Telangana High Court
A Ganesh vs M/S Sarvahitha Education Society on 4 March, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1023 OF 2018
JUDGMENT:
1. Dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal - cum - The Court of Chief Judge, City Civil Court, Hyderabad, (hereinafter be referred as 'the Tribunal') in O.P.No.394 of 2013, dated 23.12.2017, the claim petitioner filed the present Appeal seeking for enhancement of compensation.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the claim petitioner filed a petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.8,00,000/- for the injuries sustained by him in an accident that occurred on 24.11.2011. It is stated by the petitioner that on 24.11.2011, when the petitioner was proceeding on his Scooty bearing No.AP-9AB-2467 from Bowenpally towards open military ground and when reached at open military ground, Swarnadhamanagar, Bowenpally, at that time, one Maruthi Wagon- R VXI Car bearing No.AP-29-AQ-9947 came in a rash and negligent manner with high speed and dashed the Scooty of the petitioner. As a result, the petitioner sustained 2 MGP,J MACMA.No.1023 of 2018 multiple fractures and injuries all over the body and the Scooty was completely damaged. The said accident occurred due to the rash and negligent driving of the driver of Car bearing No.AP- 29AQ-9947. The Police, Bowenpally Police Station, registered a case in Crime No.409 of 2011 under Section 337 IPC against the driver of the car. It is stated by the petitioner that he incurred more than a sum of Rs.50,000/- for his treatment. It is further stated by the petitioner that he is working as private employee and earning Rs.8,000/- per month and hence claimed compensation of Rs.8,00,000/- along with interest which is payable by both the respondents jointly and severally.
4. Respondent No.1 remained exparte. Respondent No.2- Insurance company filed its counter and denied all the material averments made in the claim petition including, manner of accident, involvement of crime vehicle, rash and negligent driving of the driver of the car, age, occupation and income of the petitioner, nature of injuries sustained and amount incurred by him and finally stated that the claim of compensation is excess and exorbitant and prayed to dismiss the claim petition against it.
5. Based on the above pleadings, the learned Tribunal had framed the following issues:
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1. Whether the pleaded accident had occurred resulting in injuries to the petitioner, A.Ganesh, due to the rasha dn negligent driving of the motor vehicle (Maruthi Wagon-R VXI Car bearing NO.AP 29AQ 9947) by its driver?
2. Whether the petitioner is entitled to any compensation and if so, at what quantum and what is the liability of the respondents?
3. To what relief?
6. In order to prove the above issues, the petitioner himself was examined as PW1 and got examined PWs 2 to 4 and got marked Exs.A1 to A14 and Exs.X1 and X2 on his behalf. None of the witnesses were examined on behalf of respondents. However, Ex.B1-Copy of insurance policy was marked on their behalf.
7. The learned Tribunal, after considering the entire evidence and documents marked on either sides, had partly allowed the claim petition filed by the petitioners by awarding compensation of Rs.5,76,800/- along with interest @ 6% per annum from the date of petition till the date of realization which is payable by Respondent Nos.1 & 2. Being not satisfied with the compensation awarded, the petitioner in O.P. filed the present Appeal seeking for enhancement of the same.
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8. Heard the submission of the learned counsel for the petitioner as well as the learned Standing Counsel for Respondent No.2-Insurance company. Perused the material available on record.
9. The main contention of the learned counsel for Appellant is that the Tribunal ought to have considered the income of the appellant as Rs.8,000/- per month and ought to have considered loss of earning capacity @ 100%. He also contends that the learned Tribunal failed to award compensation under the Head of Attendant charges, physiotherapy treatment charges, etc and also ought to have awarded more interest and prays to allow the appeal by enhancing the compensation awarded by the learned Tribunal.
10. On the other hand, learned counsel for the 2nd respondent- Insurance company contended that the learned Tribunal, after considering the entire evidence and documents available on record, awarded reasonable compensation for which interference of this Court is unwarranted.
11. Now the point that arise for determination is, Whether the order of the learned Tribunal requires interference of this Court?
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MGP,J MACMA.No.1023 of 2018 POINT:
12. This Court has perused the entire evidence and documents available on record. The claim petitioner himself examined as PW1. He reiterated the contents made in the claim petition and deposed about the manner of accident and injuries sustained to him. He stated that due to the rash and negligent driving of the driver of Maruthi Wagon-R VXI Car bearing No.AP-29-AQ 9947, he met with an accident and the relative of PW1 gave complaint to police under Ex.A1. Based on the complaint, the police after conducting thorough investigation, laid charge sheet under Ex.A2 against the driver of the Wagon-R car. Though the 2nd respondent- Insurance company contended that the driver of the said car do not possess valid driving license and respondent no.1 knowingly handed over the same to him, but they have not examined any witness in support of their contention.
