HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.Nos.1371
AND 1565 OF 2007
COMMON 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–Additional Chief
Judge, City Civil Court, at Secunderabad (for
short, ‘Tribunal’) in M.V.O.P.No.286 of 2004 dated 27.11.2006, awarding
compensation of Rs.13,51,000/-(Rupees thirteen lakhs fifty one thousand only) with
joint liability of respondents 1 and 2- the A.P.Tourism Development Corporation
Limited and the insurer as against the claim of Rs.30,00,000/-(Rupees thirty
lakhs 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’), with the contentions in the grounds of
appeal that the compensation awarded by the tribunal is utterly low and unjust, that the tribunal erred in
awarding just, reasonable and adequate
compensation though held that the accident was occurred on account of rash and negligent
driving of the driver of the A.P.Tourism bus-1st respondent, that
the learned judge grossly erred in not taking into consideration the loss of
income of the appellant during the period of his undergoing treatment and more
particularly during the period of disability as he was totally advised to take
bed rest and was unable to move, though totally supported by the oral and
documentary evidence on record i.e. P.Ws.2 to 5, that the actual loss of income
i.e. pecuniary damages as well as non-pecuniary damages are too low and not in
accordance with the principles of granting compensation, that the tribunal
ought to have seen that the appellant has suffered grievous injuries as
evidenced by the inquiry/wound certificate i.e. Ex.A.3 and underwent operation
twice and further advised to undergo further operation in future, resulting in
partial permanent disability which is clearly and categorically supported by
the evidence of the doctors i.e. P.Ws.7,8 and 9 and therefore, the award of compensation
towards disability is too low, inadequate, unreasonable and unjust, that the
tribunal ought to have seen that the appellant-claimant has suffered partial
permanent disability as evidenced by the disability certificates viz., Exs.A.24
and A.25 issued by the doctors who treated the appellant-claimant, that the tribunal
erred in not awarding the claimant towards medical expenses by considering
medical bills issued by the hospital authorities, that the tribunal has failed
to consider the evidence of the doctors which is clear and categorical that
there is still non-union of fracture with implant failure as per the x-ray
dated 12.9.2006 and suffering from limping throughout the life, hence, to set
aside the award passed by the tribunal by allowing the appeal as prayed for. Learned counsel for the appellant-claimant
reiterated the said contentions during course of hearing.
MACMA
No.1565 of 2007:
2.
This appeal is filed by the 2nd
respondent-insurer of the same claim petition i.e. M.V.O.P.No.286 of 2004
aggrieved by the award with the grounds in the appeal that the compensation
granted by the tribunal is excessive and the tribunal got too much carried away
with the imaginary projections with the regard to the income of the claimant,
future loss of earning by taking the physical disability and the loss of past
earnings on the basis of this monthly supervisory services for the months the
claimant is bed-ridden, that the Court below adopted some unknown methodology
incapable of being a subject of legal or factual analysis. Hence, to set aside
the award of the tribunal by allowing the appeal. Learned standing counsel for
the Insurer reiterated the said contentions during course of hearing.
3. Perused the material on record in both the appeals. The parties hereinafter are referred to as arrayed
before the Tribunal for the sake of convenience in the appeal.
4. Now the common points in both the appeals that arise for
consideration in the appeal are:
1.
Whether the
compensation awarded by the Tribunal is unjust and requires interference by this Court while
sitting in appeal against the award and if so with what observations to arrive
a just compensation and with what rate of interest?
