THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.279 of 2017
JUDGMENT:
This appeal is preferred by the injured, questioning the award and decree, dated 15.09.2016 passed in M.V.O.P.No.907 of 2012 on the file of the Motor Accident Claims Tribunal-cum- VIII Additional District Judge, Nizamabad (for short, the Tribunal).
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a petition under Section 166(1)(a) of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 19.08.2011. It is stated that on the fateful day, while the claimant was proceeding on a scooter bearing No.AP 25 F 20151 as pillion rider, along with other person, from Narayanapur towards Nizamabad, at about 4:30 a.m., the crime vehicle i.e., auto bearing No.AP 25 W 5539, owned by respondent No. 1 and insured with respondent No. 2, being driven by its driver in a rash and negligent manner at high speed, dashed the scooter from opposite direction, as a result of which, the claimant 2 MGP, J Macma_279_2017 suffered fracture of both bones of right leg and injuries to other parts of his body. Immediately, he was taken to Ashwini Hospital, Nizamabad, and later shifted to Lazarus Hospital, Hyderabad, where he was treated as inpatient. He spent Rs.3,00,000/- towards nursing and nourishing. According to the claimant, he was hale and healthy and aged 24 years as on the date of accident and earning Rs.15,000/- per month by working as bore-well mechanic, electrician and attending agricultural works. Due to the said injuries, he sustained permanent disability and lost his future earnings. Thus, he laid the claim seeking compensation of Rs.4,00,000/- against the respondents 1 and 2 jointly and severally.
4. While respondent No.1 remained ex parte, respondent No.2 filed counter denying petition averments, disputing the manner of accident, nature of injuries sustained by the claimant, avocation and income of the claimant and further contended that the claim is exorbitant and sought for dismissal of the claim petition.
5. Based on the above pleadings, the Tribunal framed the following issues:
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1. Whether the pleaded accident occurred resulting in injuries sustained by the petitioner, Syed Habeeb, due to rash and negligent driving of motor vehicle bearing No.AP 25 W 5539 by its driver?
2. Whether the claimant is entitled to claim compensation, if so to what quantum and from which of the respondents?
3. To what relief?
6. In order to prove the issues, PWs.1, 2 and 3 were examined and Exs.A1 to A33 got marked on behalf of the claimant. On behalf of respondent No. 2, no oral evidence was adduced but Ex.B1 was marked with consent.
7. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.2,63,800/- towards compensation to the claimant along with proportionate costs and interest @ 6% per annum from the date of filing the petition till the date of payment or realization against the respondents jointly and severally.
8. Heard the learned counsel for the appellant-claimant and the learned Standing Counsel for the respondent No. 2- Insurance Company. Perused the material available on record. 4
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9. The learned counsel for the appellant-claimant has submitted that although the claimant, by way of medical evidence i.e. the evidence of P.W. 3, member of medical board and Ex.A.33, disability certificate, sufficiently established that the claimant had sustained disability at 88% due to the injuries suffered in the accident, the Tribunal has estimated the disability at 30% thereby awarded meager amount towards loss of income due to disability.
10. On the other hand, the learned Standing Counsel appearing on behalf of respondent-Insurance Company sought to sustain the impugned award of the Tribunal contending that considering the manner of accident and the nature of injuries sustained by the claimant, the learned Tribunal has awarded reasonable compensation and the same needs no interference by this Court.
11. As regards the manner of accident, the Tribunal after evaluating the evidence of PW. 1, coupled with the documentary evidence available on record i.e., Exs.A.1, FIR & A.2, Charge Sheet, held that the accident occurred due to rash and negligent driving of the driver of auto bearing No.AP 25 W 5539. Therefore, this Court is not inclined to interfere with the said 5 MGP, J Macma_279_2017 findings of the Tribunal which are based on appreciation of evidence in proper perspective. Thus, the only dispute in the present appeal is with regard to the quantum of compensation.
12. As per the medical evidence available on record, the claimant sustained grievous injuries in the alleged accident and immediately he was taken to Ashwini Hospital, Nizamabad, wherefrom he was taken to Lazarus Hospital, Hyderabad, where he was treated as inpatient. The evidence of PW-3, who is the member of Medical Board, coupled with Ex.A33, Disability Certificate, discloses that the claimant suffered 88% permanent disability due to impaired reach of right lower limb and post traumatic sequel limbs. However, without there being any acceptable reason, the Tribunal brushed aside the said evidence and had taken the disability at 30%. In the circumstances of the case and considering the evidence of P.W.3 and Ex.A.33, this Court is inclined to fix the disability sustained by the claimant at 40%.
13. Coming to the quantum of compensation, according to the claimant, he was aged about 24 years at the time of accident and used to earn Rs.15,000/- per month by working as bore well mechanic, electrician and on agriculture. But no evidence 6 MGP, J Macma_279_2017 is produced, either oral or documentary, to prove his income. However, considering the avocation of the claimant and as the accident is of the year 2011, this Court is inclined to fix the income of the claimant as Rs.4,500/- per month. As per the records, the claimant was aged about 24 years at the time of accident. Therefore, the appropriate multiplier in light of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation1 is "18". Thus, the future loss of income due to 40% disability comes to Rs.3,88,800/- (Rs.4,500/- x 12 x 18 x 40/100). That apart, the claimant is awarded Rs.20,000/- towards extra nourishment, transportation, attendant charges and medical bills. That apart, the other amounts awarded by the Tribunal i.e., Rs.25,000/- towards pain and sufferings and head injury, Rs.36,000/- towards medical loss of earnings are not disturbed with. Thus, in all the claimant is entitled to Rs.4,69,800/-.
14. In the result, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.2,63,800/- to Rs.4,69,800/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization to be payable by the respondent Nos.1 and 2 1 2009 ACJ 1298 (SC) 7 MGP, J Macma_279_2017 jointly and severally. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. The claimant shall pay the deficit court fee. On such deposit of Court fee, the claimant is entitled to withdraw the same. No costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI 22.02.2023 rev/gms 8 MGP, J Macma_279_2017 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.279 of 2017 DATE: 22.02.2023 rev/gms