. The material placed before this Court do not indicate any factual submissions on either side informing the Claims Tribunal about the prevailing rates of interest provided by the nationalized banks at the relevant periods enabling the Claims Tribunal to take a reasoned decision in prescribing the rate of interest. It is true according to the learned counsels appearing before this Court the current rate of interest offered by nationalized banks is 7.5%. However, what was there in the year 2015 or 2016 is not there on record. Perhaps in those circumstances, Claims Tribunal may have considered the year 2016 during which time the claim was preferred and may have come to a conclusion that the prevailing rate of interest by then was 12%. Since that being the possible reason it is for the insurance company to 6 (2001) 2 SCC 9 15 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 demonstrate before this Court as to how granting 12% rate of interest could be called either as an error on facts or error on law. A mere submission that today the prevailing rate of interest is 7.5% and therefore, whatever else that was granted could not be sustained is not an argument that could pass the legal hurdle. It is in these circumstances, this Court finds that in the given facts and circumstances, the rate of interest prescribed by the Claims Tribunal cannot be characterized as erroneous at law requiring any interference.
24. In the above referred circumstances, both points are answered against the appellant.
25. In the result, this Appeal is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 29.09.2023 Ivd 16 Dr. VRKS, J M.A.C.M.A.No.401 of 2022 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR M.A.C.M.A. No.401 of 2022 Date: 29.09.2023 Ivd