HONOURABLE SRI JUSTICE NINALA JAYASURYA
M.A.C.M.A.No. 724 of 2006
JUDGMENT:-
This is an appeal filed by the injured/claimant against the
Judgment and Decree dated 08.11.2005 in M.V.O.P.No.931 of 2000
passed by the Chairman, Motor Accidents Claims Tribunal-cum-VII
Additional District Judge, Guntur, (hereinafter referred to as 'the
Tribunal').
2. Heard Mr. Siva Rama Krishna, Advocate, representing
Mr.N.Subbarao, learned counsel for the appellant and Mr.
V.Veerabhadra Chary, learned counsel for the 2nd respondent No.2-
Insurance company.
3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Claims Tribunal in the original petition.
4. The petitioner in the claim petition filed the above O.P., stating inter alia, that while he was going in an Auto bearing No.AP-7W-1751 on 13.08.2000 from Muppalla side towards Narasaraopet and when the auto reached near Gollapadu Village, the driver of a Jeep bearing No.AP-7U- 5306, dashed against the auto and as a result of the same, the petitioner received grievous injuries to his left leg. Initially, he claimed a compensation of Rs.1,60,000/- and subsequently the same was enhanced to Rs.3,00,000/- by amending the Original Petition as the petitioner sustained permanent disability due to amputation of his left leg.
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5. The 1st respondent remained ex parte and the 2nd respondent
-Insurance Company filed its written statement, as also additional written statement contending inter alia that the petitioner was responsible for the accident and therefore he cannot claim compensation against the owner of the jeep.
6. The petitioner in support of his case, examined himself as P.W.1 and the Doctors who treated the injured were examined as P.Ws.2 and 3 and got marked Exs.A1 to A6. On behalf of the 2nd respondent Insurance-Company, R.W.1 was examined and Exs.B1 and B2 were marked.
7. The Tribunal while answering the issues in favour of the petitioner inter alia, held that the accident occurred due to the rash and negligent driving of the driver of the jeep bearing No.AP-7U- 5306. The Tribunal taking into consideration the evidence on record, and the fact that the left leg of the petitioner was amputated below the knee and considering the permanent disability at 50% due to such amputation, arrived at the loss of future earnings at Rs.80,000/- (50% of Rs.1,60,000/-). The Tribunal also awarded a sum of Rs.10,000/- towards pain and suffering, Rs.10,000/- towards loss of amenities/loss of marriage prospects and Rs.10,000/- towards medical expenses. Thus, in all, the Tribunal awarded a sum of Rs.1,10,000/- with interest @ 7.5% p.a., from the date of petition till the date of payment as against the total claim of Rs.3,00,000/-. Aggrieved by the Judgment and Decree of the Tribunal in partly allowing the claim petition, the present appeal has been preferred.
8. Learned counsel for the petitioner/claimant inter alia contended that the Tribunal erred in taking the notional income of the petitioner/claimant at Rs.15,000/- p.a., as against the claim of 3 NJS, J MACMA_724_2006 Rs.3,000/- per month. He would further contend that the petitioner/claimant was unmarried at the time of accident and the Tribunal erred in deducting 1/3rd amount towards personal expenses, instead of 50% of the income. He submits that as per the judgment of Hon'ble Supreme Court in Sarla Verma and Others v. Delhi Transport Corporation and Another1, the applicable multiplier is '18' but the Tribunal erroneously took the same as '16'. While relying on the judgment of the Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar and Others2, Chandra @ Chanda @ Chandraram and Another v. Mukesh Kumar Yadav and Others3 and Pappu Deo Yadav v. Naresh Kumar and Others4 and National Insurance Co. Ltd., v. Birender5 etc., the learned counsel would urge that the petitioner/claimant is entitled for more compensation, with interest @ 9 % p.a. He also submits that the claimant is entitled to the benefit of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others6 and 40% of the future income has to be taken into account while arriving at the loss of earnings.
