BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-
I-ADDITIONAL DISTRICT JUDGE’s COURT, KURNOOL. Present:- Sri B.Syamsunder, Chairman, Motor Accidents Claims Tribunal-cum- I-Additional District Judge, Kurnool.
TUESDAY, THE TWENTY FIFTH (25 th ) DAY OF MAY, TWO THOUSAND AND TWENTY ONE (2021).
M.V.O.P.No.494/2016
D.Subramanyam ... Petitioner
-Versus-
R1) A.Chandra Mohan Reddy R2) M/s.New India Assurance Company Limited R3) S.Noor Basha … Respondents
This petition came up for final hearing before me in the presence of Sri A.Srinivasa Bhat, Sri N.Shanmukhan, Advocates for petitioner,
Sri P.Sunkanna, Advocate for respondent No.2, respondents 1 and 3 remained ex-parte, and having stood over for consideration till this day, this Court passed the following:-
J U D G M E N T
This is a petition filed by the petitioner under Sec.166(1)(a) of Motor Vehicles Act, 1988 claiming compensation of Rs.80,00,000/- for the injuries sustained by him in a Motor Vehicle Accident that occurred on 22.06.2015 at about 12.10 a.m. mid night near
Chennamma circle, Kallur estate of Kurnool town.
02)The case of the petitioner in brief is that on 21.05.2015 night, he along with his friend by name Mr.M.V.Raghava Satish went to
Chennamma circle, Kallur estate on his motorcycle and they both were waiting on the left side of the roadmargin for unloading oil tanker which is coming from Nellore city in the mid night i.e., on 22.06.2015 at 12.10 a.m. It is the contention of the petitioner that when he was standing by the side of his motorcycle on the road margin, at that time
I-ADJ, KNL. MVOP 494/2016 2/31 one lorry bearing No.AP 02 X 8995 belongs to R1 driven by R3 insured with R2/insurance company came from Gooty town side in a rash and negligent manner at high speed on wrong side of the road without blowing horn and dashed him and also his motorcycle, due to which he fell down on the road, received injuries on right hand, wrist, right knee, segmental fracture of both bones right leg lacerated wound over right elbow and bleeding injuries all over the body. He submits that immediately after the accident, he was shifted to Government General
Hospital, Kurnool for medical treatment and on the advise of medical officer, he was shifted to Krishna Institute of Medical Sciences (hereinafter called as ‘KIMS’) at Secunderabad where he took medical treatment and discharged on 30.06.2015. It is also the contention of petitioner that still he is taking treatment from private medical practitioner and he is suffering from permanent disability. The petitioner further submit that prior to the accident, he was hale and healthy, aged 37 years and he was doing oil business and getting income of Rs.5,92,206/- p.a. and for the financial year 2014-2015 he also paid income tax of Rs.48,442/-. He further submit that due to injuries sustained in the motor vehicle accident, now he is unable to sit, stand and walk without the help of stick and he is frequently getting pain all over the body and he is unable to lift any small articles.
He further submits that he has got wife, parents, unmarried sister and brother who are all depending upon him for their livelihood. It is also the contention of the petitioner that he spent Rs.20,00,000/- towards medical expenses and claimed compensation of Rs.80,00,000/- on various heads from all the respondents on the ground that offending vehicle driven by R3 belongs to R1 which insured with R2/Insurance
I-ADJ, KNL. MVOP 494/2016 3/31
Company and the policy was in force from 11.07.2014 to 10.07.2015.
Hence, the petition.
03)R1 owner of offending vehicle and R3 driver of offending vehicle remained ex-parte and not chosen to contest the case.
04)R2/insurance company filed counter denying the accident, manner in which it was occurred, involvement of R1 vehicle, age, income and injuries sustained by the petitioner. It is contention of R2 that lorry bearing No.AP 02 X 8995 not at all involved in the alleged accident on 22.06.2015, but petitioner has cleverly colluded with police and R1, created false criminal case against R3 for the purpose of claiming compensation from them. They submit that accident said to be occurred on 22.06.2015, whereas, report lodged on 13.07.2015 with a delay of 23 days which clearly shows that criminal case created against R3 by colluding with R1 and police, due to that they are not liable to pay compensation to the petitioner. They further submit that petitioner lodged report before police with a delay of 23 days on the advise of legal knowledge person by planting R1 vehicle. They further submit that though accident occurred on 22.06.2015, but petitioner filed claim petition in the year 2017 with false allegations with a delay of two years from the date of accident and if really there was negligence on the part of R3, petitioner would have filed petition in the year 2015 itself and no reason is forth coming for filing petition with such a delay. It is also the contention of R2 that there is no proof that petitioner has spent money towards medical expenses and petitioner has to prove that R3 had valid driving license at the time of accident.
