AI Structured Summary
Not yet generated for this judgment
Judgment
B.V.L.N. Chakravarthi, J
This appeal is preferred by the claimant challenging the award dated 24.03.2017 passed in M.V.O.P.No.403/2009 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Kurnool, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.4,83,530/- with interest @ 7.5% P.A. from the date of petition, till the date of deposit to the claimant for the injuries sustained by the claimant.
For the sake of convenience, the parties are arrayed as parties in the lower Court.
As seen from the record, originally the petitioner filed an application U/s.166 (1) (c) of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.10,00,000/- on account of the injuries and disability sustained by the petitioner in a motor vehicle accident occurred on 15.11.20081 while the petitioner was proceeding on a motor bike towards Bavipalli Village from Peapulli village and when reached Bavipalli Village bus stop, one tractor-trailer bearing No.AP21 X 7577 & 7558 driven by its driver/3rd respondent in rash and negligent manner with high speed, dashed the motor bike, due to which the petitioner fell down and sustained grievous injuries.
The facts show that on 15.11.2008 while the petitioner was proceeding on a motor bike towards Bavipalli Village from Peapulli village and when reached Bavipalli Village bus stop, one tractor-trailer bearing No.AP21 X 7577 & 7558 driven by its driver/3rd respondent in rash and negligent manner with high speed, dashed the motor bike, due to which the petitioner fell down and sustained fractures to both legs, back bone, urinary bladder and genital organ. On account of the said accident, the petitioner was shifted to Gowri Gopal Hospital, Kurnool and later he was shifted to Global Hospital, Hyderabad for better treatment and in the said hospital, he has undergone several operations and he spent Rs.3,50,000/- towards treatment, transportation, attendant charges and other expenses. The doctors advised that he has to undergo another operation for replacement of urinary bladder and it requires Rs.2,00,000/- towards medical expenses. Inspite of the treatment, the petitioner could not regain normalcy and he cannot walk without support and not in a position to attend agricultural work. The petitioner is totally disabled and his marriage prospectus has become bleak.
Before the Tribunal, the 2nd respondent/insurer, filed counter resisting while traversing the material averments with regard to proof of age, avocation, monthly earnings of the petitioner, manner of accident, rash and negligence on the part of the driver of the crime bus, nature of injuries, medical expenditure, alleged permanent disability and liability to pay compensation and contended that the accident occurred due to the rash and negligent driving of the petitioner himself.
The 3rd respondent/driver filed counter denying the petition averments, and contended that the accident was occurred not due to his negligence, the petitioner was proceeding ahead of his tractor-trailer, that on noticing the buffalos coming across the road, the petitioner suddenly stopped the bike and so, the tractor hit the rear portion of the motor bike, due to that unexpected event, stopped the bike and the tractor hit the bike and that as the vehicle was insured with the 2nd respondent, the 2nd respondent alone is liable to pay compensation to the claimant. The 1st respondent remained exparte.
On the strength of the pleadings of both parties, the Tribunal framed the following issues:
Whether the accident took place as stated in the petition?
Whether the petitioner is entitled to compensation? If so, to what amount and from which of the respondents?
To what relief?
On 27.12.2016 the following additional issue was framed:
Whether the petitioner is entitled to receive the compensation from R-3? If so, to what amount?
To substantiate his claim, the petitioner examined P.Ws-1 to 3 and got marked Exs.A-1 to A-6 and Exs.C-1 and C-2. On behalf of the 2nd respondent, R.W-1 was examined and Exs.B-1 and B-2 were marked.
The Tribunal, taking into consideration the evidence of P.Ws-1 and 2, coupled with Exs.A-1 to A-6 and Exs.C-1 and C-2, held that the accident took place due to rash and negligent driving of the driver of the tractor-trailer, and the petitioner contributed his negligence at 10%, and further, taking into consideration of the evidence of P.Ws-1 and 2 corroborated by Exs.A-1 to A-6 and Exs.C-1 and C-2, awarded a compensation of Rs.4,83,530/- with interest @ 7.5% P.A. from the date of petition, till the date of deposit.
The plea of the 2nd respondent/Insurance Company is that the accident occurred due to the rash and negligent driving of the petitioner himself.
