Telangana High Court
Mohd.Raheemuddin vs Jatinder Singh K.Dhami And Another on 23 August, 2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2783 of 2013
JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao) This Motor Accident Civil Miscellaneous Appeal is filed by the appellant-claimant aggrieved by the order and decree dated 10.05.2013 passed in O.P.No.2567 of 2008 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-X Additional Chief Judge, City Civil Court, Hyderabad (for short 'the Tribunal').
2. For convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are as follows :-
On 09.06.2008 at about 10.00 p.m., while the petitioner was proceeding in a Tata Safari Car bearing No.TR.No.KA-25/5490 along with three others and the driver, and when they reached near Andhra Balaji Dhaba, the driver drove the said vehicle at high speed in a rash and negligent manner and dashed to a tree, as a result of which, the petitioner sustained grievous injuries all over the body. He was immediately shifted to the Government Hospital, Basawakalyan, and thereafter, he was shifted to Yashoda Hospital, Secunderabad. He 2 SP,J and RRN,J MACMA No.2783 of 2013 was admitted as an inpatient and underwent a major operation. The Police Basawakalyan registered a case in Cr.No.63 of 2008 for the offences punishable under Sections 338 and 304-A IPC against the driver of TATA Safari Car. The petitioner stated that he used to do business under the name of M/s.Kalyani Roadways and used to earn Rs.12,000/- per month. The petitioner filed the claim petition seeking compensation of Rs.3,00,000/-, which was later enhanced to Rs.15,00,000/- by way of order in I.A.No.3841 of 2010 dated 28.04.2011.
4. Before the Tribunal, Respondent No.1 filed a counter denying the allegations made in the claim petition.
5. Respondent No.2-Insurance Company filed a counter denying the allegations made in the claim petition. It is stated that the petitioner was not a third party and was a gratuitous passenger. Hence, the respondent's Insurance Company is not liable to pay any compensation. The policy issued by the respondent's Insurance Company does not cover the petitioner. The premium collected covers only the owner's damage cover, towards TP liability cover and PA cover for the owner driver. The insured paid no additional premium to cover the risks of inmates in any manner. Further, the driver of the Tata Safari bearing TR.No.KA 25-5490 was not holding a valid and 3 SP,J and RRN,J MACMA No.2783 of 2013 effective driving license at the time of the accident, which is a contravention of the provisions of the Motor Vehicles Act. Hence, the 1st respondent alone is liable to pay the compensation. Further, the rate of interest claimed is excessive and accordingly, prayed to dismiss the claim petition.
6. To prove the petitioner's case, PWs.1 to 5 were examined, and Exs.A1 to A9 were marked. No oral evidence was adduced on behalf of the respondents, but Ex.B1-Copy of the Insurance Policy was marked.
7. The Tribunal, after considering the oral and documentary evidence available on record, allowed the claim petition in part by granting a sum of Rs.3,69,500/- with interest @ 7.5% per annum from the date of the petition till the date of realization and the Respondent Nos.1 and 2 were jointly and severally liable to pay the awarded amount. Challenging the same, the petitioner filed the present appeal.
8. Learned counsel for the appellant-petitioner contended that the Tribunal erred in taking the monthly income of the petitioner as Rs.4,500/- per month instead of Rs.12,000/- per month based on Ex.A-6, which is a public document. The Tribunal failed to consider Ex.A5-Disability Certificate issued by the Medical Board. PW.5-the Doctor issued the Medical Certificate, and he assessed the disability 4 SP,J and RRN,J MACMA No.2783 of 2013 at 50%, but the Tribunal failed to consider the same. As the petitioner has sustained injuries and disability, the Tribunal ought to have awarded just compensation under various heads as claimed by the petitioner and the amount awarded by the Tribunal is very meagre and unjustifiable.
9. On the other hand, learned counsel for the respondents has contended that the Tribunal, after considering the nature of injuries sustained by the petitioner and based on the evidence, has rightly awarded compensation and the same needs no interference by this Court.
10. Heard Sri A. Atchuta Ram, learned counsel for the appellant- claimant and Sri A.V.K.S.Prasad, learned counsel for respondent No.2/ Insurance Company and perused the record.
11. The evidence of PWs.1 to 5, coupled with documentary evidence, established that the accident occurred due to the rash and negligent driving of the driver of the Tata Safari Car bearing No.TR.No.KA- 25/5490. The finding of the Tribunal with regard to the manner in which the accident took place has become final, as the respondents do not challenge the same.
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12. Insofar as the quantum of compensation is concerned, the Tribunal awarded a compensation of Rs.1,000/- towards transport, Rs.3,25,000/- towards medical expenditure, extra nourishment, treatment, and private attendant, Rs.30,000/- towards pain and suffering and mental agony. In all, the Tribunal awarded a compensation of Rs.3,69,500/-.
13. With regards to the injuries suffered by the petitioner, as per Ex.A-3, the petitioner sustained crush injury in the left arm, elbow and forearm with open comminuted humerus fracture with intra articular extension right with bone loss/closed radius fracture upper 3rd left. With regard to the disability, as per Ex.A-5-Disability Certificate, the petitioner sustained 50% disability. However, despite the petitioner filing Ex.A-5-Disability Certificate, the Tribunal has not considered the same and has not granted any amount towards disability. Ex.A-5 was issued by PW.5 since the petitioner approached PW.5 through the Medical Board. PW.5-Civil Surgeon Orthopaedic categorically deposed that Ex.A-5 was issued by the Medical Board, OGH, Hyderabad and also stated that the petitioner was suffering from Post-traumatic Sequelae, resulting in Flail left elbow and loss of grip in the left hand. As such, the Tribunal ought to have considered the Disability Certificate, which was issued by the Medical Board only, and ought not to have questioned its genuineness. In the 6 SP,J and RRN,J MACMA No.2783 of 2013 absence of contra evidence, this Court is inclined to take into consideration the disability at 50%, as assessed by PW.5.
