HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
M.A.C.M.A.Nos.126 and 331of 2021
COMMON JUDGMENT :
These two appeals are arising out of the same order dated
26.05.2020, in M.V.O.P.No.362 of 2015 on the file of Motor
Accident Claims Tribunal-cum-XXVI Additional Chief Judge, City
Civil Court, Hyderabad. MACMA.No.126 of 2016 is filed by the
Insurance Company, to set aside the orders in the O.P., whereas,
MACMA.No.331 of 2021 is filed by the claimant for enhancement
of compensation from Rs.9,00,000/- to Rs.14,00,000/-.
2. For the sake of convenience, the parties are referred to as
arrayed in the O.P. Since these appeals are filed disputing the
income of the claimant and also the compensation granted by the
Tribunal, the appreciation of evidence would be with respect to the
said aspects alone.
3. The O.P. is filed by the claimant/V.Shivalingam under
Section 166 of the Motor Vehicles Act claiming compensation of
Rs.9,00,000 for the injuries sustained by him in the accident that
occurred on 24.12.2014 at 12.45 p.m. at the Traffic Signal of
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Chandrayanagutta X Roads, Hyderabad, due to the rash and
negligent driving of the driver of the lorry bearing No.MH-31-CQ-
7177.
4. Heard both sides and perused the material on record.
5. The learned Standing Counsel for the Insurance Company
contended that the Tribunal ought to have seen that the claimant
failed to prove his avocation and income as on the date of the
accident, and therefore, it ought to have taken notional income of
the claimant as Rs.4,500/- per month instead of Rs.10,000/-. It is
further contended by the learned counsel for the Insurance
Company that the Tribunal has granted the estimated cost of
Rs.1,80,900/- under Ex.A-8 for artificial limb, instead of granting
the actual amount spent. Thus, it is contended that the
compensation granted by the Tribunal is on higher side, and
therefore, prayed to set aside the orders passed by the Tribunal.
6. On the other hand, the learned counsel for the claimant
contended that the Tribunal has granted lesser amount of
compensation though there is sufficient oral and documentary
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evidence on record and ought to have considered the income of the
claimant as Rs.15,000/- per month and also ought to have
considered the disability at 60% instead of 20%, and thus, prayed
to enhance the compensation accordingly.
7. The entire dispute in these appeals is with regard to the
income of the claimant. The claimant was aged 59 years and was
working as Security Guard as on the date of accident. The
pleadings disclose that the claimant worked as Security Guard in
M/s.Bhavya Real Estates on a monthly salary of Rs.10,000/- and
further he used to earn Rs.5,000/- per month by supplying water
saving instruments. But, there is no documentary evidence to
establish that the claimant used to earn Rs.15,000/- per month,
however, the tribunal has considered the income of the deceased as
Rs.10,000/-.
8. In order to support his contention, the learned counsel for the
claimant has relied on the judgment of Hon'ble Supreme Court in
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Shiva Kumar v. Managing Director, BMTC1, wherein, their
Lordships have held as under:
"For a casual labour, who goes from house to house
and place to place doing his painting work, it is
difficult to get any evidence since there is no
employer. He does his daily work, sometimes piece
rated work as well. That is why, he made a moderate
self-estimation of his income as Rs.15,000/- to
Rs.16,500/- per month. In the absence of any serious
dispute on the part of the respondent on the avocation
and income, we are of the view that the Tribunal and for that matter, the High Court should have accepted the evidence of the appellant and therefore, we assess his monthly income as Rs.15,000/- and after deducting 1/3rd towards his personal expenses, the income will be assessed for the purpose of computation as Rs.10,000/- per month."
9. The above ratio cannot be applied to the facts and circumstances of the present case. It was the specific pleading before the Tribunal that the claimant had a monthly income of Rs.15,000/- by working in a private Firm as Security Guard. But, the claimant has not taken any steps to prove his income either by examining the employer of the private Firm or by filing the salary certificate before the Tribunal. Moreover, the Insurance Company in this case is seriously disputing the income of the claimant. Hence, it can be construed that the Tribunal has rightly assessed 1 IV (2017) ACC 51 (SC) 5 GAC, J MACMA.Nos.126 & 331 of 2021 the monthly income of the claimant as Rs.10,000/- instead of Rs.15,000/-, even in the absence of proper evidence, considering the sole testimony of the claimant.
10. The learned counsel for the claimant has also relied on another judgment of Hon'ble Supreme Court in Govind Yadav v. New India Assurance Co. Ltd.2, wherein, their Lordships have awarded Rs.2,00,000/- for future treatment and artificial limb and Rs.1,50,000/- towards pain and suffering and Rs.1,50,000/- for loss of enjoyment of life.
