THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.644 OF 2014
ORDER:
1. This Motor Accident Civil Miscellaneous Appeal is preferred by the claimant aggrieved by the judgment, dt.29.10.2009, in O.P.No.1031 of 2006, passed by the Motor Accident Claims Tribunal-cum-III Additional District Judge at Nizamabad (hereinafter referred to as 'the Tribunal') disputing the quantum of compensation awarded and seeking enhancement of the compensation as awarded by the Tribunal.
2. The case of the Appellant is that, on the afternoon of 04.06.2006, while she was walking on the side of the road with her bullock cart towards Burgul Tanda, a car bearing No.AP 25 J 5066 driven at a high speed, in a rash and negligent manner hit her from behind near Uthnoor 'T' road, Daggi; and that the accident had resulted in fracture of left leg tibia and fibula, fracture to left hand, injury to left eye, head injury and skull fracture, along with other bodily injuries. The Appellant claims to be admitted as in-patient and received treatment for 13 days at Government Hospital, Nizamabad where her left leg was operated and rods were inserted; 2 that as a result of the said accident caused by the offending vehicle, she has become permanently disabled, and has incurred an expenditure of Rs.2,00,000/-. Seeking compensation for the injury caused to her, the Appellant had filed the aforesaid OP claiming a compensation of Rs.3,00,000/-.
3. The Tribunal on considering the oral and documentary evidence on record, had held that the accident had occurred due to the rash and negligent driving of the Respondent No.1. On holding so, the Tribunal allowed the OP in part and awarded a total compensation of Rs.30,000/- along with proportionate costs and interest @ 7.5% p.a. from the date of award. The instant appeal is filed aggrieved by the quantum of compensation.
4. It is the contention of the Appellant that, the injuries received by her were grievous in nature, due to which she is permanently disabled; and that she is unable to walk or perform her regular duties, as such the Tribunal erred in calculation of compensation. She further contends that the Tribunal erred in considering the evidence on record.
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5. Learned Standing Counsel appearing for the Respondent No.2 contended that the appellant failed to produce medical records of the treatment she received and had also not produced evidence of her permanent disability. He thus contended that, the compensation awarded by the Tribunal was just and did not warrant enhancement by this Court.
6. Heard Sri. P. Radhive Reddy, learned counsel for the Appellant, and Sri. V.Venkata Rami Reddy learned Standing Counsel appearing for the Respondent No.2. Despite service of notice none appeared for Respondent No.1.
7. I have taken note of their respective contentions and perused the record.
8. The only ground of challenge in this appeal is that the Tribunal had calculated compensation without considering the fact of the Appellant's permanent disability and the medical expenses incurred by her. The Tribunal on examining the injury certificate marked as Ex.A-3, had held that she had received a simple head injury, and a grievous injury to the left upper end of tibia. Apart from Ex.A-6 and Ex.C2 which show a fracture to the left leg, she 4 had not adduced any further evidence to substantiate her claim pertaining to the other injuries. The order of the Tribunal would also reveal that the Appellant did not lead evidence in proof of the medical treatment received or medical expenses incurred by her. The medical bill marked as Ex.A-5 only accounted to Rs.990/- out of the total expenditure claimed to have been incurred by the Appellant. It is also pertinent to note that, the Appellant though claimed permanent disability, did not adduce any evidence in proof of the same. Thus, in view of this Court, the Appellant had failed to establish that the injuries received by her led to permanent disability.
9. Insofar as the question of determination of just compensation for the injuries sustained, it is to be noted that the Appellant had suffered a fracture to the upper left end of tibia i.e., left knee joint. The evidence of PW-2 who is a Civil Assistant Surgeon at the Government Hospital, Nizamabad along with the case sheet marked as Ex.C-1 and X-Ray marked as Ex.C2 clearly establish the injury sustained by her. Having observed that the Appellant had received treatment for 13 days as in-patient, the Tribunal had grossly erred in not awarding loss of earnings under a separate 5 head. A fracture to the knee joint would ordinarily take 4 - 6 months to heal. Further, the evidence of PW-2 shows that he had treated the injury by way of a plaster of paris casting, in turn decreasing her mobility. It is but obvious that the Appellant who is an agriculturalist doing strenuous physical work, would be prevented from earning a living till the entire process of recovery was completed. Therefore, taking into consideration these factors it is just to calculate the loss of earnings for a period of 4 months, as against one month awarded by the Tribunal.
