Vadla Venkat Rathnam vs Smt. B. Bharathi And Another
2021 Latest Caselaw 3340 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                     M.A.C.M.A. No.1926 of 2011

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the order and decree, dated 19.01.2009, passed in

O.P.No.559 of 2001 on the file of the VII-Additional District Judge,

Mahabubnagar, the appellant/claimant preferred the present appeal

seeking enhancement of the compensation.

The facts, in issue, are as under:

The appellant filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.3,00,000/- for the injuries

sustained by him in a road accident that occurred on 07.06.2001 at

about 8.30 P.M. It is stated that on that day, the appellant, while

boarding the Jeep bearing No.AP-22-D-2253 at Chinna Jatram

Village bus stage, slipped from the jeep and that the Jeep ran over

his right leg, as a result of which he sustained grievous injuries to his

right leg and all over the body. The appellant was shifted to

Government Civil Hospital, Narayanpet, and from there to

Government Headquarters Hospital, Mahabubnagar, for further

treatment. In respect of the above incident a case in Crime No.68 of

2001 of Naraynpet Police Station came to be registered against the

driver of the Jeep. Since the accident took place due to rash and

negligent driving by the driver of the 1st respondent and as the

vehicle was insured with the 2nd respondent, the claim petition came

to be filed making both of them jointly and severally liable to pay

compensation.

The 1st respondent remained ex parte, while the 2nd respondent

filed counter denying all the allegations made in the claim-petition.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident occurred on 07.06.2001 at about 8.30 P.M., on PWD Road near Chinna Jatram Village bus stage due to rash and negligent driving of the Jeep bearing No.AP-22-D-2253 by its driver and whether it resulted in causing injuries to the petitioner?

2) Whether the petitioner is entitled for compensation, if so to what amount and from whom?

3) To what relief?

In support of his claim, the appellant examined himself as

PW.1 besides examining the Doctor, who treated the appellant, as

PW.2 and got marked Exs.A1 to A12. On behalf of the respondents,

R.W.1 was examined and Ex.B1-Policy Copy was marked.

After analyzing the evidence available on record, the Tribunal

held that the driver of the Jeep was responsible for the accident and

accordingly awarded an amount of Rs.60,000/- as compensation to

be paid by the respondents. Challenging the quantum of

compensation awarded, the present appeal is filed by the

appellant/claimant.

Learned Counsel for the appellant mainly submits that the

quantum of compensation awarded by the Tribunal is on lower side

and seeks enhancement of the same. He further submits that the

evidence of PW.2 and Exs.A9 and A-10, Disability Certificates,

amply established that the appellant sustained 40 to 50% permanent

disability as he could not bend his right knee and it is very difficult

for him to do any work, but the Tribunal without considering the

same, has erroneously taken the disability at 20% and, therefore,

prayed to enhance the compensation.

In spite of service of notice, there is no representation on

behalf of the 1st respondent/owner of the crime vehicle.

Per contra, the learned Counsel for the Insurance Company

submits that the quantum of compensation awarded by the Tribunal

is based on evidence and the same needs no interference.

The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged either by the owner or insurer of the vehicle.

The short question that arises for consideration is "whether the

compensation awarded by the Tribunal is just and equitable"?

In order to establish his case, the appellant examined himself

as PW.1 and the Doctor, who treated him, as PW.2. In support of the

injuries as well as the disability sustained by him, the appellant got

marked Exs.A3, A9 and A10. As per Ex.A3-Wound Certificate, the

appellant has sustained one grievous injury and one simple injury in

the accident. A perusal of Ex.A9 and A10, Disability Certificates

disclose that the appellant has sustained disability at 40 to 50% to his

femur. P.W.2, who is an Orthopedic Surgeon and who treated the

appellant, also stated that the appellant has sustained 40% disability

to his right femur and the appellant was admitted in the District

Headquarters Hospital, Mahabubnagar, for the injuries. P.W.2 also

deposed in his evidence that the appellant cannot bend his right

knee and it is very difficult for him to do any work as he sustained

disability to his right leg.

In order to award compensation in case of personal injuries,

the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as

under:

"5. The heads under which compensation is awarded in personal injury cases are the following :

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

MACD 2011 (SC) 33

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads

(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."

In the light of the principles laid down in the aforementioned

case, it is suffice to say that in determining the quantum of

compensation payable to the victims of accident, who are disabled

either permanently or temporarily, efforts should always be made to

award adequate compensation not only for the physical injury and

treatment but also for the loss of earning, inability to lead a normal

life and enjoy amenities, which would have been enjoyed but for

disability caused due to the accident.

As seen from the record, the Tribunal awarded a sum of

Rs.5,000/- for one grievous injury and Rs.1,000/- for one simple

injury as compensation under the head of pain and suffering;

Rs.3,000/- under the head loss of income during bed ridden period

and Rs.1,000/- towards medical expenses.

Insofar as the amount awarded towards compensation under

the head of loss of future income, the main contention of the learned

Counsel for the appellant is that though P.W.2-the Doctor stated that

the claimant has sustained 40% of the disability, but the Tribunal has

taken 20% disability.

Admittedly, the appellant/claimant has sustained fracture to

right knee. The Doctor-P.W.2 has stated that the claimant has

sustained 40% disability. As per the disability certificates Exs.A9

and A10 also, the claimant has sustained 40% to 55% disability.

Therefore, the evidence of P.W.2 cannot be doubted. In his

evidence, P.W.2 has categorically stated that the claimant cannot

bend his right knee and it is very difficult for him to do any work as

he sustained disability to his right leg. Thus, the functional

disability sustained by the claimant is fixed at 40%, as stated by

P.W.2, which is supported by the disability certificates.

In view of nature of disability sustained, the claimant is

entitled to loss of earnings due to disability. The injured being an

able bodied person aged about 40 years, doing carpenter work and

as the accident took place in the year 2001, his monthly income can

easily be fixed at Rs.3,000/- per month in view of the minimum

wages prevailing during the said period. If the income of the

claimant is taken at Rs.3,000/- per month, the annual income would

be Rs.36,000/-. Taking the income of the claimant at Rs.36,000/- per

annum, the loss of income sustained by the claimant with the

disability at 40% would be Rs.14,400/- per annum. In view of the

judgment of Sarla Verma Vs. Delhi Transport Corporation2, the

suitable multiplier to be adopted for calculating the loss of earnings

would be '15'. Therefore, the loss of earnings on account of his

disability would be Rs.14,400/- x 15 = Rs.2,16,000/-. Thus, in all the

claimant is entitled to a sum of Rs.2,26,000/- as compensation.

Accordingly, the appeal is allowed by enhancing the

compensation from Rs.60,000/- to Rs.2,26,000/-. The enhanced

amount will carry interest at 7.5% p.a. from the date of order passed

by the Tribunal i.e., 19.01.2009 till the date of realization, payable by

respondents 1 and 2 jointly and severally. There shall be no order as

to costs.

Miscellaneous petitions, if any, pending shall stand closed.

___________________ JUSTICE G. SRI DEVI 10.11.2021 gkv/Gsn

2009 ACJ 1298