Telangana High Court
Y Koteswara Rao, Hyd Died vs K.Annapurna, W.G.Dist And Anr on 19 February, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.82 of 2017
JUDGMENT:
1. Dissatisfied with the quantum of compensation awarded by the Chairman, Motor Accidents Claims Tribunal-cum-XXV Additional Chief Judge, City Civil Court, Hyderabad (for short, the Tribunal), in M.V.O.P.No.693 of 2014, dated 15.11.2016, the Appellant/claim petitioner filed the present Appeal seeking for enhancement of compensation amount and during pendency of Appeal, the Appellant No.1 had died and therefore, his Legal Representatives, who are the wife, children and mother of the deceased- Appellant No.1 were brought on record as Appellant Nos.2 to 5 vide orders dated 24.01.2023 passed in I.A.No.2 of 2023 in MACMA.No.82 of 2017
2. For the sake of convenience, the appellant No.1 hereinafter be referred as claim petitioner as arrayed before the Tribunal.
3. The brief facts of the case are that initially, the claim petitioner/injured filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.15,00,000/- for the injuries sustained by him in a Motor Vehicle Accident that occurred on 28.01.2014. As per the version of the claim petitioner, on 28.01.2014 at about 11.30 A.M, when the petitioner was proceeding on his motor cycle bearing No.AP-20-AG-8538 to go to his in-law's house which is situated at Darshi in Guntur District 2 MGP,J MACMA.No.82 of 2017 and when he reached near the entrance of Prakasham Barrage in Vijawada City, one Maxi Cab bearing No.AP-37X-8118 which was driven by its driver at a high speed in a rash and negligent manner, came in opposite direction from Guntur side towards Vijaywada City and dashed the motor cycle of the petitioner. As a result, the petitioner/injured fell towards his left side and crushed in between the parapet wall of the bridge and motor cycle wherein, the front right wheel of the said Maxi cab ran over on his right leg and he sustained fractures and severe injuries. Immediately, he was shifted to Government Hospital, Vijayawada and as there was no specialist at that time, he was shifted to private hospital at Guntur. As the authorities of the private hospital at Guntur demanded him to deposit advance amount, he was again shifted to Praja Vaidyashala, Vijayawada I -Town, where he was treated by Dr.Narender, Orthopaedic Surgeon and Dr.M.Kiran, Vascular Surgeon who examined the petitioner and stated that he sustained fractures to his right leg and injury on Head. The Police of Vijayawada I Town Police Station, registered a case in Crime No.121 of 2014 against the driver of the said Maxi Cab and subsequently filed charge sheet against him for the offence punishable under Section 338 IPC. The Doctor who treated him in Praja Vaidyashala, advised the petitioner to take further treatment for six months. The petitioner stated that he spent an amount of Rs.3,50,000/- towards medical treatment and he had been 3 MGP,J MACMA.No.82 of 2017 suffering from permanent disability due to the injuries sustained by him in the said accident. It is also stated by the petitioner/injured that he has been working as Mason in KTPS, Palvancha under a contractor by the date of accident and used to get Rs.500/- per day. Due to the said accident, he is unable to perform his duties as he did previously and hence, claiming compensation of Rs. 15,00,000/- along with interest @ 18% per annum and proportionate costs payable by Respondent Nos.1 & 2, who are the owner and insurer of the said Maxi cab..
4. Respondent No.1, who is the owner of the Maxi Cab bearing No.AP-37X-8118, remained exparte.
5. Respondent No.2, who is the insurer of the said Maxi Cab filed its counter denying the averments made in the claim petition such as manner of accident, involvement of Maxi cab, rash and negligent driving of the driver of the said Maxi cab. He also stated that Respondent No.1, who is the owner of the Maxi cab and the police who registered the case against the driver of the said Maxi cab, did not inform about the alleged accident and had not sent copies of documents. Therefore, he is not liable to pay any compensation and that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against it.
6. Based on the above pleadings, the learned Tribunal had framed the following issues:-
4
MGP,J MACMA.No.82 of 2017 i. Whether the accident took place due to rash and negligent driving of the driver of Maxi Cab bearing NO.AP- 37X-8118 causing injuries to the petitioner?
ii. Whether the petitioner is entitled to compensation? If so, how much and from whom?
iii. To what relief?
7. Before the Tribunal, on behalf of the petitioner/injured, PWs 1 to 5 were examined and Exs.A1 to A17, Exs.X1 & X2 were got marked. Respondent No.1 remained exparte. On behalf of Respondent No.2, no oral evidence was adduced. However, Ex.B1- Attested copy of Insurance policy was marked on its behalf.