They submit that petitioner has to prove that he was an income-tax
I-ADJ, KNL. MVOP 494/2016 4/31 assessee. They also submitted that petitioner sustained injuries due to hit by unknown vehicle, but petitioner planted R1 vehicle to claim compensation. They prays to dismiss the petition.
05)On the basis of above pleadings the following issues settled for trial:-
1. Whether the accident occurred on 22.06.2015 at 12.10 a.m.
mid night near Chennamma circle, Kallur estate of
Kurnool town due to rash and negligent driving of R3 being driver of lorry bearing No.AP 02 X 8995 wherein petitioner sustained injuries?
2. Whether the petitioner is entitled to compensation? if so, to what amount and from whom?
3. To what relief ?
06)On behalf of the petitioner, PWs-1 to 4 were examined,
Exs.A.1 to A.24, Exs.X-1, C-1 were marked. On behalf of R2, RW-1 was examined, Exs.B1 to B5 were marked.
07)I have heard both sides at length. Both sides have filed written arguments with precedent law.
08)It is the contention of the learned Advocate for petitioner that as petitioner sustained grievous injuries in the motor vehicle accident, though he took first aid treatment at Government General
Hospital, Kurnool and immediately he was shifted to KIMS,
Secunderabad where petitioner underwent surgery and his right leg above knee was amputated. He submits that R3 who was driver of offending vehicle admitted the offence in the Criminal case and petitioner also filed Ex.A18 certified copy of judgment. He further
I-ADJ, KNL. MVOP 494/2016 5/31 submit that proof of negligence in motor vehicle accident cases is only on preponderance of probabilities and beyond reasonable doubt is not required. It is also the contention of the learned Advocate for petitioner that income-tax returns filed by petitioner marked as Ex.A6 to A10 and Ex.A12 to A14 supports the contention of petitioner that he was getting sufficient income by doing oil business. He argued that the evidence of PW-3, PW-4 medical officers who categorically deposed that petitioner admitted in KIMS on 22.06.2015 due to injuries sustained in R.T.A. and Ex.A11 disability certificate shows that petitioner is suffering from disability of 80%. He relied on the following precedent law:- (1) Ravi Vs.Badri Narayan, AIR 2011 SC 1226, wherein the
Hon’ble Apex Court held in para ‘20’ of the Judgment which reads as
under:- “20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot
I-ADJ, KNL. MVOP 494/2016 6/31 be dismissed merely on that ground.” (2)Smt.Sarla Verma and others Vs. Delhi Corporation and another, 2009 ACJ 1298.
(3)National Insurance Company Limited Vs. Pranay
Sethi and others, 2017 CJ (SC) 1226.
(4) Erudhaya Priya Vs. State Express Transport
Corporation Limited, 2020 ACJ 2159, wherein the Hon’ble Apex
Court explained factors to be considered while awarding compensation in motor vehicles accident injury cases wherein the Hon’ble Apex Court followed the ratio laid down in Full Bench decision in Jagdish Vs. Mohan and others, in Civil Appeal No.2217 of 2018, Judgment dated 06.03.2018 = 2018 ACJ 1011 SC.
(5) Pappu Deo Yadav Vs. Naresh Kumar and others, AIR 2020 SC 4424 wherein it is held that ‘benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals, and in case of self- employed persons an addition of 40% of established income should be made where the age of the victim at the time of the accident was below 40 years’ wherein the Hon’ble Apex Court relied on the decision in K.Suresh Vs. New India Assurance
Company Limited (2012) 12 SCC 274. He prays to award just compensation.
09) It is the contention of the learned Advocate for R2 that R1 vehicle driven by R3, not caused motor vehicle accident which was planted by the petitioner with the help of police and colluding with R1,
R3. He submit that petitioner lodged report before police with a delay of 23 days which he failed to explain which clearly shows that only to
I-ADJ, KNL. MVOP 494/2016 7/31 claim compensation, R1 vehicle has been planted. It is the contention of the learned Advocate for R2 that Ex.A3 wound certificate shows that alleged injuries sustained by petitioner in road traffic accident due to hit by lorry from opposite direction while he was proceeding on two wheeler at 1.30 a.m. on 22.06.2015, where as the contention of the petitioner is that when he was standing on the extreme left side of the road by the side of his motorcycle accident occurred, which clearly shows that there is clear contradiction with regard to manner in which accident occurred which shows that petitioner planted R1 vehicle. He submit that PW-3 medical officer categorically admitted that the time of admission in the hospital, petitioner was conscious who furnished information contained in Ex.A3 wound certificate with regard to manner in which accident occurred, but petitioner changed his version while filing the present petition. He further submit that R1 failed to inform the accident to their Company which required under section 158(6) MV Act and police also failed to inform the same and failed to follow the directions of the Hon’ble Supreme Court in General
Insurance Council and Others Vs. State of Andhra Pradesh in
W.P.(civil) No. 282 of 2007, judgment dated 09.07.2007, ALT
2009(5) page 405. He further argued that Court has to consider circumstances under which accident alleged to have been occurred and evidence adduced by the petitioner and their Company is inclined to give compensation in genuine cases, but not cases wherein vehicle has been planted. He further submit that it is for the petitioner to prove that he sustained injuries due to rash and negligent act of R3 and involvement of R1 vehicle which is doubtful in the present case in view of delay in lodging report. He prays to dismiss the petition.
