Dismissed

National Insurance Company Ltd. v. Konduru Parameswara Reddy and Ano

Andhra Pradesh HC17 Sept 2019MACMA/249/2013

Case brief

AI extract

What is this about?

In an appeal against an award of Rs.11.80 lakh for a motor accident causing amputation and grievous injuries, the court re-appreciated evidence. It rejected the insurer's plea of contributory negligence, upheld the medical expenses, and dismissed the appeal, confirming the lower tribunal's order.

What did the court decide?

Appeal dismissed; compensation of Rs.11,80,000 awarded to the claimant is confirmed.

National Insurance Company Ltd. Vs Konduru… — Medical Negligence | Andhra Pradesh HC (2019)

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THE HON'BLE Ms. JUSTICE J. UMA DEVI

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M.A.C.M.A. No.249 OF 2013.

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JUDGMENT:

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The 2^nd respondent/National Insurance Company Limited in O.P.No.492 of 2008, on the file of the Motor Accidents Claims Tribunal (Before the District Judge), Anantapur, against whom the joint liability is fixed along with the owner of the lorry bearing No.KL-12-C-3548, to pay compensation of Rs.11,80,000/-, has come before this Court by preferring the present appeal, disputing its liability to pay compensation so awarded on several other grounds.

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The first and foremost ground urged by the insurance company is that there is contributory negligence on the part of the rider of the moped on which the petitioner was travelled as a pillion rider at the relevant point of time and the driver of the lorry. As the owner of the moped has not been added as party to the claim petition, the Court below ought to have dismissed application filed for compensation on the ground of non joinder of necessary party.

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The second other ground urged by the insurance company is that the terms and conditions of the policy issued to the owner of the lorry are breached by handing over his lorry to a person, who had no valid driving license to drive a heavy goods vehicle.

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The third ground urged by the insurance company is that the amount of Rs.7,50,000/- awarded to the claimant under the head of medical expenditure is on higher side and that the bunch of medical bills Ex.A.4 are not proved by him. It has been contended further by the appellant-insurance company that the amount of Rs.4,00,000/- awarded to the claimant under the head of loss of future earnings is on higher side and that the interest awarded is also excessive.

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Since these being the grounds urged by the insurance company disputing its liability to pay compensation to the claimant, the entire evidence on record needs to be re-appreciated to examine the correctness or validity of the award passed by the Court below.

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The claimant Sri Konduru Parameswara Reddy, is a resident of Ramadaspet village, Garladinne Mandal of Annatapur District. He was aged 40 years old by the date of the accident. His case as narrated in the claim statement is that on 12.09.2007, while he was proceeding towards Mamillacheruvu village along with his relative Pothireddy on TVS XL Moped No.A.P 02 P 8132, as a pillion rider, at about 11.45 am, when they reached near Kothapalli on NH 7 road Pothireddy was driving the Moped slowly on the left side of the road. While they were proceeding slowly on left side of the road on the Moped, a lorry bearing No.KL-12-C3548, belonging to respondent No.1 came from their behind without blowing horn and dashed the Moped. Due to the said impact himself and Pothi Reddy, the rider of the Moped fell down and received grievous injuries. Immediately after the accident, they were shifted to Government hospital, Anantapur by the police who were on patrolling duty.

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On a complaint given by the claimant, a case was registered against the driver of the lorry by the police of Garladinne Police Station in Crime No.108 of 2007, under Section 338 IPC. The petitioner was shifted to Shirdi Sai Hospital, Bangalore for better treatment, and that he was treated as inpatient from 14.09.2007 to 17.10.2007. After he was discharged, he was compelled to revisit the said hospital again and again to take follow up treatment as advised. He was admitted in Meda Nursing Home, Anantapur and Mythri Hospitals, Anatapur for further treatment. He spent more than Rs.6,50,000/- towards medical

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expenditure, extra nourishment and attendant charges; and still a further sum of Rs.1,00,000/-, is needed to take follow up treatment.

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It has been further asserted by the petitioner that due to his involvement in the accident, his left leg below the knee was amputated and that the other leg is also affected due to the fracture injury received to it and his entire life became un-useful, and he is forced to depend on others to attend to his day-to-day needs. After his involvement in the accident, there is nobody to look after his lands and also the milk business which he was doing prior to the accident.