9. Per Contra, the learned counsel for the 2nd respondent- Insurance company, contends that the amount as awarded by the Tribunal is just, reasonable and warrants no interference by this Court. He submits that the accident occurred in the year 2000 due to the negligence of the claimant/petitioner and the petitioner/claimant failed to prove his income and therefore, in the absence of proof of income, the Tribunal is justified in taking the notional income of the petitioner. He also submits that loss of marriage prospects and loss 1 (2009) 6 SCC 121 2 2011 ACJ 1 3 2021 SCC Online SC 850 4 2020 ACJ 2695 5 (2020) 11 SCC 356 6 (2017) 16 SCC 680 4 NJS, J MACMA_724_2006 of amenities comes under the same head and therefore, the appellant/petitioner is not entitled to any further amounts under this head. While contending that the petitioner having filed the claim petition under Section 163-A of the Motor Vehicle Act(for short 'the Act'), has no right to seek compensation liberally as in the case of a claim petition under Section 166 of the Act. He further submits that the interest as awarded under Section 171 of the Act is, at the discretion of the Tribunal and the same warrants no interference. He further submits that the judgments relied on by the learned counsel for the appellant/petitioner, more particularly, the United India Insurance Company Limited v. Sunil Kumar and Another7 etc., are not applicable to the facts of the case. The learned counsel submits that in any event, no enhancement as claimed may be awarded, as the Tribunal has awarded appropriate compensation, taking into consideration the totality of the facts and circumstances of the case. Accordingly, he urges to dismiss the appeal.
10. In reply, the learned counsel for the claimant/appellant in elaboration of his arguments submits that it is not open to the 2nd respondent-Insurance Company to raise the defence of negligence and infact the same was adjudicated by the Tribunal and a finding was recorded in favour of the claimant/appellant rejecting the said plea. With reference to the contentions of the learned counsel for the 2nd respondent-Insurance Company that once the Claimant opted the remedy under Section 163-A of the Act, no enhancement in terms of Section 166 of the Act, can be claimed, the learned counsel submits that the same is not tenable and placed reliance on the judgment of Hon'ble Supreme Court in Shivaji and Another v. Divisional 7 (2019) 12 SCC 398 5 NJS, J MACMA_724_2006 Manager8. The learned counsel in the light of the judgments of the Hon'le Supreme Court, relied on by him, seeks enhancement of compensation, which may be just and reasonable.
11. The contentions of both the learned counsel are considered and perused the material on record. Before dealing with the submissions of learned counsel for the claimant/appellant, it would be appropriate to consider the submissions of the learned counsel for the 2nd respondent-Insurance Company with regard to the claim being made under Section 163-A of the Act vis-à-vis Section 166 of the Act. The said contention of the learned counsel for the Insurance Company is not sustainable in the light of the judgment of Hon'ble Supreme Court in Raj Kumar's case (referred supra), wherein the Hon'ble Supreme Court dealt with a claim under Section 163-A of the Act and enhanced the compensation as awarded by the Tribunal. In the said case, the Tribunal has taken the income of the injured/claimant, a cheese vendor at Rs.900/- p.m., as against the claim of Rs.3,000/- p.m. The Tribunal, as there was no acceptable evidence of income of the injured/claimant, assessed at Rs.900/- p.m., as the minimum wage was at Rs.891/- p.m. The Hon'ble Supreme Court while opining that it would be very difficult to expect a roadside vendor to have accounts or other documents regarding income and as the accident occurred in the year 1991, held that the Tribunal ought to have assumed the income at least Rs.1,500/- p.m. ( @ Rs.50/- per day) or Rs.18,000/- p.a., even in the absence of specific documentary evidence regarding income.
12. In the light of the expression of the Hon'ble Supreme Court, this Court is inclined to consider the claim of the appellant/claimant for enhancement of compensation and accordingly reject the 8 (2019) 12 SCC 395 6 NJS, J MACMA_724_2006 submission of the learned counsel for the 2nd respondent-Insurance Company.
