Telangana High Court
T. Ravinder vs Anil Kumar And Another on 23 January, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
M.A.C.M.A. No.1626 of 2011
JUDGMENT:
This appeal is filed by the claimant-injured aggrieved by the award and decree dated 09.11.2010 passed in O.P. No.1158 of 2009 by the Motor Accidents Claims Tribunal cum XIII Additional Chief Judge (FTC), City Civil Court, Hyderabad (for short 'the Tribunal').
2. The appellant-claimant filed a petition under Section 166 of the M.V. Act, claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident, alleging that he was aged 33 years and was running a Kirana and General Stores at Ashok Nagar, Hyderabad and was earning Rs.15,000/- per month by the date of the accident. On 14.05.2009 at 5.30 PM while he, along with his father, was proceeding on a Hero Honda Motor Cycle from Srirangavaram of Medchal Mandal towards Hyderabad and on reaching Srirangavaram x-roads, an Alto Car bearing No.AP 28 AS 5735 coming in opposite direction in a rash and negligent manner with high speed while trying to overtake a 2 Dr.GRR,J MACMA No.1626 of 2011 lorry hit the motorcycle of the claimant, due to which he and his father fell down and sustained severe injuries. The claimant sustained fracture of left leg, blunt injury on stomach, head injury, lacerations and abrasions on both hands and other multiple injuries all over the body. Immediately, he was shifted to Balaji Hospital, Medchal and after first aid, he was shifted to Nivedita Hospital, wherein he was admitted as in-patient from 15.05.2009 to 19.05.2009 and sustained permanent disability. The claimant submitted that the fracture of left tibial condyle was operated and fixed with screws and nails. But, his left leg was shortened and his movements were restricted resulting limp while walking. He further submitted that police of Medchal registered a case vide Crime No.168 of 2009 for the offence under Section 338 of IPC against the driver of the Alto Car bearing No.AP 28 AS 5735 and claimed compensation from respondent Nos.1 and 2, the owner and Insurer of the Alto Car.
3. The respondent No.1 remained ex parte.
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4. The respondent No.2-Insurance Company filed counter denying the petition averments. The respondent No.2 called for strict proof of the petition averments and contended that the claim of Rs.2,00,000/- was excessive and there was no basis for the said calculation and prayed to dismiss the petition.
5. The Tribunal, after framing the issues, conducted an enquiry. The claimant examined himself as PW.1 and got examined the Orthopedic Surgeon, who treated him at Nivedita Hospital, as PW.2 and got marked Exs.A1 to A13. No oral evidence was adduced by respondent No.2, but a copy of the policy was marked as Ex.B1. The Tribunal on considering the oral and documentary evidence on record, held that the accident was occurred due to the rash and negligent driving of the driver of the car bearing No.AP 28 AS 5735 and the respondent Nos.1 and 2 were jointly and severally liable to pay the compensation to the claimant.
6. With regard to the quantum of compensation, the Tribunal awarded an amount of Rs.5,000/- towards grievous injury 4 Dr.GRR,J MACMA No.1626 of 2011 sustained by the claimant, Rs.5,000/- towards pain and suffering, Rs.30,000/- towards medical expenses, Rs.10,000/- towards future medical expenses for removal of implants, Rs.9,000/- towards loss of income for a period of 3 months @ Rs.3,000/- per month and Rs.1,000/- towards extra nourishment and transportation. Thus, in all, the Tribunal awarded an amount of Rs.60,000/- with interest at 6% per annum from the date of petition till realization.
7. Aggrieved by the said award of the Tribunal, the claimant preferred this appeal contending that the Tribunal failed to consider the disability sustained by the claimant as stated by PW.2 doctor, who treated him at Nivedita Hospital. The Tribunal failed to consider the documents marked under Exs.A7, A9 and A10 - medical bills filed by the claimant and not considered Ex.A11, the estimate issued by the Sablok Hospital for removal of nails. The Tribunal had not awarded adequate amounts for pain and suffering, loss of amenities in life, loss of income, transportation, extra nourishment etc., and that the interest also ought to have been awarded at 9% per annum and prayed to enhance the amount awarded towards compensation.
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8. Heard Sri Kasireddy Jagathpal Reddy, learned counsel for the appellant-claimant and Sri N.S. Bhaskar Rao, learned counsel for the respondent No.2-Insurance company.
9. The learned counsel for the appellant-claimant contended that though the appellant claimed that he was earning Rs.15,000/- per month from his business of running Kirana and General Stores, the Tribunal had considered a notional income of Rs.3,000/- per month. Even in the absence of filing proof of income, the Tribunal ought to have taken atleast a sum of Rs.6,500/- per month as the income of the appellant as per the judgment of the Hon'ble Apex Court in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited 1 . The Tribunal failed to consider the evidence of PW.2 with regard to assessment of disability. Even in the absence of the certificate issued by the Medical Board, the evidence of the doctor, who treated, shall be considered and relied upon the judgment of this Court in A. Chalapathi v. Satyanarayana N. Nuwal and others 2 . It is further contended that the Tribunal ought to have applied the 1 (2014) 2 SCC 735 2 (2010) 4 ALD 217 6 Dr.GRR,J MACMA No.1626 of 2011 multiplier method and ought to have awarded future prospects in assessing the loss of income.