8. After considering the entire evidence and documents filed by both sides, the learned Tribunal awarded an amount of Rs.08,70,100/- towards compensation with interest @ 8% from the date of petition till the date of decree and thereafter @ 6% per annum till realization. Aggrieved by the same, the present Appeal by the Appellant No.1/claim petitioner.
9. Heard the submission of the learned counsel for Appellants and the learned Standing Counsel for Respondent No.2-Insurance Company.
10. The main contention of the learned counsel for the appellants is that though PW2 in his evidence deposed that the appellant used to earn Rs.500/-per day as Mason, but the learned 5 MGP,J MACMA.No.82 of 2017 Tribunal without considering the same, had fixed the income of Rs.200/- per day, which is contrary to the evidence of PW2. He also contended that the learned Tribunal erred in fixing the disability@ 20% instead of 50% as per the disability certificate issued under Ex.A15. He also stated that the Tribunal ought to have taken the disability @ 100% as the appellant suffered from shortening of right leg limping due to which, it is impossible for him to work as Mason. He further contended that the Tribunal had not granted any amount towards transport and did not consider Exs.A9 & A10 which are the advance paid receipts and medical bills of the appellant and hence, prayed to allow the appeal by enhancing the compensation.
11. Per contra, the learned Standing Counsel for Respondent No.2-Insurance Company argued that the learned Tribunal, after considering all the aspects, has awarded reasonable compensation for which interference of this Court is not necessary.
12. Now, the point that emerges for consideration is, Whether the order of the learned Tribunal requires interference of this Court?
POINT:-
13. This Court has perused the entire evidence and documents filed by both sides. The Appellant No.1/claim petitioner examined himself examined as PW1 and reiterated the contents of the claim 6 MGP,J MACMA.No.82 of 2017 petition and deposed about the manner of the accident. In support of his contention, he got marked Ex.A1-Certified copy of FIR, Ex.A2-Certified copy of charge sheet, Ex.A3-Certified copy of Section 161 statement, Ex.A4-Certified copy of wound certificate, Ex.A5- Certified copy of MVI report, Ex.A6- Copy of operation report, Ex.A7-Copy of discharge summary, Ex.A8-Discharge summary, Ex.A9- Bunch of advance paid receipts, Ex.A10-Bunch of medical bills, Ex.A11-Blood purchase record, Ex.A12- Photos, Ex.A13- Treatmenet certificate dated 06.12.2014, Ex.A14-X-ray dt.22.12.2014, Ex.A15- disability certificate, Ex.A16-treatmenet record and Ex.A17-Bunch of X-rays. In support of his contentions, he also got examined PWs 2 to 5. PW2, who is a co-worker along with PW1, deposed in his evidence about the earning capacity of the claim petitioner as Mason. PW3, who is a Civil Surgeon (Retired), stated in his evidence that he examined the claim petitioner on 10.02.2015 and found fracture injuries on him and issued disability certificate under Ex.A15. PW4, who is an Orthopaedic Surgeon, deposed in his evidence that the petitioner had admitted in his Hospital on 29.01.2014 and he treated the petitioner and noticed four fracture injuries and two crush injuries. PW5, who is a Consultant Vascular Surgeon at Peoples Clinic, deposed in his evidence that the claim petitioner had admitted in the Hospital on 29.01.2014 and he treated him from 29.01.2014 to 13.03.2014 and found three fracture injuries and one crush injury 7 MGP,J MACMA.No.82 of 2017 to right calf and multiple laceration over right leg. Nothing worthy was elicited from PWs.1 to 5 during their cross-examination.
14. It is pertinent to state that there is no dispute regarding the manner of accident which occurred due to the rash and negligent driving of the driver of the Maxi cab bearing No.AP-37X-8118 and the injuries sustained by petitioner in the said accident. The only dispute raised is with regard to considering the income of the claim petitioner by the Tribunal. Learned counsel for appellants contended that though PW2 in his evidence deposed that the appellant used to earn Rs.500/-per day as Mason, but the learned Tribunal without considering the same, had fixed the income of Rs.200/- per day, which is contrary to the evidence of PW2. In this regard, it is pertinent to note that neither the petitioner nor PW2 filed any documents showing that the petitioner used to earn Rs.500/- per day as Mason. Therefore, the learned Tribunal by considering the age of appellant no.1 and by applying minimum wages that are payable to a Mason, fixed the monthly income of the appellant No.1 as Rs.6,000/- for which this Court finds it reasonable and is not inclined to interfere with the same.