The Tribunal considered the evidence on record, and based on the contentions of both parties, held that the accident occurred due to the rash and negligent driving of the 3rd respondent driver and the petitioner’s negligence also to the accident and fixed it at 10%. I do not find any illegality or irregularity in the findings or reasons recorded by the Tribunal on that issue.
The Tribunal after considering the evidence of P.Ws-1 and 2 coupled with Exs.A-1 to A-6 and Exs.C-1 and C-2, awarded an amount of Rs.2,83,508/- towards medical expenses. The Tribunal considered the evidence of P.Ws-1 and 2 and fixed the income of the petitioner at Rs.4,000/- per month for a period of 5 months, and arrived at Rs.20,000/- towards loss of income for 5 months. The Tribunal further fixed out-patient charges at Rs.21,748/-; fixed Rs.2,00,000/-towards pain and suffering due to fractures and rupture of urinary bladder ; fixed Rs.12,000/- towards service of the family members @ Rs.2,000/- per month for a period of six months and total comes to Rs.4,83,530/-.
As seen from the record, the 2nd respondent/Insurance Company examined R.W-1 before the Tribunal, in support of the plea taken by the 2nd respondent in the counter.
The contention of the Appellant/claimant is that the Tribunal did not consider the nature of injuries sustained by the Appellant and the Tribunal ought to have considered the evidence of the doctor, who was examined as P.W-2, who categorically deposed that the petitioner suffered from eruptional dis-functionality due to the injuries sustained on the pelvis, and that the Appellant requires prosthesis insertion and in that view of the matter, the Tribunal ought to have awarded just and fair compensation towards pain, suffering and trauma and also for loss of amenities and prospectus of marriage and also for loss of expectation of life and loss of future earnings.
The learned counsel for the Appellant vehemently argued that the Tribunal did not consider the above aspects properly and relied on the judgment of the Hon’ble Apex Court in the case of G.Ravindranath Vs. E.Srinivas and another (2013) 12 S.C.C.455.
The Appellant in the claim petition filed before the Tribunal has claimed an amount of Rs.12,50,000/- under various heads, but restricted the claim to Rs.10,00,000/- and he claimed damages as follows:
I.
FOR SPECIAL DAMAGES
a.
Amount spent so far for medical treatment and other expenses
: Rs.3,50,000-00
b.
Amount required for future treatment
: Rs.3,00,000-00
II.
GENERAL DAMAGES
a.
Compensation for pain and suffering and loss of amenities
: Rs.1,00,000-00
b.
Compensation for disability and disfiguration
: Rs.1,00,000-00
c.
Compensation for loss of earnings.
: Rs.4,00,000-00
----------------------
TOTAL =
: Rs.12,50,000-00
----------------------
But the claim is restricted to Rs.10,00,000/-.
The Tribunal considered the evidence of the Appellant, who was examined as P.W-1 and the evidence of P.W-3, who was pillion rider of the motor cycle at the time of the accident in the case and also the evidence of R.W-1, who was employee of the Insurance Company, apart from various documents filed by the Appellant under Ex.A-1 certified copy of FIR, Ex.A-2 certified copy of wound certificate, Ex.A-3 certified copy of charge sheet and Ex.A-6 certified copy of docket order in C.C.8/2009 on the file of Judl.Magistrate of First Class of Dhone, found that the accident was occurred due to rash and negligent driving of the 3rd respondent/driver of the crime vehicle and rejected the contention of the Insurance Company that the accident was occurred due to rash and negligent driving of the Appellant.
It is pertinent to note down that the 3rd respondent, who was the driver of the crime vehicle at the time of accident, in his counter stated that the Appellant noticing buffalos coming across the road suddenly, stopped the motor cycle, and therefore, the tractor dashed the rear portion of the motor cycle, and as a result, the Appellant fell down and received injuries and made an attempt to say that due to unexpected event of the buffalos coming across the road, the accident was occurred, but he admitted in the counter that police laid report against him for causing the accident, and he pleaded guilty before the Court and he was sentenced to pay a fine of Rs.1,500/- in C.C.8/2009 on the file of Judl.Magistrate of First Class, Dhone on 29.01.2009. The Tribunal considering all these facts and circumstances, gave a finding that the accident was occurred due to rash or negligent act of the driver of the crime vehicle i.e., tractor.
