Telangana High Court
S.Sudhakar vs Smt. Radhabai Vittal Jadhav And Another on 28 December, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
1
Dr.GRR, J
macma_2001_2011
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
M.A.C.M.A.No.2001 of 2011
JUDGMENT:
This appeal is preferred by the injured claimant aggrieved by the award and decree dated 10.06.2011 passed by the I Additional Metropolitan Sessions Judge-cum - XV Additional Chief Judge, Hyderabad in O.P.No.1616 of 2008 seeking enhancement of compensation.
2. The case of the injured claimant was that on 20.05.2008 at about 11:00 PM, while he along with his friend Tarachand were coming from Zaheerabad to Sadasivapet after attending the last rites of their relative, on reaching PSML Company on N.H.No.9, a DCM van bearing No.MH-14-V-5705 driven by its driver in a rash and negligent manner, hit the petitioner and his friend while overtaking another vehicle in opposite direction, due to which the petitioner and his friend fell down. The petitioner sustained head injury, right occipital bone fracture, PCL avulsion fracture right, segmental communital fracture of both bones of right leg and ilizarov fixator was applied. He also sustained laceration injuries on both hands, disfiguration of forehead, abrasion on thigh, eye and nasal bone injuries. After the accident, he became unconscious. The petitioner and his friend were shifted to Area Hospital, Sangareddy, but the doctors 2 Dr.GRR, J macma_2001_2011 advised to shift the petitioner to Gandhi Hospital, as the fractures and other injuries were serious. To save the life of the petitioner, he was shifted to Remedy Hospital, Kukatpally, Hyderabad, wherein he was admitted as in- patient and was operated on 24.05.2008. The petitioner was discharged on 28.05.2008 at his request, as the hospital authorities demanded to deposit a sum of Rs.50,000/-, but due to his financial condition, the petitioner could not deposit the said amount.
2.1. He further stated that Police of PS Sadasivapet registered a case in Crime No.112 of 2008 for the offence under Section 338 of IPC. He further submitted that he was aged about 22 years and was earning Rs.5,000/- per month by the date of the accident. He sustained 100% loss of income. He was unable to drive the vehicle, as such, claimed an amount of Rs.4,00,000/-under various heads from the owner and insurer of the DCM van bearing No.MH-14-V-5705.
3. The respondent No.1 - the owner of the DCM van remained ex-parte.
4. The respondent No.2 - Insurance Company filed counter and called for strict proof of the petition averments. The respondent No.2 also called for strict proof that the driver of the insured vehicle was holding a valid and effective driving license by the date of the accident.
5. During the course of enquiry, the petitioner examined himself as PW.1 and got examined a consultant orthopedic surgeon in Remedy Hospital, 3 Dr.GRR, J macma_2001_2011 Kukatpally as PW.2 and the Billing Manager at Remedy Hospital as PW.3. Exs.A1 to A12 were marked on behalf of the 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 MLC, Exs.A4 and A5 were the discharge summaries of Remedy Hospital for the period of his admission in the said hospital from 24.05.2008 to 28.05.2008 and 27.06.2008 to 01.07.2008 respectively, Exs.A6 and A7 were the bill settlements at the time of discharge on the above two occasions, Ex.A8 were the advance receipts, Ex.A9 were a bunch of medical bills, Ex.A10 were the investigation reports, Ex.A11 was the salary certificate and Ex.A12 was the X-ray film.
6. The respondent No.2 - Insurance Company had not adduced any oral evidence, but got filed the copy of the Insurance Policy as Ex.B1.
7. On considering the oral and documentary evidence on record, the Tribunal held that the accident occurred was due to the rash and negligent driving of the driver of the DCM van bearing No.MH-14-V-5705 and that the respondents 1 and 2 were jointly and severally liable to pay compensation to the petitioner.
8. With regard to the quantum of compensation, the Tribunal considered the age of the petitioner as 24 years and though the petitioner filed a salary certificate marked as Ex.A11, as there was no connecting evidence to show that 4 Dr.GRR, J macma_2001_2011 the petitioner was working as a computer training instructor and that he was getting Rs.5,000/-per month, disbelieved the same and considered the notional income of the injured claimant as Rs.15,000/-per annum as per the second schedule to the Motor Vehicles Act and applied multiplier "17". Though, PW.2
- orthopedic surgeon stated that the claimant sustained partial and permanent disability to an extent of 25% to 30%, taken the view that the said assessment was on higher side and reduced it to 10% and awarded an amount of Rs.25,500/- as his future loss of earnings.
