Partly allowed

Cheturi Buchaiah v. Adarsha Youth Club

Telangana HC17 Aug 2010CMA/2173/2002

Case brief

AI extract

What is this about?

The appellant challenged the compensation award in a motor vehicle accident case. The High Court held the Tribunal's award of Rs.30,000 inadequate for permanent partial disability and enhanced it to Rs.55,000, allowing the appeal in part.

What did the court decide?

The award is modified to grant a further compensation of Rs.25,000 with interest at 6% per annum from the date of the petition.

Cheturi Buchaiah Vs Adarsha Youth Club — Medical Negligence | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD

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C.M.A. No.2173 of 2002

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Between:

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Cheturi Buchaiah .. Appellant AND Adarsha Youth Club, Zaffargadh rep. by P. Shankar and another .. Respondents

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JUDGMENT:

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This appeal is directed against the award in M.V.O.P. No.241 of 1999 on the file of the Motor Accidents Claims Tribunalcum-II Additional District Judge, Warangal, dated 08-03-2002.

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The factual background for the appeal is that the appellant herein was involved in a motor accident when he was going as a pillion rider on a Hero Honda motor cycle on 29-09-1998 at about 7 P.M. near Reddypalem, when the auto owned by the 1^st respondent and insured with the 2^nd respondent dashed against the motor cycle, coming in high speed rashly and negligently in opposite direction. The appellant claimed to have received multiple injuries including fracture of his right knee and was stated

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to have been treated at M.G.M. hospital, Warangal. Wardhannapet police registered Crime No.177 of 1998 against the auto driver and the appellant had to undergo a surgery for the fracture injury and was advised bed rest for three months even after discharge on 14-10-1998. The appellant working as ‘Tapi Maistry’ was earning Rs.100/- per day and after the accident, he was unable to walk freely due to the permanent total disability. Hence, he claimed a compensation of Rs.1,00,000/-.

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The owner of the auto remained ex parte, while the insurer put the claimant to strict proof of all the allegations and contended that the violation of the terms and conditions of the insurance policy by the insured absolves the insurer of any liability. The owner and insurer of Hero Honda motor cycle are also necessary parties, as there was contributory negligence and the insurer further contended that the claimant had to prove the details of treatment, loss of income, criminal proceedings against the auto driver and other allegations made by him.

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The Tribunal framed issues on the responsibility for the accident and the entitlement of the appellant to compensation and examined P.Ws.1 and 2 and R.W.1 during the enquiry and also marked Exs.A.1 to A.4, B.1, B.2 and X.1 to X.4.

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The Tribunal rendered the impugned award firstly accepting the evidence of the injured P.W.1, corroborated by the first information report Ex.A.1 and concluded that the rash and negligent driving of the auto caused the accident. The Tribunal then considered the plea about the driver of the auto having only a light motor vehicle licence and referred to the precedents on the aspect and concluded that on the ground of any defect in the driving licence of the auto driver, the insurer cannot escape from the liability. The Tribunal then referred to the evidence of the medical officer P.W.2, who treated the injured and noted that while

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the abrasion over the left knee was simple, the fracture sustained on the right knee, which ended in mal union, resulted in 35% disability of the right lower limb. The documentary evidence relating to the injuries and the treatment were also referred to and the evidence of the appellant as P.W.1 about his being disabled for about 3½ months during his treatment as an in-patient and later on being confined to bed, was also noted. Considering such evidence, the Tribunal felt that ends of justice would be met by granting a compensation of Rs.30,000/- under all heads and the same sum was granted with interest at 9 per cent per annum and proportionate costs.

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The claimant is before this Court against the said award contending that the Tribunal ought to have awarded the entire amount claimed, as the appellant was confined to bed for more than three months and totally lost earnings during that period and the pain and suffering, which he had undergone, also should have been taken into account.