I-ADJ, KNL. MVOP 494/2016 8/31
ISSUE 1:- 10)PW-1 D.Subramanyam/petitioner has stated on oath in his chief-examination affidavit with regard to averments in the petition.
The chief-examination of PW-1 is replica of contents in the petition. In his cross-examination by the learned Advocate for R2, he deposed that he has not filed any document to show that he is doing Palm Oil business and at the time of accident himself and his friend by name
Satish were standing by the side of his motorcycle, but his friend Satish has not sustained any injuries. He explained manner in which accident occurred and in the said accident his motorcycle also damaged. He further explained that he has not lodged report before police on the same day as he went to KIMS hospital, Hyderabad for medical treatment. It is the evidence of PW-1 that he took medical treatment in Government General Hospital at Kurnool for a period of two hours and thereafter he went to KIMS hospital, Secunderabad for better treatment. He also admitted that he lodged report before police after he took treatment at KIMS hospital, Secunderabad which is 23 days after the accident. He explained that he informed medical officer at
KIMS how he sustained injuries. He further admitted that he has not filed any petition claiming compensation for damages of his motorcycle (On perusal of petition filed by the petitioner which shows that he also claimed compensation of Rs.30,000/- for damages caused to his motorcycle at page ‘3’ column No.25 of the petition). It is the contention of PW-1 that he has not lodged report before police immediately after the accident as he was undergoing treatment at
Hyderabad. In further examination, Ex.A1 to A23 are marked. In
I-ADJ, KNL. MVOP 494/2016 9/31 further cross-examination, he denied the suggestion that he created
Exs.A16, A17 receipts for the purpose of this case and he also created
Ex.A12 to A14 income tax returns to claim more compensation. PW-1 was further examined on 23.03.2021 and he filed Ex.A24 certified copy of MLC intimation sent to IV-town Police Station, Kurnool on 22.06.2015. In further cross-examination, he admitted that he know the contents of Ex.A24 which are true and correct and they filed original accident register in Judicial Magistrate of First Class Court,
Kurnool. He denied the suggestion that R1 vehicle not involved in an accident as stated by him, but unknown vehicle dashed him, due to that with delay he filed report for wrongful gain.
11)PW-2 K.V.Ranga Rao, Income-tax Inspector summoned by the petitioner who deposed that petitioner is an income-tax assessee and he produced income-tax returns of the petitioner marked as
Exs.A6 to 10 for the assessment years 2015-2016, 2016-2017, 2017- 2018, 2018-2019 and 2019-2020 on Ex.X-1 authorization letter issued by Income-tax Officer, Ward-I, Kurnool. In his cross-examination, he deposed that as per Ex.A6 income tax returns which filed on 30.10.2015 and Ex.A10 income tax returns shows that petitioner paid income tax for the year 2019-2020. He explained that the income of petitioner reduced in the year 2016-2017 and 2017-2018 when compared to other years and income of petitioner is more in 2019- 2020 when compared to 2015-2016.
12)PW-3 Dr.Uday Krishna Maineni has deposed that on 22.06.2015 petitioner admitted in KIMS hospital, Secunderabad due to injuries sustained in road traffic accident while travelling on two
I-ADJ, KNL. MVOP 494/2016 10/31 wheeler vehicle and injuries sustained by the petitioner are grievous in nature. He deposed that petitioner underwent surgery on 22.06.2016 and explained that petitioner re-admitted on 30.06.2015 on the date of discharge itself, due to formation of gangrene, due to that surgery was conducted on the petitioner wherein petitioner’s right leg above the knee was amputated. Ex.C-1 discharge summary of petitioner marked in his evidence. In his cross-examination he admitted that petitioner was conscious at the time of admission in the hospital and Ex.A3 wound certificate shows history of injuries. He explained that though on 30.06.2015 petitioner was discharged, again he re-admitted in the hospital on the same day due to infection and thereafter he was discharged on 03.07.2015. He further admitted that petitioner can perform his activities of daily living with artificial processes and with walking aid for his light duties. He admitted issuance of Ex.A5 final medical bill.
13)PW-4 Dr.Srinivas examined through Advocate-
Commissioner who has deposed that he issued Ex.A11 disability certificate to the petitioner being member of medical board and he is also working as orthopaedic surgeon in Government General Hospital,
Kurnool since the year 2009. He categorically deposed that petitioner is suffering from disability of 80% which is permanent in nature, due to that petitioner cannot stand and cannot work without support and he cannot do activity with mobility. It appears that his contention is petitioner cannot do any activity which is of perambulatory nature i.e., which work involving travelling on foot. In his cross-examination he admitted that he has not treated the petitioner, but petitioner can do
I-ADJ, KNL. MVOP 494/2016 11/31 work by sitting. He denied the suggestion that percentage of disability which he has deposed is excessive though petitioner is suffering from physical disability of 60% only.
