THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No. 955 of 2014
JUDGMENT:
This appeal is filed by the claimant aggrieved by the award and decree, dated 28.04.2008 passed in M.V.O.P.No.1823 of 2005 on the file of the Principal Motor Accidents Claims Tribunal (Principal District Judge) at Warangal (for short, the Tribunal).
2. For the sake of convenience, hereinafter, the parties are referred to as per their array before the Tribunal.
3. The claimant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 6,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 19.09.2005. It is stated that on 19.09.2005, the petitioner was engaged as labourer on the Lorry bearing Registration No.AP 13T 4446, owned by respondent No. 2, insured with respondent Nos. 3 & 4, the driver, respondent No. 1 and while the claimant and other labourers were unloading the said poultry feed, the respondent No. 1, driver of the Lorry reversed the lorry in 2 MGP, J Macma_955_2014 rash and negligent manner without taking proper care, due to which the rear side of the lorry hit the claimant. As a result, the claimant sustained injury to his right thigh. Based on the complaint, the Police, Wardhannapet, registered a case in Crime No.123 of 2005 against the driver of the lorry. Immediately after the accident, the claimant was shifted to M.G.M. Hospital, Warangal and from there, he was shifted to NIMS Hospital, Hyderabad, where he was treated as inpatient and on 20.09.2005, his right leg was amputated. Therefore, the claimant filed the aforesaid O.P. against them seeking compensation of Rs.6.00 lakhs.
4. Before the Tribunal, respondent No.1 filed counter contending that the accident occurred due to the negligence of the claimant and that there was no negligence on his part. Respondent No.2 filed counter contending that the offending vehicle, lorry was validly insured with respondent No.3 as on the date of accident. Respondent Nos.3 and 4 filed counter denying the averments of the claim petition and contended that the amount claimed is excessive and prayed to dismiss the claim petition.
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5. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the offending vehicle, Lorry by its driver and accordingly, awarded total compensation of Rs.1,82,000/- with interest at 7.5% per annum, payable by respondent Nos.1 to 4 jointly and severally. Being not satisfied with the said amount, the claimant filed the present appeal seeking enhancement of compensation.
6. Heard both sides. Perused the material available on record.
7. Learned counsel for the appellant/claimant has mainly submitted that the quantum of compensation awarded by the Tribunal is on lower side. It is further submitted that as per the disability certificate, Ex.A5, the claimant had sustained 70% permanent disability, but the Tribunal did not consider the said disability and did not award any amount under the head of disability and the Tribunal awarded only Rs.1,50,000/- in lumpsum for the injuries sustained by him. It is also submitted that no amount was 4 MGP, J Macma_955_2014 awarded by the Tribunal under the head of pain and suffering and attendant charges. Therefore, it is argued that the income of the claimant may be taken into consideration reasonably and prayed to enhance the same.
8. Learned Standing Counsel appearing for the Insurance Company fairly admits that no amount was awarded by the Tribunal for the disability sustained by the claimant and that the claimant is entitled for loss of earnings on account of the disability sustained by him.
9. 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.
10. 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) 1 MACD 2011 (SC) 33 5 MGP, J Macma_955_2014
(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 future medical expenses - item (iii) -- depends upon specific medical 6 MGP, J Macma_955_2014 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)."
11. 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.
12. In order to establish his case, the claimant himself examined as PW.1 besides examining the doctors i.e., P.W.2, who issued the disability certificate and P.W.3, who treated 7 MGP, J Macma_955_2014 him. A perusal of Ex.A5, disability certificate, discloses that the claimant has sustained disability at 70% as his right leg was amputated. P.W.2 has stated that the right leg of the claimant was amputated but he did not state that the amputation was below the knee or above the knee. Thus, this Court is inclined to fix the functional disability sustained by the claimant at 50%. In view of nature of disability sustained, the claimant is entitled to loss of earnings due to disability.
13. The contention of the learned Standing Counsel for the Insurance Company is that no document has been filed to prove the income of the claimant. In Latha Wadhwa vs. State of Bihar2, the Apex Court has held that even there is no proof of income and earnings, it can be reasonably estimated minimum at Rs.3,000/- per month for any non- earning member. In the instant case, the claimant was engaged as coolie and the accident occurred while the claimant was unloading the poultry feed from the offending lorry. Admittedly, the claimant was aged about 30 years and he was an able bodied person at the time of the accident. 2 (2001) 8 SCC 197 8 MGP, J Macma_955_2014 Therefore, considering the age and avocation of the claimant and the prevailing rate of minimum wages at the relevant point of time, this Court is inclined to take the income of the claimant at Rs.4,500/- per month. Taking the income of the claimant at Rs.4,500/- per month, the loss of earnings sustained by the claimant with the disability at 50% would be Rs.4,500/- x 12 x 50/100 = Rs.27,000/- per annum. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation3, considering the age of the clamant as 30 years, the suitable multiplier to be adopted for calculating the loss of earnings would be '16'. Therefore, the loss of earnings on account of his disability would be Rs.27,000/- x 16 = Rs.4,32,000/-. Admittedly, the claimant had taken treatment in various hospitals as inpatient and he also filed medical bills i.e., Ex.A6. Considering Ex.A6, medical bills, the Tribunal has rightly awarded Rs.29,000/- towards medical expenses, which needs no interference. The Tribunal did not award any amount towards pain and suffering and attendant charges. Admittedly, the claimant had taken treatment in M.G.M. Hospital and NIMS Hospital, 3 2009 ACJ 1298 9 MGP, J Macma_955_2014 Hyderabad for a considerable period and he had undergone operation and his right leg was amputated, therefore, the Tribunal ought to have awarded Rs.15,000/- towards transportation, extra nourishment and attendant charges instead of Rs.3,000/- as awarded by the Tribunal. Thus, the claimant is entitled to Rs.20,000/- under the head of pain and suffering and Rs.15,000/- towards transportation, extra nourishment and attendant charges. In the facts and circumstances of the case, this Court feels that claimant is entitled the following amount under various heads.
Sl. Name of Head Awarded by Awarded by
No. Tribunal this Court
Rs. Rs.
Ps. Ps.
1. Pain and suffering -- 20,000.00
2. Medical expenses 29,000.00 29,000.00
3. Loss of future 1,50,000.00 4,32,000.00
income on account
of 50% disability
(4,500/-
x12x50%x16)
4. Transportation, 3,000.00 15,000.00
attendant and
extra nourishment
Total: 1,82,000.00 4,96,000.00
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14. Accordingly, the appeal is allowed in part by enhancing the compensation from Rs.1,82,000/- to Rs.4,96,000/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of award passed by the Tribunal till the date of realization, payable by respondents 1 to 4 jointly and severally. The Insurance Company is directed to deposit the entire compensation amount within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire amount without furnishing any security. There shall be no order as to costs.
_______________________________ JUSTICE M.G. PRIYADARSINI .10.2022 tsr 11 MGP, J Macma_955_2014 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.955 of 2014 Date: .10.2022 tsr