THE HONOURABLE DR.JUSTICE G. RADHA RANI
M.A.C.M.A.No.2977 of 2011
JUDGMENT:
This appeal is filed by the injured claimant aggrieved by the award and decree in O.P.No.2576 of 2008 on the file of the IV Additional Metropolitan Sessions Judge - cum - XVIII Additional Chief Judge, Hyderabad dated 03.03.2010 seeking enhancement of compensation from Rs.5,66,000/- awarded by the Tribunal to Rs.7,00,000/- as claimed by him originally which was enhanced to Rs.15,00,000/- as per the order in I.A.No.1 of 2019 dated 21.11.2022.
2. The case of the claimant was that he was aged about 19 years and was working as a fruit vendor and was earning Rs.5,000/- per month in Karimnagar by the date of accident on 03.10.2008. He filed a claim petition under Section 166 of the Motor Vehicles Act stating that on 03.10.2008, he travelled in an RTC bus bearing No.AP-28-Z-3538 from Karimnagar to Shamirpet. In the afternoon hours at about 12:30 noon, the driver of the bus stopped the same at Shamirpet Bus Stand. When the petitioner was getting down from the bus, the driver suddenly moved the bus by speeding the accelerator. Due to the said jolts and jerks, the petitioner fell down from the bus and the bus ran over the right leg of the petitioner resulting which he sustained grievous injuries. The 2 Dr.GRR, J macma_2977_2011 Police of PS Shamirpet registered a case under Section 338 of IPC against the driver of the RTC bus. The petitioner stated that immediately after the accident, he was admitted in Government Hospital, Shamirpet and after first-aid, he was shifted to Gandhi Hospital, Secunderabad where he was admitted as in-patient from 04.10.2008 to 28.10.2008. An amputation was done to his right leg below knee due to the crush injury of right leg. The petitioner claimed compensation from the Depot Manager of Manthani Depot of Karimnagar and the Managing Director of APSRTC (TSRTC).
3. The respondents filed counter and called for strict proof of age, occupation, manner of accident, treatment taken and the amounts spent for transportation, medicines, extra nourishment and contended that the amount claimed was excessive, arbitrary and prayed to dismiss the petition.
4. Before the MACT, the claimant examined himself as PW.1 and got examined a prosthetist and orthotist of M/S.Endolite India Limited as PW.2, the doctor who assessed the disability as PW.3 and a person doing a similar business as fruit vendor as PW.4. Exs.A1 to A12 and Ex.X1 were marked on behalf of the petitioner.
5. No oral or documentary evidence was adduced by the respondents.
6. On considering the oral and documentary evidence on record, the Tribunal considered the earnings of the petitioner as Rs.4,000/- per month and 3 Dr.GRR, J macma_2977_2011 considering his age as 19 years applied multiplier "16" and considered the partial and permanent disability of the petitioner as 50% as per the evidence of PW.3 and assessed the loss of future earnings as Rs.3,84,000/-. The Tribunal awarded an amount of Rs.1,00,000/- towards artificial leg and awarded Rs.5,000/- for transportation, Rs.5,000/- for extra nourishment and medicines (including medical bills for Rs.3,787/-). The Tribunal further awarded an amount of Rs.12,000/- for loss of earnings during the period of treatment and awarded Rs.50,000/- towards pain and suffering. In total, the Tribunal awarded an amount of Rs.5,66,000/- with proportionate costs and interest @ 7.5 % per annum from the date of petition till the date of realization.
7. Aggrieved by the said award and decree, the claimant preferred this appeal contending that the Tribunal ought to have considered the loss of earnings of the claimant at 100 % instead of 50 %, ought to have applied multiplier "18" instead of "16", ought to have awarded Rs.2,00,000/- towards artificial leg instead of Rs.1,00,000/-, ought to have awarded amounts towards loss of amenities in life, loss of marriage prospects, attendant charges, etc. and ought to have considered the income of the appellant @ Rs.5,000/- per month and ought to have awarded interest @ 11 % or 12 % per annum.
8. Heard the learned counsel for the appellant and the learned Standing Counsel for TSRTC appearing for the respondents. 4
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9. As seen from the record, the claimant contended that he was aged 19 years by the date of accident. The same was also accepted by the Tribunal, but applied multiplier "16". As per the judgment of the Hon'ble Apex Court in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another 1, the relevant multiplier for the age group between 15 to 20 years is "18". Hence, the Tribunal ought to have applied the multiplier "18" instead of "16", as contended by the learned counsel for the appellant.
10. As per the judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi 2 , future prospects also have to be considered even for self-employed persons or for persons on a fixed salary. As per the judgment of the Hon'ble Apex Court in New India Assurance Company Limited v. Gajender Yadav and Others 3, future prospects can also be considered even in cases of permanent and partial disability. In the present case, future prospects were not considered by the Tribunal.