14)Against aforesaid evidence of petitioner, RW1
G.Venkateswarlu, Deputy Manager in R2 insurance company has stated on oath in his chief-examination affidavit with regard to averments in their Counter. Ex.B1 insurance policy marked in his evidence. In his cross-examination he admitted that he was not an eye witness to the accident and column No.8 of F.I.R. shows reason for delay in lodging F.I.R. He further admitted that policy was in force on the date of accident. In further examination Exs.B2 to B5 are marked. In further cross-examination he admitted that as per their record, registered owner of offending vehicle is A.Chandra Mohan
Reddy and Ex.B4 Postal acknowledgement is having signature of
Ms.A.Bhargavi.
15) After perusing the evidence on both sides and Exs.A1 to
A4, and Ex.A18 which shows that R3 who was driver of offending vehicle admitted his guilt, due to that he was convicted and sentenced to pay a sum of Rs.1,000/-. It is settled law that proof in motor vehicle accident is preponderance of probabilities, not beyond reasonable doubt. Now it would be beneficial to quote ratio laid down by the
Hon’ble Apex Court in Anita Sharma and others, appellants Vs.
The New Indian Assurance Company Limited and another, in
Civil Appeal Nos.4010-4011 of 2020, judgment dated
08.12.2020 wherein at para 22 held that “Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of
I-ADJ, KNL. MVOP 494/2016 12/31 proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non- examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 wherein this Court reiterated that:
“7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi vs. Himachal RTC[(2009) 13 SCC 530 : (2009) 5SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101])” (emphasis supplied)
16)In the present case also though learned Advocate for R2 vehemently contended that R1 vehicle has been planted to claim more compensation, due to that delay occurred in lodging Ex.A1 F.I.R. by the petitioner, but fact remains is that R3 admitted his guilt as seen from
Ex.A18 certified copy of judgment in criminal case. Even otherwise, as per ratio laid down in Ravi Vs. Badri Narayan, AIR 2011 SC 1226 , decision relied on by the learned Advocate for petitioner the Hon’ble
Apex court held that delay in lodging F.I.R. alone is not a ground to reject the claim of the petitioner and Court has to look into other circumstances especially when petitioner sustained injuries and admitted in the hospital. In the present case also as seen from Ex.A24
MLC intimation which clearly shows that petitioner sustained injuries due to road traffic accident due to hit by lorry from opposite direction while he was travelling on a two wheeler at around 1.30 a.m. on 22.06.2015. It is no doubt true that the contention of the petitioner is that when he was standing by the side of his motorcycle on road
I-ADJ, KNL. MVOP 494/2016 13/31 margin accident occurred. The said minor discrepancy will not falsifies the contention of the petitioner with regard to involvement of R1 vehicle in the motor vehicle accident. Further, on receiving Ex.A24 only police personnel approached the petitioner at KIMS hospital and recorded his statement on 12.07.2015 wherein he categorically stated manner in which accident occurred and involvement of R1 vehicle driven by R3. It is not in dispute that petitioner sustained grievous injuries in the motor vehicle accident, due to that reason only though he was took first aid treatment in Government General Hospital at
Kurnool for a period of two hours, thereafter he was shifted to KIMS hospital, Secunderabad on the same day which deposed by PW-3 medical officer who treated the petitioner and petitioner also underwent surgery wherein his right leg above knee was amputated.
In those circumstances, certainly there is possibility of occurrence of some delay in lodging report and that itself is not a ground to reject the contention of the petitioner with regard to manner in which accident occurred. Further more, R3 admitted his guilt in the criminal case registered against him which is conclusive proof and R2 not challenged the same. Though police or R1 not intimated the accident to R2 insurance company, that is not a ground to reject the contention of the petitioner as failure on the part of police and R1 cannot be accrued to the benefit of R2 against the petitionerwho is victim of motor vehicle accident. The learned Advocate for R2 filed photostat copy of rough sketch of the scene of offence and submitted that the said rough sketch not shows offending lorry caused any accident. On perusal of Ex.B5 rough sketch which is not a certified copy or not attested by any police officer except containing seal of Sub-Inspector
I-ADJ, KNL. MVOP 494/2016 14/31 of police station, Kurnool IV-town police station, due to that said rough sketch is no way helpful to the contention of R2/insurance company.
