Telangana High Court
Muddam Venkulu vs P.Krishna Prasad And Anr 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.3747 of 2009
JUDGMENT:
This appeal is filed by the appellant - claimant aggrieved by the award and decree passed in O.P.No.2350 of 2006 dated 30.04.2008 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad - cum - XIX Additional Chief Judge, City Criminal Courts, Hyderabad, seeking enhancement of compensation.
2. The appellant - claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/- for the injuries sustained by him in a motor vehicle accident. His case was that on 15.01.2006, while he was returning from Choutuppal to his village Damera on his scooter and when reached the outskirts of Thangadapally Village at about 08:00 PM, a Maruthi Car bearing No.AP-10-L-5657 driven by its driver with high speed in a rash and negligent manner hit his scooter, due to which he sustained grievous head injury, fracture of right elbow, fracture of right knee joint and multiple fractures all over the body. Police Choutuppal registered a case vide Crime No.72 of 2006 under Section 338 of IPC against the driver of the Maruthi Car bearing No.AP-10-L-5657.
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3. The claimant further stated that he was earning more than Rs.1,50,000/- per annum on his agricultural crops and business. On account of the injuries sustained in the accident, he was hospitalized for a long time. Blood was clotted in his brain, due to which he was unable to speak and lost his memory power and due to fracture of right elbow and right knee, he sustained permanent disability. He was the only earning member in his family. Due to his hospitalization, he was compelled to engage personnel to look after his agriculture and business by paying salaries. He required future medical treatment. He was put to pain and suffering, mental agony, which could not be compensated in any manner, as such claimed compensation from respondents 1 and 2, the owner and insurer of the Maruthi Car bearing No.AP-10-L-5657.
4. The respondent No.1 remained ex-parte.
5. The respondent No.2 - Insurance Company filed counter and called for strict proof of age, occupation and earnings of the injured claimant, the injuries sustained by him and that he sustained permanent disability due to the said accident. The Insurance Company contended that there was contributory negligence on the part of the petitioner and that the petition was liable to be dismissed for non-joinder of the Insurance Company of the scooter as a party to the OP and called for strict proof that the respondent No.1 was holding a valid 3 Dr.GRR, J macma_3747_2009 and effective driving license and the policy was valid and subsisting as on the date of the accident.
6. The Tribunal after framing the issues conducted enquiry. During the course of enquiry, the claimant examined himself as PW.1 and got examined the doctor who treated him at Yashoda Hospital as PW.2 and an eye witness to the accident as PW.3. He got marked Exs.A1 to A5 on his behalf. 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 injury certificate, Ex.A4 were a bunch of medical bills and Ex.A5 was the discharge certificate.
7. The respondent No.2 had not adduced any oral or documentary evidence.
8. On considering the oral and documentary evidence on record, the Tribunal awarded an amount of Rs.4,74,000/- as against the claim of Rs.5,00,000/-.
9. Aggrieved by the said award and decree, the injured claimant preferred this appeal contending that the assessment of loss of earnings was not in accordance with law. By examining the doctor as PW.2, the appellant proved that he suffered with paralysis and a portion of his body became weak resulting in permanent disability. The Tribunal ought to have awarded future loss of earnings to the appellant. The Tribunal erred in awarding a lump sum amount of Rs.30,000/- towards loss of earning capacity instead of applying multiplier 4 Dr.GRR, J macma_3747_2009 method. The compensation awarded towards pain and suffering and other heads is meager and prayed to enhance the compensation.
10. At the time of filing the appeal, the petitioner had also filed M.A.C.M.A.M.P.No.5670 of 2009 seeking enhancement of claim from Rs.5,00,000/- to Rs.9,50,000/-. The respondent No.2 - Insurance Company filed counter, opposing the said application. But, however considering the judgment of the Hon'ble Apex Court in Nagappa v. Gurudayal Singh and Others 1, wherein it was held that:
"For the reasons discussed above, in our view, under the Motor Vehicles Act, there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, the Court may permit amendment to the Claim Petition."
