Jadavbhoja Vs. A.Bhooma Goud Andanoth - Court Judgment

HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO M.A.C.M.A. No.538 of 2007 31-01-2014 Jadav Bhojaram...Appellant A.Bhooma Goud and another....Respondents Counsel for the Appellant: M/s K. Sarala Mahender Reddy zCounsel for respondent No.1:None appeared Counsel for respondent No.2- New India Assurance Company Limited : Sri Naresh Byrapaneni HEAD NOTE: ?.Cases referred:

1. 1965(1) All.E.R-563 2) 1963(2) All.E.R.432 3) 1969(1) All.E.R.555 4) 1995 ACJ366SC) HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.538 OF2007JUDGMENT

: The injured-claimant filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum- II Additional District Judge, Nizambad, (for short, 'Tribunal') in M.V.O.P.No.699 of 2001 dated 01.08.2006, awarding compensation of Rs.35,000/- (Rupees thirty five thousand only) as against the claim of Rs.1,00,000/-(Rupees one lakh only), for enhancement of compensation as prayed for in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, 'the Act').

2. Heard M/s K.Sarala Mahender Reddy, the learned counsel for appellant, Sri Naresh Byrapaneni, the learned standing counsel for 2nd respondent-The New India Assurance Company Limited and the 1st respondent-owner of crime vehicle, who was served with notice called absent with no representation. Taken as heard the 1st respondent for his absence to decide on merits and perused the record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

3. The contentions in the grounds of appeal as well as submissions during course of hearing in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in not taking consideration of the Ex.A.4 disability certificate issued by doctor T.Narasimha Rao of Nizams hospital, Nizamabad in view of the observation of High Court of A.P. in CMA No.3518 of 2004 dated 09.11.2004 in which it is observed not to act on the evidence of doctor T.Narasimha Rao of Nizams hospital, Nizambad and awarded compensation in claim petition and it is erroneous in so relying on said expression of the High Court by the Tribunal without proper appreciation of the facts, that the Tribunal should have taken into consideration of Ex.A.5 cash receipt of Rs.25,000/- dt.08.11.2010 issued by a private hospital on Nizamabad, Nizam hospital towards the expenditure incurred for treatment and medicines by the claimant instead of not believing awarded only Rs.5,000/- while awarding Rs.25,000/- for pain and sufferance including compound fracture and two other simple injuries referred in Ex.A.3 wound certificate, that the same is very low to the claim in the claim petition.

4. 1st respondent-owner of the jeep not only before the Tribunal but also herein remained ex parte.

5. The contention of the 2nd respondent-Insurer is that the Tribunal rightly came to the conclusion and there is nothing to enhance the award of compensation and there is nothing to interfere with the conclusions of the Tribunal in not believing the so called receipt of medical expenses incurred and so called Ex.A.4 disability certificate for no basis and thereby sought for dismissal of the appeal with costs. 6). Now the points that arise for consideration in the appeal are:

1. Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?.

2. To what result?. POINT-1:

7. The facts of the case are that on 14.10.2000 the petitioner along with others was traveling in a jeep bearing No.AP-1-C-3563 belongs to the 1st respondent insured with the 2nd respondent covered by Ex.B.1 policy, and when they reached near Venkur village, due to rash and negligent driving of the driver at high speed, the vehicle turned turtle and the claimant sustained fracture of right leg, injuries to both hands, left leg and head. Immediately, the claimant was shifted to Government hospital, Kuntala for treatment, which occurrence is covered by Ex.A.1 First Information Report and Ex.A.2 charge sheet. Having considered the oral and documentary evidence available on record, the Tribunal awarded in all compensation of Rs.35,000/-(Rupees thirty five only) against respondent No.1 only.

8. Before coming to decide, what is just 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. James1, 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 composition 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 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. Tolly2 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver3 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 H.D.Hattangadi v. Pest Controll (India) Private Limited4 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 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 the 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.

9. The fact that the accident was due to rash and negligent driving of the driver of the crime vehicle of the 1st respondent-owner insured with the 2nd respondent-Insurance company under Ex.A.6 policy/cover note is not in dispute and as the fact is also proved from the evidence of P.W.1 and Ex.A.1 FIR and A.2 chargesheet for this Court while sitting in appeal there is nothing to interfere with the finding of the Tribunal particularly regarding quantum of compensation.

10. From the above propositions and factual matrix, as per Ex.A.3 wound certificate the claimant sustained compound fracture of shaft of right tibia and fibula and the same is also revealed from Ex.A.7 X-ray film=C.2 with reference to Ex.C.1 case sheets besides three abrasions one is on right knee joint, other on left malelus and the other on left cheek. The claimant was treated in the Government hospital, Kuntala, initially and later in the headquarters hospital, Nizambad for the fracture of both bones. P.W.2 doctor K.Nagaraju deposed with reference to the wound certificate and case sheet of Government hospital supra. For saying any treatment undergone in Nizams hospital, Nizambad but for Ex.A.5 so called receipt dated 08.11.2000 for Rs.25,600/- that too mentioned in cash receipt of lumpsum taken by so called doctor no other proof that was thereby rightly not believed by the Tribunal so also so called Ex.A.4 alleged disability certificate obtained from one doctor T.Narasimha Rao. Thus by considering these aspects even for this Court while sitting in appeal an amount of Rs.25,000/- is just compensation for the compound fracture of both bones which is a vital organ for the claimant is a beedi worker as per claim petition and for the three abrasions an amount of Rs.6,000/- and for medical expenses even as treatment was in the hospital he has to be incurred for purchase of medicines and other items and also for extra nourishment, transport charges, attendant charges and loss of earnings a sum of Rs.14,000/- in all comes to Rs.45,000/- is just compensation hence the same is enhanced from 35,000/- with interest at 7.5%p.a. Accordingly, Point-1 for consideration is answered. POINT -2:

11. In the result, the appeal is partly allowed by modifying the Award of the Tribunal on quantum of compensation by enhancing the same from Rs.35,000/- to Rs. 45,000/-(Rupees forty five thousand only) with interest at 71/2% p.a. from the date of petition (MVOP) till realization/deposit with notice. Respondent No.1 is directed to deposit said amount with interest within one month from today, failing which the claimant can execute and recover. On such deposit or execution and recovery, the claimant is permitted to withdraw the same. There is no order as to costs in the appeal. _______________________ Dr. B. SIVA SANKARA RAO, J Date:

31. 01.2014