Mohammed Yakub v. Saka Veera Venkata Bhagavanthudu
THE HON'BLE SMT. JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL No.2779 of 2004 JUDGMENT:
This appeal is filed by the appellant/petitioner under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act'), aggrieved by the award dated 04-11-2003, passed by the I Additional District Judge-cum-Chairman, Motor Accident Claims Tribunal, West Godavari District at Eluru, in O.P.No.225 of 1999, awarding compensation of Rs.61,645/-.
2. The claimant filed the above O.P. under Section 166 of the Act, claiming compensation of Rs.2,00,000/- for the injuries received by the petitioner in a motor vehicle accident. 3.
The brief averments made in the petition are that the petitioner is working as Head Constable in Vigilance Department at Eluru and his monthly salary is Rs.8,000/-. On 12-09-1998, at 6.00 P.M., the petitioner boarded an Ambassador car bearing registration No.AP-5T-7142 at Akividu to go to Eluru along with Vigilance Constable by paying Rs.15/- each towards hire charges. While so, the driver of a lorry proceeded at high speed in opposite direction without observing traffic rules and dashed the car, as a result the petitioner and the Vigilance Constable and the driver of the car received injuries. The accident occurred due to rash and negligent driving of the driver of 1st respondent.
4. The petitioner was shifted to Venkataraya Hospital, Eluru and he took treatment for five days and from there, he was shifted to Uma Hospital, Eluru for better treatment. He underwent operation and rods were inserted in his left leg. He spent Rs.75,000/- towards medical expenses. Therefore, prayed the Court to award compensation of Rs.2,00,000/-.
5. R1, R2, R4 and R5 were set exparte before the Tribunal.
6. The brief averments made in the written statement filed by the 3rd respondent are that the petitioner is put to strict proof with regard to the manner of accident, his income, treatment etc. It is further stated that R1 has no valid driving licence to drive the lorry and it is a violation of the conditions to the policy. Therefore, R3 is not liable to pay compensation. The claim of the petitioner is excessive and exorbitant and prayed the Court to dismiss the petition.
7. The brief averments made in the written statement filed by the 6th respondent are that the petitioner is put to strict proof with regard to the manner of accident, claim etc. and R4 - driver is not responsible for the accident, as such, R6 is not liable to pay compensation and prayed the Court to dismiss the petition.
8. Basing on the pleadings, the Tribunal framed three issues and to substantiate the claim, PWs.1 and 2 were examined and got marked Exs.A.1 to A.16. On behalf of the sixth respondent, RW1
was examined and got marked Exs.B1 and B2. On behalf of the third respondent, no oral evidence was adduced and got marked Ex.B3.
9. Considering the oral and documentary evidence, the Tribunal held that R-1 driver was responsible for the accident, in which PW1 received injuries and granted compensation of Rs.61,645/- along with interest at 9% per annum against R1 to R3 and dismissed the claim against R4 to R6.
10. Not satisfied with the compensation awarded by the Tribunal, the petitioner preferred the present appeal.
11. The learned counsel for the appellant argued that in the accident the petitioner sustained grievous injuries and he became partially disabled and due to the injuries he suffered mental agony, which cannot be compensated in terms of money. It is also argued that the petitioner was sent to Medical Board and Ex.A16 is the Disability Certificate, wherein it was mentioned that the petitioner was suffered 40% disability. The Tribunal without considering that aspect granted a meagre compensation, therefore, prayed the Court to enhance the compensation. Learned counsel for the appellant also placed reliance upon a decision reported in K. SURESH V. NEW INDIA ASSURANCE CO. LTD., AND ANOTHER[1], wherein the Hon'ble Apex Court held in paragraph No.24 as follows:
"24. It is worthy noting that the Bench referred to the pecuniary
damages and non-pecuniary damages and opined thus: - "Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, 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) (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)." and prayed the Court to grant pecuniary damages and nonpecuniary damages and enhance the compensation. 12.
On the other hand, learned counsel for the respondents contended that the petitioner is working as Head Constable and due to the said injuries he did not suffer any functional disability and further due to the said disability he has not removed from the service or his promotion was overlooked. Therefore, after considering all these aspects the Tribunal rightly granted compensation to the petitioner and the said findings of the Tribunal need no interference and prayed the Court to dismiss the petition. 13.
