Partly allowed

The Chairman, Apsrtc v. Kandregula Venkateswara Rao

Telangana HC8 Dec 2014MACMA/1372/2012

Case brief

AI extract

What is this about?

This judgment determines just compensation for injuries sustained in a motor accident involving the APSRTC. The court allowed additional medical evidence to establish a functional disability of 30%. Based on this, compensation was enhanced from Rs.1,08,000/- to Rs.3,10,000/-, including medical expenses, loss of earnings, and attendant charges. The appeal by the APSRTC against the quantum was dismi

What did the court decide?

Compensation enhanced from Rs.1,08,000/- to Rs.3,10,00/- with interest. Respondent-RTC directed to deposit the outstanding amount within one month.

The Chairman, Apsrtc Vs Kandregula Venkateswara Rao — Motor Accident Claims | Telangana HC (2014)

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THE HON’BLE DR. JUSTICE B.SIVA SANKARA RAO

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MACMA Nos.1372 of 2012 and 509 of 2011

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COMMON JUDGMENT:

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The injured-claimant in O.P.No.108 of 2007 filed the claim for the multiple and grievous injuries sustained in the motor accident occurred on 08.02.2006, for Rs.7,16,000/- and the Tribunal awarded Rs.1,08,000/- with interest @ 7.5% p.a., by award dated 28.10.2010, impugning the quantum is utterly low, maintained the appeal No.509 of 2011 and the APSRTC maintained the appeal No.1372 of 2012 by impugning the quantum as excessive and exorbitant. Hence, out of the same OP claim, both the appeals have arisen, thereby, taken up together to decide.

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The contentions in the grounds of appeal filed by the injuredclaimant are that the compensation awarded by the Tribunal is in total ignorance of the evidence of Doctors, PWs 2 and 3, and nature of injuries sustained and the permanent disability the claimant suffered and thereby to allow the claim as prayed for.

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The contentions in the grounds of appeal maintained by APSRTC are that the compensation awarded by the Tribunal is highly excessive and there is no disability for no disability certificate even filed and thereby to reduce the compensation.

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Perused the material on record. The parties hereinafter referred to as they are arrayed before the Tribunal for the sake of convenience. Now, the points that arise for consideration are:

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1) What is the just compensation the injuredclaimant is entitled and with what observations?

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2) To what result?

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POINT No.1:

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Coming to decide the dispute on quantum as to what is just

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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 compensation 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 should 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. Cleave r^[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.

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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

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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 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.

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In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh^[ at paras-1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation^[6] and Nagappa v Gurudayal Singh^[7] that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression ‘just compensation’ has been explained in Sarla Verma`s case (cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. ‘Just compensation’ is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is also required to mention in this context that irrespective of lack of proof of income of deceased/injured of the permanent disability, the Court has to assess the income by nature of avocation by taking as guideline the expression of Apex Court in Latha Wadhwa vs. State of Biha r^[8] that

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even there is no proof of income and earnings, it can be reasonably estimated at Rs.3,000/- p.m. for any non-earning member and even for housewife as domestic contribution.

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From the above propositions coming to the facts Ex.A.1 is the FIR which set the law in motion for the accident taken place at 3:00 P.M. from the statement of the injured recorded by the Head Constable of the local police station at about 8:00 P.M., which reads that while he was coming from Kothapeta towards Amalapuram, and reached near Gollapalem, the bus proceeding from Amalapuram side towards Rajahmundry in a rash and negligent manner with high speed dashed the bike TVS Moped, as a result of which, himself and his wife pillion rider to the Moped bike, fell down and he sustained multiple and crush injuries and his wife has escaped by simple injuries. The police, after investigation, filed Ex.A.3 charge sheet against the driver of the RTC bus - R.1. Ex.A.4 is the wound certificate issued by Aswani Super Specialty Hospital, where the injured was immediately after the accident brought and admitted, where from his statement was recorded in registering Ex.A.1 – FIR. PWs.2 and PW.3 are the doctors who treated the injured, of whom PW.2 - Dr.K.Poleswararao deposed that he is working in the Aswani Speciality Emergency Hospital, Amalapuram for the past 10 years and Ex.A.4 is the wound certificate issued by their hospital and the injured was admitted on 08.02.2006 and discharged on 13.2.2006 with patient No.256 and as per Ex.A.4 wound certificate, the injured sustained crush injury to the right leg extending from knee joint to upper 2/3 of leg with comminuted upper half of right tibia and Fibula with loosely hanging bone pieces with heavy contamination with mud plant products and fibers and lateral compartment exposed upto posterior lateral aspect of right knee joint. Distaly posterior tibial vessel palpated. Little touch sensation present. Distel Phalanx of right little finger is crushed. There is an abrasion of 8X3 C.M., on anterior lateral aspect of right arm. A contusion of 6X5

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c., surrounded by abrasion on right anterior lateral aspect of right arm. A laceration of 3” X ½” x ½” on right temporal parietal region. X-ray further shows fracture of 6th rib right with Homothorax and x-ray right wrist A.P. and later at soft tissue defect of terminal phalanx of little finger, fracture of terminal and proximal phalanx of right ring finger and X-ray of right leg with knee and ankle joints a) comminuted fracture of upper end of right tibia extending from knee joint to upper half of tibia with soft tissue disruption with multiple small dust particles b) comminuted fracture upper end of right fibula.

