THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
M.A.C.M.A.No.2629 OF 2016
JUDGMENT:
This appeal is directed against the award dated 12.07.2016 in M.V.O.P.No.132 of 2011, on the file of the Motor Accidents Claims Tribunal-cum-VIII Additional District and Sessions Judge, Nizambaad (for short 'the Tribunal), wherein the said claim application filed by appellant herein seeking compensation, was allowed-in-part, awarding Rs.4,70,000/- with interest at 6% per annum from the date of petition.
2. Heard learned counsel for the appellant-claimant and learned counsel for the respondent No.2-insuer. None appeared for respondent No.1-owner of the Maruthi Omni van. Perused the record.
3. The appellant herein filed claim application seeking compensation of Rs.7,00,000/- for injuries sustained him in a motor vehicle accident that occurred on 06.01.2011 at 10:00 a.m. According to the claimant, on that day, he was proceeding as pillion rider on motorcycle bearing No.AP Q 8441 from Umnapur 2 Village to Nizamabad and on the way, near Vakeelfarm of Varni Village, a maruthi omini van bearing No.AP 25 R 9854, driven by its driver in a rash and negligent manner and at high speed, came in the opposite direction and hit the motorcycle culminating into accident. The claimant fell down and sustained crush injury to his right lower leg and grievous injuries all other parts of the body. He was shifted to Dr.Srinivas at Nizamabad who gave first aid treatment and thereafter referred the claimant to Sunshine Hospital, Secunderabad where his right leg was amputated above ankle. Police, Varni registered a case in Cr.No.5 of 2011 against the driver of the maruthi omni van for the offence punishable under Section 337 IPC. The claimant, who was aged 48 years, was hale and healthy prior to the accident and was earning Rs.10 lakhs per annum on agriculture. On account on permanent disability, he is unable to work and lost his future earnings.
4. Respondent No.1-owner of the maruthi omni van remained ex parte before the Tribunal. Respondent No.2-insurer filed counter opposing the claim and denying its liability to pay the compensation.
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5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the maruthi omni van by its driver. The said finding had become final, as no appeal is preferred by the respondents questioning the same. The Tribunal further held that the claimant is entitled for a total compensation of Rs.4,70,000/-. Accordingly, an award was passed for the said amount with interest at 6% per annum. Not satisfied with the same, the claimant filed the present appeal seeking enhancement of compensation.
6. The only question that arises for determination in the present appeal is - whether the claimant is entitled for enhancement of compensation, and if so to what extent?
7. It is not in dispute that the claimant sustained injuries in the accident that occurred on 06.01.2011 at about 10:00 a.m., while he was proceeding as pillion rider on motorcycle bearing No. AP Q 8441 from Umnapur Village to Nizamabad and on the way, near Vakeelfarm of Varni Village, a maruthi omini van bearing No.AP 25 R 9854, driven by its driver in a rash and negligent manner and at high speed, came in the opposite direction and hit 4 the motorcycle culminating into accident. The claimant fell down and sustained crush injury to his right lower leg and grievous injuries all other parts of the body. He was shifted to Dr.Srinivas at Nizamabad who gave first aid treatment and thereafter referred the claimant to Sunshine Hospital, Secunderabad where his right leg was amputated above ankle. He incurred an expenditure of Rs.4 lakhs towards nursing and nourishment.
8. P.W.2, Dr.Chiranjeevi, Orthopaedic Consultant in Sunshine Hospital, in her evidence stated that she examined the claimant and found a big lacerated wound over the right ankle nearly 10 cms exposing the fragments of right ankle and with ankle dislocation. After relevant investigations, temporary k-wire fixation was done along with skin grafting also but later on as patient developed gangrene over the right fore foot, below knee amputation was done and that the patient was discharged on 19.01.2011. She further deposed that the functional disability is up to 90%. Exs.A-3 to A-7 i.e., injury certificate, discharge summary, final bill, medical bills and outpatient card are issued by their hospital. Ex.A-8 is the disability certificate issued by the District 5 Medical Board which discloses that the claimant suffered 90% disability of right lower limb due to post-traumatic amputation caused by the accident.
9. The Tribunal had taken into consideration the income of the claimant at Rs.3,000/- per month, as he failed to adduce any reliable evidence as to the monthly income earned by him. The claimant simply stated that he used to earn Rs.10,000/- per annum on agriculture and on this aspect, no proof is filed before the Tribunal. Therefore, the Tribunal had notionally fixed the income at Rs.3,000/- per month and awarded compensation by taking into consideration the disability at 50% in relation to whole body. Undisputedly, from the evidence of P.W.2 and Exs.A-3 to A-8, the claimant could successfully prove that he suffered functional disability of 90%, as his right fore foot below knee was amputated. However, the Tribunal without any basis had reduced the disability to 50%. P.W.2, the doctor, stated that the claimant suffered functional disability of 90% due to amputation. Since the claimant is an agriculturist, certainly the imputation would make lot of impact on his working in agricultural operations. 6 Therefore, it would be proper to calculate the loss of future earnings by taking into consideration the income at Rs.3,000/- per month and the functional disability of the claimant at 90%. Considering the age of the claimant as 48 years and as per the decision of the Hon'ble Apex Court in SARLA VARMA v. DELHI TRANSPORT CORPORATION1, I hold that the claimant is entitled to increment on future income at 50% and the multiplier applicable is '13'. Therefore, the claimant is entitled to a total compensation of Rs.4,21,200/- [(Rs.3,000 x 90/100 + 50/100 x 90/100 x Rs.3,000) x 12 x 13) under the head of loss of future income.
10. The compensation awarded by the Tribunal under the other conventional heads had not been disputed by the appellant-claimant by producing any contrary evidence. Therefore, the amounts awarded under those heads shall remain undisturbed. Thus, in all, the appellant-claimant is entitled to compensation on the following heads:
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2009(6) SCC 121 7
1. Compensation under the head injury, Rs.50,000/-
shock, pain and suffering
2. Compensation under the heads of hospital Rs.1,50,000/-
and medical expenses, transport, extra nourishment, attendant expenses etc.,
3. Compensation under the head injury, Rs.36,000/-
shock, pain and suffering
4. Loss of future earnings due to disability Rs.4,21,200/-Total Rs.6,57,000/-
11. In the result, the appeal is allowed-in-part. The award of the Tribunal is modified by enhancing the compensation from Rs.4,70,000/- to Rs.6,57,000/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of award passed by the Tribunal i.e., 12.07.2011 till realization, payable by respondents 1 and 2 jointly and severally. There shall be no order as to costs.
12. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 01.11.2022 Lrkm