THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A No.321 of 2014
JUDGMENT:
This M.A.C.M.A filed by the appellant/petitioner aggrieved by the Award and decree dt.03.11.2010 in O.P. No.2 of 2007 passed by the Chairman, Motor Accidents Claims Tribunal-cum-XX Additional Chief Judge, City Civil Court, Secunderabad (for short, 'the Tribunal').
2. For convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that on 06.12.2006 at about 11.30 a.m., while the petitioner stood to cross the road near Narsapur "X" road, Balanagar, opposite Sri Raghavendra Wines shop, the driver of the lorry bearing No.AP-09-X-3499 came from Shapur Nagar, drove the same in a rash and negligent manner at high speed and dashed the petitioner's right leg, the petitioner sustained grievous injuries on all over the body including a right leg fracture of both bones. Immediately, he was shifted to Gandhi Hospital, Secunderabad, where he was treated as an inpatient and underwent surgery. Balanagar Police registered a case in Cr.No.373 of 2006 against the driver 2 RRN,J MACMA No.321 OF 2014 of the offending lorry. Hence, he filed the claim petition claiming compensation of Rs.2,00,000/-.
4. Before the Tribunal, respondents No.1 and 2 filed their respective counters denying the petition allegations and prayed to dismiss the claim petition.
5. The petitioner, to prove his case, examined PWs.1 and 2 and got marked Exs.A1 to A10 and Ex.C1. On behalf of the respondents no oral evidence was adduced. However, on behalf of No.2, Ex.B1 was marked.
6. On considering the oral and documentary evidence available on record, the Tribunal awarded compensation of Rs.1,46,000/- with interest @ 7% per annum to the petitioner payable by the respondents. Aggrieved by the same, the present appeal is filed by the petitioner.
7. Heard both sides and perused the record.
8. Learned Counsel for the petitioner has contended that the Tribunal erred in deducting 1/3rd towards personal expenses in a claim for injuries, and the Tribunal granted very meagre compensation. Accordingly, prayed to allow the appeal.
9. Per contra, learned counsel for respondent No.2 has contended that the Tribunal has rightly awarded the 3 RRN,J MACMA No.321 OF 2014 compensation to the petitioner and no interference is required by this Court. Accordingly, prayed to dismiss the appeal.
10. The issue with regard to the involvement of the lorry bearing No.AP-09-X-3499 and the manner of the accident was rightly decided in favour of the petitioner as the respondents failed to adduce any contrary evidence or elicit anything material in the cross-examination of PW.1. As such the aspect of negligence needs no scrutiny. The respondents are liable to compensate the petitioner jointly and severally, as observed by the Tribunal. The only point to be answered in the present appeal is whether the petitioner is entitled to enhancement of the compensation awarded by the Tribunal or not.
11. With regard to compensation, the petitioner deposed that he was admitted in the Gandhi Hospital as he received a fracture of both bones of his right leg and other grievous injuries. He was doing cloth business and used to earn Rs.9,000/- per month, and he lost the said income due to the said accident. He spent Rs.25,000/- towards medical expenses, and now he cannot walk, sit and squat properly. The Medical Board, Gandhi Hospital, assessed 45% of permanent disability. In proof of injuries, he filed Ex.A4/Medical certificate, Ex.A5/X- ray films, Ex.A6/handicapped certificate, Ex.A7/outpatient 4 RRN,J MACMA No.321 OF 2014 card, Ex.A8/medical bills and Ex.A10/original discharge card. The petitioner also examined PW.2/Dr. G. Ramesh, Orthopedic surgeon, deposed that the petitioner was admitted on 06.12.2006 at 5.40 p.m. in Ortho-3 Unit, Gandhi Hospital with RTA with fracture of bones, right lower leg and multiple abrasions on the right and he was discharged on 14.12.2007. He was discharged under Ex.A10/medical certificate and Ex.A6/physical disability issued by the Gandhi Hospital. He also deposed that Ex.A7/prescriptions and Ex.A8 medical bills pertaining to the patient. The patient was operated in unit 3 and he produced a case-sheet under Ex.C1. He further deposed that though he does not issue disability certificate, but on physical examination of the patient, the Gandhi Hospital, Medical Board issued that certificate. The respondents have not adduced any evidence to deny the evidence on petitioner side.
