THE HON'BLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No. 3240 of 2016
JUDGMENT:
Being not satisfied with the quantum of compensation awarded by the XI Additional Chief Judge, City Civil Court, Hyderabad (for short, the Tribunal), in M.V.O.P.No.948 of 2012 dated 25.07.2016, the appellant/claimant preferred the present appeal seeking enhancement of the compensation.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that the claimant has filed a petition under Section 166 of the Motor Vehicles Act, 1994, claiming compensation of Rs.15,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 28.05.2011. According to the claimant, on 28.05.2011 while he, along with others, was travelling in Car bearing No.AP 09 TV 7086 from Hyderabad and when they reached the village limits of B.Thandrapadu at about 3:00 a.m., the driver of the Car drove the same with high speed in a rash and negligent manner and while overtaking another vehicle dashed the 2 MGP, J Macma_3240_2016 stationed Tipper Lorry bearing No.AP 22 U 8385 from its behind. As a result, the claimant and other inmates of the Car sustained grievous injuries and the owner of the Car also died on the spot. Immediately, he was shifted to nearby Government Hospital, Kurnool and thereafter shifted to Sai Krishna Super Speciality Neuro Hospital, Kachiguda, Hyderabad, where he was treated as inpatient from 29.03.2011 to 04.06.2011 and the claimant was continuously bed ridden from the date of accident even though he had taken physiotherapy treatment and limb exercises. The claimant had incurred more than Rs.3,00,000/- for his treatment and he is required to undergo further operations for CSF leakage. It is further stated that prior to the accident the claimant was aged about 30 years and was a driver by profession and also having consultancy business under the name and style of Sri Sai Travels, Balajinagar, Kukatpally and earning Rs.25,000/- per month. Due to the injuries sustained by the claimant, he lost his memory and his left side body was totally paralysed and due to tracheotomy he is unable to speak, unable to stand and walk without stick. He 3 MGP, J Macma_3240_2016 spent considerable amount towards medical expenses, extra nourishment, attendant charges besides loss of income. Therefore, he filed the claim petition against respondent Nos.1 and 2, who are owner and insurer of Car bearing No.AP 09 TV 7086 respectively, seeking compensation of Rs.15,00,000/- under different heads.
4. Before the Tribunal, while respondent No.1 remained ex parte, respondent No.2-Insurance Company has filed counter denying all the averments in the claim-petition including the manner in which the accident took place, age, avocation, earning capacity of the claimant, medical expenditure incurred. It is further contended that the compensation claimed is highly excessive and prayed to dismiss the claim petition.
5. Considering the averments in the claim petition and the counter and both the oral and documentary evidence brought on record, the Tribunal has allowed the O.P. in part awarding compensation of Rs.6,31,000/- with costs and interest at 7.5% per annum from the date of the petition till the date of 4 MGP, J Macma_3240_2016 realization. However, for the violation of terms and conditions of the policy by the owner of the vehicle, the respondent No. 2 was directed to first pay the compensation and then recover the same from the respondent No. 1. Aggrieved by the same, the claimant has filed the present appeal.
6. Heard both sides and perused the material available on record.
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. The short question that arises for consideration in this appeal is "whether the compensation awarded by the Tribunal is just and equitable"?
9. The only contention advanced by the learned counsel for the appellant-claimant is that on account of injuries sustained by the claimant in the accident he is unable to walk without support of stick and there is a minimal weakness on the left side of the body, thereby he cannot drive the vehicle. 5
MGP, J Macma_3240_2016 Therefore, he sought enhancement of compensation on the ground that the Tribunal has erred in taking functional disability of the injured at 40% whereas it is 100% considering the avocation of the claimant. It is further submitted that the Tribunal erred in not awarding future prospects. Therefore, he prayed to enhance the compensation by allowing the appeal.
10. On the other hand, the learned Standing Counsel for the Insurance Company has contended that considering the nature of injuries and the length of treatment, the Tribunal has adequately awarded the compensation and it has rightly awarded just compensation under the head of disability and therefore, there is no reason to interfere with the said findings arrived at by the Tribunal. Thus, he sought for dismissal of the appeal.
11. In order to award compensation in case of personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as under:
1
MACD 2011 (SC) 33 6 MGP, J Macma_3240_2016 "5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items 7 MGP, J Macma_3240_2016
(iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."
12. In light of the principles laid down in the aforementioned case, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earnings, inability to lead a normal life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident.
13. A perusal of the material on record reveals that, in order to substantiate his claim that he has sustained 40% permanent disability, the claimant has examined the doctor, who treated him as P.W.2. P.W.2, the Neuro Surgeon, deposed in his evidence that at the time of admission of the 8 MGP, J Macma_3240_2016 claimant in Care Hospital, Hyderabad, he was semi comotosed, operative signs noted on the right side of the head and he was managed in the hospital with medication and other supportive measures. The claimant had gradually made some recovery and he was discharged stable condition on 15.07.2011 and the claimant was re-admitted on 04.08.2011 for a repeat surgery on his head and underwent operation on 06.08.2011 and was discharged on 08.08.2011. P.W.2 further deposed that at the time of discharge, the claimant had weakness on the left side of the body and he took follow up treatment with Orthopedic surgeon for left hip problem. It is further deposed by P.W.2 that he found the claimant to have minimal weakness on the left side of the body and he is walking with support of his stick and he cannot drive the vehicle. Considering the evidence of P.W.2, the doctor, and also the fact that the claimant used to work as driver and due to the injuries suffering by him, he can no longer earn his living as a driver, this Court is inclined to assess the functional disability of the claimant at 100%. 9
MGP, J Macma_3240_2016
14. As regard the income of the claimant, the Tribunal assessed the income of the claimant at Rs.5,000/- per month without any basis. However, as the claimant was a driver by profession, this Court is inclined to fix the income of the claimant at Rs.6,000/- per month. In Jagdish v. Mohan and others2, the Apex Court held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. As per the decision of the Apex Court in Jagdish (supra), the claimant is entitled for additional 40% on the income towards future prospects. If the same is applied, the income of the claimant comes to Rs.8,400/- (Rs.6,000/- + Rs.2,400/- being 40% thereof). The claimant was aged 31 years at the time of accident and the relevant multiplier applicable is '16'. Thus, under the head of loss of income due to disability, the claimant is awarded a sum of Rs.16,12,800/- (Rs.8,400/- x 2 (2018) 4 SCC 571 10 MGP, J Macma_3240_2016 12 x 16). The other amounts awarded by the Tribunal towards medical expenses, future surgery, pain and suffering, attendant charges, transportation and extra nourishment are reasonable and therefore, the same are not interfered with. Thus, in all, the claimant is entitled for the compensation of Rs.18,59,800/-.
15. At this stage, the learned Standing Counsel for the Insurance company submits that the claimant claimed only a sum of Rs.15,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
16. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another3 and Nagappa Vs. Gurudayal Singh4 the claimants are entitled to get just compensation even if it is more than the amount what was claimed by the claimants.
3 (2011) 10 SCC 756 4 2003 ACJ 12 (SC) 11 MGP, J Macma_3240_2016
17. Accordingly, M.A.C.M.A. is allowed. The compensation amount awarded by the Tribunal is enhanced from Rs.6,31,000/- to Rs.18,59,800/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of filing of the O.P. till the date of realization. Time to deposit the entire compensation is two months from the date of receipt of a copy of this judgment. On such deposit, the claimant is entitled to withdraw entire compensation amount without furnishing any security. However, the claimant is directed to deposit the deficit court fee on the enhanced amount. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 24.03.2023 tsr