*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.739 of
2007
%
Dated 07.02.2014
Between:
# Parasapogu Devadasu ...Appellant
and
$ T.Ramarajan and another ….Respondents
! Counsel
for the Appellant : Sri N.Subba Rao
^ Counsel
for respondent No.1 :
none appeared
Counsel for respondent No.2-
The Oriental Insurance Company
Limited : Sri A.V.K.S.Prasad
< GIST:
>HEAD NOTE:
? Cases
referred:
1)
1965(1)
All.E.R-563
2)
1963(2)
All.E.R.432
3) 1969(1) All.E.R.555
4) 1995
ACJ 366(SC)
5) 2003 (5) ALT 247(DB)
6) 2010(4) ALD 531
7) 2011 ACJ 1
8) (2001)8 SCC 197= AIR 2001(SC)
3218
9) (2005) 6 SCC 236
10) 2009 ACJ 1928
11) 2013(4) ALT 35(SC)
12) 2004(2) SCC-297
HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.739
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–I Additional District and Sessions Judge, Guntur,(for short, ‘Tribunal’) in M.V.O.P.No.1252
of 2000 dated 28.02.2007, awarding compensation of Rs.2,05,000/-(Rupees two
lakh five thousand only) with interest at 6% p.a. as against the claim of Rs.6,00,000/-(Rupees
six lakh 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 N.Subba Rao, the learned counsel for the
appellant and Sri A.V.K.S.Prasad, the learned standing counsel for the 2nd
respondent-The Oriental Insurance
Company Limited, the 1st respondent-owner of the crime vehicle 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 quantum of
compensation awarded by the Tribunal is utterly low, unjust and untenable and
to allow the claim as prayed for. Whereas,
it is the contention of the 2nd respondent-Insurer that the award of
the Tribunal itself is excessive, exorbitant but for no cross-objections to
reduce the claim under Section 163-A of the Act to be taken for Section 163-A
and 166 mentioned and when such is the case, the maximum awarded to medical
expenses and for the fracture of disability to be taken is very small thereby
to reduce as per Section 163-A of the Act, and sought for dismissal of the
appeal.
4).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 and whether the claim filed under
Section 163-A and 166 of the Act to be treated as of Sec.166 or 163-A of the
Act?
2. To what result?
POINT-1:
5. The
facts of the case are that on 24.4.2000 at about 10.25 P.M. the claimant was
travelling in Tamil Nadu Road Transport Corporation bus bearing No.TN 21-0247 from Thada village
to Sulluripet for attending duties, when they reached near Chevigunta village,
the driver of the tanker lorry bearing No.TN 2A-6777 belongs to 1st
respondent of the claim petition insured with the 2nd respondent of
the claim petition drove in a rash and negligent manner and dashed against the bus from opposite
direction, due to which the claimant sustained grievous injuries. P.W.1 deposed
in proof of the facts, besides P.W.3 doctor treated P.W.1 of the injuries on
his right hand and left leg and took
treatment in private Nursing Home at Chennai for a period of two months and
underwent operations and also in Government General Hospital, and St.Joseph’s
General Hospital, Guntur and his right hand was amputated and that apart he
incurred permanent disability due to the fractures sustained by him to left leg
also, 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.2,05,000/- in
all with interest at 6%p.a. against both
respondents jointly and severally.
6. 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.
7.
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.
8.
Coming to the rival contentions on the claim petition to be taken under Section
163-A or 166 of the Act, from both the provisions mentioned and for option not
exercised by the claimant before the Tribunal during enquiry even concerned; Perusal
of the claim petition averments shows filed covering the averments under
Section 166 of the Act by misquoting of Section 163-A also and the award of the
Tribunal also shows proceeded under Section 166 of the Act. The decision relied
on by the Insurer of National Insurance Company Vs. J.Yllappa[5]
speaks that two simultaneous proceedings one u/s. 163-A and the other u/s. 166 of
the Act cannot be allowed but for to opt one. The other Division Bench
expression of this Court in Bhupati Prameela Vs. Superintendent of police[6]
holds that even the claimant filed under both provisions, it has to be
considered under Section 166 when it is beneficial to the claimants.
9.
The claimant suffered amputation of above the right elbow and below the
shoulder. The permanent disability
therefrom specified by the P.W.3 doctor from said amputation is 60%. As per schedule-I (part-II) of the Workmens
Compensation Act, and as per Schedule of the Personal Injuries (Compensation)
Insurance Act,1963 amputation below the shoulder from tip of acromion stump exceeding 6inches left
with 70% and through elbow or below elbow with stump not exceeding 5inches
right is 80%. Apart from it, there is a
crush injury on left leg and for that the doctor deposed 20% permanent
disability. No doubt, disability of separate limbs cannot be taken but of all together
has to be assessed in arriving percentage of disability not only to assess loss
of earnings, if any, from nature of avocation but also to assess loss of amenities
from not gaining normalcy as was prior to accident for rest of life as laid
down by the Apex Court in Rajkumar Vs.Ajaykumar[7]. Here, as stated above, the very right hand
above elbow speaks disability of 80% even ignoring the crush injury that is to
take into consideration for 80% disability of permanent nature. No doubt, the claimant was a Constable as on
the date of accident 24.04.2000 and he received voluntary retirement with
effect from 30.11.2001 out of his service remained of three more months for
retirement on superannuation by dated 28.02.2002 to say rest of his service is
very short. However, there is nothing to show he availed any Earned Leave after
exhausting commuted leave to say any loss of earnings suffered for a period of
his non-attending the duty. In the absence of loss of Earned Leave from loss of
encashment no compensation for loss of earnings to award as rightly contended
by the Insurer. The fact remains being a
constable after his superannuation, he can utilize his service even as a
Security Guard even in those days to earn minimum of Rs.3,000/- i.e what the
Apex Court in Latha Wadhwa vs. State of Bihar[8]
held that even there is no proof of income and earnings, it can be reasonably
estimated at Rs.3,000/- p.m. for any non-earning member and even for housewife
as domestic contribution, if that is taken in addition to the pension he gets
from his age as on the date of accident below 56 years and the multiplier that
is applicable for a person between 51 to 55 is 11 and from his earnings even
taken Rs.3,000/- per month. 80% disability therefrom Rs.2400/- x 12 x 11 = Rs.3,16,800/-,
Rs.30,000/- for pain and sufferance from the injuries i.e. for the amputated
grievous injury and other crush grievous injury, Rs.53,000/- for the medical expenses
and extra nourishment and any artificial limb to the extent not reimbursed, as taken
by the Tribunal and an amount of Rs.20,000/- additionally awarded towards
attendant charges and transport charges, it comes to Rs.4,19,800/- rounded to
Rs.4,20,000/- by enhancing from Rs.2,05,000/-
as awarded by the Tribunal.
10.
Now coming to the rate of interest, the Tribunal awarded at 6%p.a. is low but from
the Apex Court expressions in TN Transport Corporation v. Raja Priya[9]
and Sarla Verma v. Delhi Transport Corporation[10]
and from the latest expression of the Apex Court in Rajesh v. Rajbir Singh[11],
three judge Bench, the interest awarded at 7½% per annum therein is reasonable.
Apart from it, the
Apex Court in DDA Vs. Joginder S. Monga[12] 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. Hence, the
interest awarded by the Tribunal is modified and enhanced from 6%p.a. to 7½%
p.a. 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.2,05,000/- to Rs.4,20,000/-(Rupees four
lakh twenty thousand 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:
07.02.2014
VVR
Note:
L.R. copy to be marked. Yes/No
