Andhra Pradesh High Court - Amravati
Tribunal-Cum-Special Judge For ... vs Unknown on 24 November, 2022
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.165 OF 2012
JUDGMENT:
1. Feeling dissatisfied with the order dated 05.10.2010 in MVOP
No.203 of 2008 passed by the Chairman, Motor Accidents Claims
Tribunal-cum-Special Judge for Trial of Cases under S.Cs. &
S.Ts. (POA) Act-cum-Additional District Judge, Vizianagaram (for
short 'the Tribunal'), the claimant preferred this appeal seeking
enhancement of compensation.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their rankings in the M.V.O.P.
3. The claimant has filed a claim petition under Section 163(A) of
the Motor Vehicles Act, 1988 seeking compensation amount of
Rs.2,50,000/- for injuries sustained by him in a motor accident
that occurred on 18.08.2007.
4. The case of the claimant is that he was a cleaner in the lorry
bearing No.ADB 9027 (hereinafter be referred as 'the offending
vehicle'). On 18.08.2007, while he was proceeding in the said
offending vehicle with a load of bottles, a mechanical defect
occurred and the same was stopped at the outskirts of Denkada
to get it repaired, placed a wooden piece near the wheels and
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after it was repaired the driver drove the same in a rash and
negligent manner, as a result of which, the wooden piece slipped
and hit the right foreleg of the claimant and thereby he sustained
fracture injury.
5. Respondents 1 and 2 remained exparte.
6. Respondent No.3 filed its written statement disputing the manner
of the accident, age, income and avocation of the claimant,
involvement of the claimant, coverage of insurance policy and the
validity of licence possessed by the driver to drive the offending
vehicle and prayed to dismiss the claim petition.
7. Based on the pleadings, the tribunal has framed appropriate
issues. During the trial, on behalf of the claimant, P.Ws.1 and 2
got examined and marked Exs.A.1 to A.5 and also marked
Exs.X.1 and X.2 through the evidence of P.W.2. On behalf of the
3rd respondent, no oral evidence was adduced. However, Ex.B.1-
copy of policy was marked with consent.
8. After considering the material evidence available on record, the
tribunal held that the pleaded accident occurred resulting in
injuries to the claimant due to his involvement in a motor
accident involving the offending vehicle, while it was in use in a
public place and further held that the driver of the offending
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vehicle drove the same in his regular course of employment
under the 2nd respondent and therefore the 2nd respondent who is
vicariously responsible to the acts of the driver/1st respondent is
liable to pay compensation to the claimant. Further, the tribunal
awarded compensation an amount of Rs.1,00,000/- with interest
@ 7.5% per annum.
9. Heard learned counsel for the claimant and the 3rd respondent.
10. Learned counsel for the claimant contends that the learned
tribunal ought to have awarded entire amount claimed under
head of medical expenses and the tribunal awarded meager
amount under the head of pain and suffering and the learned
tribunal ought to have calculated the loss of future prospectus
and permanent disability.
11. Learned counsel for the 3rd respondent has supported the
findings and observations of the Tribunal.
12. I have considered the rival contentions of the learned counsel for
the claimant and the 3rd respondent. Perused the record. The 3rd
respondent has not preferred any appeal or cross-objections
questioning the findings regarding the negligence of the driver.
13. As already observed in the preceding paragraphs and upon
considering the pleas taken by both the parties, it can be seen
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that there is no dispute as to the occurrence of the accident in
question and the liability of the 3rd respondent to pay
compensation amount. Hence the said findings became final and
as such, it is unnecessary to narrate the factual aspects of the
case.
14. Now the point for consideration is, whether the compensation
awarded by the tribunal is just and reasonable.
15. The tribunal awarded compensation an amount of Rs.30,000/-
for medicines and extra nourishment, an amount of Rs.10,000/-
towards pain and suffering, an amount of Rs.15,000/- towards
loss of earnings and Rs.45,000/- towards loss of opportunities
and enjoyment of life amenities of life prospectus in life and
expectation of life.
