Telangana High Court
Adnan Masood , Adnan Be Masood vs J. Sitamahalaxmi And Another on 12 December, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
M.A.C.M.A.No.2226 of 2009
JUDGMENT:
This appeal is filed by the injured claimant aggrieved by the award and decree passedin O.P.No.2957 of 2003 dated 10.02.2006 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad - cum - XIX Additional Chief Judge, Hyderabad seeking enhancement of compensation.
2. The appellant - claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident. The claimant stated that on 04.10.2003 at about 01:45 hours, while he along with his brother were proceeding on their Yamaha Motorcycle bearing No.AP-24-C-9013 from Keshavagiri towards Mahaboobnagar Cross Roads and when reached near Chandrayangutta opposite to Milan Hair Cutting Saloon, a lorry bearing No.AP- 11-T-9077 coming from Mahaboobnagar Cross Roads towards Keshavagiri in opposite direction driven by its driver in a rash and negligent manner with high speed hit the Yamaha Motorcycle, due to which the petitioner, who was travelling as a pillion rider and his brother, who was the rider of the motorcycle fell down on the road and sustained fracture injuries. Immediately after the accident, the Police of PS Chandrayangutta shifted the petitioner and his brother 2 Dr.GRR, J macma_2226_2009 to Owaisi Hospital and Research Centre, Hyderabad and registered a case vide Crime No.109 of 2003 under Section 337 of IPC against the driver of the lorry bearing No.AP-11-T-9077.
3. The petitioner further submitted that he was working as an employee in a chicken centre and was earning Rs.4,500/- per month by the date of the accident. He sustained fracture shaft of right femur and grievous injuries all over the body. An operation was performed on him and iron rods were inserted. Due to the accident and consequential fractures, he sustained lot of pain and discomfort and became permanently disabled. He was unable to attend to his job in chicken centre. He spent huge amount towards medicines and treatment. The accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP-11-T-9077, as such claimed compensation from respondents 1 and 2, the owner and insurer of the said lorry.
4. The respondent No.1 remained ex-parte.
5. The respondent No.2 filed counter denying the petition averments. He called for strict proof of age, occupation, income of the petitioner, treatment taken by him and the disability sustained by him. He contended that the accident if any occurred was due to the rash and negligent driving of the rider of the Yamaha Motorcycle and called for strict proof that the rider of the motorcycle was having valid and effective driving license to drive the 3 Dr.GRR, J macma_2226_2009 motorcycle at the material time of the accident. He also called for strict proof that the driver of the lorry drove the lorry in a rash and negligent manner and was having a valid and effective driving license to drive the vehicle involved in the accident. He further contended that the owner of the lorry had not intimated about the occurrence of the accident and that the liability would arise only when the vehicle owner complied with the policy conditions and statutory obligations under the Motor Vehicles Act. He also contended that the insurance company was not aware of the criminal proceedings launched in Crime No.109 of 2003 by PS Chandrayangutta against the driver of the lorry.
6. The Tribunal after framing the issues, conducted an enquiry. The petitioner examined himself as PW.1 and examined the doctor who treated him at Owaisi Hospital as PW.2. Exs.A1 to A8 were marked on behalf of the injured petitioner. Ex.A1 was the certified copy of the FIR, Ex.A2 was the certified copy of the charge sheet, Ex.A3 was the certified copy of the discharge card, Ex.A4 were the medical bills, Ex.A5 was the discharge summary, Ex.A6 was the bill issued by Bhagawan Devi Hospital, Ex.A7 was the receipt and Ex.A8 was a pharmaceutical bill dated 05.12.2005.
7. The respondent No.2 - Insurance Company had not adduced any oral evidence, but got marked the copy of the Insurance Policy as Ex.B1. 4
Dr.GRR, J macma_2226_2009
8. On considering the oral and documentary evidence on record, the Tribunal partly allowed the petition awarding a sum of Rs.41,000/- as against the claim of Rs.2,00,000/- claimed by the petitioner with proportionate costs and interest @ 7 % per annum from the date of petition till the date of realization.
9. Aggrieved by the said award and decree, the injured claimant preferred this appeal contending that the compensation awarded under the heads medical expenditure, future medical expenditure, extra nourishment, pain and shock were very low. The Tribunal failed to appreciate the evidence of PW.2, who stated that the petitioner was in requirement of a future surgery for removal of nail. No amount was awarded for the disability sustained by the claimant. The Tribunal failed to note that the claimant was not in a position to attend to his normal work and prayed to enhance the compensation from Rs.41,000/- to Rs.2,00,000/- as claimed by the claimant.
10. Heard Sri T.Viswarupa Chary, learned counsel for the appellant - claimant and Sri V.SambasivaRao, learned counsel for the respondent No.2 - Insurance Company.
Permanent Disability:
11. Though the claimant contended that he sustained permanent disability, had not stated the nature of the disability sustained by him nor filed any 5 Dr.GRR, J macma_2226_2009 certificate issued by the Medical Board. He got examined the doctor who treated him at Owaisi Hospital as PW.2. PW.2 stated that the claimant was admitted in Owaisi Hospital on 04.10.2003 following a road traffic accident and that he sustained injury to right thigh (fracture shaft of right femur) for which he was operated with K-Nail fixation and had a satisfactory recovery and was discharged on 18.10.2003. He stated that the claimant could not perform sporting activities that includes difficulty in vigorous activity. He would be unable to perform jobs like Police and sportsmen, otherwise he could perform activities of daily living. He stated that the nature of injuries sustained by the claimant was grievous and the disability would be around 10% and further submitted that the claimant could not perform hard labour work and would be able to perform hard work only after K-Nail removal, but even then he would be having difficulty in prolonged standing and the disability after K-Nail removal would be less than 5%. Even in his cross-examination, he stated that the fracture was united.