Hence, considering the above observation of the Hon'ble Apex Court, by enhancing the claim as there would be no change of cause of action, it is considered fit to allow the application. Accordingly, the application is allowed enhancing the compensation from Rs.5,00,000/- to Rs.9,50,000/-. 1 (2003) 2 SCC 274 5 Dr.GRR, J macma_3747_2009
11. Heard Sri T.Viswarupa Chary, learned counsel for the appellant - claimant and Sri V.Krishna Rao, learned counsel for the respondent No.2 - Insurance Company.
12. On a perusal of the record, the Tribunal awarded an amount of Rs.15,000/- towards pain and suffering, Rs.4,06,265/- towards medical bills, Rs.5,000/- towards transportation, Rs.7,500/- towards loss of income for a period of three months @ Rs.2,500/- per month, Rs.10,000/- towards loss of future amenities in life and Rs.30,000/- towards loss of future income. In total, the Tribunal awarded an amount of Rs.4,73,765/- (rounded off to Rs.4,74,000/-) with interest @ 7 % per annum.
13. The injured claimant examined himself as PW.1. He stated that on 15.01.2006 at about 2000 hours, while he was returning from Choutuppal to his village Damera on scooter, a Maruthi Car bearing No.AP-10-L-5657 came in high speed, and in a rash and negligent manner hit him, due to which he sustained grievous head injury, fracture of right elbow, fracture of right knee joint and multiple fractures all over the body. He had undergone an operation on account of the grievous head injury sustained by him in the accident. Blood clotted in the brain, due to which he was unable to speak properly and his memory power was also affected and due to fracture of right elbow and right knee, he incurred permanent disability. In his cross-examination, he stated that 6 Dr.GRR, J macma_3747_2009 he was in the hospital for a period of one month and he himself lodged the complaint after recovery from the injuries. He admitted that he had not filed any documents to show that he was having agricultural lands and in proof of income of Rs.1,50,000/- per annum.
14. He got examined the doctor who treated him in Yashoda Hospital as PW.2. PW.2 stated that the injured claimant was admitted in Yashoda Hospital as in-patient on 15.01.2006. He was involved in road traffic accident with head injury and left temporal parietal bleed, right frontal bone fracture, post left temporo parietal craniotomy with subdural evacuation was done. The claimant was operated on 16.01.2006. A Neuro Surgeon and a General Surgeon have attended on the patient and the patient was discharged on 13.02.2006. He stated that the surgery was conducted for left temporal parietal bleed and the patient was admitted in unconscious state with right hemiplegia (weakness of right upper limb and lower limb). After operation, the patient recovered gradually. PW.1 sustained sensory aphasia (loss of speech and weakness of right upper limb and lower limb). He stated that at the time of discharge, the patient was able to walk with support. The patient could not undertake hard work like agriculture. The CT-Scan report would show the subdural hematoma at left temporal region. He stated that the weakness in right upper limb and lower limb were still subsisting by the date of his evidence on 15.03.2006. To recover from sensory aphasia, it would take few years and the patient need to take 7 Dr.GRR, J macma_3747_2009 physiotherapy. He stated that on account of the head injury, memory power of the patient was impaired. He admitted Ex.A4 (bunch of medical bills) and Ex.A5 (discharge certificate) as issued by their hospital.
15. The Tribunal considered the monthly income of the injured claimant as Rs.2,500/- per month. But, considering the judgment of the Hon'ble Apex Court in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited 2, wherein a vegetable vendor is considered as capable of earning Rs.6,500/- per month for the accident occurred in the year 2008, and as the petitioner is claiming his income as Rs.1,50,000/- per annum from agriculture as well as other business, which was not detailed by him, it is considered reasonable to take the income of the appellant - claimant as R.6,500/- per month.
