High Court · 2012

Judgment

1 This Civil Miscellaneous Appeal arises out of judgment and award dated 27.12.2004 passed in O.P.No.207 of 2002 on the file of The Motor Accidents Claims Tribunal-cum-IV Additional Chief Judge, City Civil Courts, Hyderabad. The claimant in the said O.P. filed the present appeal being dissatisfied with the quantum of compensation awarded by the Tribunal. 2 Heard Sri M.Vijaya Reddy learned counsel for the appellant and Sri Srinivasa Rao Vutla learned counsel for the insurance company. Though notice was served on the first respondent i.e. the owner of the offending vehicle, there was no representation on his behalf. 3 On 11.6.1999 at about 2.30 PM the appellant was proceeding on scooter belonging to his friend as a pillion rider from his work shop at Balkampet towards Yerragadda.

After purchasing some hardware parts near Gokul talkies, they were returning to the work shop of the appellant through a byline. When they were about to enter the main road, a lorry bearing No.ABT 7873 driven in a rash and negligent manner and in high speed, turned towards the said byline and dashed against the scooter, due to which the driver and the pillion rider fell down and the left front wheel of the lorry ran over the appellant. He was immediately shifted to St. Theresa Hospital, Yerragadda and from there to Trauma Care Orthopedic Hospital, Kukatpally. After discharge from the said centre, he took treatment from Dr. Subhash Rao an orthopedic surgeon at Peoples Care Centre, Kukatpally. In respect of the said incident, a case in Cr.No.372 of 1999 was registered on the file of S.R.

Nagar police station against the driver of the offending lorry for the offence punishable under section 337 of IPC. According to the appellant, he was earning Rs.10,000/- per month by running a lorry body building work shop at Balkampet and due to the injuries sustained by him, he could not attend to the work and has become totally disabled. Hence he filed the claim petition seeking a total compensation of Rs.4.00 lakhs under various heads. 4

The first respondent i.e. owner of the offending lorry filed counter denying the averments made in the claim petition and stated that his vehicle was insured with the second respondent and the policy was valid on the date of accident. According to him, the second respondent i.e. the insurance company has to indemnify the liability of the first respondent. 5 The second respondent i.e. insurance company filed their counter resisting the claim. According to them, there was negligent driving on the part of the driver of the two wheeler and that has contributed to the accident. In any event it is claimed that the compensation of Rs.4.00 lakhs sought for is highly excessive and exorbitant. 6 In order to substantiate his claim, the appellant examined himself as P.W.1 and also examined Dr. G. Subhash Rao who treated him and also issued the disability certificate as P.W.2 apart from examining P.Ws.3 and 4 as eyewitnesses to the incident. No oral or documentary evidence has been adduced on behalf of the first respondent. But the second respondent got marked Ex.B.1 to B.3 without leading any oral evidence. 7 The Tribunal, after considering the evidence available on record, found that the accident was due to the rash and negligent driving by the driver of the offending lorry, and as the offending lorry was insured with the second respondent – insurance company, made the owner and the insurance company liable to pay a sum of Rs.26,870/- towards medical expenses, Rs.40,000/- towards injuries, Rs.15,000/- towards pain and suffering, Rs.10,000/- towards loss of earnings during the period treatment, Rs.5,000/- towards extra nourishment and transport charges. Thus in all a sum of Rs.96,870/- was awarded as compensation with interest at 9% p.a. from the date of filing the petition till the date of realization. 8 The learned counsel for the appellant contends that the evidence on record clearly discloses that the appellant cannot do work as he used to do prior to the accident and the amount awarded under the above counts are very meager and seeks enhancement of the same. 9 On the other hand the learned counsel for the insurance company contends that the Tribunal has awarded compensation which is just and reasonable which warrants no interference from this Court. The learned counsel further contends that there has been abnormal delay in lodging the report and that itself indicates that there has been collusion between the first respondent and the appellant. 10 In so far as the incident which is said to have taken place on

