HONOURABLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.1113 of 2019
JUDGMENT:
Being not satisfied with the quantum of compensation awarded in the order and decree, dated 28.03.2014, passed in M.V.O.P.No.67 of 2013 on the file of the Chairman, Motor Accident Claims Tribunal-cum-XXV Additional Chief Judge, City Civil Court, Hyderabad, (for short "the Tribunal"), the appellant/claimant preferred the present appeal seeking enhancement of the compensation.
2. The facts, in issue, are as under:
The appellant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.15,00,000/- for the injuries sustained by him in a road accident that occurred on 03.06.2012. According to the appellant, on 03.06.2012 he was proceeding from Yashoda Hospital, Secunderabad towards Malkajgiri on his Pulsar motorcycle bearing No. AP 28 BK 3474 and while he was at Subash Nagar X roads, the driver of Maruti Omni bearing No. AP 09 AQ 8666 drove it in a rash and negligent manner and dashed him, due to which, he fell down on the road 2 and sustained grievous injuries to his right leg. Immediately he was shifted to Oxygen Hospital and from there he was shifted to NIMS where he was treated as inpatient. An eyewitness to the accident filed a complaint before the police, who registered a case against the driver of the said van. The petitioner sustained three fractures and he was treated as inpatient from 3.6.2012 to 26.6.2012 and again he was admitted in the hospital on 25.7.2012 and on 1.8.2012 his right leg was amputated up to below knee level as there was gradual loss of vascularity of foot and gross infection. He was discharged from the hospital on 6.8.2012. He spent Rs.1,00,000/- for his treatment and he needs Rs.3,00,000/- for purchasing artificial limb. It is further stated that prior to the accident, the appellant was hale and healthy and was earning Rs.9,000/- per month as a driver with one Dr.Pradeep Kumar Mishra at Yashoda Hospital, Secunderabad. In view of the above accident, he was bed ridden for more than three months in the hospital and due to amputation of right leg, he is not in a position to attend any job. He is unmarried and his chance of getting good match has become remote due to amputation of his right 3 leg. Therefore, he laid the claim against the respondents, seeking compensation.
3. Respondent No.1 remained exparte. Respondent No.2 filed counter disputing the manner of accident, age, avocation and income of the petitioner, nature of injuries sustained by him which resulted permanent disability. It is further contended that the compensation claimed by the petitioner is highly excessive and therefore, prays to dismiss the petition.
4. Considering the claim and the counter filed by respondent No.2, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.12,00,000/- with future interest at 6% per annum. Challenging the quantum of compensation awarded, the present appeal is filed by the appellant/claimant.
4. Heard learned counsel for the appellant and learned Standing Counsel for respondent No.2.
5. Learned counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side. It is also submitted that though 4 the tribunal has taken the income of the petitioner at Rs.10,000/-, erroneously deducted half of the income towards his personal expenses and further the tribunal did not consider the future prospects and awarded meager amount and therefore, seeks enhancement of compensation.
6. Per contra, the learned Standing Counsel for the Insurance Company submits that the quantum of compensation awarded by the Tribunal is based on evidence and the same needs no interference.
7. 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 either by the owner or insurer of the vehicle.
8. Coming to the quantum of compensation, the appellant examined himself as PW.1 apart from PWs.2 to 5. The order of the trial Court shows that the petitioner has produced disability certificate, photographs which shows that his right leg below the knee was amputated. According to PW-1 and the Medical Officer, in view of crush injury, PW-1 was again admitted in the hospital on 5 25.7.2012, undergone a surgery and was discharged from the hospital on 6.8.2012. PW-2 along with team of doctors attended the said operation and he opined that in view of the amputation of right leg, PW-1 was not in a position to work as a driver and thereby the disability shall be calculated as 100%. Further PW-3 Billing clerk examined to prove the payment of Rs.49,125/- to the hospital. PW-4 who is an independent witness deposed that the petitioner worked as car driver from August 2010 and he used to pay Rs.9,000/- per month. He issued Ex.A14 certificate to prove the same. According to PW-5, he examined the petitioner on 3.6.2014 and issued Ex.A19 quotation for fixing artificial right lower limb and estimate its cost as Rs.2,17,100/- which consist of demountable below knee assy Elite foot, below knee fairing, pyramid adpatro elamp ankle fairing, ELDT, fit kit lock cover fabric, socket charges and fitment charges etc.
9. Coming to the disability, the main contention of the learned counsel for the appellant is that though P.W.2- Doctor stated that the claimant has sustained 100% of the disability and the claimant is not in a position to work as driver due to the amputation of his right leg, the trial court 6 has taken the income of PW-1 at Rs.10,000/- per month, but wrongly deducted Rs.5,000/- towards his personal expenses and awarded meagre amount. Considering the evidence of PW-2, it is very clear that the petitioner is not in a position to attend his work as a driver due to his amputation. Therefore, this Court is inclined to fix the disability of PW-1 at 100%. According to PWs.1 and 4 coupled with Ex.A4, and the appellant being aged about 26 years and as the accident took place in the year 2011, this Court is inclined to fix the income of the appellant at Rs.9,000/- per month.
10. 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 7 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 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."
11. In view of above said decision, the appellant is entitled to future prospects. As the age of the appellant is 26 years at the time of the accident, he is entitled for future prospects at 40%. Therefore, by adding 40% future prospects, the monthly income of the appellant comes to Rs.12,600/- (Rs.9,000/- + Rs.3,600/- = 12,600). 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 '17'. Therefore, the loss of earnings on account of the disability would be Rs.12,600/- x 12 x 17 = Rs.25,70,400/-.
1 2009 ACJ 1298 8
12. Further, as seen from the record, considering Ex.A4,A7, A9, A10, an amount of Rs.80,327/- is awarded to the petitioner towards medical bills. Considering the nature of injury sustained by the petitioner, an amount of Rs.30,000/- is awarded towards pain and sufferance, Rs.5,000/- is awarded towards transportation charges, Rs.25,000/- is awarded towards extra nourishment and attendant charges and Rs.1,00,000/- for purchase of artificial limb. The petitioner is also entitled for Rs.1,00,000/- towards loss of marriage prospects. Thus, in all the appellant is entitled to a sum of Rs.29,10,727/- as compensation.
13. At this stage, the learned Counsel for the Insurance company submits that the appellant claimed only a sum of Rs.15,00,000/- as compensation and the quantum of compensation which is now awarded goes beyond the claim made which is impermissible under law.
14. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another2 and 2 (2011) 10 SCC 756 9 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.
15. Accordingly, the appeal is allowed by enhancing the compensation from Rs.12,00,000/- to Rs.29,10,727/-. 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 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. On such deposit, the appellant is permitted to withdraw the entire compensation amount. However, the appellant is directed to pay Deficit Court Fee on the enhanced amount. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 23.03.2023 pgp 3 2003 ACJ 12 (SC)