Telangana High Court
Golla Chinna Venkataiah, Mahabubnagar vs The Apsrtc, Rep. By Its Rm, Mahabubnagar on 21 February, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
M.A.C.M.A.No.1432 of 2011
JUDGMENT:
This appeal is filed by the injured claimant aggrieved by the award and decree dated 01.04.2011 passed in O.P.No.722 of 2008 on the file of the Family Court - cum - Additional District Judge, Mahabubnagar, seeking enhancement of compensation from 60,000/- awarded by the Tribunal to Rs.2,60,000/- as claimed by him.
2. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 stating that he was aged 35 years, eking out his livelihood by driving his own auto and earning Rs.500/- per day by the date of the accident. On 20.01.2006 morning, while he was proceeding in his own auto bearing No.AP-22-T-6136 from Bhoothpur Village to Molgara Village of Mahabubnagar District and when reached near Bhoothpur X-Roads at about 07:30 AM, an APSRTC bus bearing No.AP-11-Z-5818 of Picket, Hyderabad Depot coming from Kurnool side, driven by its driver with high speed and in a rash and negligent manner, hit the petitioner's auto. Due to which, the petitioner sustained grievous injuries. The Police, Annasagar registered a case in Crime No.17 of 2006 under Section 337 of IPC against the driver of the APSRTC (TSRTC) bus bearing No.AP-11-Z-5818 of Picket, Hyderabad Depot. 2
Dr.GRR, J macma_1432_2011 He further submitted that he sustained fracture of third finger of right hand, contusion on right elbow, abrasion on right elbow and other multiple bleeding and invisible injuries all over the body. Immediately after the accident, he was shifted to Government Hospital, Mahabubnagar, where he was treated as in- patient from 20.01.2006 to 24.01.2006. Subsequently, he took treatment with a private Orthopedic Surgeon and spent Rs.20,000/- towards medicines and treatment. He was bed-ridden and lost earnings for the said period. He was subjected to physical and mental agony. He was unable to drive the auto and became permanently disabled and engaged another driver to drive the auto. As such, claimed compensation from the Regional Manager of TSRTC, Mahabubnagar.
3. The respondent filed counter.
4. The respondent called for strict proof of the petition averments and contended that the accident was due to the negligence of the petitioner, who drove his auto in a rash and negligent manner, as such, he was not entitled for any compensation. The Insurance Company of the auto was also a proper and necessary party. The compensation claimed by the petitioner was excessive, arbitrary and out of all proportions and prayed to dismiss the petition.
5. Basing on the said pleadings, the Tribunal framed the issues and caused enquiry.
3
Dr.GRR, J macma_1432_2011
6. The petitioner examined himself as PW.1 and got examined the doctor, a member of Medical Board who issued the disability certificate as PW.2 and got marked Exs.A1 to A5 in support of his contention.
7. The respondent failed to adduce any oral or documentary evidence on his behalf.
8. The Tribunal on considering the oral and documentary evidence on record held that the accident was due to the rash and negligent driving of the driver of the RTC bus, as such, the respondent was liable to pay compensation to the claimant.
9. With regard to the quantum of compensation, the Tribunal awarded an amount of Rs.20,000/- towards "pain and suffering", Rs.30,000/- towards permanent disability, Rs.5,000/- towards medical expenses, Rs.3,000/- towards loss of earnings, Rs.2,000/- towards extra nourishment and transportation. In total awarded an amount of Rs.60,000/- with interest @ 7.5 % per annum.
10. Aggrieved by the said award and decree, the appellant - claimant preferred this appeal contending that the Tribunal awarded meager compensation. Though the Tribunal observed that the claimant sustained post traumatic stiffness of 3rd, 4th and 5th fingers with ankylosis of right finger joint, erred in not taking into consideration the loss of earning capacity of the petitioner and that he was unable to drive the auto and sustained 100% 4 Dr.GRR, J macma_1432_2011 functional disability on account of the injuries sustained by him. The Tribunal failed to take into consideration that the claimant had not only taken treatment in a Government Hospital but also at a private Hospital. The claimant being a rustic villager, could not preserve the medical bills and the bills for transportation, as such the Tribunal awarded meager amounts under those heads and prayed to enhance the compensation.
11. Heard the learned counsel for the appellant - claimant and the learned Standing Counsel for the TSRTC.
12. On a perusal of the evidence of the witnesses, the claimant examined himself as PW.1 and stated that he sustained fracture of 3rd finger of right hand, contusion on right elbow, abrasion on right elbow and other multiple and invisible injuries all over the body. Immediately after the accident, he was shifted to Government Hospital, Mahabubnagar, where he was treated as in- patient from 20.01.2006 to 24.01.2006 vide in-patient No.1292. Subsequently, he took treatment with a private Orthopedic Surgeon and spent Rs.20,000/- for medicines and treatment. During the period of treatment, he was bed-ridden and lost his earnings. He was also subjected to mental agony, pain and financial loss. He was unable to drive the auto and unable to attend to his daily work and became permanently disabled.
5
Dr.GRR, J macma_1432_2011
13. He got examined a member of the Medical Board as PW.2. PW.2 stated that the petitioner appeared before the Medical Board on 18.05.2010 and he examined the injured and found post traumatic stiffness of 3rd, 4th and 5th fingers with ankylosis of right ring finger distal joint, having disability of 30%, which was partial and permanent. The patient was having problem in attending to his regular physical work, he could not lift heavy weights and also could not do agricultural work.