Having regard to the submissions made by the learned counsel for the appellant, the points that arise for consideration
are:
1. Whether the compensation awarded by the Tribunal is just and reasonable?
2. Whether the appellant is entitled for enhancement of compensation?
14. Points:
PW1, who is the injured, stated that he received fracture to his nostril bone, right hipbone and right thumb. Initially he was brought to Venkatraya Diagnostic Centre, Eluru and he took treatment for 18 days as in-patient. Since no orthopaedician came to the hospital, he discharged from the said hospital and admitted in Uma Nursing Home at Eluru. One Dr.B. Narasimha Rao, Orthopaedician treated him and he underwent operation on 02-101998 and he took treatment there for about one month as inpatient. Screws were inserted in the right hip and the same were not removed and he took bed rest for two months. Thereafter he underwent operation to his nostril bone at Sailaja Hospital at Vijayawada. Bone grafting was done and he took 15 days treatment. According to PW1, Doctor collected Rs.20,000/- but issued bill for Rs.13,000/-.
In Venkataraya Hospital, the Doctors collected Rs.25,000/- but issued bills for Rs.18,000/-. He paid Rs,25,000/- to Dr. Narasimharao for conducting operation to his hip and for fixation of rod. The Medical Board issued certificate opinion in that he is suffering from disability. 15.
PW2, who is the Civil Assistant Surgeon, Government Headquarters Hospital, Eluru, stated that on 01-10-1998 he came to Uma Hospital, Eluru and was discharged on 30-10-1998. He got
fracture dislocation of right hip joint and he was operated on 02-101998 and screws were inserted into his thigh. PW2 also stated about other surgeries conducted on PW-1 and stated that the disability of PW1 was approximately 50%. Ex.A16 is the disability certificate issued by Medical Board, West Godavari District, Eluru and claiming Rs.2,00,000/- as compensation.
16. Admittedly, the petitioner is working as Head Constable and drawing salary as per Ex.A3 per month. The Tribunal fixed the percentage of disability at 20% in view of the earning capacity of petitioner and calculated the loss of future income at Rs.36,645/- towards loss of future earnings because of disability and also awarded Rs.20,000/- towards medical expenses and Rs.5,000/- towards pain and suffering. Thus, awarded a total amount of compensation of Rs.61,645/-.
17. Now, the learned counsel for the appellant argued that the appellant is entitled for pecuniary damages and non-pecuniary damages and also entitled for compensation for future medical expenses etc.
18.
Admittedly, the appellant/petitioner is working as Head Constable and attending his duties. There is no evidence to show that due to disability he lost his future earnings and also lost all amenities. The Tribunal after considering the evidence on record granted Rs.5,000/- towards pain and suffering and Rs.30,000/- towards medical expenses. The burden of proof lies on the petitioner to show that he is entitled for future medical expenses in view of the disability suffered. To prove that fact also the petitioner
has not produced any evidence that he needs some amount towards future medical expenses.
19. It is no doubt that the Tribunal though granted reasonable compensation, it has not awarded compensation to the petitioner for extra-nourishment, transportation, etc.
Admittedly, the petitioner was admitted in various hospitals and by going to those hospitals he must have incurred some amount for transportation and other charges, likewise the petitioner suffered grievous injuries, therefore, some amount must have been spent towards extra-nourishment. Considering the facts and circumstances of the case, the appellant/petitioner is entitled to an amount of Rs.5,000/- towards extra-nourishment and other charges and Rs.3,000/- towards transportation charges. Thus, the petitioner is entitled to total compensation of Rs.69,645/- (61,645 + 5,000 + 3,000).
20. After considering the evidence of PW1 and Ex.B1 policy issued by R6, which was in force from 05-09-1997 to 04-09-1998 and by the date of accident the policy was not renewed and not in force. Therefore, the Tribunal rightly held respondent Nos.1 to 3 are jointly and severally liable to pay compensation to the appellant. The Tribunal also rightly held that respondent Nos.4 to 6 are not liable to pay compensation and dismissed the petition against them.
21. In the result, the appeal is partly allowed enhancing the compensation granted by the Tribunal from Rs.61,645/- to Rs.69,645/-. For the enhanced amount of Rs.8,000/-, an interest at
7.5% is awarded in view of the judgment of the Hon'ble Supreme Court in SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER[2], from the date of appeal till the date of realisation. There shall be no order as to costs.
22. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
-------------------- (ANIS, J) July, 2015 Pn THE HON'BLE SMT. JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL No. 2779 of 2004 July, 2015 Pn [1] 2012 ACJ 2694 [2] (2009)6 SCC 121