Telangana High Court
A Ajay Kumar vs M/S Kapoor Diesels Garage Pvt.Ltd., And ... on 24 April, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.584 OF 2017
JUDGMENT:
1. Dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Court, Hyderabad, in O.P.No.1829 of 2013, dated 22.04.2016, the claim petitioner therein filed the present Appeal seeking for enhancement of compensation.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the appellant/petitioner filed a claim petition under Section 166 of the Motor Vehicles Act, 1983 seeking compensation of Rs.9,90,000/- for the injuries received by him in a motor vehicle accident that occurred on 30.04.2013. It is stated by the petitioner that on 30.04.2013 at about 16.15 hours, when the petitioner along with his friend by name Naveen were proceeding on a motor bike from Nandanam Village towards Bhongir Town and when reached near Pochammawada, one Lorry bearing No.HR-38P-8690 which was driven by its driver in a rash and negligent manner in a high speed, came behind and dashed the motor cycle. As a result, the petitioner and his friend fell down and received grievous injuries 2 MGP,J MACMA.No.584 of 2017 and were shifted to Area Hospital, Bhongir. Thereafter, the petitioner was shifted to Gandhi Hospital, Secunderabad. Police of Bhongir Town Police Station registered a case in Crime No.125 of 2013 against the driver of the lorry bearing No.HR-38P-8690 for the offences punishable under Sections 337 and 338 of IPC.. Due to the said accident, the petitioner sustained Grade III compound fracture of femur right and D-Glowing injury of right ankle and underwent surgeries on 06.05.2013 and 13.05.2013 and had amputation above knee for which he sustained disability @ 70%. The petitioner further contended that prior to accident, he was hale and healthy and used to earn Rs.9,000/- per month and used to contribute the same for maintenance of his family who were depending on his earnings. Due to the said accident, the petitioner spent huge amount for medical treatment and therefore, filed the present claim petition seeking compensation against Respondent Nos.1 & 2, who are the owner and insurer of the crime vehicle.
4. Respondent No.1 remained exparte. Respondent No.2 filed its counter denying the averments made in the claim petition including, occurrence and manner of accident, rash and negligent driving of the driver of lorry, age, income, avocation, health condition and injuries sustained by the petitioner and contended that the driver of the crime vehicle was not having subsisting 3 MGP,J MACMA.No.584 of 2017 driving license at the time of accident and that the vehicle was not road worthy and also contended that the claim of compensation is high and Respondent No.1 had not followed Section 158(6) of M.V.Act and hence, prayed to dismiss the claim application.
5. Based on the above pleadings, the learned Tribunal had framed the following issues:
1. Whether the accident took place due to rash and negligent driving of the lorry bearing No.HR-38P-8690 causing injuries to the petitioner?
2. Whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. To what relief?
6. In order to prove the above issues, petitioner himself was examined as PW1 and got examined PW2, who is working as Assistant Professor at Gandhi Hospital, Secunderabad and who issued disability certificate under Ex.A6 to the petitioner and got marked Exs.A1 to A6. On behalf of 2nd respondent, no evidence was adduced, but, however, Ex.B1- Copy of Insurance policy was marked.
7. The learned Tribunal, after considering the evidence and documents available on record, had partly allowed the claim petition filed by the petitioner by awarding compensation of Rs.8,00,000/- along with costs and interest @ 9% per annum from 4 MGP,J MACMA.No.584 of 2017 the date of petition till the date of order and thereafter interest @ 6% per annum till payment of compensation payable by both the respondents jointly and severally.. Dissatisfied with the said compensation amount, the appellant/petitioner filed the present Appeal.
8. Heard the submission of the learned counsel for appellant as well as learned Standing counsel for respondent No.2-Insurance company. Perused the record.
9. The contentions made by the learned counsel for Appellant are that due to 70% permanent disability, the appellant has lost his employment and was unable to do any other work and he has to take assistance of attender to lead his domestic life and his marriage prospects are irreparably affected and diminished and suffered physical and mental shock and his future career and earning power are affected irreparably and therefore contended that the learned Tribunal ought to have taken the loss of earning capacity @ 100% instead of 70%. He also contended that the learned Tribunal ought to have taken the income of the injured @ Rs.4,500/- instead of Rs.3,000/- per month and further contended that the learned Tribunal ought to have awarded future prospects and ought to have granted compensation under the heads of loss of 5 MGP,J MACMA.No.584 of 2017 marriage prospects, attendant charges, transportation and future medical expenses.
10. Per contra, learned counsel for Respondent No.2 contended that the learned Tribunal, after considering all the aspects, had awarded reasonable compensation for which interference of this Court is unwarranted.
11. Now, the point that emerges for determination is, Whether the order passed by the trial Court requires interference of this Court?
