Partly allowed

S.Shankariah v. T. Yesupadam

Telangana HC2 Sept 2014MACMA/2722/2007

Case brief

AI extract

What is this about?

The court enhanced compensation awarded in a motor accident injury case. It increased pecuniary and non-pecuniary damages for pain, suffering, and transport costs, and granted a lump sum for permanent disfiguration of the face due to loss of teeth and jaw fracture.

What did the court decide?

Compensation enhanced from Rs. 28,500 to Rs. 89,500 with interest at 6% from the date of petition.

S.Shankariah Vs T. Yesupadam — Motor Accident Claims | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A No. 2722 of 2007

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JUDGMENT:

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The claimant filed the present appeal under Section 173 of the Motor Vehicles Act, seeking enhancement of compensation awarded in O.P.No.67 of 2003 on the file of MACT-cum-III Additional District Judge (FTC), Asifabad, wherein and whereunder a sum of Rs.28,500/- was awarded as compensation. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the Tribunal.

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2. The facts in issue are as under:

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The claimant filed a petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.1,00,000/- for the injuries sustained by him in a road accident that occurred on 18.11.2002. It is stated that on 18.11.2002 at 12.00 hrs he along with his friend was proceeding on Suzuki Motorcycle bearing No. AP 1A 8612 from Srirampur to Indaram petrol bunk and when they reached near Indarma X road, a lorry bearing No.AP16T 2655 driven by its driver in a rash and negligent manner, came in opposite direction and dashed the claimant’s vehicle. As a result, the claimant fell down and sustained injuries. As first respondent is the owner of the offending lorry and the second respondent is its insurer, both of them were made jointly and severally

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liable to pay compensation.

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The first respondent owner of the lorry remained exparte. The second respondent filed its counter disputing the manner in which the accident took place, and also disputed the age, income and avocation of the claimant. It is further stated that the driver of the offending lorry had no valid and effective driving licence.

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Basing on the above pleadings, the Tribunal framed the following issues:

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(1) Whether the petitioner sustained injuries in the accident occurred on 18.11.2002 due to rash and negligent driving of lorry No.AP 16T 2655 by its driver?

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(2) Whether the petitioner is entitled to any compensation? If so, to what amount and against whom?

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(3) To what relief?

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In support of his claim, the claimant examined himself as PW1 and got marked Exs.A1 to A11. No oral or documentary evidence was adduced on behalf of the respondents.

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After analyzing the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving by the driver of the offending lorry and according awarded a compensation of Rs.28,500/- against the respondents.

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Seeking enhancement of the compensation, the claimant preferred the present appeal.

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3. 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 insurer of the offending vehicle. Therefore, the only point that arises for consideration is whether the compensation awarded is just and reasonable.

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4. In order to award compensation in case of personal injuries the Apex Court in Raj Kumar Vs. Ajay Kumar and anothe r^[1] held as under:

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5. The heads under which compensation is awarded in personal injury cases are the following :

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Pecuniary damages (Special Damages)

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(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

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(a) Loss of earning during the period of treatment;

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(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses.

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Non-pecuniary damages (General Damages)

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(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

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(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 non-pecuniary damages - items (iv), (v) and (vi) – involves determination of lump sum amounts with reference to circumstances such as age, nature of 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 guidelines laid down by the Apex Court in the judgment referred to above, I shall proceed to deal with the case.

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5. PW1, who is the injured and also an eye witness to the accident, stated that he was working as Coal Filler in MK Mine and used to earn Rs.8,000/- per month. As a result of injuries sustained by him in the accident, he was bed ridden for about two months. Ex.A11 is the pay slip which has been placed on record to show that he was earning a sum of Rs.9,993/- per month. Though PW1 was cross examined at length, no suggestion with regard to his income was put to him. Therefore, Ex.A11, the credibility of which is not disputed assumes importance in deciding the claim. PW1 also got marked Ex.A2 wound certificate. A perusal of the same would show that he has sustained four lacerated injuries, loss of teeth in right upper jaw, fracture of right side upper jaw. The injuries of the upper jaw were described as grievous in nature. The Tribunal relied upon the said certificate for awarding damages towards loss of earnings, pain and suffering and also medical expenses. Though no doctor has been examined to prove the contents of Ex.A2, but still the same can be relied upon since the finding of the Tribunal with regard to the genuinity of Ex.A2 was not challenged by the insurance company. While awarding compensation under pecuniary damages, the Tribunal

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awarded a sum of Rs.500/- towards transport charges, Rs.6,000/towards medical expenses and extra nourishment. Apart from that, the Tribunal held that claimant was bed ridden for 1½ months which led to loss of earnings. Such being the position, the claimant would have taken the help of an attendant to attend to his day to day activities during the period he was in hospital. No amount was awarded towards attendant charges. Hence, I deem it appropriate to award a sum of Rs.2,500/towards attendant charges. The Tribunal also awarded a sum of Rs.500/- towards transportation charges. The finding of the Tribunal would show that immediately after the accident, the claimant was taken to a government hospital and thereafter to a private hospital at Manchiryal. In pursuance of his treatment, he was made to go round the hospital a number of times for getting his dentures fixed. Therefore, the amount of Rs.500/- awarded towards transport charges appears to be on a lower side and hence the same is enhanced to Rs.2,000/-.

