Allowed

Athikimsetti Audinarayana v. B.Ramanaiah

Telangana HC13 Aug 2014MACMA/1623/2007

Case brief

AI extract

What is this about?

The High Court enhanced compensation from Rs. 35,000 to Rs. 1,25,000 for a driver injured in a road accident. The Court found that while some medical evidence was doubtful due to discrepancies in dates and lack of necessity for hospitalisation at NIMS, the petitioner sustained significant injuries and disability, warranting an increase in non-pecuniary damages.

What did the court decide?

Compensation enhanced from Rs. 35,000 to Rs. 1,25,000 with 6% interest from the date of petition till realization.

Athikimsetti Audinarayana Vs B.Ramanaiah — Motor Accident Claims | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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M.A.C.M.A.No. 1623 of 2007

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JUDGMENT:-

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Dissatisfied with the quantum of compensation awarded by the Chairman, Motor Accident Claims Tribunal-cum-Principal District & Sessions Judge, Nellore (for short ‘the Tribunal’) in O.P.No.746 of 2004 through its judgment dated 12.03.2007, the appellant preferred the present appeal under Section 173 of the M.V. Act, 1988 (for short “the Act”) seeking enhancement of compensation.

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For the sake of convenience, the parties will hereinafter be referred to as arrayed in the main O.P.

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The petitioner/claimant filed an application, under Section 166 of the Act claiming compensation of Rs.4,00,000/- for the injuries sustained by him in a road accident that took place on 27.09.2002. It is stated that on that day, the petitioner, who was a driver of a lorry bearing registration

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No.AP 27U 3877, was coming from Chennai to Nellore and at 7.00 a.m. when the lorry reached Nelaballi village turning, he drove the same in a rash and negligent manner, lost control over it, and dashed against a lorry bearing registration No.TN 28Z 3256 which was coming in opposite direction. As a result of which, both the vehicles got damaged and the petitioner received multiple injuries to his legs. Immediately thereafter, he was taken to Government Hospital at Naidupet, from there to the Government Hospital, Nellore and then to Anakapally for better treatment.

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Since the 1^st respondent is owner and the 2^nd respondent is insurer of the offending lorry, the present application is filed making both the respondents jointly and severally liable to pay the compensation.

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The 1^st respondent remained ex parte and the 2^nd respondent Insurance Company filed their counter denying the age, income, avocation of the deceased and also the manner in which the accident took place. It is stated that the driver of the lorry was not having a valid driving licence at the time of accident. In view of the above, it is stated that the Insurance Company is not liable to pay any compensation to the petitioner.

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On the basis of the above pleadings, the Tribunal framed the following issues for its consideration:

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1) Whether the accident occurred out of the use of the motor vehicle bearing registration No.AP 27U 3877 of respondent No.1?

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2) Whether the petitioner is entitled to compensation? If so, to what amount and from which of the respondents?

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3) To what relief?

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In support of his case, the petitioner examined himself as P.W.1 and the three doctors who treated him as P.Ws.2 to 4. He also got marked Exs.A.1 to A.16. The Insurance Company examined R.W.1 and also got marked Ex.B.1, a copy of insurance policy.

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After analyzing the material available on record, the Tribunal held that the accident took place out of use of the lorry bearing registration

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No.AP 27U 3877 belonging to the 1^st respondent, and accordingly, awarded a sum of Rs.35,000/- as compensation to the petitioner.

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The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged either by the owner or Insurance Company. Therefore, the point for consideration would be, whether the compensation awarded by the Tribunal is just and reasonable.

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The learned counsel for the petitioner mainly submits that while determining the quantum of compensation, the Tribunal erred in rejecting the evidence of P.Ws.3 and 4 and also the medical bills showing the treatment taken at NIMS, Hyderabad. He further submits that the quantum of compensation awarded by the Tribunal is on a lower side and, hence, seeks enhancement of the same.

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On the other hand, the learned counsel for the Insurance Company strenuously contended that the petitioner has not come to the Court with clean hands and, as such, no indulgence be shown for enhancement of the compensation.

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In order to prove the rival contentions, it may be useful to refer to the evidence available on record.