11.06.1999 is concerned, there is no dispute about the same. The finding of the Tribunal that the accident took place due to rash and negligent driving of the driver of the offending lorry is not challenged either by the owner of the said vehicle or the insurance company and the same has become final. 11 The evidence of PW.1 discloses that immediately after the incident, he was initially shifted to St. Theresa Hospital, Yerragadda and there he was shifted to Trauma Care Orthopedic Hospital, Kukatpally. He took treatment for the injuries sustained and after prolonged treatment he was discharged from the hospital on 27.7.1999. Thereafter as the said hospital got closed, he took treatment at Peoples hospital at Kukatpally under one G.Subhash Rao, an orthopedic surgeon. According to him, his left hand got paralyzed and he is not in a position to run the work shop, which got closed down due to his inability in running the same. It is also stated that immediately after the accident the lorry owner approached him promising to pay the entire medical expenses and also compensate him to the extent agreed upon. Believing the said version he did not lodge any report immediately. But as they did not come forward to fulfill their commitment, he was forced to lodged a report. 12 Though P.W.1 was cross examined at length, nothing useful was elicited except suggesting that Ex.A.7 bunch of medical bills filed by him are false and fabricated and that the X-Rays are invented for the purpose of this case. In the cross examination to a specific suggestion put by the counsel for the insurance company P.W.1 stated as follows: “It is not true to suggest that I got paralysis not because of these injuries sustained in the accident, but because of old age.” 13 The said suggestion clearly demonstrates that the appellant sustained paralysis. To a further suggestion, P.W.1 admits that he is still undergoing treatment. 14 P.W.2 the doctor stated that he was a consultant orthopedic surgeon at Peoples hospitals, Kukatpally and also at several other hospitals in the city. According to him, he examined the appellant for the first time on 14.08.1999. He says that the patient was earlier treated at Trauma Care Multi Specialty hospital, Kukatpally. According to him, the discharge certificate at Trauma Care Multi Specialty hospital shows that the appellant sustained injuries which are i. Fracture pelvis and ii) Dislocation of right sterno clavicular joint. He treated the appellant from

14.8.1999 to 04.10.1999 by conservative method. On 01.3.2003 he issued disability certificate Ex.A.6. Before issuing the disability certificate on 01.3.2003 he examined the appellant and found malunion of pelvis with good union of clavicle fracture, with restricted movement on left hip joint and right shoulder and weakness of left upper arm. According to him, because of the said weakness the appellant could not carry out his duties as perfectly as he used to do earlier. P.W.2 further says that the appellant cannot climb steps like a normal man, he estimated the disability at 40% (25 % pelvis and 15% clavicle), which is partial and permanent. According to him, there would not be any improvement in percentage of disability in future. Ex.A.5 is the disability certificate issued by him. P.W.2 was subjected to lengthy cross examination. He was confronted with the documents which were issued at Trauma Care Multi Specialty hospital. It has been elicited in the cross examination of PW.2 that he examined the appellant on 04.10.1999 and got X-ray taken. P.W.2 denied the suggestion that the appellant did not sustain any disability and that he has not treated the patient. He also denied that the medical bills produced are false and fabricated. In re-examination he clarified that X-rays are taken on his advice and he has mentioned the medicines to be taken by the appellant. 15 P.W.3 was the person who was riding the scooter at the time of accident. He deposed that about the injured being taken to St. Theresa Hospital, Yerragadda and thereafter to Trauma Care Orthopedic Hospital, Kukatpally. Though he was cross examined at length, nothing useful is elicited to discredit his testimony. 16 From the evidence available on record, it is clear that immediately after the accident no report was given and there has been a delay of one and half months in lodging the complaint. The reason for the delay has been explained by P.W.1. In his chief examination he asserted that immediately after the accident the owners approached him and promised to pay the entire medical expenses and also compensation. The said version of P.W.1 is corroborated by P.W.3. Believing the owners of the lorry no report was given immediately. When they went back on the said promise, the appellant was forced to lodge the report. 17 It has been held by the Supreme Court in Ravi Vs. Badrinarayan and Others [1] that delay in lodging the FIR cannot be the main ground for rejecting the claim petition. In other words, the Court held that although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactorily the reason for delay. At that point of time, the claimant and his relatives would be more concerned towards the treatment to be given to P.W.1 and how money could be raised for better treatment. 18 As stated supra the reasons given for delay in lodging the FIR are cogent and convincing and the claim for compensation cannot be rejected on this ground. 19 It is not in dispute that at the time of accident, the vehicle was insured with the second respondent. Ex.B.3 policy was in force on the date of accident. It is also not in dispute that the driver of the lorry was having a valid licence to drive the vehicle on the date of accident. 20 The heads under which compensation is awarded in personal injury cases are the following: 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 earnings 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). 21 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. 22 Disability ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. As held by the Supreme Court in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited [2] if the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case. 23 Now the question that arises for consideration is what would be the just and reasonable compensation that can be awarded to the appellant. 24 It is not in dispute that initially P.W.1 was admitted in St. Theresa Hospital, Yerragadda and from there he was shifted to Trauma Care Orthopedic Hospital, Kukatpally. One Dr.P.Venkata Nagesh treated the appellant and his name figured as list of witnesses in the charge sheet filed by the police. Ex.A.3 is the accident register issued by Trauma Care Orthopedic Hospital, Kukatpally. It has come on record that the said hospital was blasted by naxalites and that was the reason he could not examine the said doctor who issued Ex.A.3. The said reason for not examining the doctor appears to be justifiable as the doctor must have gone elsewhere after the blast. The Tribunal rightly believed Exs.A.3, A.4 and also Ex.A.7-bunch of medical bills issued at Trauma Care Orthopedic Hospital, Kukatpally. 25 It is also not in dispute that the appellant was treated as an inpatient in the said hospital from 11.6.1999. The Tribunal awarded a sum of Rs.26,870/- as against the claim of Rs.39,675/- towards medical bills. I feel that having believed Ex.A.7 (bunch of medical bills 32 in number), the Tribunal ought to have awarded the amount claimed by the appellant towards medical bills. In that view of the matter, an amount of Rs.39,675/- is awarded towards medical expenses incurred by the appellant while taking treatment in Trauma Care Orthopedic Hospital, Kukatpally. 26 After the blast of said Trauma Care Orthopedic Hospital, Kukatpally, the appellant treatment under P.W.2 at Peoples Hospital, Kukatpally. P.W.2 who treated P.W.1 in the said hospital deposed that there was a fracture of pelvis and also dislocation of right sterno clavicular joint and he treated the appellant from 14.08.1999 to

