Andhra Pradesh High Court - Amravati

Chalapaka Suresh vs B. Sankara Rao on 7 December, 2021

          HON'BLE SRI JUSTICE NINALA JAYASURYA

                      M.A.C.M.A.No.1577 of 2006

JUDGMENT:

The present appeal is preferred by the injured claimant, aggrieved

by the order and decree dated 23.12.2005 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-I Additional District Judge, Srikakulam

(for short "the Claims Tribunal) in O.P.No.136 of 2000 wherein an

amount of Rs.1,99,000/- was awarded as against the total claim of

Rs.3,00,000/-.

2. Heard Mr. Aravala Rama Rao, learned counsel for the

appellant/claimant, and Smt. Medida Manimma, learned counsel for the

3rd respondent-Insurance Company.

3. The appellant/claimant filed the above mentioned original petition

stating inter alia that on 21.03.1999 he boarded a bus bearing registration

No.AP 35T 4077 to go to Visakhapatnam and on the way when the bus

reached Budumuru junction, the driver of the said bus dashed against a

lorry, as a result of which, the claimant sustained grievous and multiple

injuries. He underwent treatment in Gayatri Nursing Home and despite

the same, his right hand was amputated below the shoulder in view of the

crush injuries sustained by him. He claimed an amount of Rs.3,00,000/-

towards compensation against the respondents including the 3rd

respondent-Insurance Company. In support of his case, the claimant

examined P.Ws.1 to 3 and got marked Exs.A.1 to 9 and Ex.X.1.

NJS,J MACMA No.1577 of 2006

4. The original petition against the 1st respondent was dismissed as

not prosecuted. The 2nd respondent-owner of the offending vehicle

remained ex parte. The 3rd respondent-Insurance Company filed its

counter and resisted the claim of the claimant. In support of its case, the

Insurance Company examined R.W.1 and got marked Ex.B.1-copy of

Insurance Policy.

5. The Claims Tribunal, while taking the disability of the claimant at

75% as assessed by P.Ws.2 & 3, arrived at the compensation of

Rs.1,99,000/- by taking the income of the claimant at Rs.1,000/- p.m. and

awarding Rs.25,000/- towards medical expenses, Rs.5,000/- towards

extra nourishment and travelling expenses and Rs.25,000/- towards pain,

suffering and mental agony.

6. Learned counsel for the appellant/claimant inter alia contends that

the amount as awarded by the Claims Tribunal is not just or tenable and

the claimant is entitled for more compensation. He submits that because

of the accident, the claimant, who belongs to goldsmith community, lost

his hand and therefore, the loss of professional skills should be treated as

100%. While contending that the monthly income of Rs.1,000/- as taken

by the Claims Tribunal is not just or tenable, he submits that Rs.2,000/-

as claimed towards monthly income is very reasonable. The Claims

Tribunal, according to the learned counsel for the appellant, erred in

awarding meager sums towards pain and suffering and extra nourishment

and travelling expenses. He submits that in view of amputation of the

NJS,J MACMA No.1577 of 2006

right hand up to right arm level, the claimant not only lost professional

earnings, but also his marriage prospects are effected. He further submits

that the appellant is also entitled for the amount towards future prospects,

apart from enhancement of the compensation towards pain and suffering,

extra nourishment, travelling expenses, etc. The learned counsel places

reliance on the judgments of the Hon'ble Supreme Court in Govind

Yadav Vs. New India Insurance Company Limited, reported in 2011

(10) SCC 683, and Jagadish Vs. Mohan, reported in 2018 (4) SCC 571,

and also the judgment of the Division Bench of the erstwhile High Court

of Andhra Pradesh at Hyderabad in C.N. Somasekhar Reddy Vs. I.D.L.

Chemicals Limited, Hyderabad, reported in 2010 (1) ALD 659 (DB).

Contending so, the learned counsel submits that it is a fit case for

enhancement of the compensation and accordingly, urges that the appeal

may be allowed by awarding just and reasonable compensation.