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As per his version, he was an agriculturist and was cultivating Ac.6.00 of land with the water of three bore wells. He was raising paddy and groundnut and other commercial crops in the said land and was getting huge income through cultivation. He was maintaining Swarj Mazda tractor and was fetching the income of Rs.4,50,000/- to Rs.5,00,000/- through cultivation. He was maintaining 12 to 15 buffalos and was getting income of Rs.6,000/- to Rs.7,000/- per month by supplying milk in Garladinne which was a mandal head quarter. Being the ‘kartha’ of a joint family he was providing all the amenities to his family members apart from educating his children. Due to his involvement in the accident, all the lands owned and possessed by him remained uncultivated.

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He examined himself as P.W.1 during the course of trial and marked Exs.A.1 to A.9. He also examined the rider of the Moped as P.W.2. The consultant of Sri Shirdi Sai Hospital at Bangalore was examined as P.W.3. The Civil Assistant Surgeon in Government Hospital at Anantapur was examined by him as P.W.4. No oral evidence was adduced by the appellant-insurance company. The statement made by the petitioner before the police was marked as Ex.B.1, by the insurance

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company apart from marking the insurance policy of the lorry belonged to the respondent No.1 as Ex.B.2.

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The Court below on appreciation of oral and documentary evidence adduced by the parties had awarded the compensation of Rs.11,80,000/to the claimant by allowing his application made for compensation of such amount, and made the appellant insurance company liable to pay compensation amount along with respondent No.2 together with interest at 18% per annum from the date of filing of the petition to till the date of realisation and with proportionate costs etc.

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The appellant insurance company seems to have raised the grounds that there was contributory negligence on the part of the rider of the moped on which the petitioner was travelling at the relevant point of time. But in proof of contributory negligence attributed to the rider of the moped (P.W.2), no evidence is adduced by it. The petitioner has described the P.W.2 as his relative in the pleadings. The accident as narrated in the pleadings took place while the petitioner was proceeding on a moped as a pillion rider due to hitting of it from the behind by the lorry driven by its driver in a rash and negligent manner. The hitting of the moped by the lorry from its behind itself shows negligence on the part of the driver of the lorry.

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From the above evidence of P.W.2, it is quiet clear that it is not a case of head on collusion where contributory negligence can be attributed to the rider of moped. It is not as though the accident took place on the middle of the road. As per the version of P.W.1 while the moped driven by the P.W.2 was proceeding slowly on left side of the road it was hit by the lorry which came behind the moped in a rash and negligent manner. Ex.B.1 statement marked by the appellant only establishes the fact that P.W.2 is the son-in-law of the petitioner. Simply because of the close relationship of P.W.2 with P.W.1, the entire evidence

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of P.W.2 which is corroborated by the evidence of P.W.1 cannot be fully discarded.

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The trial Court on close scrutiny of the evidence of P.Ws.1 and 2 has not accepted the contention of the insurance company that there is contributory negligence on the part of the rider of the moped (P.W.2 herein). In view of the above finding recorded by the Court below on the aspect of negligence attributed to driver of lorry which is proved amply by examining P.Ws.1 and 2 and by exhibiting Exs.A.1 to A.3, cannot be held as incorrect.

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So far as the contention raised by the appellant-insurance company that the amount of Rs.7,53,000/- awarded to the claimant towards the medical expenditure is excessive and exorbitant is concerned, the petitioner apart from examining himself as P.W.1, examined P.W.3 to speak about the particulars of treatment taken by him in Shirdi Sai hospital at Bangalore from 14.09.2007 to 17.10.2007. He has produced Ex.A.1 medical bills which are amounting to Rs.7,53,000/- and odd. The genuineness of Ex.A.4 has not been challenged by the insurance company. The case sheet Ex.A.6 itself establishes the nature of treatment provided to the petitioner in Shirdi Sai Hospital.

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The wound certificate Ex.A.2, issued by the Government General Hospital, Anantapur, where the petitioner was taken immediately after the accident by the police on patrolling duty would disclose that her left leg below the knee was amputated; left thigh deformity and swelling, laceration over right ankle 1x 4 cm, right ankle and edema over right foot and abrasions over right upper eye lid, right cheek and left temporal region with bleeding. The said injuries in the opinion of the doctor who issued Ex.A.2, wound certificate were grievous in nature.

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It has been testified by P.W.3 (Dr. Manoj Kumar), Chief-Consultant of Shirdi Sai Hospital, Bangalore that the claimant was brought to his hospital on 14.09.2007. After he was admitted in their hospital, it was diagnosed that he had (1) Early sepsis with ARDS (Acute Respiratory Distress Syndrome), (2) Early phase of pulmonary embolism, (3) Gas Gangrene left lower limb, (4) Fracture Femur Middle 1/3^rd right, (5) Right Tibia Upper 1/3^rd fracture, (6) Fracture on right Tibia on lower 1/3^rd , (7) Left below knee auto amputation was done.