15. Coming to the aspect of assessing disability, it is the contention of the learned counsel for appellants that the learned Tribunal failed to consider Ex.A15-Disability Certificate issued by PW3. In this regard, it is pertinent to refer the evidence of PWs 3 8 MGP,J MACMA.No.82 of 2017 & 4, who are the Doctors who examined the petitioner. PW3 is the person who examined appellant No.1 and issued Ex.A15-Disability Certificate on 10.02.2015 by assessing the disability @ 50%. In his cross-examination, he admitted that he had not treated the petitioner and further stated that there is no Medical Board at King Koti Hospital and admitted that he issued Ex.A15-Disability Certificate in his personal capacity.
16. PW4, who is an Orthopaedic Surgeon and who treated the petitioner as inpatient from 29.01.2014 to 13.03.2014, stated that the petitioner is having resting of movement of hip joint and is walking with limp. He is also having shortening of right limb and the approximate disability of the right lower limb is around 40% which is permanent and partial.
17. Therefore, from the above evidence of PWs1, 3 & 4, it is evident that the petitioner had sustained fracture injuries to his right leg and was admitted as inpatient in Praja Vaidyashala, Vijayawada and took treatment for 43 days in the said hospital. Hence, there is variation in assessing the disability by PWs 3 & 4. However, PW4 is an Orthopaedic Surgeon who treated the petitioner and assessed the disability @ 40%. The learned Tribunal ought to have considered the same and would have fixed the disability @ 40%. But, the Tribunal, without considering either the evidence of PW3 or PW4 or the disability assessed by them, has 9 MGP,J MACMA.No.82 of 2017 fixed the disability @ 20% without assigning any reason. Hence, this Court is inclined to interfere with the same for the reason that the Orthopaedic Surgeons are the right persons to assess the disability and the petitioner had taken all steps to examine them. Hence, this Court is of the considered opinion that the evidence of PW4, who treated appellant No.1 and assessed the disability @ 40%, can be taken into consideration and is inclined to fix the disability @40%. It is also pertinent to state that the learned Tribunal had taken 50% towards future prospects for the disability sustained by him which is on higher side. As per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others 1 the future prospects for a self employed person below the age of 40 years is taken as 40%. Hence, this Court is inclined to interfere with the finding of the learned Tribunal so far as future prospects are concerned. Furthermore, there is no income proof filed to show that he is working as Mason and earning Rs.15,000/- per month. Therefore, the learned Tribunal had rightly taken the income of the petitioner/injured @ 6,000/- per month. If 40% is added towards future prospects, then the future monthly income of the deceased comes to Rs.8,400/-. Since the disability is assessed @ 40%, the loss of earnings comes to Rs.3,360/- . As the petitioner was 29 1 2017 ACJ 2700 10 MGP,J MACMA.No.82 of 2017 years old at the time of the accident therefore, by applying appropriate multiplier '17' as per the guidelines laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation 2 , the total loss of income comes to Rs.6,85,440/-(Rs.3,360 x 12 x
17). Apart from this, the Tribunal granted an amount of Rs.3,69,817/ towards medical treatment; Rs.80,000/- towards four grievous injuries; Rs.5,000/- towards simple injury; Rs.30,000/- towards pain and suffering; Rs.18,000/- towards loss of earnings for three months to the appellant No.1 which requires no interference by this Court. Thus, in all, the appellants are entitled for a compensation of Rs.11,88,257/-. Out of which, Appellant No.2, being wife, is entitled for Rs.5,88,257/- and Appellant No.5, being mother of appellant No.1, is entitled for Rs.1,00,000/- and Appellant Nos.3 & 4, who are the children of Appellant Nos.1 & 2, are entitled for Rs.2,50,000/- each. Appellant Nos.3 & 4 being minors, as such, the amount apportioned to them shall be deposited in any Nationalized Bank until they attain majority and since Appellant No.2 is their natural mother, she is entitled to withdraw the interest accrued on such deposited amount.
18. Insofar as the interest is concerned, this Court, by relying upon the decision of the Hon'ble Apex Court reported in Rajesh 2 2009 ACJ 1298 (SC) 11 MGP,J MACMA.No.82 of 2017 and others v. Rajbir Singh and others 3 is inclined to fix the rate of interest @ 7.5% per annum from the date of petition till the date of realization.
19. In the result, the Appeal is partly allowed by enhancing the compensation awarded by the Tribunal from Rs.8,70,100/- to Rs.11,88,257/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of petition till the date of realization, payable by Respondent Nos.1 to 2 jointly and severally within a period of one month from the date of receipt of a copy of this order. On such deposit, the Appellant Nos.2 to 5 are entitled to withdraw the amount as per the apportionment indicated above. There shall be no order as to costs.
20. Miscellaneous petitions pending, if any, shall stand closed.
__________________________________ JUSTICE M.G. PRIYADARSINI Dt.19.02.2024 ysk 3 2013 ACJ 1403 = 2013 (4) ALT 35