Even otherwise, admittedly, report lodged before police with a delay of 23 days and there was no possibility for Investigation officer visiting scene of offence immediately after the accident, due to that there is no possibility of showing offending lorry and motorcycle of the petitioner in the rough sketch except showing place of accident which has shown in Ex.B5 rough sketch. It is also the contention of learned Advocate for R2 that though alleged accident occurred in the year 2015, the present petition has been filed in the year 2017 with delay of 23 days that itself shows that it has been created by planting R1 vehicle.
However, prior to amendment of Motor Vehicle Act, as per section 166, no period of limitation prescribed for filing claim petitions and limitation to file petitions omitted by Act 54 of 1994 w.e.f.14.11.1994.
Even otherwise, on perusal of petition which shows that it was presented before motor accidents claims tribunal-cum-District Judge,
Kurnool on 19.10.2016 after obtaining Court fee exemption certificate on 12.08.2016, but not filed in the year 2017 as stated in the Counter by R2. The petitioner by filing Ex.A1 to A3, Ex.A18 able to prove that accident occurred due to rash and negligent driving of R3 who was driver of lorry bearing No.AP 02 X 8995 wherein he sustained grievous injuries. Hence, this issue is answered in favour of the petitioner against the respondents.
ISSUE 2:-
I-ADJ, KNL. MVOP 494/2016 15/31 17)The petitioner sustained injuries in a motor vehicle accident and admittedly his right leg above the knee was amputated at
KIMS hospital, Secunderabad.
18)The Hon’ble Apex Court in K.Suresh-Appellant Vs. New
India Assurance Company Limited and another-Respondents in
Civil Appeal No.7603/2012 judgment dated 19-10-2012 held at
para No.2 and at para No.10 which reads is under:-
Para 2:
“Despite many a pronouncement in the field, it still remains a challenging situation warranting sensitive as well as dispassionate exercise how to determine the incalculable sum in calculable terms of money in cases of personal injuries. In such assessment neither sentiments nor emotions have any role. It has been stated in Davies V.
Powell Duffryn Associate Collieries Ltd. that it is a matter of
Pounds, Shillings and Pence. There cannot be actual Compensation for anguish of the heart or for mental tribulations. The quint essentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore,
Section 168 of the Motor Vehicles Act, 1988(for brevity ’the Act’) stipulates that there should be grant of “just compensation”. Thus, it becomes a challenge for a court of law to determine “just compensation” which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance….. “
Para 10:- “ It is noteworthy to state that an adjudicating authority, while determining quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of
I-ADJ, KNL. MVOP 494/2016 16/31 compensation the fundamental criterion of “just compensation” should be inhered”.
19)InJagdish, Appellant Vs. Mohan and others,
respondents, in Civil Appeal No.2217 of 2018, judgment dated
06.03.2018, the Hon’ble Apex Court held at para 8 which reads as under:- “In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together with its amenities;
(iv) Medical expenses including those that the victim may be required to undertake in future; and
(v) Loss of expectation of life.
In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd, 2011 (12) SCALE 658 this Court held:
“The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”
In K.Suresh v New India Assurance Company Ltd, (2012)12SCC274 this Court adverted to the earlier judgments in Ramesh Chandra v Randhir Singh, (1990) 3 SCC 723, and B Kothandapani v Tamil Nadu
State Transport Corporation Limited, (2011) 6 SCC
420. The Court held that compensation can be granted for disability as well as for loss of future earnings for the first head relates to the impairment of a person’s
I-ADJ, KNL. MVOP 494/2016 17/31 capacity while the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself.
In Govind Yadav v New India Insurance Company Limited, (2011) 10 SCC 683 this Court adverted to the earlier decisions in R D Hattangadi v Pest Control (India) (Pvt) Ltd.(1995) 1 SCC 551, Nizam’s Institute of Medical Sciences v Prasanth S Dhananka, (2009) 6 SCC 1, Reshma Kumari v Madam Mohan,
(2009) 13 SCC 422, Arvind Kumar Mishra v New India
Assurance Company Limited,(2010) 10 SCC 254, and Raj Kumar v Ajay Kumar, (2011) 1 SCC 343 and held thus:
“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” (Id at page 693)
These principles were reiterated in a judgment of this Court in Subulaxmi v MD Tamil Nadu State Transport
Corporation, Civil Appeal No.7750 of 2012, dated
01.11.2012, delivered by one of us, Justice Dipak Misra (as the learned Chief Justice then was).” 20)InParminder Singh,appellant vs. New India
Assurance Company Limited and others, respondents, in Civil
Appeal No.5123 of 2019, judgment dated 01.07.2019, the
Hon’ble Apex Court held in para ‘5’ which reads as under:-
“5.5. The High Court has rightly assessed the functional disability of the Appellant as 100%. The Appellant is suffering from hemiplegia due to which the left side of his body is barely functioning. On account of the permanent disability suffered, the Appellant was deprived of getting married and having a normal family life. His capacity to earn a living has been
I-ADJ, KNL. MVOP 494/2016 18/31 completely shattered for the rest of his life, and he has a become fully dependant person. In Govind Yadav v. The New India Insurance CompanyLtd. (2011) 10 SCC 683, this Court held that:
“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India AssuranceCompany Ltd. (supra) and Raj Kumar v. AjayKumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”(emphasis supplied)
In K. Suresh v. New India Assurance Company Ltd.,(2012) 12 scc 274 this Court held that: “10. It is noteworthy to state that an adjudicating authority, while determining quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of ‘just compensation’ should be inhered.”(emphasis supplied) In Raj Kumar v. Ajay Kumar and Ors. (2011)1 scc 343, this Court held that: “Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability(this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation,profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was
I-ADJ, KNL. MVOP 494/2016 19/31 earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.” (emphasis supplied) 21)In Kajal, Appellant Vs. Jagdish Chand and others,
respondents, in Civil Appeal No.735 of 2020, judgment dated
05.02.2020, the Hon’ble Apex Court held at paras 8 to 18 that “8. In Phillips v. Western Railway Co.(1874)4 QBD 406, Field, J., while emphasizing that damages must be full and adequate, held thus:
I-ADJ, KNL. MVOP 494/2016 20/31 "You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure".
