Telangana High Court
Mohd.Khader , Mohd.Quadri vs Sondam Sudhakar Goud And Anr on 7 June, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.1259 OF 2017
JUDGMENT:
Heard Sri C.M.Prakash, learned counsel for the appellant/claimant and there is no representation on behalf of respondent no.2-insurance company.
2. The present appeal has been filed by the appellant/claimant aggrieved and dissatisfied with the award passed by the Motor Accidents Claims Tribunal-cum-XII Chief Juge, (FTC), City Civil Court, Hyderabad (for short, 'Tribunal') in M.V.O.P.No.311 of 2010, dated 12.03.2012 and thereby seeking for enhancement of compensation.
3. The appellant herein is the petitioner/claimant, respondent No.1 herein is the respondent no.1-owner of crime vehicle and respondent No.2 herein is the respondent no.2- insurance company before the Tribunal. For convenience, the parties hereinafter are referred to as they are arrayed before the Tribunal.
4. The brief factual matrix of the present appeal is as under. 4.1. On 14.08.2008 at about 11.30 p.m., while the petitioner was proceeding on his motorcycle bearing registration No.AP-
LNA,J MACMA No.1259 of 2017 2 11-AA-6893 as rider along with his friend as pillion rider from Chennareddynagar towards Azampura, Chaderghat, Hyderabad and when they reached near Musi bridge, auto bearing registration no.AP-28-Y-3400 (hereinafter referred to as offending vehicle) came in opposite direction in rash and negligent manner and dashed the motor cycle of the petitioner, as a result, he sustained grievous fracture injuries; that immediately he was shifted to Osmania General Hospital for treatment, subsequently shifted to NIMS Hospital and thereafter, he was shifted to Decan College of Medical Sciences (PEH), Shah Ali Banda, Hyderabad, where he was treated as inpatient.
4.2. The Police, Amberpet Police Station, Hyderabad, registered a case in Crime No.351/2008 under Section 337 of IPC against the driver of the offending vehicle and filed charge sheet.
4.3. The Petitioner has filed claim petition against owner of the vehicle and insurance company under Section 166 of Motor Vehicles Act, 1988 before the Tribunal claiming compensation of Rs.2,50,000/- along with interest from the date of filing of claim petition to till the date of realization.
LNA,J MACMA No.1259 of 2017 3 4.4. The petitioner was aged about 22 years as on the date of accident, hale and healthy and was a Karate Coach and used to earn more than Rs.5,000/- per month and contribute the same to his family. He was admitted as inpatient and underwent surgery and bedridden for about six months and incurred medical expenses of Rs.75,000/-.
5. The Respondent No.1-owner of offending vehicle remained ex-parte. The 2nd respondent-Insurance Company filed counter denying all the allegations made in the claim petition and further contended that petitioner has to prove that he sustained injuries in the accident and that the crime vehicle was duly insured with the respondent no.2, and finally, prayed to dismiss the claim petition.
6. On the basis of the pleadings, the MACT has framed the following issues:
i) Whether the accident resulting in injuries to the petitioner occurred owing to rash and negligent driving of the driver of auto bearing no.AP-28-Y-3400?
ii) Whether the petitioner is entitled any compensation and if so, what amount and from whom ?
iii) To what relief?
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7. In order to substantiate the case, on behalf of the petitioner, P.Ws.1 to 4 were examined and Exs.A1 to A10 were marked. To disprove the claim of the petitioner, 2nd respondent- insurance company neither examined any witness nor produced any document.
8. The Tribunal, on due consideration of the oral evidence and material placed on record, came to conclusion that the accident took place due to rash and negligent driving of offending vehicle and awarded compensation of Rs.1,90,000/- along with interest @ 6% per annum from the date of petition till the date of realization. The owner of the offending vehicle and the Insurance company i.e., respondent Nos.1 & 2 were held to be jointly and severally liable to pay the said compensation.
9. During the course of hearing of the appeal, learned counsel for appellant/petitioner submitted that the Tribunal erred in awarding meager compensation amount without considering the earning capacity of the petitioner and future prospects; that as per Ex.A4-disability certificate, petitioner suffered disability of 40%, however, the Tribunal erred in considering the disability as 8% only as per Workmen's Compensation Act, which is contrary to law; that Tribunal erred in adopting multiplier 17 instead of 18; that the Tribunal erred LNA,J MACMA No.1259 of 2017 5 in not awarding amounts towards grievous injuries and also towards medical bills and prayed to enhance the compensation amount.
10. The main contention raised by the learned counsel for the appellant in the appeal is that though P.Ws.2 and 3, who are the doctors and treated the petitioner, had assessed the disability sustained by the petitioner at 40%, the Tribunal erred in not considering the same and erroneously assessed the disability to the extent of 8% only.