10. The learned counsel for the respondent No.2-Insurance Company, on the other hand, contended that no evidence was adduced by the claimant to show that the implants were removed. No X-rays were obtained by PW.2 before assessing the disability. No proof of income was filed by the claimant. In the absence of the `same, the income of the claimant can be considered as only Rs.4,500/- per month as per the judgment of the Hon'ble Apex Court in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited 3 . In the absence of any evidence that the rods were removed, the amount of Rs.10,000/- awarded by the Tribunal also need to be deducted from the compensation awarded and prayed to dismiss the appeal.
11. In view of the rival contentions of both the learned counsel, the point for consideration is as to whether the Tribunal assessed the compensation in a proper manner or not? 3 (2011) 13 SCC 236 7 Dr.GRR,J MACMA No.1626 of 2011
12. The claimant who was examined as PW.1 stated in his evidence about the injuries sustained by him and that immediately after the accident, he was shifted to Balaji Hospital, Medchal and after first aid, he was shifted to Nivedita Hospital, where he was admitted as inpatient and Dr.Sree Ramulu, Orthopedic Surgeon had treated him. He stated that he was operated in Nivedita Hospital for left leg on 15.05.2009, rods were inserted and he was discharged on 19.05.2009 and he was advised to take bed-rest for three months. He stated that he had regularly taken follow up treatment. He incurred bills worth Rs.57,509/-. He further stated that due to fracture injury, his left leg was shortened and he was not in a position to move from bed and facing difficulty in sitting and squatting and he was limping while walking and he was unable to fold his leg, due to the injuries, he sustained permanent disability to an extent of 100%.
13. He got examined the Orthopedic Surgeon of Nivedita Ortho Centre as PW.2. PW.2 stated that he was practicing in Nivedita Ortho Centre since 1985 and that the claimant came to his hospital on 15.05.2009 with an injury to left tibia. He found that 8 Dr.GRR,J MACMA No.1626 of 2011 there was fracture of tibial condyle and the same was operated and fixed with screws and nails on the same day i.e. on 15.05.2009 and the claimant was discharged on 19.05.2009. He stated that the claimant came to him regularly for follow up treatment for removal of sutures and for physiotherapy. The disability was permanent, the claimant would have difficulty in terminal movements of knee joint. He assessed the functional and physiological disability of the claimant as 10 to 15% and stated that the operation for removal of implants might cost Rs.10,000/- to Rs.15,000/-. He admitted that the claimant incurred an expenditure of Rs.27,000/- towards his treatment.
14. The Tribunal disbelieved the evidence of PW.2 observing that PW.2 was examined in the year 2010 i.e. one year after the operation. PW.2 stated that the claimant had shortening of leg to an extent of ½ inch, but no X-rays were obtained by him to assess the disability. No reasons were assigned by PW.2 for shortening of the bone. No document was filed before the court that he sustained disability. As such, the evidence of PW.2 was not correct with regard to assessment of disability. The Tribunal 9 Dr.GRR,J MACMA No.1626 of 2011 further observed that without any proper and reasonable cause, PW.2 had assessed the disability to help the claimant.
15. This Court in A. Chalapathi's case (2 supra) held that "In my considered opinion, nothing more is required than the testimony of the qualified Orthopedic surgeon, who treated the appellant, to show that the appellant has suffered the permanent disability to the extent of 20%. Unless the Court finds the evidence of the doctor not worthy of acceptance by giving cogent reasons, the opinion of a qualified doctor, that too, of the doctor who conducted the surgery and treated the patient, cannot be discredited." This Court further observed that:
"As regards the contention of the counsel for the appellant that the evidence of PW. 2 regarding the permanent disability is rejected without any basis, I find force in the said contention as well. PW.2 is a qualified Orthopedic surgeon. Undisputedly, he has treated the appellant. He has categorically deposed that the appellant has suffered permanent disability to the extent of 20% on account of shortening of leg. However, by a strange process of reasoning the Tribunal rejected this evidence by stating that the appellant has not obtained a certificate from the medical board. The Tribunal has not traced any statutory provision under which medical board is constituted and obtaining of the permanent disability certificate from the medical board is made obligatory for claimants under the Motor Vehicles Act, 1988."