10. Further, the Tribunal though accepted that the Appellant was engaged in agricultural activities, had not calculated monthly income accordingly. Prior to the accident, the Appellant claims to have earned Rs.10,000/- per month by cultivating commercial crops, contrarily the Tribunal had determined her monthly income as Rs.2,400/- by taking her daily wage to be Rs.80/-. The order of the Tribunal is bereft of reasons for rejecting the Appellant's claim with respect to her monthly income.
11. While dealing with the question of determination of income of a person, the Supreme Court in Ramachandrappa Vs. The 6 Manager, Royal Sundaram Alliance Insurance Company Limited1, has held as under:
"14. In the instant case, it is not in dispute that the Appellant was aged about 35 years and was working as a Coolie and was earning ' 4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of ' 3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was ' 100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of ' 3000/- per month. Secondly, the Appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between ' 100/- to 150/- per day or ' 4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from ' 4500/- to ' 3000/- per month. We, therefore, accept his statement that his monthly earning was ' 4500/-"
From the above position of law, it is clear that the Tribunal should accept the claim of a person with respect to his income, if such 1 (2011)13SCC236 7 claim is not exorbitant and if the Respondent does not lead any evidence proving such claim as incorrect.
12. In the present case, the Respondent No.2 though opposed the Appellant's contention, did not lead any evidence to disprove the same. Although the Appellant claims to have been earning Rs.10,000/- per month in absence of substantial evidence, this Court is reluctant to accept the same. Even if the notional income of the Appellant is determined assuming she is a housewife, by virtue of the Supreme Court's decision in Kirti and Ors. Vs. Oriental Insurance Co. Ltd2, it is clear that the notional income fixed by the Tribunal is wholly inadequate. However, as the Appellant is an earning member, it is appropriate to determine her notional income while considering her supposed monthly income in relation to her occupation, and the daily wages at the relevant period. Thus, this Court is of the view that it is just to fix her monthly income as Rs.4,500/-.
13. Lastly, this Court is of the view that the Appellant being confined to her bed would need expenses for extra nourishment 2 (2021) 2 SCC 166 8 during the span of her recovery i.e., for 4 months as discussed supra.
14. Thus, the compensation awarded to the Appellant is modified as under:
Head of Compensation Enhancement by this
Compensation awarded by the Court
Tribunal Amount (in Rupees)
Amount (in
Rupees)
Loss of Earnings - 18,000/-
Medical Expenses 5,000/- 5,000/-
and Attendant
charges
Extra nourishment 2,500/- 10,000/-
Transport Charges 2,500/- 2,500/-
Damages for pain, 20,000/- 30,000/-
suffering and trauma
TOTAL 30,000/- 65,500/-
15. Accordingly, this Motor Accident Civil Miscellaneous Appeal is partly allowed. The compensation awarded by the Tribunal is enhanced from Rs.30,000/- to Rs.65,500/- The Respondents No. 1 & 2 are directed to deposit the enhanced compensation with interest at the rate of 7.5% per annum from date of the claim petition till realization, within three months from the 9 date of this order. On such deposit, the Appellant is permitted to withdraw the same along with interest accrued.
16. Pending miscellaneous petitions if any, shall stand closed. No order as to costs.
______________________ T. VINOD KUMAR, J Date: 17.03.2023.
MRKR/VSV 10 THE HON'BLE SRI JUSTICE T. VINOD KUMAR M.A.C.M.A. No.644 OF 2014 17.03.2023 MRKR/VSV