The Tribunal considered the age of the appellant in the light of the evidence and documents available on record. The Appellant in the cause title of the claim petition, mentioned the age is about 19 years, as if he was major at the time of accident. The Tribunal basing upon the admission of the Appellant in the cross-examination, fixed his age at 16 years, and found that the Appellant is prohibited to drive the motor cycle with gears and therefore, the Appellant contributed to the cause of accident and held that the Appellant contributed to the accident by 10% negligence.
The Appellant was examined as P.W-1 before the Tribunal. In the cross-examination of the 2nd respondent/Insurance Company, he admitted that by the date of accident, he was aged about 16 years and a person aged about 16 years is not eligible to drive the motor bike. In that view of the matter, I do not find any error in the finding of the Tribunal that the Appellant contributed to the accident by 10%, as he was not competent to drive the motor cycle at the time of accident, though the accident was occurred due to rash and negligent driving of the 3rd respondent, who was driver of the crime vehicle tractor at the time of accident, which dashed the motor cycle, driven by the Appellant at the time of accident.
The Tribunal upon considering the evidence of the Appellant and the evidence of the doctor, who was examined as P.W-2 and the medical bills produced by the Appellant towards expenses incurred by him for the treatment undergone by him in Global Hospital, Hyderabad, from 16.11.2008 to 25.11.2008, found that the Appellant was charged a sum of Rs.2,83,508/- and awarded the said amount towards medical expenses, against the claim of Rs.6,27,620/- by the Appellant towards medical expenses.
The doctor of Global Hospital, Hyderabad, who was examined as P.W-2, in the chief-examination deposed that under Ex.A-4 one of the bill dated 24.11.2008 is for Rs.2,83,508/- issued by Global Hospital, Lakdikapool, Hyderabad. In the cross-examination of the Insurance Company, he admitted that the cash receipts covered by Ex.A-4 are serial numbers 7, 8, 9, 10, 11 and 13 are the amounts paid by the Appellant as advance to the hospital for the treatment and the said amounts come to Rs.2,83,508/-. The Tribunal basing on the said evidence, awarded a sum of Rs.2,83,508/- towards medical expenses incurred by the Appellant for the treatment from 16.11.2008 to 25.11.2008 taken by him in Global Hospital, Hyderabad.
It is pertinent to note down that the Appellant in the claim petition claimed only Rs.3,50,000/- towards medical treatment and other expenses incurred by him, and the remaining amount of Rs.3,00,000/- was towards future treatment. In that view of the matter, I do not find any error in the finding of the Tribunal regarding the expenses incurred by the Appellant towards medical expenses as Rs.2,83,508/- under Ex.A-4 bunch of medical bills filed by the Appellant.
The Appellant claimed a sum of Rs.3,00,000/- for future treatment on the ground that he has to undergo operation for replacement of urinary bladder, for which he has to spend an amount of Rs.2,00,000/- approximately, and also contended that he suffered from eruptional dis-functionality and he requires prosthesis insertion and it costs about Rs.1,50,000/-. The Tribunal in its order considered the evidence of P.W-2, who is an Urologist and treated the Appellant in Global Hospital at Hyderabad. The evidence of P.W-2 shows that the Appellant was readmitted in the hospital on 23.03.2009 and Urethroplasty was done on 24.03.2009 and he was discharged on 31.03.2009, and the Appellant was advised to take further treatment and on clinical examination, it was found that the Appellant was suffered from eruptional dis-functionality i.e., impotency, which was caused due to the injuries sustained in the accident by the Appellant and the patient requires prosthesis insertion, and has to follow up treatment continuously throughout the life and prosthesis insertion surgery requires Rs.1,50,000/- to Rs.2,00,000/- and in the cross-examination of the Insurance Company, the doctor deposed that no estimation in writing was given for prosthesis insertion and the Insurance Company further contended that there is no basis to say that the Appellant requires prosthesis insertion. The Tribunal considering Ex.C-1 and Ex.C-2 copies of case sheets of Global Hospital pertaining to the treatment of the Appellant, held that they shows that P.W-1 treated on Ortho side for the fractures, and no details are forthcoming about prosthesis insertion and did not award any amount for the future treatment expenses required for the Appellant for eruptional dis-functionality problem.