04.10.1999 by conservative method. The Tribunal totally disbelieved the evidence of PW.2 and Exs.A.5 to A.7 for the reason that the date in Ex.A.5 was shown as 14.8.1999 onwards and that there cannot be any chance of P.W.1 being admitted in the said hospital on 14.8.1999 as he was an inpatient in Trauma Care Orthopedic Hospital, Kukatpally at that time and he was discharged from that hospital on 25.8.1999. According to the Tribunal this is sufficient to show that the doctor as well as the documents were brought into existence for the purpose of this case. 27 I have perused Exs.A.3, A.4 and A.7. Ex.A.3 is an accident register which only indicates the date of admission. In so far as Ex.A.4, which is the discharge summary, it refers to date of admission as

11.6.1999. The column date of discharge is kept blank. So it cannot be said that he was not discharged from Trauma Care Orthopedic Hospital, Kukatpally by 14.8.1999. For the reasons best known the said column was kept blank. By this it cannot be inferred that the subsequent treatment given by P.W.2 is false. Ex.A.7 bunch of medical bills produced show the expenditure incurred towards purchase of medicines. The said bills date back to the period while he was in hospital at Trauma Care Orthopedic Hospital, at Peoples hospitals, Kukatpally and also after discharge from Peoples hospital. 28 The said bills were believed by the Tribunal while awarding compensation towards medical expenses. When such is the position, the Tribunal went wrong in rejecting the treatment given by P.W.2 at Peoples Care Centre. The statement of expenditure issued by Trauma Care Orthopedic Hospital, Kukatpally was relied upon by the Tribunal to discredit the evidence of P.W.2. It may be noticed that the said computerized sheet of paper signed by the doctor mentions the expenditure incurred while the claimant was in hospital, but the same was not marked as an exhibit. So no reliance could have been placed on the document which is not marked. Ex.A.7 bunch of medicals shows the expenditure incurred by the appellant not only at Trauma Care Orthopedic Hospital, Kukatpally, Peoples Hospitals, Kukatpally but also for the treatment taken thereafter. It appears that the consolidated bill for the expenditure incurred at Trauma Care Orthopedic Hospital, Kukatpally was given at a later stage and it appears that by mistake the date of discharge was mentioned as 25.8.1999 instead of date of issue. The said finding is fortified by the fact that the insurance company was not able to demolish the version of P.W.2, in so far as the treatment given by him from 14.8.1999. P.W.2 noticed the condition of the patient and observed that there was malunion of pelvis with good union of clavicle fracture. His movements at left hip joint are restricted. The doctor further opined that he cannot sit and squat and cannot stand for longtime. He estimated the disability at 40%, which is partial and permanent. According to him, he treated the appellant from 14.8.1999 to 4.10.1999 i.e. for two months. 29 The learned counsel relied on Rajesh Kumar @ Raju Vs. Yudhvir Singh and another , N. Suresh Vs. Yusuf Shariff & Anr. [3] [4] , Raj Kumar Vs. Ajay Kumar and another , a n d A.Chalapathi Vs. [5] Satyanarayana N.Nuwal and others [6] in support of his claim. 30 All the above cases were decided keeping in view the facts and circumstances of each case. In all the cases, the claimants suffered injuries leading to hospitalization and in some cases the injuries led to total disability. In each of the cases, the Court awarded compensation keeping in view the facts and circumstances of those cases. In A. Chalapathi case (6 supra) this Court while considering the certificate issued by the doctor who treated the claimant therein opined as under: “The Tribunal has not traced any statutory provision under which Medical Board is constituted and obtaining of the permanent disability certificate from the Medical Board is made obligatory for claimants under the Motor Vehicles Act, 1988.” 31 In view of the above decision, it can be said that if the evidence of P.w.2 is believable, the certificate issued by him with regard to the disability sustained by the appellant can also be taken into consideration for calculating the loss of earnings. 