HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.2031 and 2063 of 2018
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2031 of 2018 filed by the claimant
seeking enhancement of compensation and M.A.C.M.A.No.2063 of
2018 filed by the United India Insurance Company Limited
challenging the quantum of compensation, are directed against the
very same award and decree, dated 04.05.2018 made in
M.V.O.P.No.2478 of 2013 on the file of the Chairman, Motor
Vehicle Accident Claims Tribunal-cum-XXVI Additional Chief
Judge, City Civil Courts, Hyderabad (for short "the Tribunal").
2. For the sake of convenience, hereinafter the parties will be
referred to as per their array before the Tribunal.
3. The facts, in issue, are as under:
The claimant filed a petition under Section 166 of the Motor
Vehicles Act, 1988 against the respondents 1 and 2, who are owner
and insurer of the car bearing No. AP 09 TV 3805 claiming compensation of Rs.10,00,000/- for the injuries sustained by him in 2 the accident. According to the claimant, on 27.05.2013 while the claimant along with her relatives was travelling in an auto bearing No. AP 28 TE 4213 from 9 No. X road side towards Kishan bagh, one Indica car bearing No. AP 09 TV 3805 being driven by its driver came in rash and negligent manner and dashed the said auto, as a result, the claimant and her relatives sustained grievous injuries and she sustained fracture of shaft femur, head injury and blunt injuries all over her body. Immediate after the accident, she was shifted to Osmania General Hospital, Hyderabad, where she was admitted as inpatient and still she is undergoing treatment. According to the petitioner, she was a Tailor and earning Rs.10,000/- per month. Due to the injuries sustained by her in the said accident, she was completely bed ridden and she is not in a position to attend any work and lost her earnings. She spent huge expenditure towards her treatment and medical expenses etc. Hence the claim.
4. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner in which the accident took place, nature of injuries sustained by the petitioner and the treatment 3 taken by him. It is further contended that the driver of the offending vehicle was not having valid driving license at the time of accident and the compensation claimed by him is excessive and exorbitant and therefore, prayed to dismiss the claim petition.
5. After considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the offending car and awarded the total compensation of Rs.7,18,000/- with costs and interest at 9% per annum from the date of petition till the date of realization with a direction to the respondent No.2 to deposit the said compensation amount within one month from the date of order with interest and costs and to recover the same from respondent No.1.
6. Heard the learned counsel for the claimant and the learned Standing Counsel for the respondent No.2-Insurance Company and perused the material available on record.
7. Learned Counsel for the claimant has submitted that though the claimant established that she has sustained permanent disability 4 due to the injuries caused in the accident, the Tribunal has taken the income of the claimant very less and awarded meager amount.
8. The learned Standing Counsel for the respondent No.2- Insurance Company contended that the tribunal failed to appreciate the fact that the driver of the offending vehicle was not having driving license at the time of accident and the compensation awarded by the Tribunal is excessive and therefore, prays to set aside the Order passed by the Tribunal.
9. With regard to the manner of accident, there is no dispute. However, considering the evidence of PW-1 coupled with the documentary evidence available on record, the Tribunal rightly held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle i.e., car bearing No.AP 09 TV 3805.
10. With regard to the quantum of compensation, according to the petitioner, she sustained Grade II compound fracture of shaft femur, head injury and multiple injuries all over her body and was shifted to Osmania General Hospital, Hyderabad, where she took 5 treatment as inpatient from 27.5.2013 to 21.6.2013 and that on 5.6.2013 she underwent surgery and incurred more than Rs.25,000/- for treatment. Due to the accident, she sustained permanent disability to an extent of 52%. In support of her case, an Associate Professor in Osmania General Hospital was examined as PW-2 and he deposed that she came to the hospital on 27.5.2013 and took treatment till 21.6.2013 and she was operated for the fracture of femur with interlocking nail. Ex.A6 discharge summary. PW-2 further deposed that PW-1 needs medical treatment in future also. Further an Assistant Professor in Osmania General Hospital was examined as PW-3 and he deposed that he examined PW-1 on 2.5.2014 clinically and assessed her disability @ 52% which is partial and permanent and they issued Ex.A7 disability certificate which contains his signature. He further deposed that the patient cannot do normal works like hard manual labour works as prior to the accident and she cannot sit and squat on ground and cannot stand long time. Therefore, the evidence of PWs.1 to 3 coupled with the documentary evidence shows that the petitioner has sustained 52% partial and permanent disability due to 6 fracture of femur. Hence considering the injuries sustained by the petitioner and the disability sustained by her, the tribunal awarded an amount of Rs.50,000/- is awarded for the disability sustained by her, Rs.1,00,000/- towards future medical expenses and Rs.1,00,000/- towards pain and sufferance, which are just and reasonable and as such, the same are not disturbed.