The learned counsel for the Appellant contended that the evidence of P.W-2, who is an Urologist in Global Hospital at Hyderabad at the time of accident and treated the Appellant for the gal bladder injury sustained by the Appellant in the accident, opined that the Appellant on clinically examination found that he is suffering from eruptional dis-functionality and it requires prosthesis insertion and it costs around Rs.1,50,000/- to Rs.2,00,000/- for the treatment.
P.W-2 evidence shows that he was working as Consultant Urologist, Global Hospital, Lakdikapool, Hyderabad and Appellant was admitted in hospital on 16.11.2008 with multiple injuries including fractures to feamer, tibia, superior and inferior rami of pelvic on left side with urethra rupture and he was treated by an Orthopaedic Surgeon and also by Neuro Surgeon and the Appellant underwent treatment for the fractures apart from urethra rupture, which was attended by P.W-2 and the Appellant was discharged on 25.11.2008 and he was re-admitted on 23.03.2009 and Urethroplasty was done on 24.03.2009 and he was discharged on 31.03.2009 and he requires follow up treatment since then, and on clinical examination, it is found that the Appellant is suffering from eruptional dis-functionality i.e., impotency, which was caused due to the injuries sustained in the accident and the Appellant requires prosthesis insertion and he needs continuous follow up treatment throughout his life and prosthesis insertion costs about Rs.1,50,000/-.
In the cross-examination of the Insurance Company, it was elicited that P.W-2 treated the Appellant for urological problems and the Appellant has taken follow up treatment on 15.04.2009 and thereafter Appellant took treatment as out-patient. P.W-2 denied the suggestion of the Insurance Company that it is not necessary to incur Rs.1,50,000/- for prosthesis insertion and P.W-2 categorically stated that out of his experience, he deposed that the cost of the treatment was Rs.1,50,000/- to Rs.2,00,000/-. Nothing was elicited in the cross-examination of P.W-2 to show that his evidence is not based on any standards relating to the treatment for eruptional dis-functionality and the treatment for prosthesis insertion. Admittedly, P.W-2 was a Consultant Urologist, working in Global Hospital, Lakdikapool, Hyderabad, and attended the treatment of the Appelant with regard to rupture of urethra on account of accident.
The learned counsel for Appellant contended that the finding of the Tribunal on this aspect in not awarding any compensation for loss of marriage prospectus, and enjoyment of life is not valid in law, particularly, in view of the judgment of the Hon’ble Apex Court in G.Ravindranath Vs. E.Srinivas and another, wherein, the Hon’ble Apex Court held in para 14 as follows:
“One can reasonably expect that the appellant who was only 18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs 20,340 for expenses incurred by the appellant for treatment taken by him in the hospital. Although, Dr. Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs 1000 per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs 2 lakhs which, if deposited in a fixed deposit, would earn an interest of Rs 14,000 to 16,000 per annum.”
“On account of the injuries suffered by him, the prospects of the appellant’s marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs.50,000/- under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs.2,00,000/- should be awarded to the appellant for loss of marriage prospects and enjoyment of life.”
“The compensation awarded for loss of future earning on account of permanent partial disablement is ex facie unreasonable. Respondent 3 did not produce any evidence to controvert the appellant’s assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellant’s marriage are extremely bleak. Therefore, a sum of Rs 2 lakhs deserves to be awarded under these heads.”
The Hon’ble Apex Court in the above judgment considered the evidence of Professor of Urology and Andrologist and held in para 21 as follows:
“From the testimony of three witnesses, it is established that as a result of accident the appellant had suffered grievous injuries in the pelvic region and he has become impotent. It is also established that he has already undergone multiple surgeries and will have to take treatment in institutes like NIMS for at least 10 years.”
In the case on hand, the testimony of P.Ws-1 and 2 established that the Appellant had suffered grievous injuries in the pelvic region and as a result, he suffered from eruptional dis-functionality and he has undergone urethroplasty on 24.03.2009 and he will have to take further treatment of prosthesis insertion, which costs about Rs.1,50,000/- to Rs.2,00,000/-. Unfortunately, the Tribunal did not give weightage to the evidence of P.W-2 and not awarded compensation for future treatment expenses. Hence, in my view, the Appellant is entitled for Rs.1,50,000/- towards the expenses to be incurred for future treatment of prosthesis insertion.
