New India Assurance Company Ltd vs N.Damodar Reddy

The M.A.C.M.A.No.4307 of 2014 has been preferred by the respondent No.2/insurer and the M.A.C.M.A.No. 1088 of 2023 has been filed by the claim petitioners against the decree and order dated 18.06.2014 in M.V.O.P.No. 1522 of 2008 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-XVIII Additional Chief Judge-cum-IV Additional Metropolitan Sessions Judge, Hyderabad.

We have heard Mr. P. Ramakrishna Reddy, learned counsel for the petitioners and Mr. T. Ramulu, learned counsel for the respondent No.2/insurer.

For the facility, the parties are referred to with their rank in the claim petition.

4(i). The petitioners’ case in brief is that on 11.10.2007 at about 11.10 a.m. while Mr. N.Damodar Reddy/deceased was crossing road in Malakpet, a Chevrolet Tavera Car bearing registration No.AP13L943 (hereinafter ‘the car’) came in rash and negligent manner and dashed him. The accident resulted in severe multiple injuries all over body. Whereupon claiming medical expenditure, disability and loss of earnings, the petition was filed seeking compensation of Rs.8 lakhs.

4(ii) Earlier, as the petitioner remained absent in the inquiry proceedings, the tribunal dismissed the petition on 19.11.2010 for non prosecution. Later on application and by the order dated 23.12.2013, the petition was restored and the legal representatives were brought on to record as the petitioner passed away on 14.12.2012. Further on other application the claim amount was enhanced to Rs.Two Crores.

4(iii) In inquiry the petitioner No.2 got examined himself as PW-1. The eyewitness/PW-2 and treating doctors/PWs.3 to 5 were examined and got marked Exs:A-1 to A-9. No oral or documentary evidence has been adduced by the respondents. The tribunal on considering the materials awarded compensation of Rs.1,35,50,574/- with interest at 6% per annum from 03.01.2014 till realisation and the insured and insurer of the car/respondents 1 and 2 were jointly and severally held liable.

The learned counsel for the appellants/claim petitioners (hereinafter ‘the petitioners’) would submit that the tribunal failed to appreciate the evidence of the treating doctors and the medical record on file in assessment of medical expenditure. The tribunal failed to grant compensation for attendant charges and extra nourishment, but no reason was set out for declining compensation for loss of dependency. The tribunal ought to have considered that, the death of the deceased was only due to the injuries received in the accident, after prolonged treatment. Thus prayed for reassessment and to grant just compensation.

Learned counsel for the appellants/respondent No.2/insurer (hereinafter ‘the insurer’) would contend that the tribunal should have considered that there was delay of 906 days in filing the petition to set aside the default order. Further the tribunal ought to have observed that no notice was served on the insurer in the petition for enhancement of claim amount and in the trial. Even the advocate commissioner did not serve notices, while examining the petitioners’ witnesses. The absence of endorsement by the counsel for the insurer on the notice said to have been issued by the advocate commissioner is itself proving this fact. For that reason, the award has been obtained by playing fraud. That apart, in the impugned order it has been recorded that the respondent No.1 who was ex parte had cross examined the witnesses. Likewise recorded that due notices were served on the insurer. On the other hand, contended that the tribunal erred in granting the medical expenditure for the treatment to the petitioner/deceased in United States of America ( for short, ‘the USA’) especially after 2 ½ years of the accident. Thus prayed for setting aside the impugned award.

The rival submissions of the learned counsel are considered and perused the materials on record.

At the outset, the prime contention of the insurer is that, no notices were served on them during the inquiry, as such the award has been obtained by playing fraud. On this aspect, a perusal of the impugned order is disclosing that, the name of the insurer’s counsel is reflected in the preamble of the order. Further, the notice of the advocate commissioner dated 14.02.2014 and also on the covering letter of the advocate commissioner’s report are showing the signature of the counsel for the insured and the insurer/respondents 1 and 2. Even if the contention of the insurer raised in the appeal is taken as it is, nowhere in the grounds of appeal specified as to when the insurer got knowledge of the proceedings and what was the immediate measure or the course of action taken. Pertinently it is not the case of the insurer that the signatures of the counsel were fabricated on to record. Above all, in the appeal, as the materials on record would be reassessed, the prejudice or illegality in assessment, if any can be considered by this Court. Hence we find no merit in the pleading of the insurer as to service of notices for setting aside the impugned order on this count.

There is no dispute as to the accident, involvement of the vehicle and the petitioner No.1 (hereinafter ‘the injured’) receiving injuries in the accident.