12. The Tribunal observed that as per the evidence of the petitioner, PW.2/doctor and Ex.A4/medical certificate, the petitioner received grievous injury and Ex.A5 X-ray shows fracture of right leg. Ex.C-1 copy of the case sheet of the petitioner discloses that the petitioner received fracture of both bones of right leg. So, the petitioner received one fracture. The 5 RRN,J MACMA No.321 OF 2014 petitioner filed Ex.A6/handicapped certificate showing that he had been suffering with disability of 45%. Ex.A6 is proved by examining PW.2/doctor, but PW.2 deposed that he cannot say the actual disability without seeing the patient, but he deposed that on physical examination only the Medical Board issued disability certificate. According to Ex.A6 issued by Gandhi Hospital, due to stiffness and restriction in view of the fracture on right leg on both bones, they assessed disability of 45%. According to PW.1 also, he is unable to walk, sit and squat properly. So, the Tribunal assessed the disability @ 25%, but not 45%. It is pertinent to mention here that there are catena of judgments that Courts have no power to either increase or decrease the disability. As such, this Court is of the view that the Tribunal erred in reducing the disability from 45% to 25%. Hence, it is established that the petitioner suffered a disability of 45%.
13. The Tribunal observed that in the chargesheet, the profession of the petitioner was shown as cloth business and referring to his caste as Padmasali, but the petitioner has not adduced any independent evidence for income of Rs.9,000/-, but as cloth business at least his income would be Rs.150/- per day and his monthly income would be Rs.4,500/-. At this 6 RRN,J MACMA No.321 OF 2014 juncture, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Sidram Vs. Divisional Manager, United India Insurance Company Ltd., 1 wherein it was held as under:
59. Thus, we are of the view, more particularly keeping in mind the dictum of this Court in the case of Kirti (supra) that it is not necessary to adduce any documentary evidence to prove the notional income of the victim and the Court can award the same even in the absence of any documentary evidence. In the case of Kirti (supra) it was stated that the Court should ensure while choosing the method and fixing the notional income that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.
60. In the overall view of the matter, we are convinced that we should determine the notional income of the appellant herein at Rs. 8,000/- per month. The same would result in the compensation being enhanced.
14. With great respect to the above said judgment, this Court is inclined to fix the notional income of the petitioner at Rs.6,500/- per month as the petitioner has not adduced any evidence to prove his income. To this, 25% is to be added towards future prospects as per the decision of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. 1 (2023) 3 SCC 439 7 RRN,J MACMA No.321 OF 2014 Pranay Sethi 2 as the petitioner was aged 45 years. The annual income of the deceased including future prospects would come to Rs.97,500/- (Rs.6,500/- + 25% x 12). The appropriate multiplier as per the decision of Sarla Verma Vs. Delhi Transport Corporation 3 is "14".
15. The petitioner suffered 45% disability as per Ex.A6 and the same is taken for the purpose of calculation of future loss of income. Thus, the total loss of future income due to disability would come to Rs.6,14,250/- (Rs.97,500/- x 14 x 45/100).
16. As rightly contended by the learned counsel for petitioner that the Tribunal has grossly erred in deducting 1/3rd of the income of the petitioner towards personal expenses, which should not have been done. The Tribunal has rightly awarded Rs.5,000/- towards pain but very meagerly awarded Rs.1,000/- towards extra nourishment and Rs.1,000/- towards transportation. This Court is inclined to enhance the same as Rs.5,000/- towards extra nourishment and Rs.5,000/- towards transportation. In all, the petitioner is entitled to Rs.6,29,250/-
17. The Tribunal granted interest @ 7% p.a. on the compensation considering the rate of interest which was 2 (2017) 16 SCC 680.
3(2009) 6 SCC 121.
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prevailing at that time. However, this Court is inclined to award interest at 7.5% p.a. on the enhanced amount.
18. Though the claimed amount is Rs.2,00,000/-, invoking the principle of just compensation, and in view of the law laid down by the Hon'ble Supreme Court in Rajesh vs. Rajbir Singh 4, and in a catena of decisions, this Court is empowered to grant compensation beyond the claimed amount. However, the petitioners/appellants shall pay the deficit Court fee on the enhanced compensation.
19. Accordingly, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.1,46,600/- to Rs.6,29,250/- (Rs. Six lakh, twenty nine thousand, two hundred and fifty only) with interest at 7.5% per annum on the enhanced amount from the date of petition till the date of realisation. The respondents are directed to deposit the said amount together with costs and interest within two months from the date of receipt of a copy of this judgment after deducting the amount, if any, already deposited. Upon such deposit, the petitioner is permitted to withdraw the entire amount subject to payment of the deficit Court fee. There shall be no order as to costs.
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As a sequel, miscellaneous applications, if any pending, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 06th day of October, 2023.
BDR