HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.190 OF 2007
JUDGMENT:
The National Insurance Company
Limited-respondents 3 and 4 (insurer) out of the 4 respondents including 1st
respondent-driver and 2nd respondent-owner of the crime auto bearing
No.AP20 V 8150, to the claim petition filed under Section 166(a) of the Motor Vehicle
Act,1988(for short, ‘the Act’), on the file of the learned Chairman of the Motor Accidents Claims Tribunal–cum-II
Additional District Judge(III Fast Track Court), Warangal, (for short, ‘Tribunal’) in O.P.No.991 of 2005 dated 27.09.2006, by impugning
the claim of the claimant-injured of the accident dated 17.08.2004 for
Rs.3,14,000/- since awarded by the tribunal as prayed for with interest at 7.5%
p.a., preferred the appeal with contentions in the grounds of appeal that the
award of the tribunal is contrary to law, weight of evidence and probabilities of the
case and
in ignorance of the settled principles, the tribunal should have seen that
there is no disability suffered by the claimant-injured and there is no
disability certificate of Medical Board filed, no case sheet even filed
admittedly and what P.w.2 deposed about so called disability is not even
certified but orally much less to take either of 50% or of 40% as permanent in nature
from the so called right hip fracture, the tribunal went wrong in taking 50%
disability and awarding compensation and also fixing separate amounts for the
fracture injury and other simple injuries and pain and sufferance etc., under separate heads by doubling the
claim baselessly and hence set aside the award of the tribunal and to fix a
reasonable and just compensation the claimant
to be entitled. The learned counsel for
the Insurer reiterated the said contentions.
2.
The claimant as 1st respondent and the driver and owner as
respondents 2 and 3 served failed to attend hence taken as heard 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.
Now the points
that arise for consideration in the appeal are:
1.
Whether the quantum of compensation awarded by the Tribunal is excessive and not just and requires
interference by this Court to reduce and if so with what extent, what rate of
interest and with what observations?
2.
To what result?
POINT-1:
4.
The fact that the accident was the
result of the rash and negligent driving of the driver of the crime auto of 2nd
respondent insured with the 3rd respondent, on 17.08.2004 while the
injured claimant was traveling as one of the passengers from the same turned
turtled at Galivaripalli sub station, Warangal district as proved before the
tribunal no way requires interference but for on the quantum.
5. 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.
6.
Besides that it is also just to refer the apex Court’s expression in Rajkumar
Vs. Ajaykumar[5]
that in assessing permanent disability the tribunal has to assess the total
disability and also under two heads therefrom as to what is the loss for the
earning capacity and what is the loss of amenities. It is also cogent that merely because doctor
deposed some disability and it effects on the earning prospects, it is not the
multiplier method but fix the same that to be assessed for loss of amenities
apart from the permanent disability deposed by doctor on different limbs to be
put together to be taken into consideration and not any isolated for each.
7.
From the above settled principles coming to the factual matrix as per the
Ex.A.1 FIR on the complaint of brother-in-law of the injured-claimant shows
that on 17.08.2004 morning the claimant came to Maripeda bungalow and therefrom
while going to Burahanpuram, he boarded the crime auto driven by 1st
respondent and when the auto reached near Giripuram sub station while
negotiating curve due to rash and negligent driving of the driver of the auto,
the auto turtled and his brother-in-law(the claimant) sustained injuries to
right leg and right hand, hence to take action.
The charge sheet filed by police against the driver punishable under
Section 338 of the I.P.C. on reference of doctor P.w.2 K.Mahendra Kumar,
treated the injured-claimant and issued Ex.A.3 injury certificate which speaks
there is grievous injury of fracture of right acetabulum (superior dome) with
posterior hip dislocation besides 4 more simple injuries which are abrasions
caused by blunt object and the
certificate was dated 07.09.2004 and the accident was as referred supra dated
17.08.2004. In this certificate there was no reference of any x-ray even much
less any finding of disability. Earlier certificate issued by P.W.2 covered by
Ex.A.4 dated 29.08.2004 speaks from 19.08.2004 till that day, the claimant was
treated in the hospital for the hip dislocation posterior and right pelvis area
fracture and there is no reference to any x-ray but the treatment referred as
closed reduction conducted with spinal anesthesia followed by conservative
treatment for lacerated wound and POP applied and the hospital stay is
unexpected. In fact, in the first line
it is referred as discharge date and when such is the case there is no meaning
in saying hospital stay uneventful and unexpected having already
discharged. The prescriptions on the
reverse side of Ex.A.4 discharge summery shows the only 4 types of tablets
prescribed. Coming to Ex.A.5 medical prescription issued by him it was dated
27.08.2004 i.e. two days prior to the Ex.A.4 showing date of admission
17.08.2004 and date of discharge 27.08.2004 for the said two fractures and it
shows review and 4 types of tablets prescribed and the tablets are not
correlating to the tablets prescribed on 29.08.2004 and Ex.A.4/A.6 is another
certificate, on the reverse side of Ex.A.5 there is some writing regarding the
prescription of medicines by review on 20.09.2004, 29.9.2004, regarding the charges
Rs.8,800/- which include advance of Rs.4,000/- to be paid for Rs.84,000/- by
the date of discharge on 29.08.2004 for the treatment as in-patient from the
date of admission on 17.08.2004. When these are the documents no way show any
disability suffered by the claimant of permanent nature, how far the oral
evidence of P.W.2 before the tribunal in speaking permanent disability of 50%
to be genuine and credible is to be appreciated with reference to the above.