12. The petitioner was not doing any job requiring vigorous activity. He was not a sports person or not doing any police job. As per his evidence, he was an employee in a chicken centre which does not require performing any hard work. As the evidence of the doctor also would disclose that the fracture was united and there is no evidence that the petitioner was suffering with any continuing disability, the Tribunal had rightly not awarded any amount under this head. 6
Dr.GRR, J macma_2226_2009 This Court does not find any illegality in the award of the Tribunal for not awarding any amount towards permanent disability. Loss of Earnings:
13. The Tribunal awarded an amount of Rs.20,000/- towards grievous injury sustained by the claimant. Rs.7,000/- towards medical expenses, Rs.10,000/- towards future medical expenses for removal of K-Nail operation, Rs.2,000/- for extra nourishment and Rs.2,000/- towards shock and pain, in all awarded a sum of Rs.41,000/-
14. As seen from the above heads awarded, no amount was awarded towards loss of income sustained by the claimant during the period of his treatment. The petitioner stated that he was working as an employee in a chicken centre and was earning Rs.4,500/- per month. The accident occurred in the year 2003.Considering the judgment of the Hon'ble Apex Court in Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited 1, wherein a labour was also considered to be earning Rs.4,500/- per month for the accident occurred in the year 2004, the amount stated by the claimant as his earnings is considered not unreasonable. Considering the nature of the injury sustained by the claimant i.e. fracture shaft of right femur and that he was admitted in the hospital from 04.10.2003 to 1 (2011) 13 SCC 236 7 Dr.GRR, J macma_2226_2009 18.10.2003 i.e. for a period of two weeks and thereafter was also admitted once again in the Owaisi Hospital from 03.12.2003 to 05.12.2003, he might have taken bed rest for a period of six months and the loss of earnings could be calculated as Rs.4,500 x 6 = Rs.27,000/-.
Medical Expenses:
15. The petitioner had filed discharge summary issued by the Owaisi Hospital and Research Centre marked under Ex.A3 and a bunch of medical bills marked under Ex.A4 for an amount of Rs.36,732/-. As the evidence of PW.2, doctor who treated him in the Owaisi Hospital would prove the admission of the injured claimant in the said hospital and the bills issued by the said hospital marked under Ex.A4, it is considered fit to award the above amount actually incurred by the petitioner towards his treatment at the said hospital for the injuries sustained by him in the motor vehicle accident.
Future Medical Expenses:
16. As the evidence of PW.2 also would disclose that the petitioner would require another surgery for removal of K-Nail inserted and that it would require an amount of Rs.15,000/, it is considered fit to award the said amount towards the future medical requirements of the claimant.8
Dr.GRR, J macma_2226_2009 Pain and Suffering:
17. The Tribunal awarded an amount of Rs.20,000/- under this head for the grievous injury sustained by the claimant. The same is considered as just and reasonable.
Attendant Charges:
18. As some of the family members might have attended the petitioner during the period of his treatment at the hospital and after his discharge from the hospital for a certain period, it is considered fit to award an amount of Rs.10,000/- under this head.
Extra Nourishment:
19. The Tribunal awarded an amount of Rs.2,000/- only under this head. But considering the nature of the injuries sustained by the claimant, as the loss of earnings are also calculated for a period of six months, it is also considered fit to award an amount of Rs.10,000/- under this head.
Transportation:
20. As the petitioner might have incurred some amount towards transportation 'to and fro' to the hospital, it is considered fit to award an amount of Rs.5,000/- under this head.
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Dr.GRR, J macma_2226_2009
21. Hence, the compensation entitled by the petitioner under various heads is as follows:
Sl. No. Heads Compensation amount to
be entitled
1. Permanent Disability Nil
2. Loss of Earnings Rs.27,000/-
3. Medical Expenses Rs.36,732/-
4. Future Medical Expenses Rs.15,000/-
5. Pain and Suffering Rs.20,000/-
6. Attendant charges Rs.10,000/-
7. Extra Nourishment Rs.10,000/-
8. Transportation Rs.5,000/-
Total: Rs.1,23,732/-
22. As the Tribunal awarded only an amount of Rs.41,000/-, it is considered fit to enhance the amount to Rs.1,23,732/-, which is considered as just and reasonable.
23. In the result, the appeal is allowed in part enhancing the compensation from Rs.41,000/- to Rs.1,23,732/- with interest @ 7.5 % per annum on the enhanced amount. The respondent No.2 - Insurance Company is directed to deposit the above amount with interest within a period of two months from the date of receipt of a copy of this judgment, after deducting the amount deposited if any earlier. After deposit of the said amount, the appellant - claimant is permitted to withdraw the same.
No order as to costs.
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Dr.GRR, J macma_2226_2009 As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G. RADHA RANI, J Date: 12th December, 2023 Nsk.