16. This Court also accepts the view taken in A. Chalapathi's case (2 supra), as PW.2, a qualified Orthopedic 10 Dr.GRR,J MACMA No.1626 of 2011 Surgeon, who treated the claimant had given his evidence stating that the claimant suffered permanent disability to an extent of 10 to 15% by giving cogent reasons stating that the claimant would be having difficulty in terminal movements of knee joints and that he was unable to sit and squat. Hence, it is considered fit to accept the evidence of PW.2 in considering the permanent disability of the claimant as 15%. As the claimant stated that he was a businessman, running a Kirana and General Stores, even in the absence of any reliable proof of income, the income of the claimant can be considered as Rs.6,500/- per month as per the judgment of the Hon'ble Apex Court in Syed Sadiq's case (1 supra) wherein the income of a vegetable vendor is considered as Rs.6,500/- per month for the accident occurred in the year 2008. The Hon'ble Apex Court also considered the loss of future prospects observing that:
14.... In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of 11 Dr.GRR,J MACMA No.1626 of 2011 fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.
17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." 12
Dr.GRR,J MACMA No.1626 of 2011 Therefore, considering that the appellant/ claimant was self employed and was 24 years of age, we hold that he is entitled to 50% increment in the future prospect of income based upon the principle laid down in the Santosh Devi v.
National Insurance Company Limited."
17. Considering the age of the claimant as 33 years, which was not disputed, the multiplier applicable is '16' as per the judgment of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation 4 and the future prospects can be taken as 40%, as per the judgment of the Hon'ble Apex Court in National Insurance Company v. Pranay Sethi & Ors. 5. As such, the loss of income due to the permanent disability sustained by the claimant can be assessed as Rs.6,500/- + Rs.2,600/- (40% of Rs.6,500/-) x 12 x 16 x 15/100 = Rs.2,62,080/-. The loss of earnings during the period of treatment can be calculated for a period of three months as Rs.6,500/- x 3 = Rs.19,500/-.
18. As the evidence of PW.2 would disclose that the claimant incurred an amount of Rs.27,000/- towards medical bills, it is considered fit to award the same. As the evidence of PW.2 4 (2009) 6 SCC 121 5 2017 (16) SCC 680 13 Dr.GRR,J MACMA No.1626 of 2011 also would disclose that the claimant required a further surgery for removal of implants, it is also considered fit to award an amount of Rs.15,000/- towards future medical expenses as assessed by PW.2. The amount of Rs.5,000/- awarded by the Tribunal towards pain and suffering is considered as inadequate in view of the evidence of PWs.1 and 2 that the said injury had also resulted in permanent disability resulting in shortening of his left leg by half an inch which brings a change in his physical appearance and lowers his self confidence. As such, it is considered fit to award an amount of Rs.25,000/- under this head and Rs.10,000/- for loss of amenities in life. As some of the family members of the claimant might have attended him during the period of his treatment and subsequently during the period he confined to bed and during the period of his recovery by leaving their regular work, it is consider fit to award an amount of Rs.5,000/- under this head. As the Tribunal awarded only an amount of Rs.1,000/- towards transportation and extra nourishment, the same is considered as meager and it is considered fit to award an amount of Rs.5,000/- each under these heads. 14
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19. As such, the amount of compensation entitled by the appellant-claimant under various heads is as follows:
1. Loss of income due to permanent disability : Rs.2,62,080/-
2. Loss of earnings during the period of treatment : Rs. 19,500/-
3. Medical expenses : Rs. 27,000/-
4. Future medical expenses : Rs. 15,000/-
5. Pain and suffering : Rs. 25,000/-
6. Loss of amenities in life : Rs. 10,000/-
7. Attendant charges : Rs. 5,000/-
8. Extra nourishment : Rs. 5,000/-
9. Transportation to Hospital : Rs. 5,000/-
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Total : Rs.3,73,580/-
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20. As this Court is having power to grant just and reasonable compensation to which the appellant-claimant is entitled as per the judgments of the Hon'ble Apex Court in Nagappa v. Gurudayal Singh 6 and Ramla v. National Insurance Company Limited 7, it is considered fit to enhance the compensation amount from Rs.60,000/- awarded by the Tribunal to Rs.3,73,580/-, which is considered as just and reasonable. 6 (2003) 2 SCC 274 7 (2019) 2 SCC 192 15 Dr.GRR,J MACMA No.1626 of 2011
21. In the result, the appeal is allowed enhancing the compensation from Rs.60,000/- as awarded by the Tribunal to Rs.3,73,580/- (Rupees three lakhs seventy three thousand five hundred and eighty only) with interest at 7.5% per annum on the enhanced amount. The respondent No.2 - Insurance Company is directed to deposit the said amount within a period of two (02) months from the date of receipt of a copy of this judgment, after deducting the amount deposited, if any. On such deposit, the appellant - claimant is permitted to withdraw the entire amount subject to deposit of court fee on the amount awarded more than the claim.
Miscellaneous petitions pending, if any, shall stand closed.
______________________ Dr. G. RADHA RANI, J January 23, 2024 KTL