POINT:-
12. This Court has perused the entire evidence and documents available on record. The injured/appellant herein was examined himself as PW1. He filed chief affidavit in lieu of his chief examination and got marked Exs.A1 to A5 on his behalf. Ex.A1 is the FIR in Crime No.125 of 2007 registered by Police, Bhongir Town Police Station, Nalgonda District against the driver of the Lorry bearing No.HR-38P-8690 wherein, the contents of the FIR are that, on 30.04.2013 at 18.30 hours, Sri B.Shiva Shankar lodged a complaint stating that he received information that his younger brother B.Naveen met with lorry accident and he was admitted in Area hospital, Bhongir and immediately, he visited the Government 6 MGP,J MACMA.No.584 of 2017 Hospital, Bhongir where he came to know that his brother along with K.Abhiram and A.Ajay Kumar while coming to Bhongir from Nandanam Village on Bajaj Discovery motor cycle and when reached Pochammawada, one lorry bearing No.AR-38P-8690 which was driver by its driver in a rash and negligent manner, came from behind and dashed them. As a result, Naveen sustained fracture to his right leg and rider Abhiram sustained bleeding injuries on his face and head and another pillion rider A.Ajay Kumar also sustained fractures to his right leg. They were immediately shifted to Hospital in '108' Ambulance and requested to take necessary action against the driver of the lorry. Ex.A2 is the charge sheet filed by Sub-Inspector of Police, Bhongir Town Police Station, after conducting thorough investigation wherein it was held that on 30.04.2013 at about 4.15 p.m., the driver of the crime lorry, while coming into Bhongir from Nalgonda side, drove the said lorry in a rash and negligent manner and dashed the Bajaj Discovery motorcycle. As a result, the rider of the Bajaj Discovery motorcycle dashed another Honda Activa Scooter.No.AP-24L-4950 and all fell down on the road and the lorry front wheel ran over the legs of injured persons who are appellant herein and rider of motorcycle due to which they sustained grievous injuries. Ex.A3 is the letter of SHO, Bhongir Town P.S. addressed to the Medical Officer, Govt.Area Hospital, Bhongir, requesting to examine the injured and 7 MGP,J MACMA.No.584 of 2017 to issue Medical Certificate. Ex.A4 is the Discharge card issued by Gandhi Hospital where the appellant was diagnosed for Grade - III Compound shaft femur lower 1/3rd and underwent amputation of right leg and left leg eschacotomy TSSG. Ex.A5 are the medical bills which are incurred by the appellant. Ex.A6 is the Disability Certificate issued by Medical Board, Gandhi Hospital, Secunderabad. In support of his evidence, he also got examined PW2, who is working as Assistant Professor in Gandhi Hospital, Secunderabad. In his evidence he deposed that on 30.04.2013, the appellant was admitted in their hospital with Grade III compound fracture of femer right and D-Glowing injury of right ankle and he underwent surgeries on 06.05.2013 and 13.05.2013 and amputation was done to his right leg above knee and he issued Ex.A6-Disability Certificate assessing the disability @ 70%. Though PW2 was cross-examined, nothing worthy was elicited to disbelieve his evidence.
13. The 2nd respondent, except stating that the injured is not entitled for compensation, did not, choose to examine any witness on their behalf, except marking Ex.B1-Insurance policy and the said policy covers the date of accident.
14. It is pertinent to mention that there is no dispute regarding the occurrence of accident and injuries sustained to the appellant. 8
MGP,J MACMA.No.584 of 2017 The only dispute is with regard to quantum of compensation. Learned counsel for the appellant contended that though the appellant stated in his evidence that he used to earn Rs.9,000/- per month by working as a labour, but the learned Tribunal , without considering the same, had fixed the monthly income of the appellant as Rs.3,000/- which is very meagre. In this regard, it is pertinent to state that though the appellant stated that his monthly income was Rs.9,000/-, but he failed to produce any documentary proof to that effect. Hence, the learned Tribunal, fixed the notional income of the appellant as Rs.3,000/-. This Court by considering the age, occupation, date of accident and by relying upon the decision reported in Ramachandrappa Vs.Manager, Royal Sundaram Allianz 1 is inclined to fix the monthly income of the appellant as Rs.4,500/-. Since the appellant was 22 years old at the time of accident, the appropriate multiplier is '18' as per the decision of the Apex Court in Sarla Varma v. Delhi Transport Corporation and another 2. Ex.A6-Disability certificate shows that the appellant sustained 70% disability for amputation done to his right leg above knee. Thus, by applying relevant multiplier and by considering the percentage of disability the total loss of income comes to Rs.6,80,400/- (4,500 x 12 x 18 x 1 2011(6) ALD 75 (SC) 2 2009 (6) SCC 121 9 MGP,J MACMA.No.584 of 2017 70%). Apart from that, the learned Tribunal had awarded an amount of Rs.1,00,000/- towards pain and suffering, Rs.2,00,000/- towards loss of limb and Rs.10,000/- towards extra nourishment, transport and unaccounted expenditure. Thus, in all, the appellant is entitled for a sum of Rs.9,90,400/- towards compensation.
15. As far as interest is concerned, the learned Tribunal granted interest @ 9% per annum from the date of petition till the date of order and thereafter interest @ 6% per annum till payment of compensation. This Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 3, fix the rate of interest @ 7.5% per annum.
16. Accordingly, the Appeal is allowed enhancing the compensation awarded by the Tribunal from Rs.8,00,000/- to Rs.9,90,400/- which is payable by both the Respondent Nos.1 & 2 jointly and severally within a period of two months from the date of receipt of a copy of this order. The enhanced amount shall carry interest @ 7.5% per annum. There shall be no order as to costs. 3 2013 ACJ 1403 = 2013 (4) ALT 35 10 MGP,J MACMA.No.584 of 2017
17. Miscellaneous applications pending, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Dt.24.04.2024 ysk