HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.1686 of 2015
JUDGMENT:
Dissatisfied with the quantum of compensation awarded in the order and decree, dated 11.12.2008, passed in O.P.No.1903 of 2007 on the file of the Motor Accident Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad (for short "the Tribunal"), 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.10,00,000/- for the injuries sustained by him in a road accident that occurred on 21.09.2007. It is stated that on the fateful day, at 10:00 a.m., while the claimant was proceeding on a motorcycle, when he reached near Hetro Drugs Pvt., Ltd., Suraram, R.R. District, the crime vehicle i.e., bus bearing No. AP 28V 3558, owned by respondent No. 1, insured with respondent No. 2 and hired with respondent No. 3-RTC, being driven by its driver in a rash and negligent manner at high speed, dashed the motorcycle, as a result of which, the claimant sustained grievous injuries. He 2 was hospitalized and had to spend huge amount towards treatment and medicines as his left leg was amputated above knee level. He was aged about 45, doing business, earning Rs.12,000/- per month and therefore, he filed the claim- petition against the respondents.
Before the Tribunal, the respondent No. 1 remained ex parte and the 2nd respondent filed counter denying the averments made in the claim-petition. It is also stated that the appellant shall prove that the accident occurred due to rash and negligent driving of the driver of the bus. It is further stated that the compensation claimed is arbitrary and excessive. Respondent No. 3-RTC, hirer of the bus, filed its counter contending that it is not liable to pay the compensation.
After analyzing the evidence available on record, the Tribunal held that the claimant had sustained grievous injuries in the accident caused due to the rash and negligent driving of the driver of the bus and accordingly allowed the O.P. in part awarding an amount of Rs.3,80,000/- as compensation to be paid by the respondent Nos. 1 & 2 while dismissing the claim as against the respondent No. 3-RTC. Challenging the quantum of 3 compensation awarded being meagre, the present appeal is filed by the appellant/claimant.
Learned counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side. It is further submitted that due to the accident, left leg of the claimant was amputated above knee level and as per the medical evidence i.e., P.W.2 and Ex.A.7, disability certificate issued by the NIMS Hospital, Hyderabad, he had sustained 80% permanent disability, but the Tribunal without considering the said evidence, has awarded lumpsum amount of Rs.3,00,000/- under the heads of grievous injuries and permanent disability, which is on lower side. It is also submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the appellant is also entitled to the future prospects at 25% and also Rs.3,00,000/- under the heads of loss of expectation of life and loss of amenities in life i.e., marriage prospects. Therefore, it is argued that the income of the appellant may be taken into consideration reasonably and prayed to enhance the compensation awarded by the tribunal.
1 2017 ACJ 2700 4 On the other hand, learned Standing Counsel appearing for the 2nd respondent-Insurance Company fairly admits that no amount was awarded by the Tribunal for the disability sustained by the appellant and that the appellant is entitled loss of earnings on account of disability sustained by him.
A perusal of the impugned order discloses that the Tribunal having framed issue No. 1 as to whether the accident had occurred due to rash and negligent driving of the bus by its driver, and having considered the evidence of P.W.1 coupled with the documentary evidence, categorically held that the appellant sustained grievous injuries in the accident caused due to the rash and negligent driving of the bus by its driver and has answered the issue in favour of the claimant and against the respondents No. 1 & 2. Further, the insurance company has not produced any evidence on record to show that there was no negligence on the part of the driver of the bus. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the bus. Even the tribunal has rightly dismissed the claim petition as against respondent No. 3-RTC as it was mere hirer of the bus.
5
In order to award compensation in case of personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and another2 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).
(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 2 MACD 2011 (SC) 33 6 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 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 life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident.
In order to establish his case, the appellant examined himself as PW.1 and the doctor who treated him, as P.W.2., testified before the tribunal that the appellant sustained fractures leading to amputation of left leg above knee level. Ex.A.3, copy of M.L.C., discloses that the appellant sustained 7 fractures to left leg. According to P.W.2, due to the amputation of left leg above knee level, the claimant became permanently disabled. Ex.A.7, the disability certificate, issued by the NIMS Hospital, discloses that the appellant had sustained 80% disability due to the amputation of left leg above the knee level. Such being the situation, the tribunal was not right in awarding a lumpsum amount of Rs.3,00,000/- in the form of grievous injuries and permanent disability. Thus, considering Ex.A.7 and the evidence of P.W.2, this Court is inclined to fix the functional disability sustained by the appellant at 70%. In view of nature of disability sustained, the appellant is entitled to loss of earnings due to disability. Therefore, this Court is inclined to award just compensation duly taking into consideration the income of the appellant.
Although the appellant had claimed that he was doing business and earning Rs.12,000/- per month, except, certain documents i.e., Exs.A.12, A.13 and A.14, he has not produced any authentic evidence to prove his nature of business and the income derived therefrom. In the circumstances, considering the fact that he is an income tax assessee, this Court is inclined to fix the monthly income of the appellant at Rs.6,000/- per 8 month. In addition thereto, since the appellant was 47 years at the time of accident, he is entitled to addition of 25% towards future prospects, as per the decision of the Hon'ble Supreme Court in Pranay Sethi (1 supra). Therefore, monthly income of the appellant comes to Rs.7,500/- (Rs.6,000/- + Rs.1,500/-) and the annual income comes to Rs.90,000/-. Taking the income of the appellant at Rs.90,000/- per annum, the loss of earnings sustained by the appellant due to the functional disability of 70% is determined at Rs.63,000/- per annum. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation3, the suitable multiplier to be adopted for calculating the loss of earnings would be '13'. Therefore, the loss of earnings on account of his disability is fixed at Rs.8,19,000/- (Rs.63,000 x
13). Since the appellant had to take treatment for 24 days as inpatient and had to take follow up treatment, the tribunal has rightly awarded the amount of Rs.80,000/- towards medical expenses. However, considering the nature of injuries and the period of treatment, this Court is inclined to award a sum of Rs.6,000/- towards loss of earnings for the treatment period, Rs.20,000/- towards pain and suffering and Rs.15,000/- towards transport charges, extra nourishment and attendant charges. 3 2009 ACJ 1298 9 Thus, in all, the appellant is entitled for the just compensation of Rs.9,40,000/-.
In the result, the appeal is allowed in part by enhancing the compensation amount from Rs.3,80,000/- to Rs.9,40,000/-. The enhanced amount shall carry interest at 7.5% per annum from the date of order passed by the Tribunal till the date of realization, payable by respondents 1 and 2 jointly and severally. However, the appellant is not entitled for the interest on the enhanced compensation for the period of delay in preferring the appeal. Time to deposit the amount is two months from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
________________________ JUSTICE M.G. PRIYADARSINI 23.11.2022 tsr 10 HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.1686 of 2015 DATE:23-11-2022