13. It is pertinent to mention that there is no dispute with regard to the occurrence of the accident and the injuries sustained by the petitioner. The only contention raised by the learned counsel for appellant is with regard to compensation awarded. In this regard, it is pertinent to refer to the evidence of PW2, who is an RMO in Gandhi Hospital, Secunderabad, who stated in his evidence that 6 MGP,J MACMA.No.1023 of 2018 the petitioner was admitted in their hospital on 25.11.2011 with history of road traffic accident at Bowenpally and he sustained multiple injuries i.e., (i) Aultion injury of left eye, (ii) Fracture of nasal bones, (iii) Fracture of right humerous, (iv) Fracture inferior and superior ramii bilateral pelvis. Enucleation was done on 28.11.2011. DDC compression glating was done on 03.12.2011 and he was discharged on 09.12.2011. In the cross-examination, he stated that he was deposing based on the records and he was not working in Gandhi hospital as on the date when the petitioner was admitted in their hospital.
14. Coming to the evidence of PW3, who is an Opthalmologist in S.D.Eye Hospital, deposed in his evidence that the petitioner approached him on 06.05.2014 for visual handicapped certificate. Upon examination of the petitioner, he issued visual handicapped certificate assessing the disability @ 30% under Ex.A9.
15. The evidence of PW4, who is an Orthopaedic surgeon, deposed in his evidence that the petitioner came to their hospital on 13.12.2015 for obtaining disability certificate. He verified previous old records of Gandhi Hospital and found that he sustained fracture of shaft humerour right, inferior pubic rami fracture of right (R), superior pubic rami fracture (R), Inferior 7 MGP,J MACMA.No.1023 of 2018 public rami fracture (L) superior public rami fracture left (L) and loss of left eye and issued Ex.A13 disability certificate assessing the disability @ 30% which is partial and permanent in nature. He also stated that the petitioner was suffering from stiffness of right shoulder, difficulty in lifting weights and he gave estimation certificate for removal of implants @ Rs.30,000/-. Exs.A11 to A14 are issued him. In the cross-examination, he admitted that removal of implants in Government Hospitals is free of cost. He stated that as the petitioner had underwent Enucleation of left eye, he assessed the visual disability @ 30%.
16. Now coming to the quantum of compensation, though the petitioner stated that he is working as private employee and earning a sum of Rs.8,000/- per month and produced Ex.A8- Salary certificate issued by AK Constructions showing his salary as Rs.7,300/- per month, including other allowances, but he has not examined the concerned in support of the said document. The learned Tribunal, considering the age of the petitioner, fixed he monthly income as Rs.4,000/-. This Court upon considering the date of accident and disability sustained to the appellant, is inclined to interfere with the finding arrived at by the learned Tribunal and hereby fix the monthly income of the appellant as 8 MGP,J MACMA.No.1023 of 2018 Rs.4,500/-. So far as assessing of disability is concerned, the learned Tribunal fixed the disability @ 30% which this Court feels that it is on lower side and requires further consideration as per evidence of PWs3 & 4. PW3, who is an Opthalmologist in S.D.Eye Hospital, verified the appellant and issued visual Handicapped certificate under Ex.A9 assessing the disability @ 30%. Also, the evidence of PW4, who is an Orthopedic Surgeon, shows that he issued disability certificate under Ex.A13 assessing the disability @ 30% for the fractures sustained by the appellant. Therefore, this Court by considering Exs.A9 & A13 disability certificates, hereby fix the disability sustained to the appellant @ 60%. Since the appellant sustained disability @ 60% and as he was aged 22 years at the time of the accident, the appropriate multiplier is '18'. By applying the multiplier '18', the loss of dependency comes to Rs.5,83,200/- (Rs.4,500x12x18x60%). That apart, the learned Tribunal awarded a sum of Rs.20,000/- for pain and sufferance, Rs.20,000/- for loss of amenities, Rs.10,000/- towards medical expenses, Rs.10,000/- towards transportation and extra nourishment, Rs.30,000/- for removal of plants and Rs.1,00,000/- for loss of future prospects of marriage and Rs.24,000/- for loss of earnings for a period of six months, which in total comes to Rs.7,97,200/-.
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17. Accordingly, the Appeal is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.5,76,800/- to Rs.7,97,200/-. The appellant is directed to deposit deficit Court fee on the enhanced compensation amount. Insofar as the interest awarded by the Tribunal is concerned, in the light of the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 1, the appellant is entitled for interest @ 7.5% per annum from the date of petition till the date of realization instead of 6% payable by Respondent Nos.1 & 2 jointly and severally within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
18. Pending miscellaneous petitions, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.04.03.2024 ysk 1 2013 ACJ 1403 = 2013 (4) ALT 35