16. As per the second schedule of the Motor Vehicles Act, the
tribunal supposed to have awarded an amount of Rs.15,000/-
towards medical expenses and also supposed to have awarded an
amount of Rs.5,000/- towards the pain and suffering of grievous
injury. The claimant relied on Ex.A.2-wound certificate to
establish the injuries sustained by him. From a perusal of
Ex.A.2-wound certificate, it appears that the claimant sustained
two grievous injuries. As such this court views that the claimant
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is entitled to an amount of Rs.15,000/- towards medical
expenses and an amount of Rs.10,000/- for the two grievous
injuries sustained by him.
17. The claimant further contends that he had been suffering with
permanent disability due to the injuries sustained in the
accident. The tribunal awarded an amount of Rs.15,000/-
towards loss of earnings. Upon careful perusal of the material
evidence on record, this Court views the Tribunal considered the
monthly earnings of the claimants at Rs.3,000/- and granted
compensation at Rs.15,000/- towards loss of earnings. The Apex
Court, in a case of R.K.Malik v. Kiran Pal 1 , has held at
paragraph 32 that denying compensation towards future
prospects seems unjustified. Accordingly, the Apex Court
awarded compensation for future prospects in a claim under
section 163-A of the MV Act, 1988. Following the same, the
annual earnings of the claimant, including a future prospectus,
can safely be assessed at Rs.45,000/- per annum (36,000/-
+9,000).
18. The claimant filed Ex.A.2-wound certificate, Ex.A.4-x-ray and
Ex.A.5-disability certificate and also adduced the evidence of
P.W.2, who treated the claimant. P.W.2 testified that he treated
2009 ACJ 1924 (SC)
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the claimant for a period of 5 months and after discharge was
advised to take further treatment and was treated as outpatient
on 17.12.2009 and admitted into hospital as he complained pain
to his right leg and when x-ray was taken, the fracture was not
united and hence he was advised to undergo surgery and on
05.01.2010 surgery was conducted and nails were inserted and
was treated for a period of three months and was discharged on
02.0.2010 and after discharge the claimant was treated as
outpatient. From the evidence of P.W.2 and the documentary
evidence, it is clear that the claimant sustained grievous injury to
his right leg and sustained disability at 30%. No cross-
examination is held questioning the correctness of Ex.A.5. In
such a case, the tribunal ought to have considered the disability
certificate in arriving the compensation amount for loss of
opportunities and enjoyment of life amenities of life prospectus in
life and expectation of life instead of awarding a sum of
Rs.45,000/-. According to second schedule of the Motor Vehicles
Act, for persons aged above 45 years but not exceeding 50 years,
the appropriate multiplier as '13' and thus, the total loss of
functional disability of the claimant can be assessed @ Rs.45,000
x 13 x 30% = Rs.1,75,500/-.
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19. In all, the claimant is entitled to the compensation as detailed
below:
Towards functional disability Rs.1,75,500/-
Towards medical expenses Rs. 15,000/-
Towards two grievous injuries Rs. 10,000/-
Towards loss of earnings Rs. 15,000/-
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TOTAL Rs. 2,15,500/-
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20. In the result, the appeal is partly allowed, enhancing the
compensation from an amount of Rs.1,00,000/- to an amount of
Rs.2,15,500/- (Rupees two lakhs, fifteen thousand and five
hundred only) with interest at 7.5% per annum against the
respondents. The respondents are directed to deposit the
enhanced compensation amount, excluding the compensation if
any deposited, within two months from the date of receipt of a
copy of this order. The claimant is entitled to withdraw the entire
compensation amount. There shall be no order as to costs.
21. Consequently, miscellaneous Petitions if any pending in this
appeal shall stand closed.
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T. MALLIKARJUNA RAO, J
Dt.24.11.2022
BV