7. Per contra, learned cunsel for the 3rd respondent-Insurance

Company submits that there is a variation in the version of the claimant

with regard to the occurrence of the accident and the claimant sustained

injuries due to his negligence and therefore, he is not entitled for any

compensation. However, the Claims Tribunal considered the monthly

income of the claimant at Rs.1,000/-, which according to the learned

counsel, itself is excessive, as the claimant is learning goldsmith work

and not earning any income therefrom. The learned counsel further

submits that the disability of 75% as adopted by the Claims Tribunal is

NJS,J MACMA No.1577 of 2006

tenable and in the light of the same, the contention of the claimant that he

lost his professional skills to the extent of 100% cannot be accepted. She

submits that as the accident occurred in the year 1999, the claimant is not

entitled for the benefit of the judgment in National Insurance Company

Limited Vs. Pranay Sethi, reported in 2017 (16) SCC 680. She further

submits that the contention of the claimant that because of amputation of

his right hand, his marriage prospects were effected, deserves no

consideration, in the absence of any supporting material to that effect.

The learned counsel would urge that the order under challenge warrants

no interference, as the same is reasonable.

8. This Court has considered the contentions advanced by both sides

and perused the material on record.

9. It is not in dispute that the appellant/claimant belongs to goldsmith

community and he is learning goldsmith work. The Claims Tribunal, by

referring to Ex.A.1 wherein it was mentioned that the claimant was

learning goldsmith work under the guidance of his father, had taken the

average income of the claimant at Rs.1,000/- p.m. as against Rs.2,000/-

p.m. on the premise that the claim of the claimant that he was earning

Rs.2,000/- p.m., is exorbitant. Stating that in view of the unforeseen

circumstances there may or may not be possibility to the claimant to

continue the goldsmith work or otherwise he may also take up some

other avocation, the Claims Tribunal tried to justify fixation of the

monthly income of the claimant at Rs.1,000/- p.m. The view of the

NJS,J MACMA No.1577 of 2006

Claims Tribunal, in the opinion of this Court, is purely on the basis of

assumptions and therefore, not tenable. The Claims Tribunal, in the

considered opinion of this Court, failed to see the positive side of the

prospects of the claimant who belongs to goldsmith community and is

learning goldsmith work under the guidance of his father. Even the

claimant takes up any other avocation also, he would earn more than

Rs.1,000/- p.m. Viewed from any angle, this Court is of the considered

opinion that the Claims Tribunal is not right in its approach.

10. Be that as it may, the monthly income of the claimant claimed at

Rs.2,000/- cannot be treated as excessive. Accordingly, this Court is

inclined to take the monthly income of the claimant at Rs.2,000/- which

is just and reasonable. As the work of goldsmith requires use of both

hands, the loss of one hand would totally affect the working skills

permanently. Therefore, this Court finds justification in the submission

made by the learned counsel for the claimant that the loss of earning

capacity should be taken as 100%, though the disability was assessed at

75%. At this juncture, it may also be appropriate to refer to the finding

of the Claims Tribunal that when the right hand was amputated up to the

level of upper arm, it would also not be possible for having an artificial

hand to work with the same.

11. In Jagadish's case referred to supra, the Hon'ble Supreme Court,

while dealing with the case of a claimant, who lost both his hands due to

an accident, enhanced the compensation while referring to the earlier

NJS,J MACMA No.1577 of 2006

precedents. The Hon'ble Supreme Court, considering the case of the

injured/claimant therein who was a skilled carpenter and self employed,

held that the amount of Rs.6,000/- claimed as earnings per month cannot

be regarded as unreasonable or contrary to a realistic assessment of the

situation on the date of the accident. The Hon'ble Supreme Court had

also applied the judgment of Pranay Sethi's case in extending the benefit

of future prospects @ 40% applicable to the age of the claimant.

12. In Govind Yadav's case, which relates to a victim who lost his leg

due to a road accident, the Hon'ble Supreme Court, while referring to a

catena of judgments, held at para No.18 as follows:

"18. In our view, the principles laid down in Arvind Kumar Mishra V. New India Assurance Co.Ltd. and Raj Kumar V. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

The Hon'ble Supreme Court, in the facts and circumstances of the case,

awarded a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma

caused due to amputation of leg and a further sum of Rs.1,50,000/-

NJS,J MACMA No.1577 of 2006

towards loss of amenities and enjoyment of life. In this regard, the

Hon'ble Supreme Court held at paras 25, 26 and 27 as follows:

25. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the Appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation.

26. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg.

27. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the Appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award

NJS,J MACMA No.1577 of 2006

him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life."