9. In the case of Mediana, (1900) AC 113, Lord Halsbury held:
"Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such thing. What manly mind cares about pain and suffering that is past? But, nevertheless, the law recognizes that as a topic upon which damages may be given."
10. The following observations of Lord Morris in his speech in H. West & Son Ltd. v. Shephard, 1963 2 WLR 1359 , are very pertinent:
"Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation.
I-ADJ, KNL. MVOP 494/2016 21/31
Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards."
In the same case Lord Devlin observed that the proper approach to the problem was to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing", which should be kept in mind by the court in determining compensation in personal injury cases.
11. Lord Denning while speaking for the Court of Appeal in the case of Ward v. James,(1965) 1 All ER 563, laid down the following three basic principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good."
12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made.
13. In McGregor’s Treatise on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states:
"The person physically injured may recover both for his pecuniary losses and his nonpecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have subdivided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation
I-ADJ, KNL. MVOP 494/2016 22/31 of life."
14. In M/s Concord of India Insurance Co. Ltd. v. Nirmala Devi and others,1980 ACJ 55 (SC), this Court held:
"2….The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales."
15. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd ,(1995) 1 SCC 551, dealing with the different heads of compensation in injury cases this Court held thus:
"9. Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non pecuniary damages are concerned, they may include:
(i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
16. In Raj Kumar v. Ajay Kumar and Others, (2011) 1 SCC 343, this Court laid down the heads under which compensation is to be awarded for personal injuries.
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and
I-ADJ, KNL. MVOP 494/2016 23/31 miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.”
17. In K. Suresh v. New India Assurance Company Ltd. and Ors ., (2012) 12 SCC 274, this Court held as follows :
“2...There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity ‘the Act’) stipulates that there should be grant of “just compensation”. Thus, it becomes a challenge for a court of law to determine “just compensation” which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance.”
18. Applying the aforesaid principles, we now proceed to assess the
I-ADJ, KNL. MVOP 494/2016 24/31 compensation.” 22)In the above decision the Hon’ble Apex Court after discussing precedent law and following judgments with regard to claim of damages explained manner in which compensation has to be awarded to the injured in motor vehicle accident cases.
23)Bearing in mind the above principles of law enunciated by the Hon’ble Apex Court in the above referred decisions, I shall examine the evidence adduced by the petitioner while awarding compensation to the petitioner who sustained injuries in the motor vehicle accident.
The petitioner being injured in the motor vehicle accident, is entitled to claim compensation under the following heads:-
(i) Pain and suffering as a consequence of injuries,
(ii) Medical expenses,
(iii) Loss of earnings during the period of treatment,
(iv) Transportation and Extra-nourishment and attendant charges,
(v) Loss of earnings due to Partial Permanent Functional
Disability, if any and
(vi) loss of amenities to future life.
24)It is not in dispute that petitioner sustained grade-III compound commutted segmental fracture of both bones light leg and lacerated wound over light elbow as seen from ExA3 certificate. On perusal of Ex.24 MLC intimation which also shows that the petitioner has sustained following injuries:-
(i) laceration on anterior aspect of right lower limb measuring 15x5 cm
I-ADJ, KNL. MVOP 494/2016 25/31
(ii) a laceration over anterior medial aspect of ankle measuring 7x4 cm
(iii) a laceration on right elbow measuring 8 x 4 cm
Which are grievous in nature. It is also not in dispute that petitioner right leg above the knee was amputated who also underwent two surgeries in KIMS hospital, Hyderabad as per evidence of PW-3 medical officer who treated the petitioner. The petitioner who sustained grievous injuries and his right leg above the knee was also amputated, certainly must have suffered lot trauma as consequence of injuries. Therefore, a sum ofRs.1,00,000/-is awarded as compensation under the head of pain and suffering.