11. Perusal of the record and material placed on record would show that the petitioner had sustained two grievous injuries i.e., comminuted fracture of the right patella and fracture of lateral condyle of right tibia and he underwent surgery; that petitioner claimed that due to injuries suffered in the accident, he became disable and produced Ex.A4-disability certificate issued by P.W.2. However, petitioner has not filed any document to show that he was treated by P.W.2 at any point of time; that PW.3- Dr.Jagadishwar Rao, who actually treated the petitioner, stated that he treated and found fracture patella comminuted right side, fracture lateral condyle femur, which are grievous in nature. P.W.3 further deposed that petitioner cannot do normal work as he was earlier prior to the accident, however, he has LNA,J MACMA No.1259 of 2017 6 not assessed the disability sustained by the petitioner. As per Ex.A6-certificate issued by Global Taekwondo Academy, the petitioner has not attended his duty over a period of four months and thereafter he attended the duty, which clearly shows that the statement of P.W.3 that the petitioner cannot work as Karate coach as earlier is not correct.
12. In D.Sampath vs. United India Insurance Company Limited and another 1, relied upon by the learned counsel for appellant, the Hon'ble Supreme Court held as under:
"6. It is no doubt true that, while making assessment, there is an element of guesswork, but that guesswork again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition, but also Dr.J.R.R.Thiagarajan, P.W.3, who has stated that the claimant has suffered 75% disability, by referring to the disability certificate issued by a competent doctor who had treated the claimant. Though the doctor is cross-examined at length by the learned advocate for the insurance company, nothing adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of doctor, P.W.3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court."1
(2011) 15 SCC 160 LNA,J MACMA No.1259 of 2017 7
13. In the case on hand, P.W.3-Doctor, who actually treated the petitioner, had not issued a certificate to the extent of disability suffered by the petitioner; that PW.2-Doctor, who did not treat the petitioner, had issued Ex.A4-disability certificate show that petitioner sustained disability to the extent of 40% without mentioning reasons for such disability. In view of the above decision cited by the appellant, while making assessment, there must be some guess work that must have reasonable nexus to the available material/evidence. But, in the present case, P.W.2 who did not treat the appellant issued Ex.A4- disability certificate without assigning any reasons. Therefore, the Tribunal did not consider Ex.A4 and construed the disability of the appellant as 8% basing on Workmen's Compensation Act. The appellant failed to make out any case warranting this Court to interfere with the observation of the Tribunal.
14. In view of the above discussion, facts and circumstances of the case, and legal position, this Court is of the opinion that the Tribunal had rightly taken the disability of petitioner at 8%, which is just and proper in considering the compensation towards loss of earning capacity of the petitioner. Thus, the citation relied upon by the learned counsel for appellant does not come to the aid of the appellant.
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15. Insofar as other contention of the appellant that the Tribunal erred in applying the multiplier '17' is concerned, as per the record, the age of the appellant was shown as 22 years as on the date of the accident. Therefore, the Tribunal ought to have applied multiplier 18 instead of 17 as per the Sarla Verma vs. DTC [(2009) 6 SCC 121]. If 18 multiplier is applied, the loss of earnings would come to Rs.86,400/- (Rs.5,000/- x 12 x 18 x 8/100), which the petitioner is entitled towards disability.
16. The other contention raised by the learned counsel for appellant is that Tribunal had meager amount towards grievous injuries. A perusal of the record would show that the petitioner sustained two grievous injuries i.e., fracture to right patella and fracture to lateral condyle right tibia and other multiple injuries all over body, which is evident from the evidence of P.W.3 and Ex.A3-discharge card. In considered view of this Court, taking into consideration the evidence of P.W.3-Doctor and Ex.A3, and injuries sustained by the appellant, appellant is entitled to Rs.50,000/- towards two fracture injuries as against Rs.10,000/- awarded by Tribunal.
17. In considered opinion of this Court, the interest awarded by the Tribunal is meager and therefore, requires interference of this LNA,J MACMA No.1259 of 2017 9 Court and accordingly, the interest is revised to 7.5% per annum instead of 6% per annum awarded by the Tribunal.
18. In the result, the compensation amount awarded towards disability and the fracture injuries is liable to be modified to the above extent. There shall be no change with regard to the amounts awarded by the Tribunal on other heads.
19. Thus, the appellant is entitled to a total compensation under the following heads:
Sl.No. Particulars Amount
1 Towards grievous injuries Rs. 50,000.00
2 Towards medical expenses Rs. 11,000.00
3 Towards pain and suffering Rs. 50,000.00
4 Loss of earnings due to disability Rs. 86,400.00
5 Towards loss of estate Rs. 30,000.00
6 Towards transportation and extra Rs. 7,400.00
nourishment
Total: Rs.2,34,800.00
20. Accordingly, the Appeal is allowed in part, enhancing the compensation from Rs.1,90,000/- to Rs.2,34,800/- with interest at the rate of 7.5% from the date of the petition till the date of realization. The respondent Nos.1 & 2 are directed to LNA,J MACMA No.1259 of 2017 10 deposit the entire compensation amount within a period of six weeks from the date of receipt of copy of this order by duly adjusting the amounts, if any, already deposited/paid to the appellant/claimant. There shall be no order as to costs.
21. Pending miscellaneous applications if any shall stand closed. [[ ____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07.06.2024 kkms