HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.684
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–III Additional District and Sessions Judge, Kadapa,(for short, ‘Tribunal’) in M.V.O.P.No.83
of 2002 dated 17.05.2005, awarding compensation of Rs.50,000/-(Rupees fifty thousand
only) as against the claim of Rs.2,50,000/-(Rupees two lakh fifty thousand only),
for enhancement of compensation as prayed for in the claim petition under
Section 166 of the Motor Vehicle Act,1988 (for
short, ‘the Act’).
2. Heard Sri V.Ravi Babu, the learned counsel for the
appellant and Sri M.Ravi Shankar Jandhyala, the learned standing counsel for
the 2nd respondent-The United
India Insurance Company Limited, the 1st respondent-owner served
with notice called absent with no representation and thus taken as heard for his absence to decide on
merits and 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 as well as submissions during course of
hearing in nutshell are that the award of the Tribunal is contrary to law,
weight of evidence and probabilities of the case, that the Tribunal gravely erred
in not taking monthly earnings of
Rs.3,000/-, and 30% disability spoken by P.W.3-private doctor
G.Venkatasubbaiah, who issued Ex.A.6 disability certificate and not even
properly considered the expenditure incurred towards medical expenses, treatment,
extra nourishment and transport charges and filed receipts and bills which
ranged upto Rs.60,000/- and thereby the compensation awarded is utterly low and
unjust.
4. The
1st respondent to the appeal as well as claim petition who remained ex
parte before the Tribunal also not chosen put forth his appearance herein.
5. It
is the contention of the 2nd respondent-Insurer that the amount
awarded by the Tribunal itself is excessive but for no cross-objections to reduce
but for this Court while sitting in appeal there is nothing to interfere.
Hence, to dismiss the appeal by reducing the rate of interest since awarded by
the Tribunal at 9%p.a. is abnormal though Sarla Verma v. Delhi Transport Corporation[1]
speaks at
6%p.a. only.
6).Now
the points that arise for consideration in the appeal are:
1. Whether the compensation awarded by
the Tribunal is not just and requires interference by this Court while sitting
in appeal against the award and if so with what enhancement to arrive a just
compensation and with what rate of interest?
2. To what result?
POINT-1:
7. The
facts of the case are that, on 28.03.1998 a lorry bearing No.AP26 T 8474
belongs to the 1st respondent insured with the 2nd
respondent covered by Ex.A.8 policy in which the claimant is a cleaner, due to
rash and negligent driving of the driver dashed against the lorry bearing No.
ADD 3393 going ahead of the lorry of 1st respondent, as a result,
the claimant sustained bleeding and fractured injuries and he was taken to
Government hospital at Allagadda for treatment and from there to Government
General Hospital, Kurnool where he took treatment for 20 days and then admitted
in private hospitals at Kadapa and took treatment for 10 days and incurred
Rs.55,000/- in all towards expenditure and after that he was unable to attend
cleaner work, which occurrence is covered by Ex.A.1 First Information Report
and Ex.A.2 charge sheet. The Tribunal
from the oral and documentary evidence on record, awarded compensation of Rs.50,000/-
in all with interest at 9%p.a. against both
respondents jointly and severally.
8. 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[2],
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[3]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[4]
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[5]
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.
9.
From the above legal position, coming to the factual matrix, the fact that the accident
was the result of rash and negligent driving of the driver of crime vehicle belongs
to the 1st respondent insured with the 2nd respondent is
proved from the evidence of P.W.1 with reference to Ex.A.1 FIR and Ex.A.2
charge sheet besides that of P.W.2 as rightly concluded by the Tribunal and for
this Court while sitting in appeal there is nothing to interfere.
10. Now coming to the quantum of compensation
awarded by the Tribunal is concerned, as per Ex.A.3 wound certificate issued by
the Government hospital, Allagadda where and within whose jurisdiction the
accident took place on 28.03.1998 and for better treatment shifted to
Government hospital, Kurnool for a lacerated injury of ½ x ¼ over left forearm
upper part,(grievous in nature), a lacerated injury of ¼ x ¼ over left forearm
lower part(grievous in nature) and x-ray shows fracture of radius of left
forearm. From Ex.A.3 wound certificate there is nothing to show any mal-union.
The doctors in Government hospital, Allagadda or and Kurnool to where referred for
better treatment were not examined.
P.W.3 is not a government doctor of Kurnool or Allagadda admittedly
there is no any Medical Board disability certificate but for of P.W.3 covered
by Ex.A.6 to say as if there is disability. It is important to note that there is only a
fracture of one bone radius of the left forearm and not even a compound
fracture to say there was malunion that gives disability. That itself is sufficient not to give
credence to evidence of P.W.3 as well as the certificate of disability issued
by him covered by Ex.A.6 as rightly held by the Tribunal and for this Court while
sitting in appeal there is nothing to interfere,so far as the finding of the no
disability suffered by the claimant is concerned. The Tribunal therefrom in all
awarded compensation of Rs.50,000/- including for fracture, pain and sufferance
and for other simple injury, medical expenses, transport charges etc. There is
nothing to show treatment taken is not free from Government hospital Allagadda
or Kurnool where he was treated and operated. When such is the case, the
claimant by filing several medical bills covered by Ex.A.4 stated as incurred
huge expenditure and Ex.A.10 transport charges incurred cannot be given
credence as rightly concluded by the Tribunal. Therefore, it is now to consider
what is just compensation. For the
fracture including pain and sufferance an amount of Rs.20,000/- maximum is the
just compensation and for the simple injury Rs.2,000/-, for medical expenses
and treatment Rs.9,000/- even from Ex.A.4 bills, extra nourishment Rs.2,000/-,
transport charges Rs.5,000/- maximum, loss of earnings even taken for few
months maximum Rs.12,000/- for loss of
avocation and attendant charges of Rs.5,000/- in all it comes to making rounded
to Rs.55,000/- and from the settled proposition of law in TN Transport
Corporation v. Raja Priya[6]
and Sarla Verma (supra) and from the latest expression of the
Apex Court in Rajesh v. Rajbir Singh[7],
interest is awarded at 7½% per annum by modifying and reducing from 9% per
annum awarded by the Tribunal. Apart from it, the Apex Court in DDA Vs. Joginder S. Monga[8] it is
categorically held that the discretionary power to award interest not depends upon any
cross-objections or counter claim but from the facts and circumstances to
appreciate within the power of the Court which can be exercised even by the
appellate Court within its power under Order XLI Rule 33 of CPC Accordingly,
Point-1 for consideration is answered.
POINT -2:
11. In the result, the appeal is
partly allowed by modifying the Award of the Tribunal on quantum of
compensation by enhancing the same from Rs.50,000/- to Rs.55,000/-(Rupees fifty
five thousand rupees only) with interest at 7½% p.a. 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:
03.02.2014
VVR
Note:
L.R. copy to be marked. Yes/No