25) The petitioner filed Ex.A5, Ex.A23 medical bills to show that he spent amount towards medical expenses. Which also admitted by
PW-3 medical officer in his evidence. Further, petitioner has purchased artificial limb and he attended the court with artificial limb and produced Exs.A16, A17 receipts to show that he spent Rs.4,60,000/- towards artificial limb. Therefore, a sum of Rs.4,60,000/- and
Rs.1,25,000/- is awarded as compensation to the petitioner under the head of medical expenses.
26)The petitioner filed Exs.A19 to 23 receipts to show that he spent amount towards ambulance charges and lodging expenses when he was taking treatment at KIMS hospital, Secunderabad. Admittedly, petitioner took medical treatment at KIMS hospital, Secunderabad and there is no dispute that petitioner is a resident of Kurnool town.
Therefore, a sum of Rs.50,000/- is awarded as compensation under the head of transportation, extra nourishment and attendant charges,
I-ADJ, KNL. MVOP 494/2016 26/31 as petitioner was in-patient in the hospital from 22.06.2015 to 03.07.2015 who certainly require attendant.
27)It is the contention of the petitioner that he was living by doing palm oil business and earning Rs.6,00,000/- per annum and he is also an income-tax assessee. The petitioner also summoned PW-2
Income-tax Inspector who produced Ex.A6 to A10 Income tax returns of the petitioner and petitioner also produced Ex.A12 to Ex.A14 his income tax returns for the assessment year 2012-2013 to 2014-2015.
It is the contention of learned advocate for petitioner that average income of the petitioner is Rs.5,60,081/- after taking into consideration the income of the petitioner for three assessment years prior to the accident. However, PW-2 also admitted in his evidence that the income of the petitioner is more in 2019-2020 when compared to 2015-2016. When petitioner admittedly sustained physical disability due to amputation of his right leg, it cannot said that he is not suffering from any loss of future earnings. Further, petitioner who underwent surgery and his right leg above the knee was also amputated, who also attendant follow up treatment as per the evidence of PW-3 medical officer, certainly was not in a position to do any work at least for a period a six months. After considering the income-tax returns filed by the petitioner and in view of nature of avocation of the petitioner which is not seriously disputed during the course of cross-examination of
PW-1, the income of the petitioner can be taken as Rs.5,00,000/- per annum. Therefore, a sum of Rs.2,50,000/- is awarded as compensation under the head of loss of earnings during the period of treatment.
I-ADJ, KNL. MVOP 494/2016 27/31 28)The main contention of the petitioner is that due to amputation of his right leg above the knee which affected his future earning capacity and he is suffering from partial, functional disability.
Though the evidence of PW-2 shows that the income of the petitioner was more in the year 2019-2020 when compared to 2015-2016 as per income tax returns, that itself is not a ground to say that the petitioner has not sustained any loss of earnings due to partial permanent functional disability. Even as per Ex.A11 disability certificate and the evidence of PW-4 member of medical board who also examined petitioner shows that the petitioner is suffering from physical disability of 80% due to amputation of right leg above the knee. As per schedule-I to section 2(1) and 4 part I of the Workmen’s Compensation
Act, 1923 (Appendix VI), clause 17 percentage of loss of earnings due to ‘amputation below hip with stump not exceeding 12.70 cm in length measured from tip of great trenchanter’ is 80%. Even as per ratio laid down by the Hon’ble Apex Court in the decisions referred to above, this Court is of an opinion that petitioner is suffering from partial permanent functional disability of 80% due to amputation of his right leg above the knee. On perusal of income tax returns filed by the petitioner which shows that the date of birth of the petitioner is 25.04.1976 which is not disputed during the course of cross- examination of PW-1. So, the petitioner was aged 37 years on the date of accident. To arrive proper multiplier to decide future loss of earnings as per table shown in Smt.Sarla Verma case referred to supra, is multiplier ‘15’. When income of the petitioner is taken into consideration as Rs.5,00,000/- per annum when loss of earnings of the petitioner is taken into consideration as 80%, which multiplied with
I-ADJ, KNL. MVOP 494/2016 28/31 ‘15’ which comes to (Rs.5,00,000/- x 80/100 =Rs.4,00,000/- x 15)
Rs.60,00,000/-. In view of evidence of PW-2 Income-tax officer and after perusing Ex.A6 to Ex.A10 income tax returns filed by the petitioner, this Court is not inclined to add future prospects to the loss of future income of the petitioner as it appears that petitioner is continuing his oil business.
29)It is not in dispute that petitioner who sustained amputation of his right leg above the knee, now facing difficulty in walking though he fixed artificial limb who also attended the court with the help of others. The petitioner admittedly aged 37 years on the date of accident who has to survive with difficulty in walking and he has to depend upon others to attend his day-to-day works for his entire life which amounts to loss of amenities to his future life. Therefore, a sum of Rs.3,00,000/- is awarded as compensation under the head of loss of amenities to future life.