14. As regards the loss of income suffered by the petitioner, the Tribunal observed that, according to the petitioner, he used to do business in the name of M/s.Kalyani Roadways and earn Rs.12,000/- per month, but there is no authenticated documentary evidence or supporting oral evidence except Ex.A6-Income Tax return. The Tribunal held that the I-T returns could not be taken as a gospel truth since it is only a self-declaration, without any supporting documentary proof. Hence, the Tribunal fixed the income of the petitioner at Rs.4500/- in terms of the judgment of the Hon'ble Apex Court in RAMACHANDRAPPA VS. THE MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED 1, and accordingly awarded Rs.13,500/- towards loss of earnings for a period of three months.
15. However, in the instant case, the petitioner is doing transport business. Nowadays, even an unskilled labourer is earning an amount of Rs.300/- per day, which comes to Rs.9,000/- per month. Without any proof of salary certificate, considering the nature of business done by the petitioner, this Court is inclined to fix the 1 (2011) 13 SCC 236 7 SP,J and RRN,J MACMA No.2783 of 2013 petitioner's monthly income at Rs.8,000/- per month. As per NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS 2, to this, 40% is to be added towards future prospects, which comes to Rs.11,200/- (Rs.8,000/- + Rs.3,200/-) and the annual income would come to Rs.1,34,400/- (Rs.11,200/- x 12). At the time of the accident, the petitioner was aged 32 years. As per the decision of the Apex Court in SARLA VERMA Vs. DELHI TRANSPORT CORPORATION 3, the appropriate multiplier applicable for the petitioner's age is '16'. Hence, considering a disability of 50% as per Ex.A-5, the compensation under the head of 'disability' comes to Rs.10,75,200/- [Rs.1,34,400/- x 16 x 50%]. In so far as the loss of income for a period of three months is concerned, this Court is granting a sum of Rs.24,000/-.
14. Learned counsel for the petitioner submitted that the petitioner had undergone major surgery, and some steel rods were inserted. After discharge from the hospital, he was shifted to his house, and for that purpose, he must have spent some amount on transport. Further, in view of the nature of injury, the petitioner must have taken follow-up treatment for some time. Considering the nature of the injuries sustained by the petitioner and the cost of living in 2008, 2 2017 ACJ 2700 3 2009 ACJT 1298 (SC) 8 SP,J and RRN,J MACMA No.2783 of 2013 the Tribunal awarded compensation of Rs.1,000/- towards transport. However, the petitioner was admitted to the hospital twice and he must have incurred additional expenses towards transportation. The Tribunal awarded only a sum of Rs.1,000/-, which is meager, and this Court is inclined to grant a sum of Rs.3,000/- towards transport charges.
15. As regards to the medical expenses incurred by the petitioner, the petitioner relied on Exs.A3 to A5 and Exs.A7 to A9 and examined PW.2, who deposed that the petitioner was hospitalized for five days. He sustained crush injury on his left arm, elbow and forearm with an open comminuted humerus fracture with intraarticular extension right with bone loss/closed radius fracture upper 3rd left. He underwent surgery on 10.06.2008 for debridement and SSG done, external fixation radius plus elbow done on 10.06.2008 and discharged on 15.06.2008. PW.1 was readmitted on 18.09.2008 for implant removal and was discharged on the same day. PW.3 deposed that the petitioner was admitted to the hospital as an inpatient on 10.06.2008 and discharged on 15.06.2008 by paying the final bill amount of Rs.1,16,088/- under Ex.A-7. The petitioner was readmitted on 18.09.2008 and paid the amount of Rs.2,500/-, and was discharged on the same day.
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16. The evidence of PW.3 shows that the petitioner paid an amount of Rs.2,500/- as readmission charges, Rs.1,16,088/- towards the final bill amount under Ex.A7 and the evidence of PW.4 shows that the petitioner has paid a total bill amount of Rs.78,282/-. Insofar as Exs.A-8 bills are concerned, the petitioner paid a total sum of Rs.2,07,952/- under various bills on different dates under Ex.A-8. Therefore, the said total comes to Rs.3,24,040/-. Accordingly, the Tribunal granted an amount of Rs.3,25,000/-, which needs no interference by this Court.
17. Therefore, the order dated 10.05.2013 passed by the Tribunal in O.P.No.2567 of 2008 is modified as follows :-
S.No. Particulars Amount
1. Loss of earnings for a Rs.24,000/-
period of three months
(Rs.8,000/- x 3)
2. Towards disability Rs.10,75,200/-
3. Transportation charges Rs.3,000/-
4. Medical and hospitalization Rs.3,25,000/-
expenses
Total Compensation Rs.14,27,200/-
18. The Tribunal has rightly awarded the rate of interest at 7.5% per annum, which needs no interference from this Court. 10
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19. In the result, this M.A.C.M.A. is partly allowed and the compensation amount awarded by the Tribunal is enhanced from Rs.3,69,500/- to Rs.14,27,200/- (Rupees Fourteen Lakh Twenty Seven Thousand Two hundred Only) with interest @ 7.5% p.a. from the date of petition till the date of realization. Respondent Nos. 1 and 2 are directed to deposit the said amount with costs and interest, after giving due credit to the amount already deposited, if any, within a period of two months from the date of receipt of a copy of this judgment. On such a deposit, the petitioner is permitted to withdraw the said amount. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall stand closed.
________________ SUJOY PAUL, J _____________________________________ NAMAVARAPU RAJESHWAR RAO, J 23rd August, 2024 Prv