9. The Tribunal awarded an amount of Rs.25,000/-for fracture of both bones of right leg and right knee and awarded Rs.15,000/-for fracture of right skull bone and awarded Rs.7,500/- for the three simple injuries @ Rs.2,500/-under the head "pain and suffering". The Tribunal awarded an amount of Rs.1,07,706/- towards medical expenses, Rs.1,500/-towards transportation charges and Rs.1,500/-towards attendant charges. In total, the Tribunal awarded an amount of Rs.1,83,706/- as against the claim of Rs.4,00,000/-with interest @ 7.5% per annum from the date of petition till the date of realization.
10. Aggrieved by the said award and decree, the claimant preferred this appeal contending that in the absence of proof of income also, the Tribunal ought to have considered the income of the claimant as Rs.4,500/-per month and ought to have considered the disability as 25% as deposed by the doctor who treated the appellant. The Tribunal ought to have given credence to the 5 Dr.GRR, J macma_2001_2011 evidence of PW.2, who categorically deposed that the appellant was treated for ilizarov fixator to right leg and was operated by bone grafting and skin grafting to the right leg. As the fractures were grievous in nature, the Tribunal ought to have awarded compensation under various heads as claimed by the claimant.
11. Heard Sri Jagathpal Reddy Kasi Reddy, learned counsel for the appellant
- claimant and Sri T.Ramulu, learned counsel for the respondent No.2 - Insurance Company.
12. The appellant in his claim petition stated that he was working as a driver and that he sustained 100% functional disability, as he was unable to drive the vehicle due to the accident. But however filed Ex.A11 certificate issued by one M/s.Cyber Matrix Computer Education, Shastri Road, Sadasivapet, stating that the claimant was working as a Computer faculty with them and teaching computer education to students from February, 2008, and that they were paying an amount of Rs.5,000/- per month to him. The Tribunal on considering that no witness was examined in support of the said certificate, considered his income notionally. As the petitioner also failed to file any certificate in proof of his educational qualification, the Tribunal not considering the said certificate is considered as proper. But, however, even in the absence of any evidence, even an agricultural labourer or a worker is considered as earning Rs.4,500/- per month as per the judgment of the Hon'ble Apex Court in Sri Ramachandrappa 6 Dr.GRR, J macma_2001_2011 v. The Manager, Royal Sundaram Alliance Insurance Company Limited 1, it is considered appropriate to take the income of the injured claimant as Rs.4,500/- per month.
13. The Hon'ble Apex Court in Pappu Dev Yadav v. Naresh Kumar & Others 2, held that there was no justification for the High Court to have read the previous rulings of the court to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement and such a narrow reading of Pranay Sethi Case was illogical, because it denies altogether the possibility of the living victims progressing further in life in accident cases. As such, an addition of 40% of income is considered appropriate to be taken towards future prospects, as the age of the claimant was considered as 24 years at the time of the accident by the Tribunal. As such an amount of Rs.4,500/- + Rs.1,800/- = Rs.6,300/- per month is considered towards future prospects
14. The petitioner stated his age as 22 years in the claim petition. In Ex.A1, the certified copy of the FIR along with the complaint, the age of the petitioner was shown as 23 years. Ex.A3, the certified copy of MLC would show the age of the claimant as 23 years. Exs.A4 and A5 would show the age of the claimant as 21 years. The Tribunal considered the age of the claimant as 24 years. As 1 2011 ACJ 2426 2 AIR 2020 SC 4424 7 Dr.GRR, J macma_2001_2011 the age of the claimant was between 21 to 25 years, the proper multiplier applicable to his age as per the judgment of the Hon'ble Apex Court in Smt. Sarla Verma & Others v. Delhi Transport Corporation and Another 3 is 18.
15. PW.2 stated that the claimant sustained fracture of both bones of right leg, avulsion fracture of right ligament of knee, fracture of right skull bone and he was treated systemically. Forehead laceration was sutured by neuro-surgeon and the patient was operated by ilizarovering fixator to right leg and collagen sheet application. Multiple blood transfusions were given and he improved systemically. He was discharged from the hospital on 28.05.2008 and was again readmitted on 27.06.2008 and was operated for bone grafting and skin grafting to right leg and was discharged on 01.07.2008, the claimant sustained 25% - 30% partial and permanent disability.