11. Coming to the future loss of earnings due to the disability sustained by her, learned counsel for the claimant submitted that though the claimant has sustained 52% partial and permanent disability, she is unable to attend her tailoring work, which she was doing previously and as such, her functional disability can be taken at 100%. Admittedly, she is a tailor and she sustained fracture injury to her right femur. Definitely there is difficulty in attending tailoring work to a disabled person. However, she can attend the tailoring work with the help of latest sewing machine for which peddling is not required. Therefore, considering the profession of the claimant as a tailor, her functional disability can be taken at 52% as assessed by PW-3 who issued disability certificate. 7
12. According to the petitioner, she is a tailor and was earning Rs.10,000/- per month. However, as there was no income proof and the accident is of the year 2013, the Tribunal has rightly taken the income of claimant at Rs.5,000/- per month. Further, in light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimant is also entitled to the future prospects and since the petitioner was aged about 36 years at the time of accident, 40% of the income is added towards future prospects. Then it comes to Rs.7,000/- (5,000 + 2,000 = 7,000). As the claimant was aged about 36 years at the time of accident, the appropriate multiplier in light of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation2 would be "15". Thus, the future loss of income due to 52% disability comes to Rs.7,000 x 12 x 15 x 52/100 = Rs.6,55,200/-, which the petitioner/claimant is entitled. In total, the claimant is entitled to Rs.9,05,200/-.
13. Coming to the liability, the learned counsel for the respondent No.2-Insurance Company submitted that the driver of 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 8 the offending vehicle has no driving license as on the date of accident, and as such, they are not liable to pay compensation to the petitioner. In support of their contention, Junior Assistant in the office of Regional Transport Authority, South Zone, Hyderabad was examined as RW-1 and he deposed that Ex.X2 is the attested copy of driving license of one Shaik Mohasoor S/o Accer and it was issued on 21.11.1991 and valid up to 20.11.1994 and Ex.X2 was not issued in the name of Feroz Khan S/o Mohammed Jamal Khan. RW-2 who is the Deputy Manager in respondent No.2- Insurance Company deposed that on enquiry, the RTA, Hyderabad South Zone officials confirmed that the driver of the crime vehicle was not having valid license and then they issued notice to the owner of the car and having received the same, he failed to issue any reply and did not furnish driving license particulars of the driver of the crime vehicle. Admittedly, respondent No.1 is owner and respondent No.2 is insurer of the crime vehicle and Ex.B1 copy of insurance policy establishes that the crime vehicle was insured with respondent No.2 and the policy was in force as on the date of accident. Therefore, in the above circumstances, the tribunal 9 rightly directed the respondent No.2 to deposit the compensation amount within one month from the date of order with interest and costs and later to recover the same from respondent No.1. Therefore, there are no grounds to interfere with the findings of the tribunal in this aspect.
14. In the result, the M.A.C.M.A. No.2031 of 2018 is partly allowed by enhancing the compensation amount awarded by the Tribunal from Rs.7,18,000/- to Rs.9,05,200/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. Respondent No.2 is directed deposit the compensation amount within one month from the date of receipt of a copy of this order and later recover the same from respondent No.1. On such deposit, she is entitled to withdraw the compensation amount without furnishing any security. M.A.C.M.A.No.2063 of 2018 shall stands dismissed. No costs.
15. Miscellaneous petitions, if any, pending shall stand closed.
______________________ M.G.PRIYADARSINI,J 13.04.2023.
pgp