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Coming to medical expenses, the Tribunal relied on Ex.A10 – four medical bills for Rs.4,600/- and awarded a sum of Rs.6,000/- towards medical expenses and extra nourishment. It is true that the claimant produced only Ex.A10 to show the expenditure incurred towards medical expenses, but having regard to the nature of injuries sustained by him, namely loss of six teeth, the amount of expenditure which the claimant would have undergone,

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more particularly, for fixing dentures, injury to both the jaws, would have been more than what has been awarded. He, being a village rustic, would not have thought of keeping all the bills for the purpose of making a claim in future. Under these circumstances, the amount of Rs.6,000/- is enhanced to Rs.10,000/-.

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Coming to loss of earnings, the Tribunal awarded a sum of Rs.12,000/-. As PW1, in his evidence stated that he was bed ridden for about two months, by taking the income of the claimant at Rs.8,000/- per month, the Tribunal awarded a sum of Rs.12,000/- which in my view appears to be just and reasonable.

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Coming to the compensation awarded under nonpecuniary damages, the Tribunal awarded a sum of Rs.10,000/- towards pain and suffering for the six injuries and the treatment taken for a period of 1½ month. The said amount in my view appears to be unjust and unreasonable. Having believed Ex.A2 and also the loss of six teeth, the Tribunal ought to have awarded more towards pain and suffering, given the amount of agony, sufferance and discomfort which the claimant would have undergone due to loss of teeth in upper jaw and fracture of upper jaw. In the circumstances, the amount of Rs.10,000/- is enhanced to Rs.25,000/-.

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Placing reliance in the judgment of HIGH COURT OF MADHYA PRADESH in SANTOSH KUMAR v.

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SANJAY MORE AND OTHERS^[2] , learned counsel for the appellant/claimant contended that the claimant suffered permanent disfiguration of face due to loss of teeth and fracture to right upper jaw, the Tribunal ought to have awarded compensation for the permanent disability and disfiguration sustained by the claimant. In SANTOSH KUMAR (2 supra), the Madhya Pradesh High Court held as under:

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“…… destruction or permanent impairing of the powers of any member or joint and would also include permanent disfiguration of the head or face. When Section 142 provides permanent disfiguration of head or face to be a permanent disablement then the percentage of the loss or disablement becomes immaterial. The question that the disablement should be to a certain extent or should be of a particular percentage is not the requirement of law. According to Section 142 if the injury or injuries lead to a particular consequence then it would be deemed to be a permanent disablement. It cannot be disputed that permanent disfiguration of the head or face would not in every case affect the working capacity or ability of the person. If there is any disfuguration of the upper layer of ear, upper layerof cheek, upper layer of the nose or upper layer of lips it is not going to affect the work and working condition of a man, that may ordinarily be not permanent disablement under any other law, but if Motor Vehicles Act, section 142 provides that such disfiguration of the head or face which is of permanent nature would be deemed to be a permanent disablement then it cannot be contended that because the ability of the person is not affected adversely it would not be a case falling under section 142.”

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In the instant case, there is destruction/loss of six teeth. PW1 deposed about the treatment taken by him and also filed Exs.A6 to A9 to show the nature of treatment taken, but he failed to examine any of the

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doctors who is said to have issued the said certificates. Even the Tribunal did not accept those documents. A perusal of the said documents would show that the claimant spent a sum of Rs.3,000/- for replacement of artificial dentures of six teeth. Definitely, the said implantation or dentures must have caused disfiguration of face and would have put him to lot of inconvenience in his day to day activities especially with regard to the nature of food he has to consume. Hence, I deem it appropriate to award a sum of Rs.50,000/- towards disfiguration and loss of basic amenities due to loss of six teeth.

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Accordingly, the appeal is allowed-in-part, enhancing the compensation from Rs.28,500/to Rs.89,500/-. The enhanced amount shall carry interest at 6% from the date of petition till the date of realization. No costs. Miscellaneous petitions, if any pending in this appeal shall stand closed.

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_____________________________ JUSTICE C. PRAVEEN KUMAR

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02.09.2014 ksm

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[1] MACD 2011 (SC) 33

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[2] 2000 ACJ 422

S.Shankariah v. T. Yesupadam

Case brief

What is this about?

What did the court decide?

S.Shankariah v. T. Yesupadam

Case brief

What is this about?

What did the court decide?

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