HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1648
OF 2007
JUDGMENT:
The injured-claimant filed this appeal, having been
aggrieved by the Order/Award of the learned Chairman of the Motor Accidents
Claims Tribunal–cum–X Additional Chief Judge, at Hyderabad, (for short, ‘Tribunal’) in M.V.O.P.No.289
of 2005 dated 11.12.2006, against the compensation awarded of
Rs.97,370/-(ninety seven thousand three hundred and seventy only) against the
claim of Rs.3,50,000/- (Rupees three lakh fifty thousand only) as prayed for by
the claimant in the claim petition under Section 166 of the Motor Vehicle
Act,1988 (for short, ‘the Act’).
2. Heard Sri C.Vikram Chandra, the learned counsel for the
appellant, and Sri P.Harinatha Guptha, the learned standing counsel for the 2nd
respondent-Insurer and Sri V.Ramachander Goud, learned counsel for the 1st
respondent-owner of crime vehicle perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
3. The
contentions in the grounds of appeal in nutshell are that the award of the
Tribunal is contrary to law, weight of evidence and probabilities of the case,
that the Tribunal should have taken the disability suffered by the claimant
from the evidence of P.W.2 doctor who treated him with reference to Ex.A.5
wound certificate and Ex.A.3 discharge card and Ex.A.4 discharge bill and also
for the damage caused to the vehicle and thereby sought by allowing the claim
as prayed for.
4. Whereas,
the learned counsel for the 1st respondent-owner for the crime
vehicle as well as learned standing counsel for the 2nd
respondent-Insurer contends that for this Court while sitting in appeal there
is nothing to interfere with the award of the Tribunal but for to reduce
quantum of compensation for no cross-objections. Hence, to dismiss the
appeal.
5).Now
the points that arise for consideration in the appeal are:
1. Whether the compensation awarded by the
Tribunal is not just and utterly low and requires interference by this Court
while sitting in appeal to set aside the same if so, to what extent the
claimant is entitled for compensation with what rate of interest?
2. To what result?
POINT-1:
6. The
facts of the case are that on 18.12.2003 at about 8.00 A.M. when the claimant
was proceeding on TVS Victor motor cycle from Kanakagiri to Tawaragiri and when
the claimant reached at APMC Gate at that time one lorry bearing No.KA 37/5445
belongs to the 1st respondent insured with the 2nd
respondent came from Kanakagiri side and hit the TVS Motor Cycle of the
claimant due to which the claimant fell down and sustained grievous injuries
and fractures i.e. 1) Abrasion 2 x 3 cms on left side of forehead, 2)closed
communated fracture shaft of left femur(thigh bone) middle 1/3rd junction
3) Fracture to both bones left leg middle 1/3rd with 7 x 5 lacerated
wound over posterolateral aspect of leg( as per Ex.A.5 wound certificate), which
occurrence is covered by Ex.A.1 First Information Report and Ex.A.3 charge
sheet. The Tribunal basing on the oral and documentary evidence, awarded compensation of Rs.97,370/- in all with
interest at 7.5%p.a. against the respondents 1 and 2 jointly and severally.
7.
Before coming to decide, what is just compensation in the factual matrix of the
case, It is apt to state that perfect compensation is hardly possible and money
cannot renew a physique or frame that has been battered and shattered, nor
relieve from a pain suffered as stated by Lord Morris. In Ward v. James[1],
it was observed by Lord Denning that award of damages in personal injury cases
is basically a conventional figure derived from experience and from awards in
comparable cases. Thus, in a case involving loss of limb or its permanent
inability or impairment, it is difficult to say with precise certainty as to
what composition would be adequate to sufferer. The reason is that the loss of
a human limb or its permanent impairment cannot be measured or converted in
terms of money. The object is to
mitigate hardship that has been caused to the victim or his or her legal
representatives due to sudden demise. Compensation awarded should not be
inadequate and neither be unreasonable, excessive nor deficient. There can be
no exact uniform rule in measuring the value of human life or limb or sufferance
and the measure of damage cannot be arrived at, by precise mathematical
calculation, but amount recoverable depends on facts and circumstances of each
case. Upjohn LJ in Charle red House Credit v. Tolly[2]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[3]
observed that to compensate in money for pain and for physical consequences is
invariably difficult without some guess work but no other process can be
devised than that of making a monitory assessment though it is impossible to equate the money
with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest
Control (India) Private Limited[4]
at paragraph No.12 held that in its very nature whatever a Tribunal or a
Court is to fix the amount of compensation in cases of accident, it involves
some guess work, some hypothetical consideration, some amount of sympathy
linked with the nature of the disability caused. But all the aforesaid elements have to be
viewed with objective standard. Thus, in most of the cases involving Motor
Accidents, by looking at the totality of the circumstances, an inference may
have to be drawn and a guess work has to be made even regarding compensation in
case of death, for loss of dependent and estate to all claimants; care,
guidance, love and affection especially of the minor children, consortium to
the spouse, expenditure incurred in transport and funerals etc., and in case of
injured from the nature of injuries, pain and sufferance, loss of earnings
particularly for any disability and also probable expenditure that has to be
incurred from nature of injuries sustained and nature of treatment
required.
8.
