HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
M.A.C.M.A.No.2196 of 2011
JUDGMENT :
This appeal is filed by the claimant being aggrieved by the order and decree dated 07.06.2011 in O.P.No.888 of 2009 on the file of Motor Accident Claims Tribunal-cum-XXII Additional Chief Judge, City Criminal Courts, Hyderabad, for the injuries sustained by the appellant, who has filed claim for Rs.6,00,000/- together with interest and costs.
2. For the sake of convenience, the parties are referred to as arrayed in the O.P.
3. On 30.03.2009 at about 3.00 p.m., while the claimant was going on his scooter bearing No.AP-28-AF-8342 from Patancheru to Kancherla village, when he reached Begumpet of Dowlthabad, Ranga Reddy District, the RTC bus bearing No.AP-10-Z-1719, driven by its driver in a rash and negligent manner, dashed against the scooter of the appellant/claimant, due to which, he fell down and sustained fractures to his right leg, right fore-arm and other injuries.
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4. The Tribunal, on examining the oral and documentary evidence on record, partly allowed the O.P., awarding a total compensation of Rs.5,23,200/- along with costs and interest @9% per annum from the date of petition till the date of realization. Seeking enhancement of compensation, the claimant has filed this appeal. As the appeal is with respect to quantum of compensation, the appreciation of evidence would be with respect to it only.
5. Heard both sides and perused the record.
6. The learned Counsel for the appellant-Claimant contended that the Tribunal has erred in not considering the income of the claimant as Rs.7,000/- per month and Rs.200/- per day towards batta, though it is corroborated by the evidence of PW-4, under whom, the claimant worked as Lorry driver and prayed to enhance the compensation. It is also contended by the learned counsel for the appellant that the claimant is entitled for compensation towards 100% loss of earnings though he sustained 60% disability due to the amputation of his leg and also entitled for compensation under the other notional heads.
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7. On the other hand, the learned counsel for the RTC contended that there is no error or irregularity in the orders passed by the Tribunal, as it has granted Rs.5,23,200/-, whereas, the claim of the claimant itself is Rs.6,00,000/- before the Tribunal and accordingly prayed to dismiss the appeal.
8. On perusal of the record, it is evident that the O.P. was filed by the claimant claiming compensation of Rs.6,00,000/- only, and the Tribunal has awarded compensation under the following heads:
1. Artificial limb Rs.1,00,000/-
2. Pain and suffering Rs.20,000/-
3. Permanent disability Rs.4,03,200/-
TOTAL Rs.5,23,200 /-
9. It is relevant to mention that the Tribunal has not considered the income of the claimant as Rs.7,000/- per month apart from Rs.200/- batta per day, though Ex.A-15/Salary certificate was issued by PW-4. It is the specific finding of the Tribunal that PW-4, who is alleged to be the owner of the lorry under whom the claimant worked, did not produce the salary register to prove that the claimant was employed as lorry driver and worked under him. 4
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10. There is no error or irregularity in the orders of the Tribunal while discarding the evidence of PW-4 and Ex.A-15. Admittedly, Ex.A-14 i.e. the driving licence of the claimant which discloses that the claimant had licence to drive heavy vehicles. Therefore, the occupation of the claimant cannot be disbelieved. The accident occurred in the year 2009. As per the judgment of Apex Court in Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.,1 the income of the deceased was taken as Rs.6,500/- per month for the accident which occurred in the year, 2010 for a vegetable vendor. Taking into consideration the above proposition of the Apex Court and the cost of living of the year 2009, the notional income of the claimant has been fixed as Rs.6,500/- per month.
11. The evidence of PW-2 discloses that the claimant suffered fractures to his right leg, right fore-arm and injuries to other parts of the body and the right leg of the claimant was amputated upto knee level and his right fore-arm was operated. Ex.A-3 discloses that the claimant sustained two grievous injuries. As per the 1 2014 ACJ 627 5 GAC, J MACMA.No.2196 of 2011 judgment of Hon'ble Supreme Court in Smt.Sarla Verma v. Delhi Transport Corporation & another2, the claimant is entitled for future prospects of 40%. If 40% is added to the income of the claimant, it would come to Rs.9,100/- (Rs.6,500 + Rs.2,600). The age of the claimant as on the date of accident was 42 years. As per the above judgment in Sarla Verma's case (2 supra), the appropriate multiplier would be '14' for the age group of 41 to 45 years. Therefore, the annual income of the claimant would come to Rs.1,09,200/- (Rs.9,100 X 12).
12. It is contended by the learned counsel for the appellant that the claimant is entitled for 100% loss of earnings though he sustained 60% of disability, but the said contention is not tenable, as the right leg of the claimant alone was amputated. There is no evidence on record to prove that the claimant cannot earn by doing any other business or other works. Apart from it, the Tribunal has granted an amount of Rs.1,00,000/- towards artificial limb. Therefore, this Court is of the considered view that there cannot be 100% loss of earnings to the claimant. Considering Ex.A- 2
(2009) 6 SCC 121 6 GAC, J MACMA.No.2196 of 2011 12/disability certificate, 60% of disability can be taken for calculating the loss of earnings. Hence, the claimant is entitled for an amount of Rs.9,17,280/- (Rs.1,09,200 X 14 X 60/100).
13. Thus, the claimant is entitled for compensation under the following heads:
1. Loss of earnings including Rs.9,17,280/-
disability
2. Pain and suffering Rs.50,000/-
3. Transportation Rs.5,000/-
4. Medical expenses (As per Exs.A- Rs.8,881/-
9 to A-11)
5. Artificial leg (As per Ex.A-11) Rs.1,61,300/-
6. Extra-nourishment Rs.5,000/-
7. Attendant charges Rs.10,000/-
TOTAL Rs.11,57,461 /-
14. In the result, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.5,23,200/- to Rs.11,57,461/-, with costs and interest at the rate of 7.5% p.a. from the date of petition till the date of realization, payable by the respondents/RTC within two months from the date of receipt of a copy of this order. The claimant is permitted to withdraw the entire amount of compensation, on payment of deficit Court fee, as the accident occurred in the year 2009.
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GAC, J MACMA.No.2196 of 2011 Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 07.12.2022 ajr