2. To what result?
POINT-1:
5. The fact that the
accident was the result of the rash and negligent driving of the driver of the
crime bus bearing No.AP09X 2531 belongs to the 1st respondent of the
claim petition as well as appeal herein is not in dispute. The dispute is
regarding to the quantum of compensation in the appeals by the claimants seeks
to enhance and by the insurer seeks to reduce. On behalf of the
claimant/appellant 9 witnesses examined including the P.W.7 to 9 the doctors
and placed reliance upon Exs.A.1 to A.39 which include Ex.A.3 wound certificate
issued by the doctors at Government hospital, Gooty, Ex.A.6 admission and
discharge summary-cum-bill from Apollo hospital, Ex.A.7 discharge summary of
Premier hospital, Ex.A.8 discharge summary from Kamineni Hospital. Ex.A.9
discharge summery from Krishna Institute of Medical Sciences, Ex.A.10 to A.22
O.P.chits of Ambika Clinic, Niveditha Clinic, Kamineni Hospital, Uday Clinic
and TTD Balaji Institute, Tirupati, Ex.A.23 is estimation for future medical
expenditure from Sushmitha Clinic. As pointed out by the Insurer when treated at
Superspeciality hospitals again treatment at small clinics like Ambika,
Niveditha and Sushmita cannot be given credence. Ex.A.24 is no doubt the disability
certificate issued by doctor Kamaraju-P.W.1 of Kamineni hospitals. Ex.A.25 is
another disability certificate issued by the Dr. G.Subhash Rao Orthopaedic
surgeon, who is not even examined to prove it. Ex.A.39 are the
x-ray films and Ex.A.36 receipts for payment to so called personal attendant. Ex.A.35 bills are claimed for transport to hospital, Ex.A.34 are the bunch of pathological, clinically and radiological reports and prescriptions. Ex.A.33 medical bills are claimed for Rs.2,76,349/- and remaining out of Exs.A.1 to A.39 are First Information Report, chargesheet and insurance policy etc., of which and particularly Ex.P.27 to 31 are the so called lease agreement for pisciculture on land allegedly taken on lease from one Shivaram Krishna Prasad (land owner)-P.W.2 by the claimant-P.W.1 and so called cash receipt of lease amount for the 2nd year i.e. 2003, Rs.2,02,400/- and so called fish seed purchase of feed from Kanakadurga Fish Hatcheries of Rs.92,500/- and for medicines and feed etc, he purchased from Nanayal Aqua feeds Private Limited for Rs.2,06,078/- and alleged compromise deed with the owner of the land Shivaram Krishna Prasad-P.W.2. Out of P.Ws. 1 to 9, P.Ws. 3 to 6 are in relation to the alleged lease and purchase of food or seed or the Pisciculture cultivated product. In fact, among Exs.A.1 to A.39, there are no any income tax returns of the complainant-P.W.1 filed to say he is getting so called huge income. It is his claim that he was a pisci cultivator and he entered into alleged lease agreement for three years with the P.W.2 on 02.01.2002 of 3.746 hectors of land in Nuchumela village Mandamarri mandal, Krishna District for the aqua farm and paid Rs.2,02,504/- for the first year and invested Rs.3,00,000/- for purchase of seeds, medicines and feed and started aqua culture on 12.01.2002 and maintained farm and harvested on 21.07.2002 and earned Rs.5,00,000/- in the first crop. In fact had there been really that income, he must submit income tax return of the total income which is when beyond the taxable limit, by showing net income excluding the expenses, but he did not do so, as pointed out by the Insurer in saying these are falsely introduced to get unlawful gain from Insurance Company under the guise of the accident injuries. There is no even any record to show any permission obtained for aqua cultivation from the revenue authorities as required by law. Apart from it, Ex.A.27 so called lease agreement in lis of the immovable property must be by registered document including under Section 17 of the A.P. Amendment to the Registration Act with effect from 01.04.1999 as the alleged lease is subsequent to the amended Act came into force as the lease was only commencing from 02.01.2002 and there is no any revenue record like adangals even filed showing there is aqua cultivation by any person in the lands in the relevant year 2002 and 2003 at least to support it. Thus, the lease deed contents and terms of the lease cannot be looked into, but for nature of possession only for collateral purpose in the proceedings in view of the legal bar. In fact, the claimant-P.W.1 in his claim petition shown address as resident of Tarnaka, Lalaguda, Secunderabad and whereas, the so called cultivation is in Nacharam village and Mandamarri Mandal, Krishna district which is more than 350 K.Ms. away to his residence even to believe; as it is not his case that he shifted his residence and if not it must be through somebody in attending the cultivation. Once there is somebody’s supervision to look after his cultivation, the question of his sustaining any loss in the cultivation from the alleged fracture cannot be given credence and the cultivation of the aqua culture or pran culture is not possible without his stay there and staying at least near to the so called aqua farm. Apart from it, for his saying he invested more than Rs.5,00,000/- for the second crop and after one and half month on 26.03.2003 he met with accident thereby he suffered loss and it caused collapse to cultivation and he sustained loss of the amount therefrom concerned, so called documentary evidence cannot be given credence. In fact, he claimed as if one lakh paid as loss to the landlord and allegedly suffered Rs.11,74,278/- as loss from the so called aqua cultivation. For said claim of sufferance of loss there is no basis at all as rightly pointed out by the Insurer. From the aqua cultivation itself when not believable from what is referred supra and there is no registered lease deed even if at all really he got such profit, non-submission of income tax returns and even no bills for the so called feed purchase filed and these receipts covered by Exs.28 to 30 not even the receipts maintained in regular course of business from its perusal and the evidence of P.Ws.2 to 6 and claimed in the grounds of appeal therefrom saying is suffered grave loss and the tribunal not considered and only awarded of Rs.13,51,000/- and the appeal to be allowed for the remaining claim out of 30 lakhs made is also no basis. It is because what was awarded itself is excessive. Even taken for arguments sake there is from the medical evidence including with reference to Ex.24 disability certificate issued by P.W.7 doctor C.Kamaraj of Kamanini hospitals showing 40% disability which is even stated only as partial permanent and not even total permanent and even taken 40% disability from his age 52 years as mentioned in his evidence in the claim petition and even accident was on 26.01.2003 by then taken at 51 years in the claim under Sec.166 of the M.V.Act, the multiplier applicable is 11 as per Sarla Verma Vs. Delhi Transport Corporation[1], even estimated his average income at Rs.10,000/- p.m. for 40% disability it is Rs.4,000/- p.m. x 12 x 11 (multiplier) = Rs.5,28,000/- including loss of earnings during period of treatment taken for 6 months total Rs.60,000/- and added to it for medical expenses and treatment, transport and attendant charges etc., in all even granted Rs.4,00,000/- it all comes to nearly 12 lakhs and what the tribunal awarded of Rs.13,51,000/- is unreasonable and excessive to reduce to Rs.12lakhs for nothing to enhance, including for the so called other operation and the bunch of bills under Ex.A.33 even some showing the additional inclusion taken as of admissible Rs.2,76,349/- and the remaining transport and attendant charges including transport bills under Ex.A.35 as genuine of Rs.43,995/- and under Ex.A.36 attendant charges as paid even it is of all below said 12 lakhs. Accordingly, point No.1 is answered.
x-ray films and Ex.A.36 receipts for payment to so called personal attendant. Ex.A.35 bills are claimed for transport to hospital, Ex.A.34 are the bunch of pathological, clinically and radiological reports and prescriptions. Ex.A.33 medical bills are claimed for Rs.2,76,349/- and remaining out of Exs.A.1 to A.39 are First Information Report, chargesheet and insurance policy etc., of which and particularly Ex.P.27 to 31 are the so called lease agreement for pisciculture on land allegedly taken on lease from one Shivaram Krishna Prasad (land owner)-P.W.2 by the claimant-P.W.1 and so called cash receipt of lease amount for the 2nd year i.e. 2003, Rs.2,02,400/- and so called fish seed purchase of feed from Kanakadurga Fish Hatcheries of Rs.92,500/- and for medicines and feed etc, he purchased from Nanayal Aqua feeds Private Limited for Rs.2,06,078/- and alleged compromise deed with the owner of the land Shivaram Krishna Prasad-P.W.2. Out of P.Ws. 1 to 9, P.Ws. 3 to 6 are in relation to the alleged lease and purchase of food or seed or the Pisciculture cultivated product. In fact, among Exs.A.1 to A.39, there are no any income tax returns of the complainant-P.W.1 filed to say he is getting so called huge income. It is his claim that he was a pisci cultivator and he entered into alleged lease agreement for three years with the P.W.2 on 02.01.2002 of 3.746 hectors of land in Nuchumela village Mandamarri mandal, Krishna District for the aqua farm and paid Rs.2,02,504/- for the first year and invested Rs.3,00,000/- for purchase of seeds, medicines and feed and started aqua culture on 12.01.2002 and maintained farm and harvested on 21.07.2002 and earned Rs.5,00,000/- in the first crop. In fact had there been really that income, he must submit income tax return of the total income which is when beyond the taxable limit, by showing net income excluding the expenses, but he did not do so, as pointed out by the Insurer in saying these are falsely introduced