Telangana High Court
D Devadanam vs K Rama Rao on 20 March, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
MACMA NO.299 OF 2019
JUDGMENT:
Being aggrieved by the order dated 23-11-2018 in MVOP.No.402 of 2016 on the file of Motor Accidents Claims Tribunal (for short 'MACT') Cum I Addl. Chief Judge, City Civil Court, Secunderabad, where under, his petition filed under Section 166 of Motor Vehicles Act for compensation of Rs.10,00,00/- was partly allowed by the tribunal awarding a sum of Rs.8,77,000/- with interest @ 7.5%, the petitioner in the above referred MVOP has filed this Civil Miscellaneous Appeal under Section 173 of Motor Vehicles Act (for short 'M.V. Act') and sought for enhancement of the compensation on the following grounds.
2. The tribunal failed to appreciate the evidence of Doctors, who were examined as PWs.2 and 3 and injury certificate marked as Ex.A7 which clearly shows the appellant herein suffered 80% of the disability due to the amputation of left leg below the knee and wrongly considered the disability 2 SSRN, J MACMA.No.299 of 2019 as 50% and awarded insufficient compensation. The tribunal failed to appreciate the evidence with regard to actual income of the appellant and assessed the same as Rs.9,000/- per month though there is evidence to believe that he was earning Rs.15,000/- per month. The appellant has claimed that in view of the judgment of Hon'ble Apex Court between 'P.Shiv Kumar Vs. BMPC', the income of a painter can be assessed as Rs.15,000/- to Rs.16,500/- per month and if the same is considered, the appellant could have been awarded more than Rs.20,00,000/-. The tribunal failed to appreciate that the appellant requires an amount of Rs.2,00,000/- for further operations, but the same was not considered by the tribunal. He has also claimed that the tribunal did not consider the evidence properly and failed to award appropriate compensation for future medical bills, transportation charges, thereby, sought for enhancement of the compensation.
3. As could be seen from the material averments made by the appellant in the above referred MVOP, it seems on 14-10-2015, at about 8.30 p.m., while he was going to his 3 SSRN, J MACMA.No.299 of 2019 house, near Sai Baba Temple Centre, Ponnuru, the driver of a Lorry bearing No.AP 07 TC 5189 by driving the same in high speed and in a rash and negligent manner dashed him and when he fell down, ran over his leg, due to which he suffered grievous injuries.
4. Therefore, the appellant filed MVOP No.402 of 2016 against the driver and owner of the lorry as well as the insurance company from which a policy was obtained by the owner.
5. Out of the three respondents, the Insurance Company alone contested the petition, whereas, respondents No.1 and 2 remained ex parte.
6. The appellant herein was examined as PW.1 and he has examined Dr.V.V.Narayana Rao as PW.2 and Dr.P.Kiran Kumar as PW.3 and marked Exs.A1 to A7. The respondent-insurance company did not adduce any oral evidence but marked a copy of policy as Ex.B1. The tribunal having appreciated the pleadings and evidence, accepted the contentions of the appellant that the accident took place due to the rash and negligent driving by the above referred lorry 4 SSRN, J MACMA.No.299 of 2019 driver and having accepted the evidence of PWs.1 to 3, assessed the monthly income of appellant as Rs.9,000/- per month and in spite of the evidence of PWs.2, 3 that the appellant suffered 80% of permanent disability, considered the same as 50% functional disability and assessed an amount of Rs.7,02,000/- as loss of earnings and awarded a sum of Rs.8,77,000/- by adding Rs.1,00,000/- towards medicines and investigations, Rs.60,000/- towards pain and sufferance, Rs.5,000/- towards transportation charges and Rs.10,000/- towards food and extra-nourishment. The respondent-insurance company did not file any appeal challenging the above order.
7. There is no dispute about the accident in which the appellant herein received grievous injury and amputation of his left leg below the knee. PWs.2 and 3 proved Exs.A1 to A7 and also deposed before the Court that in view of the accident which caused a crush injury to left leg resulted amputation of the leg below the knee. Even though, the evidence placed before the Court indicates that the appellant herein was a labourer, the tribunal has considered that since 5 SSRN, J MACMA.No.299 of 2019 the amputation was below the left knee, assessed the disability as 50%. In fact being a labourer when once there was amputation of left leg definitely it would have impact on the life style and he may not be in a position to attend even labour work as he was able to do previously.
8. In the Judgment between 'Sri Anthony alias Anthony Swamy Vs. The Managing Director, K.S.R.T.C.' in Civil Appeal Nos.2551 of 2020, the Hon'ble Apex Court while considering the similar case, where in, left leg of the appellant therein was amputated, awarded a sum of Rs.11,97,300/-. In the above referred judgment, the evidence through PW.3 shows that in view of the amputation of left leg, the functional disability of the appellant therein was assessed as 75% and total body disability at 37.5%. The Hon'ble Apex Court while observing that the above said disability rendered the appellant permanently in capable of working as a painter or to do any manual work, considered that he is entitled to compensation for loss of future earnings basing on his 75% permanent physical functional disability and recalculated the compensation. Reference was made to 6 SSRN, J MACMA.No.299 of 2019 the judgment between 'Raj Kumar Vs. Ajay Kumar and another' 1, and 'Nagarajappa Vs. Divisional Manager, Oriental Insurance Company Limited' 2.
9. There is evidence before the Court to accept that the appellant herein in view of the crush injury lost his left leg below the knee portion. Therefore, even though the Medical Officer gave a certificate with the said injury caused 80% disability, in view of his employment as a labourer may not be in a position to secure an appropriate job.
10. Therefore, the tribunal could have considered this aspect while computing the compensation. Since the respondent-insurance company did not file any appeal challenging the award of compensation under the other heads, it is just and necessary to see whether the compensation awarded by the tribunal towards loss of earnings requires any modification. In view of the findings of the Hon'ble Apex Court in the above referred judgment considering the employment of the appellant herein and the injury suffered by him, the disability can be assessed as 75% 1 2011 (1) SCC 343 2 2011 (13) SCC 323 7 SSRN, J MACMA.No.299 of 2019 permanent physical functional disability. Therefore, the appellant is entitled to the following amount as compensation towards loss of earnings:
11. The notional income of the appellant at Rs.9,000/-
per month and Rs.1,08,000/- per annum. In view of the age of the appellant being 50 at the time of accident, the relevant multiplier is '13'. Therefore, loss of earnings as Rs.10,53,000/- (Rs.1,08,000 X 13 X 75%), Rs.60,000/- towards pain and sufferance, Rs.1,00,000/- towards medicines and investigation, Rs.5,000/- towards food and Rs.10,000/- towards extra-nourishment.
12. In the result, the appeal is allowed. The compensation is enhanced from Rs.8,77,000/- to Rs.12,28,000/- @ 7.5% from the date of accident till the entire amount is realized. As a consequence thereof, the respondents No.2 and 3 shall deposit the entire compensation amount with interest and costs, after deducting the amount if any paid by them, within a period of eight (8) weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the same in terms of 8 SSRN, J MACMA.No.299 of 2019 the award of the Tribunal. The rest of the impugned order holds good. There shall be no order as to costs.
Consequently, Miscellaneous applications if any, are closed.
________________________ SAMBASIVA RAO NAIDU, J 20th March, 2024 PLV