11. As per the judgment of the Hon'ble Apex Court in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited 4, in case of a vegetable vendor, in the absence of any proof of income, the income is considered as Rs.6,500/- per month for the accident occurred in the year 1 (2009) 6 SCC 121 2 (2017) 16 SCC 680 3 (2018) 11 SCC 630 4 (2014) 2 SCC 735 5 Dr.GRR, J macma_2977_2011 2008. In the present case also, the date of accident was in the year 2008. Hence, it is considered appropriate to take the monthly income of the claimant as Rs.6,500/- per month. As the claimant was aged below 20 years, 40 % is to be added towards his future prospects. Hence, the monthly income of the claimant including his future prospects is considered as Rs.6,500/- + Rs.2,600/- (40 % of Rs.6,500/-) = Rs.9,100/-.
12. The evidence of PW.3, the Superintendent of Gandhi Hospital would disclose that Ex.A8, disability certificate was issued by the Superintendent of Gandhi Hospital and the members of the Medical Board estimated the disability as 50 % partial and permanent under Ex.A8. Considering the occupation of the claimant as a fruit vendor, though his movements were restricted due to amputation of his right leg below knee but as he could still continue to do business, the functional disability of the claimant also can be considered as 50%. As such, the loss of earnings including future prospects due to the partial and permanent disability sustained by the petitioner can be assessed as Rs.9,100/- x 12 x 18 x 50/100 = Rs.9,82,800/-. Considering the nature of disability sustained by the claimant, the loss of earnings during the treatment period can be assessed for five (05) months, which would come to Rs.6,500/- x 5 = Rs.32,500/-.
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13. PW.2 was examined to prove the quotation issued by M/S.Endolite India Limited, which would disclose that the cost of artificial leg was Rs.1,01,100/- and that the same could be used for a duration of 7 to 8 years and after that he would need to obtain a fresh artificial leg basing on its condition. Hence, it is considered fit to award an amount of Rs.2,00,000/- as claimed by the petitioner towards the artificial leg. The Tribunal had awarded an amount of Rs.50,000/- towards pain and suffering but not awarded any amounts towards loss of amenities in life and loss of marriage prospects. Considering the age of the claimant as 19 years and due to amputation of his right leg below knee, his marriage prospects also would be affected, it is considered fit to award an amount of Rs.1,00,000/- towards pain and suffering, Rs.1,00,000/- towards loss of amenities in life and Rs.1,00,000/- towards loss of marital prospects. The petitioner claimed an amount of Rs.20,000/- towards medical expenses, but filed medical bills only for an amount of Rs.3,787/-. Hence, it is considered fit to award an amount of Rs.10,000/- under this head considering his future medical requirements also. An amount of Rs.5,000/- awarded towards transportation and Rs.5,000/- towards extra nourishment is considered as reasonable. As no amount is awarded towards attendant charges and as his family members might have performed the role of care giver, it is considered fit to award an amount of Rs.10,000/- towards attendant charges. 7
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14. Hence, the claimant is entitled to compensation under various heads as follows:
S. Conventional Heads Compensation Awarded
No.
1. Loss of earnings including future Rs.9,82,800/-
prospects due to partial and permanent disability
2. For purchase of artificial leg Rs.2,00,000/-
3. Pain and suffering Rs.1,00,000/-
4. Loss of amenities in life Rs.1,00,000/-
5. Loss of Marital Prospects Rs.1,00,000/-
6. Loss of earnings during treatment Rs.32,500/-
7. Medical Expenses Rs.10,000/-
8. Attendant Charges Rs.10,000/-
9. Transportation Rs.5,000/-
10. Extra Nourishment Rs.5,000/-
Total: Rs.15,45,300/-
15. As per the Judgment of the Hon'ble Apex Court in Nagappa v. Gurudayal Singh and Others 5, the compensation can be awarded over and above the amount claimed by the claimant, which is considered as just and reasonable. Hence, it is considered fit to enhance the compensation from Rs.5,66,000/- awarded by the Tribunal to Rs.15,45,300/- with costs and interest @ 7.5 % per annum.
16. In the result, the M.A.C.M.A. filed by the injured claimant is allowed enhancing the compensation from Rs.5,66,000/- awarded by the Tribunal to Rs.15,45,300/- with costs & interest @ 7.5 % per annum and the respondents are directed to deposit the said amount within a period of eight (08) weeks after 5 2003 (2) SCC 274 8 Dr.GRR, J macma_2977_2011 deducting the amount deposited if any and the claimant is permitted to withdraw the entire amount as and when deposited.
As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 1st September, 2023 Nsk.