Telangana High Court
A.Shekhar vs K.Ananthaiah Goud And Anr 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.762 of 2011
JUDGMENT:
This appeal is filed by the injured claimant aggrieved by the award and decree dated 28.12.2010 passed in O.P.No.1353 of 2009 on the file of the Chairman, Motor Accidents Claims Tribunal (for short "The Tribunal") - cum - XIV Additional Chief Judge (Fast Track Court), Hyderabad, seeking enhancement of compensation.
2. The claim petition was filed by the claimant under Section 163-A of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the injuries sustained by him in a motor vehicle accident.
3. The case of the claimant in brief was that he was aged 39 years, he was a business man, R/o. Hasnabad, Kodangal Mandal, Mahaboobnagar District. On 01.06.2009, he along with his friends boarded a tempo trax / Toofan vehicle bearing No.AP-28-W-6746 at Kodangal to go to Hyderabad and when reached opposite Deer Park, Aziznagar, Moinabad at about 10:30 PM, the driver of the vehicle drove the same with high speed in a rash and negligent manner and hit a road side tree, due to which, the vehicle was completely damaged. The claimant sustained injuries to both bones of right leg, left foot, injury to 2 Dr.GRR, J macma_762_2011 forehead (3 x 3 cm), laceration to right leg, right sole injury and multiple fractures all over the body. Immediately after the accident, he was shifted to Osmania General Hospital, Hyderabad where he was admitted as in-patient from 01.06.2009 to 06.06.2009. After his discharge from the said hospital on 06.06.2009, he got re-admitted in C.C.Shroff Memorial Hospital on 06.06.2009 and was discharged on 24.06.2009. Police Moinabad registered a case in Crime No.121 of 2009 under Section 337 of IPC against the driver of the Tempo Trax / Toofan vehicle. Even after taking best treatment, the fracture sustained by him was not cured and he incurred permanent disability. Due to the permanent disability, the petitioner lost his earning capacity. As such, the petitioner claimed compensation from respondents 1 and 2, the owner and insurer of the tempo tax / toofan vehicle bearing No.AP-28-W-6746.
4. The respondent No.1 remained ex-parte.
5. The respondent No.2 filed counter denying the petition averments. The respondent No.2 contended that the compensation claimed was excessive, exorbitant and called for strict proof of the petition averments.
6. The Tribunal framed the issues and caused enquiry. The claimant examined himself as PW.1 and got examined the orthopedic surgeon who treated him at C.C.Shroff Memorial Hospital, Hyderabad as PW.2 and got marked Exs.A1 to A6 on his behalf. The respondent No.2 failed to adduce any 3 Dr.GRR, J macma_762_2011 oral evidence, but got filed the copy of the Insurance Policy and marked the same as Ex.B1. On considering the oral and documentary evidence on record, the Tribunal held that the accident occurred was only due to the rash and negligent driving of the driver of the Tempo Tax / Toofan Vehicle bearing No.AP-28-W-6746 and that the petitioner sustained grievous injuries in the said accident and the respondents Nos.1 and 2 were jointly and severally liable to pay compensation to the petitioner.
7. With regard to the quantum of compensation, the Tribunal considered the age of the petitioner as 39 years as per Ex.A2, the certified copy of Medico Legal Certificate (for short "MLC") and had taken the multiplier as "16" as per the Second Schedule appended to the Motor Vehicles Act. The Tribunal considered the income of the petitioner as Rs.3,000/- per month in the absence of any income proof and had taken the disability of the petitioner at 20% as per the evidence of PW.2 and assessed the loss of future earnings as Rs.3,000 x 12 x 16 x 20% = Rs.1,15,200/-. The Tribunal awarded Rs.9,000/- towards two lacerations and two abrasions sustained by the injured claimant and awarded an amount of Rs.3,000/- towards pain and suffering due to the fracture injury, an amount of Rs.38,300/- towards medical expenses and extra nourishment, Rs.15,000/- for removal of implants, Rs.1,000/- towards transportation charges. In total, awarded an amount of Rs.1,81,500/- with interest @ 7.5 % per annum from the date of petition till the date of deposit.