The Tribunal awarded a sum of Rs.21,748/- to the Appellant towards treatment as out-patient, but refused to award anything towards cost of guest house charges, as no evidence was produced by the claimant to prove the bill issued by Gayatri Guest House for Rs.36,000/-. The Tribunal also did not grant any amount to the Appellant towards expenses incurred by him for transportation to visit the hospital at Hyderabad from his native place in Kurnool District and attendant charges to visit the said hospital. The Appellant did not produce any evidence regarding the expenses incurred by him for transportation.
The Tribunal considered the fact that the Appellant was confined to the bed for some months and awarded a sum of Rs.12,000/- @ Rs.2,000/- per month, for a period of six months for the service of the family members. The Tribunal considering the age of the Appellant as 16 years at the time of accident and fixed the notional income at Rs.4,000/- per month and awarded Rs.20,000/- for the loss of income for a period of five months.
The contention of the Appellant is that no amount was awarded by the Tribunal for the loss of income in future. The learned counsel for Appellant submitted that the Hon’ble Apex Court in the case of G.Ravindranath Vs. E.Srinivas and another, in similar circumstances awarded a sum of Rs.5,00,000/- for loss of expectation of life and loss of future earnings and for loss of amenities and prospectus of marriage, awarded a sum of Rs.4,00,000/-, but the Tribunal did not award any amount under these heads on the ground that there is no evidence.
The evidence of the Appellant as P.W-1 and the evidence of the doctor as P.W-2 shows that urethra of the Appellant was ruptured due to the injuries sustained by him in the accident and as a result, he suffered from eruptional dis-functionality and it requires prosthesis insertion and the evidence of the doctor shows that the Appellant requires follow up treatment throughout his life. I already granted a sum of Rs.1,50,000/- towards future treatment for prosthesis insertion. The Hon’ble Apex Court in the case of G.Ravindranath Vs. E.Srinivas and another, awarded a sum of Rs.4,00,000/- for loss of amenities and prospectus of marriage to the petitioner in that case, considering the fact that he suffered grievous injuries in the pelvic region and he has became impotent. The Tribunal did not award any amount to the Appellant towards loss of earnings and compensation for disability and disfiguring stating that there is no evidence in the case to apply the principles of the Hon’ble Apex Court in the case of G.Ravindranath Vs. E.Srinivas and another.
As already discussed above, the evidence of Urologist established that the Appellant suffered rupture of urethra and as a result, he suffered from eruptional dis-functionality and needs prosthesis insertion and requires continuous treatment throughout his life. Nothing was elicited in the cross-examination to prove that the evidence of the doctor is not reliable and not based on any medical standards. Therefore, I am of the considered opinion that an additional sum of Rs.2,00,000/- can be awarded to the Appellant for loss of amenities and prospectus of marriage and loss of expectation of life and loss of earnings etc.
In that view of the matter, a sum of Rs.1,50,000/- is awarded to the Appellant towards future treatment expenses for prosthesis insertion, and an additional sum of Rs.2,00,000/- is awarded towards loss of amenities and prospectus of marriage and loss of expectation of life and loss of earnings etc., in addition to the compensation of Rs.4,83,530/- awarded by the Tribunal. Total compensation entitled by Appellant comes to Rs.4,83,530 + 3,50,000 = Rs.8,33,530/-, payable with interest @ 7.5% P.A. from the date of petition, till the date of deposit.
In that view of the matter, I find the Tribunal is erred in awarding Rs.4,83,530/- only to the claimant, towards compensation, though the claimant made claim for Rs.10,00,000/-.
In view of the above discussion, I am of the considered opinion that it is a fit case to set aside the Order passed by the Tribunal.
In the result, the Appeal is allowed, by setting aside the impugned Order dated 24.03.2017, passed in M.V.O.P.No.403/2009 on the file of Motor Accidents Claims Tribunal–cum-I Additional District Judge, Kurnool, and it is held that the Appellant is entitled to a total compensation of Rs.8,33,530/- with interest @ 7.5% P.A. from the date of petition, till the date of deposit.The 2nd respondent/Insurance Company is directed to deposit the said compensation amount along with accrued interest thereon, within one month from the date of the judgment. On such deposit, the Appellant/claimant is permitted to withdraw the entire compensation amount of Rs.8,33,530/- with accrued interest thereon. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.