32 The Tribunal took the earnings of the appellant at Rs.3,000/- per month and awarded a sum of Rs.10,000/- towards loss of earnings for a period of three months during the period of his treatment. The evidence of P.W.2 which remained unimpeached, though he was subjected to lengthy cross examination, discloses that the appellant cannot carry out his work as perfectly as he used to do earlier to the accident. Therefore, his evidence categorically shows that because of the accident the appellant sustained disability which would lead to certain loss in his earning capacity. When the physical disability was found to be 40%, I feel that the functional disability can be estimated at 10%. Taking the income of the appellant at Rs.3,000/- as held by the Tribunal, and applying multiplier 13 in view of the age of the appellant at 47 years by the date of accident, the loss of future earnings would be Rs.36,000/- X 10% X 13 = Rs.40,800/-. 33 The Tribunal further held that as the appellant was in hospital for three months he must have taken the help of an attendant to take care of him while he was in hospital as in patient. Further to get himself recovered from the injuries, he must have been provided good food. The Tribunal awarded a sum of Rs.5,000/- towards extra nourishment, transportation charges and other incidental charges. As the claimant went around different hospitals in search of better treatment, I feel that a further sum of Rs.5,000/- can be awarded towards transportation, extra nourishment and other charges. 34 In so far as compensation to be awarded under non pecuniary damages (general damages) are concerned, the Tribunal awarded a sum of Rs.15,000/- towards pain and suffering. Apart from that the Tribunal also awarded 40,000/- in lumpsum for the injuries sustained by the appellant. While awarding the said amount, the Tribunal held as under: “So, the very fact that he sustained fracture of vertical iliac crest left and also with lateral displacement and dislocation of sternum clavicular of joint and blunt injury spine and chest, in my view, besides fracture there has been dislocation, and keeping in view the same, towards the injuries, he can be awarded a total sum of Rs.40,000/-.” 35 The said finding and amount awarded under the said count appears to be just and reasonable warranting no interference from this Court. 36 It is to be noticed that the appellant was put to lot of inconvenience in his daily activities because of the injuries sustained by him. He is not in a position to do the work in the same manner as he was doing earlier. He is not in a position to sit, squat and stand for long time. In that view of the matter, the amount under the count pain and suffering and trauma can be enhanced from Rs.15,000/- to Rs.30,000/-. 37 In view of the disability sustained, the appellant will not be in a position to carry out the same work and in the same manner which he was doing earlier. Even assuming that he has to start the business afresh, he will be forced to take the help of others to execute the said work. Further, the doctor in his evidence has categorically deposed that in spite of best treatment, there will not be any improvement in his disability. As observed earlier, the claimant cannot sit, squat, stand for a long time or walk for a long distance. In that view of the matter, a further sum of Rs.5,000/- is granted towards loss of amenities. 38 Thus in all the appellant is entitled to Rs.40,800/- (Loss of future earnings) + Rs.3,500/- (Transportation Charges), Rs.30,000/- (Pain and suffering) + Rs.10,000/- (Loss of earnings) + Rs.39,675/- (Medical Bills) + Rs.40,000/- (Injuries) + Rs.5,000/- (Loss of amenities) = Rs.1,68,975/-, which is rounded of to Rs.1,69,000/- as compensation for the injuries sustained by him in the accident. 38 In the result, the appeal is allowed partly and the compensation awarded by the Tribunal is enhanced from Rs.96,870/- to Rs.1,69,000/- while maintaining the interest at 9% on the amount awarded by the Tribunal and the enhanced amount will carry interest at 7% p.a. from the date of filing of the petition till the date of realization. No order as to costs. ----------------------------------- C. PRAVEEN KUMAR, J. Date:12-10-2012. Kvsn* [1] [2] [3] [4] [5] [6] (2011) 4 SCC 693 (2011) 13 SCC 236 (2008) 7 SCC 305 2012 (7) SCALE 205 (2011) 1 SCC 343 2010 (4) ALD 217