4
Dr.GRR, J macma_762_2011
8. Aggrieved by the said award of the Tribunal, the claimant preferred this appeal contending that the Tribunal ought to have considered the loss of earning capacity of the claimant as 100%, as the petitioner was unable to do his avocation as earlier to earn his livelihood. The petitioner was entitled to grant a further sum of Rs.4,60,800/- towards future loss of earning capacity apart from all other counts. The Tribunal ought to have awarded Rs.35,000/- towards expenses for removal of implants and prayed to enhance the compensation.
9. Heard Sri T.Vishwarupa Chary, learned counsel for the appellant and Sri N.S.Bhaskar Rao, learned counsel for the respondent No.2 - Insurance Company.
10. The learned counsel for the appellant contended that for a business man in the absence of proof of income, the income ought to have been taken as Rs.10,000/- per month as per the judgment of the Hon'ble Apex Court in Prema Devi Yadav & Others v. National Insurance Company Limited and Another 1, future prospects had to be considered even for self-employed persons as per the judgment of the Hon'ble Apex Court in Syed Sadiq, etc. v. Divisional Manager, United India Insurance Company Limited 2 . The Tribunal failed to award any amounts towards loss of earnings during the period of treatment and attendant charges. The amount awarded under the other heads 1 2022 Law Suit SC 725 2 (2014) 2 SCC 735 5 Dr.GRR, J macma_762_2011 for removal of implants, pain and suffering, extra nourishment were very meager and prayed to enhance the compensation.
11. The learned counsel for the respondent No.2 on the other hand contended that no disability certificate issued by the Medical Board was filed by the claimant. The claimant failed to prove his avocation by adducing any cogent evidence. No evidence was adduced to show that the implants were removed though the accident occurred on 01.06.2009 and contended that no interference was required in the award of the Tribunal and prayed to dismiss the appeal.
12. Perused the record.
13. PW.1 stated in his claim petition that he was a business man, but had not disclosed what business he was doing. During cross-examination, he stated that he was having a rice mill at Hasnabad at his native place, but admitted that he did not file any document in proof of it and that he was earning Rs.10,000/- per month by the date of the accident. In the absence of any proof of income filed by the claimant, 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 Case (cited supra), wherein the income of the vegetable vendor is considered as Rs.6,500/- per month for the date of accident occurred in the year 2008. As the above judgment also would disclose that future prospects have to be considered even for self-employed people, considering the age of the claimant as 39 years, 6 Dr.GRR, J macma_762_2011 which was not disputed, the future prospects can be taken at 40% of the income considered. As such, the income of the claimant including his future prospects can be taken as Rs.6,500/- + Rs.2,600/- (40% of Rs.6,500/-) = Rs.9,100/-. As the petition was filed under Section 163-A of Motor Vehicles Act, the Tribunal had rightly taken the multiplier as "16" as per the Second Schedule appended to the Motor Vehicles Act.
14. The orthopedic surgeon of C.C.Shroff Memorial Hospital, Hyderabad who treated the claimant was examined as PW.2. He stated that the claimant was admitted in his hospital on 05.06.2009 with injury to right leg and right knee, alleged to have sustained on 01.06.2009 in a Road Traffic Accident and that immediately after the accident, he was picked up by 108 Ambulance and was admitted in Osmania General Hospital on 01.06.2009. He got discharged and came to his clinic on 05.06.2009. He was diagnosed with comminuted fracture of upper third tibia with extension to knee joint. He advised surgery and operated him on 11.06.2009, wherein open reduction and internal fixation was done and was discharged on 24.06.2009 after removal of sutures. He further examined him on 16.09.2010 and found that the claimant was unable to sit and squat and was facing difficulty for going to toilet as the movements of knee were restricted in terminal ranges and his disability to sit on ground was of permanent nature and assessed the disability as 20%. As such, the same is rightly considered by the Tribunal. Hence, the future loss of earnings due to the 7 Dr.GRR, J macma_762_2011 permanent disability can be assessed as Rs.9,100 x 12 x 16 x 20% = Rs.3,49,440/-.