The fact that the accident was the result of the rash and negligent driving of
the driver of the crime lorry of the 1st respondent insured with the
2nd respondent from the evidence of P.Ws. 1 and 2 with reference to
Exs. A.1 FIR,A.3 chargesheet with its translation copy from Kannada(Ex.A.4) and
A.5 wound certificate is not in dispute.
9.
From the above legal position, coming to the factual matrix, now coming to the
quantum of compensation and liability of the Insurer is concerned, the claimant
furnished policy No.604002/31/02/630591 the particulars of vehicle in the claim
petition as 19.03.2002 to 18.03.2004 but for merely denying by the Insurer of
the claimant has to prove the vehicle is insured with, not specifically denied
as contemplated under Order VIII Rule 3
to 5 of CPC of the vehicle policy particulars furnished are not correct. Thus, suffice to say vehicle is insured with
the 2nd respondent for not even producing the said policy
particulars if not related to the crime vehicle to say as not related. Thereby
the Tribunal is right in fixing joint liability against the Insured and Insurer
and so far as the compensation is concerned, for this Court while sitting in
appeal with the said contention of the Insurer even entitled to take the
findings without cross-objections under Order XLI Rule 22 of CPC, there is
nothing to interfere. As per Ex.A.5 wound certificate issued by Karnataka
Medical Department Primary Hospital, of Kanakagiri, the claimant E.Ramanjaneyulu
in the road accident sustained injuries viz., abrasion 3 x 2 cms on left side
of forehead 2) closed communited fracture of shaft left femur and 3)Fracture of
both bones leg M/L 3rd with 7 x 5 lacerated wound over
posterolateral aspect of leg. Ex.A.6 the O.P.Chit of the NIMS Hospital,
Hyderabad, speaks there was interlocking of nailing to the left femur and for
the Ilizarov ring fixator application to left leg and he was examined and
operated on 30.12.2003 as well as on 08.01.2004 and the prior visit was on 19.12.2003
and he attended to the hospital further in that period the observation was he
was recovered well as per the evidence of P.W.2 Chandrasekhar, Orthopedic
Surgeon of NIMS Hospital, the claimant sustained closed communited fracture of
shaft of left femur 3) A compound fracture of both bones of left leg middle 1/3rd,
and head injury and he was operated on 30.12.2003 and 08.01.2004 by
interlocking nailing of left femur and
llizarov ring fixator application to left leg bone and he was advised to come
after one month as out patient and he attended for review as per Ex.A.6 OP card
referred supra and he requires one more operation that removal of nail in left
thigh bone which may cost around Rs.15,000/- and he had 1cm shortening in the
left leg and had some suffering in the left knee and suffered 10% partial
permanent disability and Exs.A.6 O.P.Card Ex.A.8 Bunch of Medical
prescriptions, Ex.A.12 X-rays and Ex.A.14 discharge bill are issued by their
hospital. He deposed that P.w.1 can
attend his normal duties and denied the suggestion of no second operation
required much less with any further bed rest. From the above also it discloses
the severe injuries are sustained and the P.w.1 evidence coupled with Ex.A.6
O.P.Card of NIMS clearly proved Ex.A.13 and Ex.A.14 discharge summery shows
close communited fracture of shaft of left femur, the compound fracture of both
bones on middle 3rd with 7 x 5 c.m with lacerated injury over
posterolateral aspect of the leg. Therefore for the communited fracture of the
shaft of left femur thigh bone, an amount of Rs.25,000/- and for the Grade II
compound fracture of both bones of left leg middle 1/3rd an amount
of Rs.25,000/-, and for the head injury an amount of Rs.5,000/- including the
amounts for pain and sufferings, for the lacerated wound of the leg from which
the compound fracture injuries, an additional sum of Rs.5,000/- and for medical
expenses and treatment as per the Ex.A.14 discharge bill of the NIMS Hospital
and in all comes to Rs.60,000/- and in
addition to the bills for Rs.22,870/- covered by Ex.A.7 as deposed by P.W.2
comes to Rs.53,000/-, and an amount of Rs.5,000/- for the vehicle repairs from
Ex.A.9 showroom bills are not correlating for what are the repairs to be
attended and what are the spare parts purchased with reference to Ex.A.11 scene
observation report shows pieces of indicators of the TVS Moped scattered around
and indicators and glasses broken and portion of body damaged and no photos
have been filed to increase any more. Rs.1,18,000/-+ loss of earnings of
Rs.7,000/- for two months , Transport charges, Extra nourishment and attendant
charges an amount of Rs.5,000/- in all Rs.1,30,000/- is the just compensation
with interest at 7 ½ % p.a.
POINT -2:
10. In the result, the appeal is partly
allowed by modifying and enhancing the compensation from Rs.97,370/- to
Rs.1,30,000/- (Rupees one lakh thirty thousand only) with interest at 7½% per
annum from date of the claim petition till realization/deposit with notice. The
Respondent Nos.1 and 2, who are jointly and severally liable to pay the
compensation, are directed to deposit within one month said amount with
interest from the date of petition, failing which the claimant can execute and
recover. On such deposit or execution
and recovery, the claimant is permitted to withdraw the same. There is no order
as to costs in the appeal.
_________________________
Dr. B. SIVA
SANKARA RĀO, J
Date:
11.02.2014
VVR
Note:
L.R. copy to be marked. Yes/No