30) The petitioner is entitled to claim following compensation:-
(i)Pain and suffering as a consequenceRs.1,00,000/- of injuries:
(ii)Medical expenses4,60,000/- (+) 1,25,000/-
(iii)TransportationandExtra-50,000/- nourishment.
(iv)Loss of earnings during the period of2,50,000/- treatment.
(v)Loss of earnings due to Partial60,00,000/- Permanent Functional Disability, if any and vi)Loss of amenities to future lifeRs.3,00,000/- TOTAL : Rs.72,85,000/-
I-ADJ, KNL. MVOP 494/2016 29/31
In total, petitioner is entitled to claim compensation of
Rs.72,85,000/- for the injuries sustained by him in motor vehicle accident.
31)On perusal of Ex.B1 policy which shows that it was issued to the offending vehicle in the name of R1 for covering the period from 11.07.2014 to 10.07.2015 which covers third party risk and the accident occurred on 22.06.2015. So the policy was in force on the date of accident. Admittedly R3 was driver of offending vehicle on the date of accident who admitted his guilt in criminal case registered against him. The R2 failed to prove any violation of conditions of policy by R1. Therefore, all the respondents are jointly and severally liable to pay compensation to the petitioner. Hence, this issue is answered accordingly.
32) ISSUE No.3:-
In the result, the petition is allowed in part awarding compensation of Rs.72,85,000/- (Rupees Seventy Two Lakhs and
Eighty Five thousand only) to the petitioner with interest at 9% p.a., from the date of petition till the date of realization jointly and severally payable by the respondents 1 to 3 which shall be deposited within 30 days from the date of this award. On such deposit, the petitioner is permitted to withdraw a sum of Rs.12,85,000/- with proportionate interest and entire costs. The rest of the compensation amount of
Rs.60,00,000/- with proportionate interest shall be deposited in a nationalized Bank for a period of three years and thereafter he is entitled to withdraw the same with accrued interest. The rest of the claim of the petitioner is hereby dismissed, but, in the circumstances of the case no order as to costs. Advocate fee is fixed for Rs.10,000/-. On
I-ADJ, KNL. MVOP 494/2016 30/31 deposit of compensation amount, petitioner shall pay court fee payable on the petition.
Dictated to the Stenographer, transcribed and typed by her, corrected and
pronounced by me in open Court, this the 25th day of May, 2021.
Chairman, Motor Accidents Claims Tribunal –cum- I-Additional District Judge, Kurnool.
Appendix of Evidence
Witness Examined
PETITIONER RESPONDENT No.2
PW1: D.Subramanyam RW1: G.Venkateswarlu, PW2: K.V.Ranga Rao, I.T.Officer, (On commission) PW3: Uday Krishna Mineni (On commission) PW4: Dr.Srinivas (On commission)
Exhibits marked for petitioner
Ex.A1: Certified copy of FIR. Ex.A2: Certified copy of charge sheet. Ex.A3: Certified copy of wound certificate. Ex.A4: Certified copy of Form No.54. Ex.A5: Final bill for Rs.1,13,430/-. Ex.A6: Income Tax Returns for the year 2015-2016. Ex.A7: Income Tax Returns for the year 2016-2017. Ex.A8: Income Tax Returns for the year 2017-2018. Ex.A9: Income Tax Returns for the year 2018-2019. Ex.A10: Income Tax Returns for the year 2019-2020. Ex.A11: Disability certificate . Ex.A12: Income Tax Returns for the year 2012-2013. Ex.A13: Income Tax Returns for the year 2013-2014. Ex.A14: Income Tax Returns for the year 2014-2015. Ex.A15: Invoice for Ambulance. Ex.A16: Receipt, dt.30.09.2015. Ex.A17: Receipt, dt.30.09.2015. Ex.A18: Certified copy of judgment. Ex.A19: Ambulance service charges bill. Ex.A20: Guest House cash receipts. Ex.A21: Guest House cash receipts. Ex.A22: Guest House cash receipts. Ex.A23: Hospital bills 13 in No., for Rs.11,644.50. Ex.A24: MLC intimation by KIMS, Secunderabad to IV town PS, Kurnool.
Ex.X1: Authorization letter by Income Tax Department.
Exhibits marked for respondent No.2
Ex.B1: Copy of insurance policy. Ex.B2: Office copy of notice to R1/owner of vehicle.
I-ADJ, KNL. MVOP 494/2016 31/31
Ex.B3: Postal receipt. Ex.B4: Served postal acknowledge of R1. Ex.B5: Attested Photostat copy of rough sketch.
Ex.C1: Discharge summary (marked by Advocate Commissioner)
I-ADJ, KNL.
Compared by: