HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.150
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–V Additional District Judge,Guntur, (for short, ‘Tribunal’) in M.V.O.P.No.985 of 2004 dated 18.05.2006,
awarding compensation of Rs.62,900/-(Rupees sixty two thousand nine hundred
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
Sections 1140,141 and 163-A of the Motor Vehicle Act,1988 (for short, ‘the Act’).
2.
Heard Sri N.Subba Rao, learned counsel for the appellant and Sri K.Ashok Rama
Rao, learned standing counsel for the 2nd respondent-Insurer and the
1st respondent who remained ex parte before the Tribunal did
not put forth his appearance in this appeal also, hence taken as heard and 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 in nutshell are that the award of the
Tribunal is contrary to law, weight of evidence and probabilities of the case,
that the Tribunal have not taken permanent disability and multiplier method
including as per schedule of the Act from Clause 5(b) awarded utterly low and
same is to be enhanced as just compensation as prayed for before the Tribunal
as well as just rate of interest by allowing the appeal.
4. The
2nd respondent-Insurer contended that the Tribunal rightly
considered the so called percentage of disability even it is only partial
permanent disability and not lifelong permanent disability and awarded
compensation justly with interest at 6%p.a. and for this Court while sitting in
appeal there is nothing to interfere with the quantum of compensation as well
as rate of interest. 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 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:
6. The
facts of the case are that on 13.09.2004 the claimant near Gangavaram village
of Nellore district, was sitting along with others with their household
articles and utencils on NH-5 road margin, due to rash and negligent driving of
the driver of the gas tanker bearing No.HR 38 C 2822 belongs to the 1st
respondent insured with the 2nd respondent, at high speed, it dashed
against the claimant and ran over her both legs, due to which she sustained
injuries i.e. crush injury involving medial aspect of right leg below the knee
ankle, exposing muscles and tendons and crush injury involving dorsal aspect of
left foot exposing muscle and tendons (as per Ex.A.3 wound certificate and X.1
case sheet), 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.62,900/-with interest at 6%p.a. against
the respondent Nos.1 and 2 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 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.
8.
The fact that the accident was due to rash and negligent driving of the driver
of the crime vehicle belongs to 1st respondent insured with the 2nd
respondent-Insurer proved from the evidence of P.Ws.1 and 2 coupled with
Exs.A.1 FIR and Ex.A.2 chargesheet is not in dispute and no way requires
interference by this Court.
9.
From the above legal position, coming to the factual matrix, as the claim is
under Section 163-A of the MV Act for Rs.1,50,000/-, as per the evidence of the
claimant with reference to Ex.A.3 wound certificate as well as the evidence of
P.W.2 doctor who treated him and also reflection from X.1 case sheet of Government
General Hospital, Guntur, there is permanent partial disability the claimant
suffers of 30% from the fracture of right leg with external fixation and twice
surgery done including by skin grafting and she was treated as in-patient from
14.09.2004 (date of accident is 13.09.2004 at 5.00P.M.) to 09.11.2004 for nearly two months and there
is moderate restriction in movements of right knee including ankle movement
left and mild with shortening of right lower limb and unable walk freely
without stick and cannot attend cooli work and the Tribunal therefrom for
assessment of the compensation regarding loss of earnings and also the
amenities considered 20% disability instead of 30%. The Tribunal adopted multiplier method therefrom as he is
cooli from loss of earnings from the above evidence taken as Rs.1500/- per
annum as notional income as per the schedule of the Act for the claim under
Section 163-A. In fact, the latest expression of the Apex Court in Kishan
gopal Vs.Lala[5]
at 257 para-39 categorically held that from the increase in the cost of living
index, the non-earning members income of Rs.15,000/- specified in Schedule of
Act under Section 163-A to be taken as Rs.30,000/- per annum by referring to
the earlier expression of the Apex Court in Latha Wadhwa vs. State of Bihar[6]
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 of Rs.30,000/- per annum for the 20%
disability it comes to Rs.6,000/-. From
the age of the claimant 35 multiplier adopted is 17, then it comes to
Rs.1,02,000/- and for the said fracture injury including for pain and sufferance,
an amount of Rs.6,000/-, as per the schedule of Act Clause(4) sub clause(i)(a)
and for medical expenses even treated in Government hospital on free of costs
since to incur an amount of Rs.4,000/- as per the schedule of the Act clause
(4) sub clause(ii) which comes to Rs.1,12,000/- and as such the disability is
taken from the date of accident from the
age with no further amount thereunder but for transport and attendant charges
of Rs.2,000/- which comes to Rs.1,14,000/- is just so to award. Hence, the
compensation
awarded by the Tribunal of Rs.62,900/- is enhanced to Rs.1,14,000/- with interest
at 7½ % p.a. which is enhanced from 6%p.a. since the Apex Court in TN Transport
Corporation v. Raja Priya[7],
Sarla Verma v. Delhi Transport Corporation[8]
and from the latest expression in Rajesh v. Rajbir Singh[9]
three judge bench interest is
awarded 7½%p.a. Accordingly,
Point-1 for consideration is answered.
POINT -2:
10. 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.62,900/- to Rs.1,14,000/-(Rupees one
lakh fourteen thousand only) with interest at 7½% per annum 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:
12.02-2014
VVR
Note: L.R.copy
to be marked. Yes/No