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The material on record discloses that immediately after the accident, the petitioner was shifted to the Government Hospital, Naidupet and from there to the Government Hospital, Nellore. However, the petitioner in his evidence deposed that he also took treatment at Anakapally. To prove the same, he placed on record the discharge summary issued by Ramyasai Nursing Home, Anakapally, as Ex.A.3. The evidence of P.W.3, a Consultant General Surgeon in Ramyasai Nursing Home at Anakapally, show that on 30.09.2002, the patient, by name, Audinarayana (P.W.1) was admitted in the hospital with the following grievous injuries:

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1) Laceration which was sutured at the Government Hospital, Nellore to his right leg – about 6” length.

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2) Skin necrosis involving right lower leg and foot. 3) Necrosis of muscles of lower right leg.

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4) Fracture of right tibia and fibula.

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According to P.W.3, debridgement of the entire gangrenous tissue was performed on 30.09.2002 and, subsequently, skin grafting was done on 24.10.2002. He deposed about a surgery being done on the

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petitioner. His evidence also discloses that the petitioner was discharged from the hospital on 03.01.2003. This version of P.W.3 was corroborated by the evidence of P.W.4. But, a comparison of the evidence of P.W.2, who was working as a Civil Surgeon in the Government Hospital at Nellore, with that of P.Ws.3 and 4, would show that it is practically impossible to believe that P.W.1 would have got himself admitted in the hospital of P.Ws.3 and 4 on 30.09.2002, for the reason that the evidence of P.W.2 establish that P.W.1 was discharged from the Government Hospital at Nellore on 01.10.2002. Therefore, the version of the claimant that he took treatment at a private nursing home in Anakapally appears to be doubtful.

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Further, P.W.1 in his evidence in chief does not anywhere refer to taking treatment in NIMS, Hyderabad. His evidence is silent as to when he got himself admitted in NIMS, Hyderabad and also the period for which he was an inpatient in NIMS, Hyderabad. His evidence is also silent as to when he was examined by the District Medical Board. He got filed Ex.A.9 (out-patient card) to show the treatment taken and the money spent while taking treatment at NIMS, Hyderabad. But, Ex.P.9 does not indicate the particulars of the injuries suffered in the accident and the treatment taken. Further, a perusal of Exs.A.10 and Ex.A.12 (out-patient card of A.S.R. Academy and prescriptions issued by Sri Ramana Maharshi Hospital, Bheemavaram respectively) shows that they were of the year 2005 and Ex.A.14 case sheet (issued by the Government Headquarters Hospital, Nellore) is incomplete. But, Ex.A.14 contains a copy of the wound certificate said to have been issued by the Medical Officer, Primary Health Center, Naidupet showing an injury to the right leg and also an injury to the left leg. There is no opinion about the nature of injuries sustained. However, the case sheet contains an opinion of an Orthopaedic Surgeon dated 30.09.2002 suggesting a treatment for the fracture. On 01.10.2002, there is an endorsement made by the petitioner stating that he is

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voluntarily leaving the hospital and for any other event, he himself is responsible. P.W.1 made the said endorsement in his own writing. The case sheet Ex.A.14 also show that the petitioner was discharged against the medical advice on 01.10.2002. As stated earlier, the case sheet refers to fracture of both bones of right leg. There is no material on record to show as to what happened from the year 2002 to 2005. No documentary or oral evidence has been adduced to show the nature of treatment taken with regard to said injuries during the said period. In fact, the evidence of P.W.1 is also silent on this aspect. From the above, it is clear that the treatment taken at Anakapally is doubtful and Ex.A.6 final bill relied upon by the petitioner cannot be looked into. Even the out-patient card issued by the NIMS, Hyderabad is silent as to the nature of injuries sustained.

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The learned counsel for the petitioner mainly relied upon the evidence of P.W.2 to show that P.W.1 was totally disabled and that he cannot do the same work which he was doing prior to the accident. A perusal of the evidence of P.W.2 would show that on examination of P.W.1, he found fracture of right leg and skin grafting over the back of right ankle. He admits that skin grafting was not done in the hospital. His evidence is to the effect that there was deformation of ankle and foot, restriction of movement of the ankle joint and that P.W.1 cannot drive any vehicle in future because of deformity. According to him, the petitioner may find it difficult in walking and need a stick for long distance walking.

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Having regard to the evidence of P.W.2, the question would be whether the disability certificate issued by the Medical Board, Eluru, West Godavari District, which is placed on record as Ex.A.4, can be looked into. A perusal of the said document shows that the extent of disability assessed by the Board was 50%. Relying upon the said document, which was issued just prior to giving evidence, the learned counsel for the petitioner submits that the petitioner, who was working

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as a driver during the said period, is entitled to a suitable compensation.