to get unlawful gain from Insurance Company under the guise of the accident injuries. There is no even any record to show any permission obtained for aqua cultivation from the revenue authorities as required by law. Apart from it, Ex.A.27 so called lease agreement in lis of the immovable property must be by registered document including under Section 17 of the A.P. Amendment to the Registration Act with effect from 01.04.1999 as the alleged lease is subsequent to the amended Act came into force as the lease was only commencing from 02.01.2002 and there is no any revenue record like adangals even filed showing there is aqua cultivation by any person in the lands in the relevant year 2002 and 2003 at least to support it. Thus, the lease deed contents and terms of the lease cannot be looked into, but for nature of possession only for collateral purpose in the proceedings in view of the legal bar. In fact, the claimant-P.W.1 in his claim petition shown address as resident of Tarnaka, Lalaguda, Secunderabad and whereas, the so called cultivation is in Nacharam village and Mandamarri Mandal, Krishna district which is more than 350 K.Ms. away to his residence even to believe; as it is not his case that he shifted his residence and if not it must be through somebody in attending the cultivation. Once there is somebody’s supervision to look after his cultivation, the question of his sustaining any loss in the cultivation from the alleged fracture cannot be given credence and the cultivation of the aqua culture or pran culture is not possible without his stay there and staying at least near to the so called aqua farm. Apart from it, for his saying he invested more than Rs.5,00,000/- for the second crop and after one and half month on 26.03.2003 he met with accident thereby he suffered loss and it caused collapse to cultivation and he sustained loss of the amount therefrom concerned, so called documentary evidence cannot be given credence. In fact, he claimed as if one lakh paid as loss to the landlord and allegedly suffered Rs.11,74,278/- as loss from the so called aqua cultivation. For said claim of sufferance of loss there is no basis at all as rightly pointed out by the Insurer. From the aqua cultivation itself when not believable from what is referred supra and there is no registered lease deed even if at all really he got such profit, non-submission of income tax returns and even no bills for the so called feed purchase filed and these receipts covered by Exs.28 to 30 not even the receipts maintained in regular course of business from its perusal and the evidence of P.Ws.2 to 6 and claimed in the grounds of appeal therefrom saying is suffered grave loss and the tribunal not considered and only awarded of Rs.13,51,000/- and the appeal to be allowed for the remaining claim out of 30 lakhs made is also no basis. It is because what was awarded itself is excessive. Even taken for arguments sake there is from the medical evidence including with reference to Ex.24 disability certificate issued by P.W.7 doctor C.Kamaraj of Kamanini hospitals showing 40% disability which is even stated only as partial permanent and not even total permanent and even taken 40% disability from his age 52 years as mentioned in his evidence in the claim petition and even accident was on 26.01.2003 by then taken at 51 years in the claim under Sec.166 of the M.V.Act, the multiplier applicable is 11 as per Sarla Verma Vs. Delhi Transport Corporation[1], even estimated his average income at Rs.10,000/- p.m. for 40% disability it is Rs.4,000/- p.m. x 12 x 11 (multiplier) = Rs.5,28,000/- including loss of earnings during period of treatment taken for 6 months total Rs.60,000/- and added to it for medical expenses and treatment, transport and attendant charges etc., in all even granted Rs.4,00,000/- it all comes to nearly 12 lakhs and what the tribunal awarded of Rs.13,51,000/- is unreasonable and excessive to reduce to Rs.12lakhs for nothing to enhance, including for the so called other operation and the bunch of bills under Ex.A.33 even some showing the additional inclusion taken as of admissible Rs.2,76,349/- and the remaining transport and attendant charges including transport bills under Ex.A.35 as genuine of Rs.43,995/- and under Ex.A.36 attendant charges as paid even it is of all below said 12 lakhs. Accordingly, point No.1 is answered.
Point No.2:
6. In the result, a)
the appeal filed by the claimant in MACMA No.1371 of 2007 is dismissed and b)
the appeal filed by the Insurer in the MACMA No.1565 of 2007 is partly allowed
by reducing the compensation awarded from Rs.13,51,000/- to Rs.12,00,000/- and
c) In all other respects award of the tribunal holds good. There is no order as
to costs. Consequently, miscellaneous petitions, if any, pending in these
appeals shall stand closed.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date:
-12-2014
vvr