13. Further, in C.N.Somasekhar Reddy's case, a Division Bench of

the erstwhile High Court of Andhra Pradesh at Hyderabad succinctly

dealt with the matters pertaining to approach of Courts/Tribunals in

considering the percentage of physical disability and functional disability

resulting in loss of earning capacity and held at paras 23 and 32 as

follows:

"23. The Court should consider what is the percentage of physical disability and the functional disability resulting in loss of earning capacity. Each and every physical disability may not result in loss of earning capacity. For sustaining physical disability it may result in inconvenience and pain, for example in case of a teacher sustaining of even 30% or 40% of disability of left hand may not result in loss of earning capacity. However, for sustaining physical disability he may be entitled for compensation. But, in a case of a rickshaw puller, driver of a vehicle and Carpenter some percentage of disability of left hand may result in 100% functional disability resulting in loss of earning capacity. This distinction should be kept in mind.

xxxxxx xxxx xxxxxxx xxxxx xxxxxx xxxxxxxx

32. What is to be assessed is whether the injured is in a position to do the same work which he was doing at the time of accident and what is the percentage of disability sustained by him i.e., his physical disability and functional disability.

Functional disability should be assessed considering the nature of work he was previously doing. While assessing the disability,

NJS,J MACMA No.1577 of 2006

the Doctors have to consider these aspects and issue disability certificate both in respect of physical disability and functional disability. The Tribunal will have an advantage of looking at the claimant while recording his evidence. It may be useful and desirable if the Tribunal notes in the deposition with regard to the condition of the claimant, deformity, scar marks stiffness at the joints etc. If the Tribunal feels that it may be necessary in the interest of justice to refer the claimant to the Medical Board, the Tribunal may refer the claimant to the medical board or to any competent doctor. However, the loss of earning capacity has to be determined considering the nature of work which he was doing prior to the date of accident. Therefore, even where physical disability is not 100%, the functional disability and loss of earning capacity may be 100%. Even in the absence of satisfactory medical evidence, in the interest of justice, the Tribunal may consider whether the claimant can do the same work which he was doing prior to the accident and if not, what is the percentage of functional disability. For example, if the movements of right hand of a Carpenter are restricted at the wrist, though the Doctor may say that it is only 30% disability, but admittedly the Carpenter will not be in a position to do the work which he was doing previously. Then, in such a case, the disability has to be assessed on the basis of the incapacity to do the work which he was doing at the time of accident. Therefore, whether the claimant has sustained fracture or not, his disability has to be ascertained considering the functional disability."

NJS,J MACMA No.1577 of 2006

14. In the light of the above expressions of the Hon'ble Supreme Court

as well as the Division Bench, the submissions made by the learned

counsel for the appellant/claimant merit consideration.

15. Though it is contended by the learned counsel for the 3rd

respondent-Insurance Company that the appellant/claimant is negligent

and sustained injuries in the accident and therefore, he is not entitled for

compensation, the said contention deserves no consideration in the

absence of any appeal preferred by the Insurance Company. Further,

though it is contended by the learned counsel that the amount awarded is

reasonable, this Court is not inclined to accept the same, in the light of the

conclusions arrived at supra.

16. Accordingly, the compensation payable to the claimant is arrived at

as follows:

Monthly income of the claimant @ Rs.2,000/-

+ 40% of the monthly income towards
future prospects                                     Rs.2,800/-

The applicable multiplier
as per Sarla Varma's case for the
age group of 18 years is "18"

Total loss of earnings                               Rs.6,04,800/-
(Rs.2,800/- x 16 x 12 and
functional disability @ 100%)

Medical expenses                                     Rs.25,000/-

Pain and suffering                                   Rs.50,000/-

Travelling and extra nourishment                     Rs.10,000/-

Loss of marriage prospects                           Rs.50,000/-

                                                                             NJS,J
                                                            MACMA No.1577 of 2006



                                                      ---------------
Total compensation payable                            Rs.7,39,800/-
                                                      ----------------


17.    Though    the    claimant        claimed     Rs.3,00,000/-        towards

compensation, as per the judgment of the Hon'ble Supreme Court in

Ramla Vs. National Insurance Company Limited, reported in 2019 (2)

SCC 192, just and reasonable compensation can be awarded. However,

the claimant shall pay the requisite Court fee in respect of the amount

awarded over and above the compensation claimed.

18. Accordingly, the M.A.C.M.A. is allowed enhancing the

compensation from Rs.1,99,000/- to Rs.7,39,800/- together with interest

@ 7.5% p.a. from the date of filing of the petition till the date of

realization. The 3rd respondent-Insurance Company shall deposit the

enhanced compensation amount along with interest, within a period of

eight (8) weeks from the date of receipt of a copy of this order. On such

deposit, the appellant/claimant is entitled to withdraw the entire