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Sri A. Ravinder, learned counsel for the appellant and Sri G. Purushotham Rao, learned standing counsel for the 2^nd respondent are heard. None entered appearance on behalf of the 1^st respondent before this Court.

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The only point for consideration is the just and adequate compensation to be awarded to the appellant. Point:

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In so far as the finding of the Tribunal about the rash and negligent driving of the auto driver being the cause for the accident and the liability of both the respondents to the claim to justly and adequately compensate the petitioners is concerned, the same was not challenged by either respondent to the claim and the said conclusions have become final leaving only the question of

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quantum of compensation to be determined.

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The evidence on record, which was referred to in detail in the impugned award, clearly discloses that the appellant suffered a simple injury and a grievous injury during the accident and the fracture of the right femur resulted in 35% disability of the right lower limb. The medical officer as P.W.2 stated in detail about the limited function of the right leg below the knee after the accident and the appellant aged about 38 years by the time of the accident was obviously left with a permanent partial disability which will, undoubtedly, cause inconvenience in his carrying on his occupation as a mason. Though the injury will not totally disable from practising his profession as earlier, the appellant, undoubtedly, suffers the disadvantage of permanent partial disability in the right leg for the rest of his life in efficiently and effectively carrying on his profession. The evidence including medical prescriptions, the radiologist report, the wound certificate and disability certificate discloses that the treatment of the appellant was for a considerable period and he was taking medicines even long after the accident and discharge from the hospital. The claim of the appellant that he underwent a surgery and was confined to bed even after discharge for three months stood corroborated by the evidence of P.W.2 and for the said period of about four months, he was deprived of his earnings in total, even if it were to be assumed that there was no loss of future earnings, as he returned to his profession after the said period. The pain and suffering which the appellant would have undergone due to the fracture, the subsequent treatment and permanent disability left also have to be compensated and the permanent partial disability should also be adequately accounted for. Even if the minimum wages payable to masons during that period were to be taken into account, the claim of Rs.10,000/- towards loss of

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earnings for about four months cannot be considered to be on higher side. Similarly, the claim for Rs.5,000/- towards medical expenses and Rs.2,000/- towards transport should be considered in the background of the treatment being at Government hospital/M.G.M. hospital, Warangal, where such treatment would be free, but still some inevitable expenses have to be incurred by the appellant. Awarding Rs.5,000/- towards such medical expenses, transport, damages to clothing and articles, extra nourishment, attendant charges, etc., will be reasonable and just under the circumstances. The compensation for pain and suffering should be at another Rs.15,000/- and compensation for the continuing permanent partial disability should be Rs.25,000/which should take care of all pecuniary and non-pecuniary damages to which the claimant may be entitled towards the consequences of the accident and the injuries suffered. The total compensation under various heads should have been, thus, a minimum of Rs.55,000/- and the Tribunal without assigning any specific reasons considered grant of a lump sum amount of Rs.30,000/- to meet the ends of justice, which cannot be supported. The compensation has to be, therefore, enhanced to Rs.55,000/-.

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On the enhanced portion of compensation, interest can be awarded at 6 per cent per annum taking into account that such interest has to be paid from the date of the petition in 1999 till the date of realization and of course, proportionate costs have to be paid by the respondents over the enhanced compensation also.

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In the result, the award in M.V.O.P. No.241 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Warangal, dated 08-03-2002 is modified by granting a further compensation of Rs.25,000/- (Rupees twenty five

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thousand only) with interest at 6 per cent per annum thereon from the date of the petition till the date of realization and proportionate costs in addition to the compensation already awarded by the Tribunal and there need be no directions on the disbursement of the amount at this distance of time. The appeal is allowed accordingly in part without costs.

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_____________________ G. BHAVANI PRASAD, J

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Date: 17-08-2010

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Svv

Cheturi Buchaiah v. Adarsha Youth Club

Case brief

What is this about?

What did the court decide?

Cheturi Buchaiah v. Adarsha Youth Club

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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