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While, the claimant was in their hospital, he had underwent surgeries for fixation of external fixator for femur and tibia on right side and raw wound to left knee, which was amputated. It is manifestly clear from the evidence given by number of witnesses that the Consultant Surgeon of Shirdi Sai Hospital, Bangalore that the left leg of the claimant was amputated upto thigh portion and there was discharge of puss from the facture area of tibia and femur of right leg due to which the claimant could not stand on his own and unable to bend the right knee fully.

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The above observations were made by P.W.3 on verification of Ex.C.1 case sheet and the X-rays Ex.A.2, which were five in number. As per the version of P.W.3, the claimant has to undergo further surgery for controlling of puss discharged from the right leg and for which he has to incur the expenditure of Rs.30,000/- to Rs.40,000/-.

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Taking note of the evidence of P.W.3, which I mentioned above and also the bunch of medical bills Ex.A.4, the injury certificate and the discharge summary issued by the Shirdi Sai Hospital and Ex.C.1, which admittedly were not-controverted, and no evidence of any sort was adduced to disprove them, the Court below had rightly awarded compensation of Rs.7,53,000/- under the head of medical expenditure.

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This Court finds no justifiable ground to find fault with the Court below in granting compensation of Rs.7,53,000/- to the claimant under

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the head of medical expenditure as it is quiet clear from the evidence of P.Ws.1 and 3 that the petitioner had taken treatment in Shirdi Sai Hospital at Bangalore and visited the said hospital for reviews as suggested and continued treatment.

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The Court below had taken note of the contents of Ex.A.7 pattadar pass book issued by the Thasildar, Garladinne and the attested copy of the pattadar pass book issued by the Thasildar, Garladinne, which would show that the claimant had got Ac.3.93 cents of dry land in Galadinne mandal, and Ex.A.8 income certificate issued by the Thasildar, Garladinne clarifies that the claimant has got Ac.5.27 cents of land, and 700 sweet orange plants, and they are deriving approximate annual income of Rs.4,00,000/-. The tribunal having taken the view that the loss of earning capacity of the petitioner can be worked out to Rs.11,88,000/-, has awarded only a sum of Rs.4,00,000/- towards compensation under the head of “loss of earning capacity”, by coming to the opinion that the land can be leased out by the claimant to somebody else, or that it can be cultivated by him by engaging coolies or by taking the help of close friends or relatives.

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The Court below has taken the view that the amount of Rs.7,53,000/-, awarded to the claimant covers the claim laid by him for Rs.70,000/- under the head of medical expenditure, artificial limb expenditure and therefore, no compensation is awarded separately under the said head.

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The Court below though has taken the view that the claimant is entitled to get compensation of Rs.12,23,000/-, in total has granted the compensation of Rs.11,80,000/-, for which the claim is laid by him opining that there are no special circumstances to award the compensation amount beyond the amount claimed by him.

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The Court below before coming to the opinion that the claim laid for compensation of Rs.11,80,000/- by the claimant can be allowed in toto has taken note of all the mitigating circumstances including the loss of future earning capacity of the petitioner, and the amount incurred towards medical expenditure on close verification of the contents of Ex.A.4 medical bills and the evidence of P.W.3, the sufferance and the frustration which he is subjected to, and the loss of expectation of life, and the amenities in life etc.

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I find no merit in the appeal filed by the insurance company, accordingly the appeal is liable to be dismissed.

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In the result, the appeal is dismissed confirming the order dated 03.10.2011, passed by the Motor Accidents Claims Tribunal (Before the District Judge), Anantapur, in O.P.No.492 of 2008. No order as to costs.

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Consequently, miscellaneous petitions pending, if any, shall also stand disposed of.

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________________ J. UMA DEVI, J

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Date.17.09.2019. Gk

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THE HON'BLE Ms. JUSTICE J. UMA DEVI

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M.A.C.M.A. No.249 OF 2013.

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Date:17.09.2019.

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Gk.

National Insurance Company Ltd. v. Konduru Parameswara Reddy and Ano

Case brief

What is this about?

What did the court decide?

National Insurance Company Ltd. v. Konduru Parameswara Reddy and Ano

Case brief

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What the court decided

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