11. In the further judgment of Hon'ble Supreme Court in Jagdish v. Mohan & others3, their Lordships have held as under:
"In the judgment of the Constitutional Bench in Pranay Sethi (2017 ACJ 2700 SC), this Court has held that the benefit of future prospects should not be confined only to those who have permanent job and would extend to self-employed individuals. In the case of self-employed person, an addition of 40% of established income should be made where the age of the victim at the time of accident is below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs.2,400/- towards loss of future prospects".
2 II (2012) ACC 519 (SC) 3 2018 ACJ 1011 6 GAC, J MACMA.Nos.126 & 331 of 2021 As per the above ratio, the claimant herein is entitled for future prospects, but as he was aged 59 years as on the date of accident, he is entitled for only 10% of future prospects.
12. PW-1 is the claimant, who deposed about his age, income and the injuries sustained by him in the accident. The evidence of PW-2, who is the Billing Manager of Yashoda Hospital, disclose that the claimant/PW-1 paid an amount of Rs.1,09,500/- after due discount of Rs.2,108/-. The evidence of PW-3 disclose that being the Chief Operating Officer in the college of Park Radsun Artificial Limb Clinic, he gave an estimation under Ex.P-9 for the artificial limb, to a tune of Rs.1,80,900/-.
13. The evidence of PW-4 i.e. Orthopedic Surgeon, disclose that he assessed the disability of the claimant at 20% partial permanent functional and loss of the earning capacity at 60%. It can be construed that there is loss of earning capacity of the claimant to an extent of 60% but not the disability. Therefore, the tribunal has rightly considered the disability as 20%, basing on Ex.A-6 issued by PW-4.
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14. On perusal of the order of the Tribunal, it is evident that the Tribunal has awarded the following amounts under different heads;
1. Loss of future earnings - Rs.2,16,000/- (for 10 months + 20% disability)
2. Bed rest for 3 months - Rs.30,000/-
3. Transportation - Rs.10,000/-
4. Extra-nourishment - Rs.20,000/-
5. Medical expenses - Rs.1,51,876/-
6. Artificial foot - Rs.1,80,900/-
7. Pain and suffering - Rs.80,000/-
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TOTAL - Rs.6,88,776/-
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15. The monthly income of the claimant is Rs.10,000/- and if 10% future prospects is added as per the ratio formulated by the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi & others4, it would come to Rs.11,000/-. As per the judgment of Hon'ble Supreme Court in Smt. Sarla Verma v. Delhi Transport Corporation & another5, the multiplier applicable for the age group of 55 to 60 years is '9'. The annual income of the claimant would come to Rs.1,32,000/- (Rs.11,000 x
12). If multiplier '9' is applied, it would come to Rs.11,88,000/-. If 20% disability is added, then it would come to Rs.2,37,600/- 4
2017 ACJ 2700 5 (2009) 6 SCC 121 8 GAC, J MACMA.Nos.126 & 331 of 2021 [Rs.11,88,000 X 20/100]. In view of granting loss of earnings including future prospects, the question of again granting loss of earnings for ten months will not arise. The Tribunal has already granted an amount of Rs.10,000/- towards transportation and Rs.20,000/- towards extra-nourishment and also granted Rs.1,51,876/- towards medical expenses. Further, the claimant is also entitled for an amount of Rs.1,80,900/- towards artificial limb.
In view of the judgments of the Hon'ble Apex Court, the claimant is also entitled to an amount of Rs.1,50,000/- towards pain and suffering. As there is no pleading for future treatment, no amount is awarded for the same.
16. Thus, the claimant is entitled to the following amounts under different heads;
1. Loss of future earnings - Rs.2,37,600/-
2. Transportation - Rs.10,000/-
3. Extra-nourishment - Rs.20,000/-
4. Medical expenses - Rs.1,51,876/-
5. Artificial foot - Rs.1,80,900/-
6. Pain and suffering - Rs.1,50,000/-
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TOTAL - Rs.7,50,376/-
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17. Accordingly, the appeal filed by the Insurance Company i.e. MACMA.No.126 of 2021 is hereby dismissed and the appeal filed by the claimant i.e. MACMA.No.331 of 2021 is allowed by enhancing the compensation from Rs.6,88,776/- to Rs.7,50,376/-
with costs and interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The claimant is permitted to withdraw the said amount as the accident took place in the year 2014.
Pending miscellaneous applications, if any, in both the appeals, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 13.09.2022 ajr