P.W.1—the injured-claimant in his chief examination stated about alleged 4 fractures and injuries which
is not true from what the Exs.A.3 to A.6 supra speaks only right hip
dislocation and another fracture and 4 simple injuries but P.W.1 deposed that
he was admitted in the hospital of P.W.2 on the date of accident 17.08.2004 and
operation was conducted for his arm and right foot and he was in the hospital
for three months which is also not correct from referring to Ex.A.3 to A.6
supra of discharge on 29.08.2004 i.e. 12 days after admission to say treated as
in-patient only for 12 days and not three months. Even to say in the chief
affidavit by P.W.1 of he suffers any permanent disability, he did not describe
what is the permanent disability and how it effects his avocation but for
simply saying unable to work. In the further chief affidavit he deposed that he
is doing cultivation and getting income of Rs.3,000/- per month and from the
accident he sustained loss and bed ridden for one year. This is also so called
bed ridden for one year proved false from what is described supra of own
showing from Ex.A.3 to A.6. So far as loss of agricultural income concerned, he
did not speak any details as to what was the crop he raised with what
expenditure and how he suffered loss with no yield if any by filing any revenue
adangals regarding nature of crop and its so called loss therefrom. He did not
obtain any Medical Board certificate, he did not undergo any treatment in any
government hospital and he did not produce any further medical bills of the
prescriptions or treatment after the said discharge on 29.8.2004, but for some
endorsements on the reverse side of Ex.A.5 about he attended twice the hospital
as out-patient and some medicines therefrom that is even sufficient to say he
has no any permanent disability much less of 50%. In the cross-examination,
P.W.1 deposed that immediately after the accident he was shifted to area
hospital, Mahaboobabad and the doctors referred to MGM hospital, Warangal but
as Khammam is near to his village he went to Surya Orthopaedic hospital,
Khammam where admitted as in-patient in the hospital for 12 days. When such is
the case the best document he is supposed to produce is of the area hospital,
Mahahabubabad where he admitted initially after the accident which he did not
file much less cause summoned for reasons better known and even he was referred
either to government hospital, Warangal or even did not go to district
headquarters hospital at Khammam but went to private hospital of P.W.2 and even
from his own say on further cross-examination he was treated only for 12 days as in-patient and his avocation is
cultivation and he did not file any documents to show he got any agricultural
land and cultivation and also to prove he incurred Rs.30,000/- for agricultural
expenses. He denied the suggestion that he sustained only simple injuries and
not even any fractures and deposed falsehood.
Coming to P.W.2 evidence the doctor Mahendra Kumar who deposed in his
chief examination that P.w.2 sustained fracture of right acitabulam and
posterior hip dislocation grievous in nature besides blunt injury to chest and
multiple abrasions of right shoulder joint, right fore arm, left elbow joint and
left fore arm which are simple. He deposed that the patient needs three dimensional
CT scan of right hip followed by surgical restriction of right acitabulam,
however, the patient refused to afford it and thereby he was discharged on
29.08.2004. To attend for follow up treatment which he attended upto
29.09.2004. He deposed that the injured got severe pain of right hip joint from
the same not suitable to walk as before and day-to-day normal agricultural
activities from the pain and difficulty in attending Indian lavatory for calls
of nature and he needs surgery of total hip replacement for not undergone surgery
initially. He therefrom says he got 50% permanent disability. Even from said evidence, it is from the
patient’s refusal to undergo treatment that caused to the extent of hip
replacement and not from direct consequences of the accidental injuries as his very
say speaks had he undergone the treatment for surgical reconstruction as
suggested, it should be cured and the patient’s refusal only that caused
thereby for that the owner and insurer of the crime vehicle cannot be responsible
but for to the extent of treatment for
the so called dislocation of the hip apart from it that there is no disability
suffered in the certificates issued by P.W.2 under Exs.A.3 to A.6 the very say
in the chief examination for the first
time by the P.W.2 of 50% so called permanent disability is nothing but
exaggeration and the attempt to make believe to help the injured-claimant. No
doubt that evidence one way shows as what is discussed supra either because of
the patient’s refusal to undergo surgical re-construction of right acitabulam
the requirement reached to the extent of hip replacement that gives some
disability. When that speaks from own negligence of the patient what is to be
attributed against the consequence of the injury, leave some portion of his
composite negligence from including treatment can deposed by assessing at 20%
of permanent disability therefrom. Even taken the same from the claimants age
as per the very claim petition of 35, a person between 31 to 35 as per the Sarla Verma v. Delhi Transport Corporation[6]
the multiplier applicable is 16 and even from his monthly earnings are taken at
Rs.3,000/- per month if that is taken for 25% disability it comes to
Rs.750/-p.m.x12x16=Rs.1,44,000/- besides for the hip dislocation and another fracture he is entitled to Rs.40,000/-
including for pain and sufferance, an amount of Rs.20,000/- maximum for medical
expenses and treatment including from Ex.A.6 receipt issued by the P.W.2 doctor
and for the hospital charges about Rs.9,000/- apart from some bills he places
reliance, besides that he is entitled to loss of earnings for maximum period of
two months totally since disability 25% also
calculated from the date of accident at Rs.5,000/- and attendant charges
and transport charges and extra nourishment only Rs.10,000/- and in total Rs.2,28,000/-
rounded to Rs.2,30,000/- to reduce the compensation from Rs.3,14,000/- with
interest at 7.5% p.a.
8.
In the result, the appeal is partly allowed by modifying the Award of the
Tribunal on quantum of compensation by reducing the same from Rs.3,14,000/- to
Rs.2,30,000/-(Rupees two lakh thirty thousand 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.
9.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
24-02-2014
Vvr