16. The Tribunal awarded loss of income for a period of three months @ Rs.2,500/- per month, but as the income of the injured claimant is considered as Rs.6,500/- per month and considering the injuries sustained by the petitioner, the loss of earnings during the period of treatment can be assessed for a period of six months. As such, the injured claimant is entitled to an amount of Rs.6,500/- x 6 = Rs.39,000/- under the head "loss of earnings". 2 (2014) 2 SCC 735 8 Dr.GRR, J macma_3747_2009
17. The evidence of PWs.1 and 2 would disclose that due to the accident, the petitioner sustained head injury and blood was clotted in his brain, due to which craniotomy was conducted and the petitioner was unable to speak properly and also his memory was affected, as he sustained sensory aphasia and there was hemiplegia i.e. weakness of right upper limb and lower limb. The Tribunal observed that as the evidence of PW.2 is not certain regarding the longevity of the disability, it was in a helpless condition to assess exactly the loss of future income to the petitioner, but, however, considering the evidence of PW.2 that it would take few years for the petitioner to recover from sensory aphasia, a lump sum amount of Rs.30,000/- is awarded towards loss of future income.
18. But, it is to be noted that PW.1 was examined on 06.02.2008 i.e. two years after the accident after he recovered from the same. It would also disclose that it had taken two years for him to be able to give evidence and to depose before the Court. The evidence of PW.2 would disclose that the sensory aphasia sustained by the petitioner was only a temporary one, but not a permanent disability and he could recover from it within a few years. The evidence of PW.1 would disclose that he was able to give evidence after recovery from the same within a period of two years from the date of accident. Hence, it is considered that the sensory aphasia is sustained for a period of two years. The loss of future earnings sustained by the injured claimant can be assessed for a 9 Dr.GRR, J macma_3747_2009 period of two years. As such, it can be calculated as Rs.6,500/- x 24 = Rs.1,56,000/-.
19. As the Tribunal awarded a sum of Rs.4,06,265/- by considering the bunch of medical bills marked under Ex.A4, the same need not be disturbed.
20. Considering the nature of injuries sustained by the petitioner i.e. head injury, fracture of right frontal bone, fracture of right elbow and fracture of right knee joint and a craniotomy was also conducted for the left temporo parietal bleed and he sustained sensory aphasia resulting in loss of memory and speech for a period of two years and the injured claimant was admitted as in-patient in the hospital for a period of about one month, the amount of Rs.15,000/- awarded by the Tribunal under the head "pain and suffering" is considered as meager. As such, the same is enhanced to Rs.1,00,000/-.
21. The Tribunal awarded an amount of Rs.10,000/- under the head, 'loss of amenities in life'. The same is also considered as meager. The Hon'ble Apex Court in Raj Kumar v. Ajay Kumar and Another 3, after considering a large number of precedents, held that:
"5. The provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make 3 (2011) 1 SCC 343 10 Dr.GRR, J macma_3747_2009 good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
Due to the sensory aphasia, as the petitioner was deprived of enjoying the normal amenities which he would have enjoyed but for the injuries, it is considered fit to award an amount of Rs.50,000/- towards loss of amenities in life.
22. As no amount is awarded towards attendant charges, it is also considered fit to award an amount of Rs.25,000/- under this head. It is also considered fit to award an amount of Rs.25,000/- towards extra nourishment and Rs.25,000/- towards transportation.
23. Hence, the compensation awarded to the appellant - injured claimant under various heads is as follows:
Sl. Heads Compensation amount to
No. be entitled
1. Loss of earnings (for a period of 6 Rs.39,000/-
months)
2. Loss of future earnings (for a period of 2 Rs.1,56,000/-
years)
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macma_3747_2009
3. Medical Expenses Rs.4,06,265/-
4. Pain and Suffering Rs.1,00,000/-
5. Loss of amenities in life Rs.50,000/-
6. Attendant charges Rs.25,000/-
7. Extra Nourishment Rs.25,000/-
8. Transportation Rs.25,000/-
Total: Rs.8,26,265/-
24. As the Tribunal awarded only an amount of Rs.4,74,000/-, it is considered fit to enhance the amount to Rs.8,26,265/-, which is considered as just and reasonable.
25. In the result, the appeal is allowed enhancing the compensation from Rs.4,74,000/- to Rs.8,26,265/- 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 subject to deposit of court fee on the enhanced amount.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G. RADHA RANI, J Date: 12th December, 2023 Nsk.