The petitioners’ claim is that the death of petitioner No.1 was due to the injuries sustained in the accident on 11.10.2007. As per the petitioners the injured was died on 14.12.2012. The second petitioner as PW-2 deposed that after the accident the injured was admitted into Yashoda Hospital for treatment. The evidence of treating doctor/PW-4 and the discharge summary/Ex.A-9 are establishing this fact. As per the treating doctor/PW-4 the injured had suffered head injury i.e. traumatic subarachnoid hemorrhage and temporal contusion. The PW-1 further asserted that after the treatment the injured remained bed ridden and was continuously under treatment. Further before the death the injured was taken to USA for treatment. The Doctor/Neoro surgeon and physician of the Province Little Company of Mary Medical Centre, Torrence/PW-5 deposed that the injured was treated for traumatic subarachnoid hemorrhage and right temporal contusion. The medical record of the hospital/Ex.A-4 is showing that the injured was treated from 05.05.2010 to 26.09.2010. The above read evidence of treating doctors is clearly establishing that from 11.10.2007 till 26.9.2010 the injured was under treatment for the same injury and as per the death certificate/Ex.A-7, the injured succumbed on 14.12.2012. The PW-1 asserted that the death was due to the injuries suffered in the accident. The above read evidence is conclusively establishing the facts of treatment of the injured for the injuries and consequent death. In this factual position, it can be safely concluded that the deceased died due to the injuries suffered in the accident.

In regard to medical expenditure, as per the petitioners for the treatment at Yashoda Hospital they have incurred Rs.3,91,324/-. The doctor/PW-4 authenticated Ex.A-3 the treatment and charges. Further the evidence of doctor from USA/PW-5 and entries in medical record/Ex.A-4 are showing the expenses of US $ 217,785. Additionally the medical bills/Ex.A-6 are showing the expenditure at Rs.21,50,000/-. In all, this evidence is proving that the petitioners incurred medical expenditure of Rs.1,34,30,574/-. Therefore reimbursement of the sum incurred for medical expenditure deserves affirmation. Further the tribunal considering the materials rightly disregarded the claim of expenditure for physiotherapy for want of convincing evidence.

That apart considering the copies of flight tickets and other probabilities granting Rs.1,00,000/- towards transportation is found reasonable. The compensation for pain and suffering being person specific and cannot be considered as estate, as such granting amount for pain and suffering is found improper. Hence the amount of Rs.20,000/- granted under this head is discounted.

Though the insurer has contended that the delay of 906 days has been condoned without reason to its prejudice, is not found convincing, as the tribunal has taken the date on which the petitioner Nos. 2 and 3 were brought on to record as the date of the petition in awarding the interest.

Admittedly the deceased was aged about 72 years. Though it was pleaded that he was class ‘A’ civil contractor, no material has been placed on record proving the income. Further considering the age of the deceased, the tribunal has rightly concluded that there is no possibility of loss of income and the future prospects much less any dependency of the petitioners. Hence, omitting compensation for loss of dependency is found appropriate. However under the conventional heads as per the dictum in National Insurance Company Ltd. vs. Pranay Sethi and others (2017) 16 SCC 860 and National United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others 2021(11) SCC 780, the petitioners 2 and 3 are entitled for spousal and parental consortium respectively at Rs.48,400/- each and also Rs.36,300/- towards loss of estate and funeral expenses.

Thus, the petitioners are eligible for compensation as under:

DESCRIPTION

AMOUNT (Rs.)

Medical expenses at Yashoda Hospitals

3,91,324.00

Medical expenses at USA

1,08,89,250.00

Medical expenses at Apollo Hospitals

21,50,000.00

Spousal consortium to petitioner No.2

48,400.00

Parental consortium to petitioner No. 3

48,400.00

Loss of estate and funeral expenses

36,300.00

Transportation charges

1,00,000.00

TOTAL

1,36,63,674.00

For the aforesaid, the respondent Nos.1 and 2 are jointly and severally liable to pay Rs.1,36,63,674/- (Rupees One Crore thirty six lakhs sixty three thousand six hundred and seventy four only) with interest at 6% per annum from 03.01.2014 till the date of deposit. The ratio of apportionment shall remain in terms of the impugned award. The respondent No.2/insurer is directed to deposit the differential amount of compensation within four weeks from the date of receipt of a copy of this order. On such deposit the petitioners are permitted to withdraw entire amount as apportioned in their favour.

Accordingly, the decree and order dated 18.06.2014 in M.V.O.P.No. 1522 of 2008 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-XVIII Additional Chief Judge-cum-IV Additional Metropolitan Sessions Judge, Hyderabad is revised.

In the result, the M.A.C.M.A.No.1088 of 2023 filed by the petitioners is partly allowed with proportionate costs and the M.A.C.M.A.No.4307 of 2014 filed by the respondent No.2/insurer is dismissed without costs.

As a sequel, miscellaneous petitions pending if any, stands closed.