HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1926 of 2011
JUDGMENT:
Being not satisfied with the quantum of compensation awarded in the order and decree, dated 19.01.2009, passed in O.P.No.559 of 2001 on the file of the VII-Additional District Judge, Mahabubnagar, the appellant/claimant preferred the present appeal seeking enhancement of the compensation.
The facts, in issue, are as under:
The appellant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.3,00,000/- for the injuries sustained by him in a road accident that occurred on 07.06.2001 at about 8.30 P.M. It is stated that on that day, the appellant, while boarding the Jeep bearing No.AP-22-D-2253 at Chinna Jatram Village bus stage, slipped from the jeep and that the Jeep ran over his right leg, as a result of which he sustained grievous injuries to his right leg and all over the body. The appellant was shifted to Government Civil Hospital, Narayanpet, and from there to Government Headquarters Hospital, Mahabubnagar, for further treatment. In respect of the above incident a case in Crime No.68 of 2001 of Naraynpet Police Station came to be registered against the driver of the Jeep. Since the accident took place due to rash and negligent driving by the driver of the 1st respondent and as the vehicle was insured with the 2nd respondent, the claim petition came 2 to be filed making both of them jointly and severally liable to pay compensation.
The 1st respondent remained ex parte, while the 2nd respondent filed counter denying all the allegations made in the claim-petition.
Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the accident occurred on 07.06.2001 at about 8.30 P.M., on PWD Road near Chinna Jatram Village bus stage due to rash and negligent driving of the Jeep bearing No.AP-22-D-2253 by its driver and whether it resulted in causing injuries to the petitioner?
2) Whether the petitioner is entitled for compensation, if so to what amount and from whom?
3) To what relief?
In support of his claim, the appellant examined himself as PW.1 besides examining the Doctor, who treated the appellant, as PW.2 and got marked Exs.A1 to A12. On behalf of the respondents, R.W.1 was examined and Ex.B1-Policy Copy was marked.
After analyzing the evidence available on record, the Tribunal held that the driver of the Jeep was responsible for the accident and accordingly awarded an amount of Rs.60,000/- as compensation to be paid by the respondents. Challenging the quantum of compensation awarded, the present appeal is filed by the appellant/claimant.
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Learned Counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side and seeks enhancement of the same. He further submits that the evidence of PW.2 and Exs.A9 and A-10, Disability Certificates, amply established that the appellant sustained 40 to 50% permanent disability as he could not bend his right knee and it is very difficult for him to do any work, but the Tribunal without considering the same, has erroneously taken the disability at 20% and, therefore, prayed to enhance the compensation.
In spite of service of notice, there is no representation on behalf of the 1st respondent/owner of the crime vehicle.
Per contra, the learned Counsel for the Insurance Company submits that the quantum of compensation awarded by the Tribunal is based on evidence and the same needs no interference.
The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged either by the owner or insurer of the vehicle.
The short question that arises for consideration is "whether the compensation awarded by the Tribunal is just and equitable"?
In order to establish his case, the appellant examined himself as PW.1 and the Doctor, who treated him, as PW.2. In support of the injuries as well as the disability sustained by him, the appellant got marked Exs.A3, A9 and A10. As per Ex.A3-Wound Certificate, the 4 appellant has sustained one grievous injury and one simple injury in the accident. A perusal of Ex.A9 and A10, Disability Certificates disclose that the appellant has sustained disability at 40 to 50% to his femur. P.W.2, who is an Orthopedic Surgeon and who treated the appellant, also stated that the appellant has sustained 40% disability to his right femur and the appellant was admitted in the District Headquarters Hospital, Mahabubnagar, for the injuries. P.W.2 also deposed in his evidence that the appellant cannot bend his right knee and it is very difficult for him to do any work as he sustained disability to his right leg.
In order to award compensation in case of personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as under:
"5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, 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 earning 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).1
MACD 2011 (SC) 33 5
(vi) Loss of expectation of life (shortening of normal longevity). 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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."
In the light of the principles laid down in the aforementioned case, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earning, inability to lead a normal 6 life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident.
As seen from the record, the Tribunal awarded a sum of Rs.5,000/- for one grievous injury and Rs.1,000/- for one simple injury as compensation under the head of pain and suffering; Rs.3,000/- under the head loss of income during bed ridden period and Rs.1,000/- towards medical expenses.
Insofar as the amount awarded towards compensation under the head of loss of future income, the main contention of the learned Counsel for the appellant is that though P.W.2-the Doctor stated that the claimant has sustained 40% of the disability, but the Tribunal has taken 20% disability.
Admittedly, the appellant/claimant has sustained fracture to right knee. The Doctor-P.W.2 has stated that the claimant has sustained 40% disability. As per the disability certificates Exs.A9 and A10 also, the claimant has sustained 40% to 55% disability. Therefore, the evidence of P.W.2 cannot be doubted. In his evidence, P.W.2 has categorically stated that the claimant cannot bend his right knee and it is very difficult for him to do any work as he sustained disability to his right leg. Thus, the functional disability sustained by the claimant is fixed at 40%, as stated by P.W.2, which is supported by the disability certificates. 7
In view of nature of disability sustained, the claimant is entitled to loss of earnings due to disability. The injured being an able bodied person aged about 40 years, doing carpenter work and as the accident took place in the year 2001, his monthly income can easily be fixed at Rs.3,000/- per month in view of the minimum wages prevailing during the said period. If the income of the claimant is taken at Rs.3,000/- per month, the annual income would be Rs.36,000/-. Taking the income of the claimant at Rs.36,000/- per annum, the loss of income sustained by the claimant with the disability at 40% would be Rs.14,400/- per annum. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation2, the suitable multiplier to be adopted for calculating the loss of earnings would be '15'. Therefore, the loss of earnings on account of his disability would be Rs.14,400/- x 15 = Rs.2,16,000/-. Thus, in all the claimant is entitled to a sum of Rs.2,26,000/- as compensation.
Accordingly, the appeal is allowed by enhancing the compensation from Rs.60,000/- to Rs.2,26,000/-. The enhanced amount will carry interest at 7.5% p.a. from the date of order passed by the Tribunal i.e., 19.01.2009 till the date of realization, payable by respondents 1 and 2 jointly and severally. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
___________________ JUSTICE G. SRI DEVI 10.11.2021 gkv/Gsn 2 2009 ACJ 1298 8