14. The Tribunal observed that the driving of the auto would not involve physical work and lifting heavy weights. As such awarded a lump sum amount of Rs.25,000/-. Observing that as the disability could be cured with physiotherapy, awarded a further sum of Rs.5,000/- for physiotherapy expenses. In total awarded an amount of Rs.30,000/- towards permanent disability and physiotherapy.
15. PW.2 was a member of the Medical Board. His competency for issuing the disability certificate marked under Ex.A4 was not disputed. As Ex.A4 would disclose that the petitioner was suffering with post traumatic stiffness of 3rd, 4th and 5th fingers with ankylosis of right ring finger joint and the movement of right hand wrist and fingers are necessary for driving the auto, which he was unable to do after the accident, the petitioner sustained functional disability. PW.2 assessed the same as 30%. There was no cross-examination on this 6 Dr.GRR, J macma_1432_2011 witness to show that the said disability could be cured with physiotherapy. The evidence of PW.1 would disclose that he had engaged a driver to drive the auto, as he was unable to drive the same. As such, though the petitioner was unable to drive the auto or unable to do agricultural work, he had not sustained 100% loss due to this disability. As such, it is considered fit to accept the evidence of PW.2 with regard to the assessment of the disability as 30%, which was not only physical but also functional.
16. The petitioner stated his age as 35 years and his earnings as Rs.500/- per day in his petition and evidence. As Exs.A1 to A3 documents are also showing the age of the claimant as 35 years, the same can be taken as such. However in the absence of any evidence, the income of the injured claimant can be considered as Rs.4,500/- per month as per the judgment of the Hon'ble Apex Court in Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited 1. As the future prospects also to be considered even in injury cases in case of self-employed persons or persons on fixed salaries, as per the judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi and Others 2 and considering the age of the petitioner as 35 years, 40% is to be added towards his future prospects. Hence, the income of the petitioner including his future prospects can be considered as Rs.4,500 + Rs.1,800/- (40% of Rs.4,500/-) = Rs.6,300/-. As per 1 (2011) 13 SCC 236 2 2017 ACJ 2700 7 Dr.GRR, J macma_1432_2011 the judgment of the Hon'ble Apex Court in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another 3, multiplier "16" is taken as per the age of the claimant. Hence, the loss of income due to permanent disability sustained by the claimant can be considered as Rs.6,300 x 12 x 16 x 30% = Rs.3,62,880/-.
17. The Tribunal awarded an amount of Rs.20,000/- towards "pain and suffering" by awarding Rs.17,500/- towards grievous injury and Rs.2,500/- for the simple injury sustained by the claimant. However, it is considered fit to award an amount of Rs.20,000/- towards the grievous injury and Rs.2,500/- for the simple injury. As such, the same can be enhanced to Rs.22,500/- under the head "pain and suffering".
18. The petitioner had taken treatment in Government Hospital, Mahabubnagar for four days and thereafter stated to have taken treatment in a private hospital, but had not filed any documents in support of his contention. The Tribunal awarded an amount of Rs.5,000/- towards medical expenses in the absence of producing any medical bills. However, it is considered fit to enhance the said amount to Rs.10,000/-.
19. The loss of income during the period of treatment is considered for a period of one month by the Tribunal. As the income of the petitioner is 3 2009 ACJ 1298 8 Dr.GRR, J macma_1432_2011 considered as Rs.4,500/- per month, the same can be considered for a period of three months and it is considered just to award an amount of Rs.4,500/- x 3 = Rs.13,500/- under the head 'loss of income'.
20. The Tribunal awarded Rs.2,000/- under the head 'extra nourishment' and 'transportation' together. The same can be enhanced to Rs.2,000/- each.
21. Hence, the compensation entitled by the appellant - claimant under various heads is as follows:
S. No. Heads Compensation
1. Loss of future prospects due to Rs.3,62,880/-
permanent disability
2. Loss of income during the period of Rs.13,500/-
treatment
3. Pain and suffering Rs.22,500/-
4. Medical expenses Rs.10,000/-
5. Extra Nourishment Rs.2,000/-
6. Transportation Rs.2,000/-
Total: Rs.4,12,880/-
22. Though, the petitioner claimed an amount of Rs.2,60,000/-, but as there is no restriction on this Court to limit the award to the amount claimed, but can award the amount what it considers as just and reasonable, even if it is more than the amount claimed by the claimant, as per the judgments of the Hon'ble Apex Court in Nagappa v. Gurudayal Singh & Others 4, Ibrahim v. Raju 5, Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 6 , 4 (2003) 2 SCC 274 5 2011 ACJ 2845 6 2018 ACJ 2782 9 Dr.GRR, J macma_1432_2011 Ramla and Others v. National Insurance Co. Limited and Others 7, it is considered fit to award the above amount of Rs.4,12,880/- with interest @ 7.5% per annum on the enhanced amount subject to payment of deficit court fee by the appellant - claimant on the enhanced amount.
23. In the result, M.A.C.M.A. is allowed enhancing the compensation from Rs.60,000/- awarded by the Tribunal to Rs.4,12,880/- with interest @ 7.5 % per annum on the enhanced amount. The respondent - APSRTC (TSRTC) is directed to deposit the said amount after deducting the amount deposited if any earlier within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the appellant - claimant is permitted to withdraw the same subject to payment of deficit court fee on the enhanced amount.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 21st February, 2024 Nsk.
7 2019 ACJ 559