HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.126
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 Judge,(Fast Track Court) Nizamabad,
(for short, ‘Tribunal’) in
M.V.O.P.No.732 of 2003 dated 12.10.2006, awarding compensation of Rs.5,000/-(Rupees
five thousand only) as against the claim of Rs.2,00,000/-(Rupees two 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 M.Rajamalla Reddy, learned counsel for the appellant and 1st
respondent owner of the crime vehicle having been remained ex parte before the Tribunal did not choose to put forth his
appearance and the notice even taken to same address returned unserved, even
not taken as sufficient, his absence no way effect the maintainability of the
claim. In this regard, in M.Chakradhara Rao v.
Y.Baburao[1],
the Division Bench of this Court at paragraph No.12 held that statutory
liability of the insurance company, in the absence of the owner of the crime
vehicle in the appeal filed by the claimants, can be decided and maintainable
as held in New India Assurance Company Limited v. Harijana Babakka[2] for fixing statutory liability, the presence
of the owner at the appellate stage is not necessary. The same was also quoted
with approval in G.Aravind Kumar v. Md Sadat Ali[3].
Thus, the contention that the appeal is not maintainable without impleading
owner of the vehicle as co-respondent against the insurer of the vehicle is not
sustainable and thereby it can be taken up for hearing. The 2nd
respondent-Insurer also even served did not choose to put forth his appearance.
Hence taken as heard for the absence to
decide on merits. Perused the material on record and 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 went wrong
in not taken consideration of the grievous injuries sustained by the claimant
proved from the evidence of P.W.2 with reference to documents and should have
awarded a just compensation and thereby sought for allowing the appeal as
prayed for.
4).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 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:
5. The
facts of the case are that on 15.03.2003 the claimant was travelling in the
auto bearing No.AP-25-U-3319 belongs to the 1st respondent insured
with the 2nd respondent-Insurer covered by Ex.A4 policy towards
Satapur and at about 3.00 P.M. when reached near Sarangapur Grampanchayat
Office, due to rash and negligent driving of the driver of said auto, he lost
control of it, due which the auto turned turtle, as a result the claimant
sustained fracture of medial mallelous metacarpal bone of left ankle and also
sprain over the right ankle, (as per Ex.A.3 wound certificate), which occurrence
is covered by Ex.A.1 First Information Report and Ex.A.2 charge sheet. The
Tribunal basing on the oral and documentary evidence on record, awarded in all
compensation of Rs.5,000/- with interest at 7.5%p.a. against both the respondents(owner
of crime vehicle and Insurer).
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[4],
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[5]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[6]
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[7]
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.The
fact that the accident was due to rash and negligent driving of the driver of
the crime auto of the 1st respondent insured with the 2nd
respondent proved from the evidence of P.W.1 coupled with Exs.A.1 FIR and
Ex.A.2 chargesheet is not in dispute and no way requires interference by this
Court.
8.
From the above legal position, coming to the compensation awarded by the
Tribunal impugned as low and unjust concerned, as per Ex.A.1 FIR which set the
law into motion by one of the injured persons i.e. Mahammad Khajamiya besides
the claimant, others and the driver of the auto who tried to avoid the children
who came on the road from accident, sweared the due to which the auto turned
turtle. This claimant is one of the injured persons travelling in the auto is
also proved therefrom. Now coming to what are the injuries he sustained as FIR
is silent but for in the claim petition the Ex.A.3 wound certificate based on
the police requisition addressed to the Medical Officer of the Government
Headquarters hospital, Nizamabad, shows it was issued by P.W.2 doctor
T.Narsimha Rao by using the seal of the Government hospital as if he is the
government medical officer even by 23.03.2003 though he was not in service
since long before to the certificate, to say he misused in giving his
certificate as if there are grievous fractures to the left ankle, metacarpal
bone of the left foot and simple injury to the right ankle. The Tribunal from
that not believed the said medical certificate as well as the evidence of P.W.2
doctor, rightly however taken as one simple injury and awarded compensation
though the wound certificate itself speaks three injuries even to take. Having regard to the above, by taking
consideration of three injuries, an amount of Rs.6,000/-, and for medical
expenses and transport charges an amount of Rs.2,000/- in all Rs.8000/-
compensation is just to enhance with interest at 7.5%p.a. Accordingly, Point-1
for consideration is answered.
POINT -2:
9. 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.5,000/- to Rs.8,000/-(Rupees eight
thousand only) with interest at 7½% per annum from date of the claim petition
till realization/deposit with notice. Both the respondents 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:
12.02-2014
VVR