13. In the present case, the accident occurred in the year 2000 and there is no dispute that the injured/claimant suffered 50% permanent disability as per the finding of the Tribunal. In the Claim petition, an amount of Rs.3,000/- p.m., was claimed as income by manufacturing cement tubs and well rings. The said amount cannot be treated as excessive or exorbitant. Even, if the daily wages during the relevant time is taken into account, the same would not be less than Rs.100/- per day. Therefore, this Court deems it reasonable to take the monthly income of the injured/claimant at Rs.3,000/-, for the purpose of arriving at the loss of future earnings. As contended by the claimant's counsel, the appellant/claimant is also entitled to the benefit of the judgment of Hon'ble Supreme Court in Pranaysethi's case(referred to supra), with regard to future prospects. Accordingly, the loss of future earnings is arrived at by applying the multiplier '18' and taking the disability @ 50%. Income : Rs.100/- per day X 30 days = Rs. 3,000/-
40% of the monthly earnings = Rs. 1,200/-
(As per Pranay Sethis's case) -------------------
Total Income = Rs. 4,200/-
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Loss of future earnings
(Rs.4,200 X 18 X 12) is Rs.9,07,200/-
As permanent disability is 50%
Total loss of future earnings = Rs.4,53,600/-
14. In the light of the judgment of the Hon'ble Supreme Court in Rajkumar's case (referred supra), the appellant is also entitled for damages under the heads of pain and suffering, the loss of amenities (loss of marriage prospects), loss of expectation of life(shortening of normal languity).
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15. Though, the Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities/loss of marriage prospects, considering the fact that the left leg of injured/claimant was amputated below the knee, this Court is of the opinion that the said amount is meager and an amount of Rs.1,00,000/- under the said head would be reasonable. Further, the amount of Rs.10,000/- towards pain and suffering is not just and reasonable and the same is enhanced to Rs.50,000/-. Further, due to the accident which has resulted in grievous injuries to the appellant/claimant, he is entitled to compensation under the head of loss of expectation of life(shortening of normal languity) and a sum of Rs.50,000/- is awarded towards the same. The appellant was admittedly in hospital for more than one month. He is entitled for loss of earnings during the period of treatment and a sum of Rs.3,000/- is granted. Though an amount of Rs.15,000/- was claimed towards medical expenses, special diet, and attendant charges, the Tribunal awarded a sum of Rs.10,000/- which is not just. Keeping in view the nature of injuries, same is enhanced to Rs.25,000/-
16. Thus, in all, the claimant is entitled to Rs.6,81,600/-. In view of the judgment of the Hon'ble Supreme Court in Ramla v. National Insurance Company Limited9, the amount of compensation, which is just and reasonable can be awarded more than the claim amount. However, the appellant/claimant has to pay differential Court fee for the amount awarded over and above the amount claimed. Further, though learned counsel for the 2nd respondent- Insurance Company submitted that the interest as awarded, is reasonable and well within the discretion of the Tribunal, this Court 9 (2019) 2 SCC 192 8 NJS, J MACMA_724_2006 while rejecting the same, is inclined to enhance the interest to 9% p.a., in the light of the expression of the Hon'ble Supreme Court in National Insurance Company Limited v. Birender and Others10.
17. Accordingly, the appeal is allowed by enhancing the compensation from Rs.1,10,000/- to Rs. 6,81,600/- together with interest @ 9% p.a., from the date of petition till the date of realization. The compensation amount shall be deposited by the 2nd respondent-Insurance Company, within a period of 8 weeks from the date of receipt of a copy of this order and on such deposit, the appellant/claimant is entitled to withdraw the same. No costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand dismissed.
__________________ NINALA JAYASURYA, J 02.12.2021.
BLV 10 (2020) 11 SCC 356 9 NJS, J MACMA_724_2006 HON'BLE SRI JUSTICE NINALA JAYASURYA M.A.C.M.A.No.724 of 2006 Dated 02.12.2021 BLV