HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.289 OF 2005
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 Judge, Kadapa(for short, ‘Tribunal’) in M.V.O.P.No.457 of 2001 dated 07.12.2004,
awarding compensation of Rs.55,000/-(Rupees fifty five thousand only) as
against the claim of Rs.1,50,000/-(Rupees one 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 D.Kodanda Rami Reddy, the
learned counsel for claimant-appellant and Sri G.Rama Manoj, the learned
standing counsel for 2nd respondent-The United India Insurance
Company Limted. The 1st
respondent-owner of crime vehicle, remained ex
parte before the Tribunal did not choose to appear in the appeal also,
hence taken as heard for his absence to decide on merits. 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 erred in not taking monthly earnings of the claimant at Rs.4,000/-p.m.
and not applying the Minimum Wages Act
for calculating the income, that the Tribunal erred in not awarding any
amount towards loss of past earnings, and also under other heads like pain and
sufferance, transportation charges, extra nourishment and loss of disfiguration
etc. Hence, to allow the appeal.
4.
Whereas, the contention of the counsel for the Insurer is that for this Court
while sitting in appeal there is nothing to interfere and 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 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:
6.
The facts of the case are that on 19/20.11.2000 due to rash and negligent
driving of the driver of lorry bearing No.TNH-1607 belongs to 1st
respondent insured with 2nd respondent, coming in opposite direction
dashed to the jeep bearing No.AP04-T-2579 in which the claimant was traveling
by paying hire charges, due to which the front portion of the jeep was damaged
and three persons died and other inmates of the jeep sustained injuries including
the claimant, who sustained fracture of his right thigh, grievous injuries to
his head and multiple injuries all over the body, that immediately they were
shifted to Government hospital, Rayachoty for treatment, which occurrence is covered
by Ex.A.1 First Information Report and Ex.A.3 charge sheet. Having considered the oral and documentary
evidence available on record, the Tribunal awarded in all compensation of Rs.55,000/-(Rupees
fifty five only) with interest at 9% p.a. against both the respondents 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 H.D.Hattangadi v. Pest
Controll (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.
From the above propositions, coming to the factual matrix; the fact that the
accident was due to rash and negligent driving of the driver of the lorry of
the 1st respondent-owner insured with the 2nd
respondent-Insurance company which dashed the jeep in which the claimant was
traveling is proved from the evidence of P.W.1-claimant with reference to
Ex.A.1 FIR and A.3 chargesheet and Ex.A.3 wound certificate and there are no
cross-objections against said finding much less with contention that the driver
of jeep alone at fault or there is contributory negligence of both the vehicles. The FIR speaks that it is the lorry while
coming from opposite direction that dashed the jeep and dragged the jeep for
about 30 feet and three persons died on the spot and others injured and
chargesheet of the police also against the jeep driver under Section 304-A, 337
and 338 of IPC. Thus suffice to say the accident was result of rash and
negligent driving of the lorry driver alone. As per Ex.A.3 wound certificate,
the claimant sustained
1) deformity, swelling Haematoma right mid thigh C loss of mobility of right lower limb, a lacerated injury on occipital region 10 cm x 1 cm x bone deep and X-ray of right thigh shows fracture of femer opined that said femer is grievous injury and the other is simple. The claimant was treated in the Government hospital, Rayachoty, and the evidence of P.W.2 Orithopaedic surgeon who examined P.W.1 and taken X-ray shows that in X-ray there is mal-alignment of right femur upto 1/3rd fracture and which is permanent disability and there is abduction of right hip partially restricted and loss of sensation over the lateral aspect of thigh and thus he calculated 20% disability and issued Ex.A.4 disability certificate. From very saying of treatment undergone in the Government hospital, Rayachoty, in arriving of amount under Ex.A.5 medical bills for Rs.7,403/- not accompanied by prescriptions. The Tribunal therefrom taken only Rs.4,000/- with no reasons. Coming to the earnings of the injured of Rs.15,000/- p.a. for no proof taken by the Tribunal, the accident was dated 19.11.2000. As per the expression of Apex Court in Latha Wadhwa vs. State of Bihar[5] 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.
1) deformity, swelling Haematoma right mid thigh C loss of mobility of right lower limb, a lacerated injury on occipital region 10 cm x 1 cm x bone deep and X-ray of right thigh shows fracture of femer opined that said femer is grievous injury and the other is simple. The claimant was treated in the Government hospital, Rayachoty, and the evidence of P.W.2 Orithopaedic surgeon who examined P.W.1 and taken X-ray shows that in X-ray there is mal-alignment of right femur upto 1/3rd fracture and which is permanent disability and there is abduction of right hip partially restricted and loss of sensation over the lateral aspect of thigh and thus he calculated 20% disability and issued Ex.A.4 disability certificate. From very saying of treatment undergone in the Government hospital, Rayachoty, in arriving of amount under Ex.A.5 medical bills for Rs.7,403/- not accompanied by prescriptions. The Tribunal therefrom taken only Rs.4,000/- with no reasons. Coming to the earnings of the injured of Rs.15,000/- p.a. for no proof taken by the Tribunal, the accident was dated 19.11.2000. As per the expression of Apex Court in Latha Wadhwa vs. State of Bihar[5] 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.
9.
Coming to any permanent disability the claimant suffered and how far it
effected his earning capacity as well normal life amenities that is criteria to assess as per the Apex
Court’s expression in Rajkumar
Vs.Ajaykumar[6]
concerned to decide, admittedly, there is no Medical Board certificate regarding
permanent disability, but for of P.W.2 evidence and his Ex.A.4 certificate of
20% disability and the Tribunal also not discussed anything more to take 20%
disability apart from how far it effects his earnings and normal life from
impact of said injuries that is criteria to assess the disability as per Rajkumar (supra). It is thus to take
from above factual matrix, the permanent disability of 10% on earnings and loss of amenities in normal life and from the
age even taken about 36 years, the multiplier applicable is 15 and by estimated
earnings at Rs.3,000/- per month, for 10% disability it comes to Rs.300/-p.m. x
12 x 15= Rs.54,000/-, for medical expenses Rs.7,000/- is taken by the Tribunal and for the fracture of
right femer and its pain and sufferance,
an amount of Rs.20,000/-, for extra nourishment, attendant charges, transport
charges and also for loss of total earnings during treatment period for two
months in all taken Rs.19,000/-, it comes to Rs.1,00,000/- is just compensation
to award. Accordingly, Point No.1 is answered.
10.
Coming to the
rate of interest, though the interest at 9% per annum awarded by the Tribunal,
from the settled proposition of law in TN Transport Corporation v. Raja
Priya[7],
Sarla Verma v. Delhi Transport Corporation[8]
and from the latest expression of the Apex Court in Rajesh v. Rajbir
Singh[9],
interest is awarded at 7½% p.a.by modifying and reducing from 9% 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.55,000/- to
Rs.1,00,000/-(Rupees one lakh only) with interest at 7½% p.a. from the date of
petition (MVOP) till realization/deposit with notice. Respondents are directed to deposit said
amount with interest within one month from today, 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 RAO, J
Date:
.02.2014
VVR
Note: L.R.
copy to be marked. Yes/No