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While dealing with cases arising due to personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and anothe r^[1] , the Apex

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Court held as under:

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5. 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 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)

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(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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of nonpecuniary damages - items (iv), (v) and (vi) – involves determination of lump sum amounts with reference to circumstances such as age, nature of

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injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a).

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Keeping in view the principles enunciated in the case referred to above, I shall proceed to deal with the case on hand.

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It is not in dispute that the petitioner was working as a driver and as per the claim petition, he was earning Rs.4,500/- per month. Taking into consideration the bills produced, the Tribunal awarded a sum of Rs.10,000/- towards medical expenditure and attendant charges, since the petitioner left against the medical advice. The said amount appears to be just and proper warranting no interference.

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Having found that the petitioner was entitled to a sum of Rs.10,000/- towards medical expenses and attendant charges, the Tribunal did not award any amount towards transportation charges, extra nourishment and other incidental expenses. The facts in issue and more particularly the evidence of P.W.2 would clearly disclose that the petitioner was taken to the Government Hospital at Naidupet and thereafter to the Government Hospital, Nellore. Under those circumstances, I deem it appropriate to award a sum of Rs.15,000/towards extra nourishment, transportation charges and other incidental expenses.

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Coming to the loss of earnings during the period of treatment, P.W.1 in his evidence stated that due to the injuries sustained, he is unable to do the work which he was doing prior to the accident. His evidence is to the effect that he is unable to walk freely and attend the duty of a driver. The evidence of P.W.2, who worked as a Civil Assistant in the Government Hospital at Nellore, show that there was a

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deformation of ankle and foot with restriction to the movement of the ankle joint. According to him, P.W.1 cannot drive the vehicle in future because of the deformity. But, this version of P.W.2 appears to be only after examination of P.W.1 in the Court, while giving evidence, as his evidence discloses that there was no chance for him to examine P.W.1 after 01.10.2002. In the cross-examination, P.W.2 admits that there is no recorded evidence for the subsequent treatment taken by P.W.1, after getting himself discharged from the Government Hospital at Nellore i.e., after 01.10.2002. As stated earlier, there is no evidence on record to show as to what happened to the petitioner after 01.10.2002. A doubt arises as to whether the deformity certificate issued by the Medical Board relates to the incident which happened in the year 2002; whether the disability was due to the injuries sustained by P.W.1 in the year 2002, and whether P.W.1 has become totally crippled due to improper treatment taken after discharge against medical advice on 01.10.2002. The disability certificate appears to have been obtained just prior to commencement of trial. Having regard to the facts and circumstances of the case and since the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimant is a paramount consideration, and as the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent, I deem it appropriate to award a sum of Rs.25,000/(Rupees twenty five thousand only) towards loss of earnings due to disability.

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Coming to the damages awarded under non-pecuniary count, the Tribunal awarded a sum of Rs.25,000/- towards pain and suffering. The said amount, in my view, appears to be on a lower side. The fact that the petitioner sustained swelling, deformity of right leg and fracture of both bones of right leg and fracture of tulas (ankle bone) amply establishes that the petitioner must have undergone immense hardship, pain and suffering. In view of the above, I deem it

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appropriate to award a further sum of Rs.25,000/- towards pain and suffering.

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Since the wound certificate, which was issued by the Medical Officer, Primary Health Center, Naidupet itself indicate that there was deformity of right leg, definitely, the petitioner must have been put to lot of discomfort in his day to day activities. Hence, I deem it appropriate to award a sum of Rs.25,000/- towards loss of amenities, in view of the judgment of this Court in BHADRAMMA Vs. G. KUMAR AND ANOTHER^[2] .

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Accordingly, the Civil Miscellaneous Appeal is allowed in part by enhancing the compensation from Rs.35,000/- to Rs.1,25,000/(Rupees one lakh twenty thousand only). The enhanced compensation amount shall carry interest of 6% per annum from the date of petition till the date of realisation. There shall be no order as to costs.

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Consequently, miscellaneous petitions, if any, pending in the appeal shall stand closed.

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__________________ C. PRAVEEN KUMAR, J 13^th August, 2014 cbs

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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M.A.C.M.A.No. 1623 of 2007

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13^th August, 2014

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cbs

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[1] MACD 2011 (SC) 33

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[2] (2010(6) ALD 335 (DB)

Athikimsetti Audinarayana v. B.Ramanaiah

Case brief

What is this about?

What did the court decide?

Athikimsetti Audinarayana v. B.Ramanaiah

Case brief

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