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PW.3 is the Ortho of the same hospital who also deposed in regard to the injuries sustained by the injured and the treatment provided by him and the permanent disability he suffers therefrom. As per the evidence of PWs 2 and 3, the petitioner is unable to sit or squat or walk from the multiple injuries, including the fractures of right tibia and fibula of upper portion of the leg above knee joint even after operation. No doubt, at the time of the OP, claim made by the petitioner and including in his evidence he did not produce any disability certificate. PW.4 is another doctor - V.Ganga Krishore. He deposed that he provided treatment after debriedment and skeletal fixation of the right leg with Grade III B with skin and soft tissue loss and conducted surgery and he is the plastic surgeon at Rajahmundry since 2004 and also earlier worked in NIMS hospital, Hyderabad, and completed the course in plastic surgery in 2001 and done several reconstructive surgeries all through in his career.

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It is pending the hearing of the appeal, the claimant filed MACMA MP.4541 of 2014 to receive, as additional evidence Ex.A.11, which is nothing but the disability certificate issued by Medical Board, East Godavari at Kakinada dated 22.07.2009 by examination of the injured claimant herein PW.1 from the non-union of the compound and comminuted fracture of upper third right tibia with deformity to the right fore-arm from little finger fracture and the percentage of disability

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estimated at 45% permanent.

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The learned counsel for APSRTC, who is the appellant in MACMA No.1372 of 2012, opposed the aforesaid petition.

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Though it is a belated filing as it is the medical certificate showing the disability issued by the Medical Board and there is nothing to dispute the genuineness of the same, merely because it was not filed before pronouncement of orders before the Tribunal, there is no justification to negate the receiving of additional evidence more particularly within the scope of Order 41 Rule 27 Sub-Rule 1(b) of CPC., which itself enables the Court to receive as additional evidence where it is just for rendering complete justice and the additional evidence where required for effective disposal of the lis before it within its inherent power. Accordingly, MACMA MP.No.4541 of 2014 is allowed and the wound certificate is received and for reference marked as Ex.A.11, since a public document within the meaning of Section 74 to 77 of the Indian Evidence Act. A perusal of the same as referred supra shows 45% disability. It is no doubt the disability to be taken is not for a limb, but over all functional disability. Then it can be taken at 30% functional permanent disability. The age of the injured mentioned therein from the statement of the injured also as 49 years to say though claimed 45 years as on the date of accident, it is showing 49 years. The claim is under Section 166 of the M.V.Act. As per the expressions the Sarla Verma v Delhi Transport [9] Corporation , the multiplier that is applicable is ‘13’. The petitioner claimed that he was doing rice mill business. There is no rice mill license much less RC and any particulars regarding where the rice mill exists etc., he filed and much less examined any witness, even it cannot be believed for no even RC is filed much less disclosed. Thus, his earnings can be estimated at Rs.3,500/- per month. The multiplier applicable is ‘13’. For the 30% disability, thus, it comes to Rs.3,500 X

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12 X 13 X 30/100 = Rs.1,63,800/- rounded to Rs.1,64,000/-Besides that for the multiple injuries including the fracture with pain and sufferance an amount of Rs.80,000/- can be granted. Then it comes to Rs.2,44,000/-. Besides that, what the Tribunal awarded towards medical expenses (out of the claim of more than Rs.1,00,000/- from the scanning of the bills and receipts for the same) of Rs.50,000/- is just to confirm. Apart from it, towards loss of earnings for the two months total at Rs.7,000/- and for the attendant charges and transport charges an amount of Rs.9,000/- is granted. In total, it comes to Rs.3,10,000/. Accordingly, point No.1 is answered.

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In the result, MACMA No.1372 of 2012 is dismissed and MACMA No.509 of 2011 is partly allowed by enhancing the compensation from Rs.1,08,000/- to Rs.3,10,000/- with interest at 7.5% per annum from date of petition till realization. The respondent-RTC is directed to deposit the amount, excluding what is deposited so far, within one month from the date of receipt of the appeal award. On such deposit the claimant is permitted to withdraw half of the amount and rest of the amount be invested in fixed deposit for three years. There shall be no order as to costs.

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Consequently, Miscellaneous Petitions, if any, pending in this

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Criminal Petition shall stand closed.

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_________________  ________ Dr.B.SIVA SANKARA RAO, J

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Date: 8th D ecember, 2014 PNV

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