HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.3969 of 2014
JUDGMENT:
Not being satisfied with the quantum of compensation awarded by the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Nalgonda in O.P. No.990 of 2010, dated 01.06.2012, the present appeal is filed by the claimant seeking enhancement of compensation.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. The facts in issue are as under:
On 30-09-2010 the petitioner after unloading the material, was returning in the van to Hyderabad from Visakhapatnam and at 10-30 p.m., when he reached near P.M.Palem Police Station limits on National Highway No.5, he stopped his van on the extreme left side of the road to clean the front mirrors and was about to board the van, in the mean time, the driver of the lorry bearing No. AP 35 V 6111 came with high speed in rash and negligent manner and dashed the van, due to which he fell down and received serious injuries. Immediately he 2 was taken to K.G.H. Hospital, Visakhapatnam in 108 ambulance where he was treated as in-patient for about two days and from there he was shifted to Sai Sanjeevini Hospital, Dilsukhnagar, Hyderabad, where he was treated as inpatient for about two months. Due to the compressed fractures of lower part of the body, he was effected paraplegia. He is still undergoing treatment at his residence. According to the petitioner, he was aged about 33 years, working as driver in TCI Express Couriers, Hyderabad and was earning Rs.5,000/- per month besides batha and due to the injuries sustained by him in the said accident, he was paralysed and completely bed ridden and 100% permanently disabled and is leading death bed life and needs attendant throughout life. Thus, he is claiming compensation of Rs.10,00,000/- under various heads against the respondent Nos.1 and 2, who are the owner and insurer of the offending lorry.
4. First respondent remained exparte. Second respondent filed counter disputing the manner of accident, age, avocation and income of the injured, nature of injuries sustained by the petitioner and the treatment taken by him.
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5. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.4,89,000/- towards compensation to the appellant-claimant against the respondent Nos.1 and 2 jointly and severally, along with proportionate costs and interest @ 6% per annum from the date of petition till the date of realisation, as against the claim of Rs.10,00,000/- laid by the appellant-claimant for the injuries sustained by him in a road accident that occurred on 30.9.2010. However, the appellant filed I.A. No.1 of 2022 before this Court seeking enhancement of compensation from Rs.10,00,000/- to Rs.25,00,000/- and the same was ordered on 28.11.2022.
6. Heard the learned counsel for the appellant-claimant and the learned Standing Counsel for the second respondent-Insurance Company. Perused the material available on record.
7. The learned counsel for the appellant-claimant has submitted that although the claimant, by way of evidence of P.Ws.1 to 3 and Exs.C.1 to C.14, established the fact that the petitioner has sustained grievous injuries in the accident and became permanently disabled, the Tribunal awarded very meager amount under various heads. 4
8. The learned Standing Counsel appearing on behalf of second respondent-Insurance Company sought to sustain the impugned award of the Tribunal contending that considering the avocation of the petitioner, the learned Tribunal has awarded reasonable compensation and the same needs no interference by this Court.
9. The finding of the tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by the respondent-Insurance Company.
10. Now the question that arises for consideration is whether the compensation awarded by the tribunal is just and equitable?
11. The main contention advanced by the learned counsel for the appellant is that in order to establish the fact that on account of the injuries sustained by the claimant in the accident, he has suffered permanent disability, he examined himself as PW-1 and reiterated the contents of the petition. A perusal of the record discloses that as the claimant is not in a position to move from the bed, his evidence was recorded through Advocate-Commissioner and as such, the documents were marked under 'C' series. Apart from him, he also examined 5 PWs.2 and 3. PW-2 Orthopedic Surgeon who has given treatment to him stated that he has performed surgery and the petitioner has to live completely on bed till his death as he cannot move from the bed and further stated that he has issued disability certificate under Ex.C7. He also stated that he has conducted operation to stabilize the spine to facilitate the injured in the wheel chair movement to prevent bed source. So, the evidence of PW-2 supported the medical record which discloses that the claimant was completely bed ridden due to the injuries and his body was paralyzed and he is not in a position to move.
12. PW-3 is the wife of the injured deposed that prior to the accident, she used to go for labour works and used to earn Rs.150/- per day, but as her husband was completely in bed, she is not in a position to leave him and her earnings also effected due to this accident. In view of the above evidence, it is very clear that the petitioner/claimant has sustained severe injuries and has been suffering with paraplegia and leading completely death bed life. Therefore, the disability can be taken at 100%. According to the petitioner, he used to work as Driver and earning Rs.5,000/- per month 6 and in proof of the same, he has filed Ex.C.12 driving license and further Ex.C1 discloses that the occupation of the petitioner as driver. However, except filing driving license, he has not perused any other document to show that he is working as driver in TCI Express Couriers, Hyderabad. However, considering the occupation of the petitioner as driver, his income can be taken into consideration at Rs.5,000/- per month, as the accident occurred in the year 2010.
13. Insofar as the future prospects are concerned, recently, the Apex Court in Sidram v. The Divisional Manager, United India Insurance Company Limited (CIVIL APPEAL No. 8510 OF 2022, dated 16.11.2022) held as under:-
"31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to 7 exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death."
14. In view of above said decision, the appellant is entitled to future prospects. As the age of the appellant is 33 years at the time of the accident, he is entitled the future prospects at 40%.
15. Therefore, by adding 40% future prospects, the monthly income of the appellant comes to Rs.7,000/- (Rs.5,000/- + Rs.2000/-). In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation1, the suitable multiplier to be adopted for calculating the loss of earnings would be '16'. Therefore, the loss of earnings on account of the disability would be Rs.7,000/- x 12 x 16 = Rs.13,44,000/-. Further the tribunal awarded Rs.5,000/- towards attendant charges, Rs.5,000/- towards transport charges and Rs.5,000/- towards food and nourishment, which appears to be very less. Therefore, the claimant is entitled for Rs.20,000/- towards extra nourishment and transport 1 2009 ACJ 1298 8 charges. The amount of Rs.50,000/- awarded by the tribunal towards medical expenses is not disturbed. Since the claimant is 100% disabled, an amount of Rs.20,000/- is awarded towards attendant charges, Rs.1,00,000/- towards loss of amenities and expectation of life, Rs.1,00,000/- towards future medical bills and Rs.50,000/- towards pain and sufferance for the disability sustained by him. Thus, in all the appellant is entitled to a sum of Rs.16,84,000/- as compensation.
16. At this stage, the learned Counsel for the Insurance company submits that the appellant claimed only a sum of Rs.10,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
17. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another2 and Nagappa Vs. Gurudayal Singh3 the appellant is entitled to get just compensation even if it is more than the amount what was claimed by the claimant.
2 (2011) 10 SCC 756 3 2003 ACJ 12 (SC) 9
18. Accordingly, the appeal is allowed by enhancing the compensation from Rs.4,89,000/- to Rs.16,84,000/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. However, the appellant is directed to pay Deficit Court Fee, if not paid. On such deposit, the appellant is permitted to withdraw the entire compensation amount without furnishing any security. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________ JUSTICE M.G. PRIYADARSINI 10.03.2023 pgp