16. Considering the evidence of PW.2, a qualified medical orthopedic surgeon who stated about the disability sustained by the petitioner as 25% to 30% and nothing was elicited in his cross-examination to disbelieve the same, it is considered fit to accept the disability as 25%. As such, the loss of earnings sustained by the claimant due to partial and permanent disability can be assessed as Rs.6,300 x 12 x 18 x 25% = Rs.3,40,200/-. 3 (2009) 6 SCC 121 8 Dr.GRR, J macma_2001_2011
17. The Tribunal awarded an amount of Rs.40,000/- towards pain and suffering for the two grievous injuries sustained by the claimant and Rs.7,500/- for the three simple injuries sustained by the claimant @ Rs.2,500/-per each injury. However, considering the evidence of PW.2, as the petitioner was admitted in the hospital twice for the injuries sustained by him and he was also operated by bone grafting and skin grafting to the right leg by fixing ilizarovering fixator and also sustained skull bone fracture and was moving around the hospitals for a period of more than six months, it is considered fit to enhance the amounts awarded by the Tribunal to Rs.75,000/- towards "pain and suffering".
18. As no amount is awarded towards loss of earnings during the period of his treatment i.e. for about six months, it is considered fit to award an amount of Rs.4,500/- x 6 = Rs.27,000/- towards loss of earnings during the period of treatment.
19. The Tribunal awarded an amount of Rs.1,07,706/-towards medical expenses. Considering the evidence of PWs.2 and 3 and Exs.A6 and A7 (the medical bills filed in support of the treatment), it is considered that there is no necessity to interfere with the award on the said count.
20. As only a meager amount of Rs.1,500/-is awarded towards attendant charges, it is considered fit to enhance the same to Rs.20,000/- under this head. 9
Dr.GRR, J macma_2001_2011
21. Considering the evidence of PWs.1 and 2, as the accident occurred to the petitioner between Zaheerabad and Sadasivapet and was taken for first-aid to the Area Hospital, Sangareddy and from there to Remedy Hospital, Kukatpally where he was admitted twice and he was also attending the follow-up treatments, it is considered fit to increase the amount of Rs.1500/-awarded towards transportation charges to Rs.15,000/-. As no amount is awarded towards extra-nourishment, it is also considered fit to award an amount of Rs.10,000/- under this head.
22. Hence, the compensation entitled by the appellant -claimant under various heads is as follows:
S. No. Heads Compensation Awarded
1. Loss of future income due to Rs.3,40,200/-
partial and permanent disability
2. Loss of income during the period Rs.27,000/-
of treatment (six months)
3. Medical Expenses Rs.1,07,706/-
4. Pain and Suffering Rs.75,000/-
5. Attendant Charges Rs.20,000/-
6. Transportation Rs.15,000/-
7. Extra Nourishment Rs.10,000/-
Total: Rs.5,94,906/-
23. The petitioner claimed an amount of Rs.4,00,000/-. But as there is no restriction on this Court to restrict the award to the amount claimed, but can award the amount what it considers as just and reasonable even if it is more than the amount claimed by the claimant, as per the judgments of the Hon'ble Apex 10 Dr.GRR, J macma_2001_2011 Court in Nagappa v. Gurudayal Singh & Others 4 , Ibrahim v. Raju 5 , Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 6 , Ramla and Others v. National Insurance Co. Limited and Others 7, it is considered fit to award an amount of Rs.5,94,906/- with interest @ 7.5% per annum subject to payment of deficit court fee by the petitioner.
24. In the result, the M.A.C.M.A. is allowed awarding compensation of Rs.5,94,906/- with interest @ 7.5% per annum. The respondents No.2 - Insurance Company is directed to deposit the above amount within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the appellant - claimant is permitted to withdraw the same subject to payment of deficit court fee on the enhanced amount. The amount if any paid by the insurance company is liable to be deducted from out of the compensation awarded.
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: 28th December, 2023 Nsk.
4 (2003) 2 SCC 274 5 2011 ACJ 2845 6 2018 ACJ 2782 7 2019 ACJ 559