15. Considering the fracture injury sustained by the claimant, the loss of earnings during the period of treatment can be assessed for a period of three months. As such as an amount of Rs.6,500 x 3 = Rs.19,500/- is awarded.
16. The Tribunal had rightly awarded an amount of Rs.38,300/- towards medical bills as per the evidence of PW.2 and Ex.A5. The amount of Rs.3,000/- awarded by the Tribunal towards pain and suffering due to the fracture injury sustained by the appellant - claimant is considered as inadequate and as such the same can be enhanced to Rs.20,000/-. The amount of Rs.9,000/- awarded towards other simple injuries required no interference. As the petitioner was admitted in Osmania General Hospital as well as in a private hospital for a period of about 25 days, his family members might have attended him during the period of his treatment and also subsequently during the period of his recovery by leaving their work. As such it is considered fit to award an amount of Rs.10,000/- towards attendant charges. As the claimant belonged to Hasnabad of Kodangal Mandal, Mahaboobnagar District and had taken treatment at Hyderabad, he might have incurred some amount towards transportation charges "to and fro" to the hospitals at the time of accident as well as subsequently during his visits as out-patient. As such, it is considered fit 8 Dr.GRR, J macma_762_2011 to enhance the amount awarded by the Tribunal to Rs.5,000/- under this head. As the appellant - claimant might have incurred some amount towards extra nutritious diet taken by him during the period of his recovery, it is considered fit to award an amount of Rs.5,000/- towards extra nourishment. The Tribunal awarded an amount of Rs.15,000/- for removal of implants as against the evidence of PW.2, who assessed the same as Rs.25,000/- As such, it is also considered fit to enhance the amount for future medical expenses from Rs.15,000/- to Rs.25,000/-.
17. Hence, the compensation entitled to the appellant - claimant under various heads is as follows:
S. No. Heads Compensation Awarded
1. Future loss of earnings due Rs.3,49,440/-
to permanent disability
sustained by the claimant
2. Loss of income during the Rs..19,500/-
period of treatment
3. Medical Expenses Rs.38,300/-
4. Future Medical Expenses Rs.25,000/-
5. Pain and Suffering Rs.29,000/-
6. Attendant Charges Rs.10,000/-
7. Transportation Rs.5,000/-
8. Extra Nourishment Rs.5,000/-
Total: Rs.4,81,240/-
18. The petitioner claimed an amount of Rs.4,00,000/-. But as there is no restriction on this Court to restrict the award to the amount claimed, but can award the amount what it considers as just and reasonable even if it is more than 9 Dr.GRR, J macma_762_2011 the amount claimed by the claimant, as per the judgments of the Hon'ble Apex Court in Nagappa v. Gurudayal Singh & Others 3 , Ibrahim v. Raju 4 , Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 5 , Ramla and Others v. National Insurance Co. Limited and Others 6, it is considered fit to award an amount of Rs.4,81,240/- with interest @ 7.5% per annum subject to payment of deficit court fee by the petitioner.
19. In the result, the M.A.C.M.A is allowed enhancing the compensation from Rs.1,81,500/- awarded by the Tribunal to Rs.4,81,240/- with interest @ 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 months from the date of receipt of a copy of this judgment after deducting the amount deposited if any earlier. On such deposit, the appellant - claimant is entitled to withdraw the same subject to deposit of court fee on the amount awarded more than the claim. 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: 23rd January, 2024 Nsk.
3 (2003) 2 SCC 274 4 2011 ACJ 2845 5 2018 ACJ 2782 6 2019 ACJ 559