J. Neeraja Devi vs Tatigotla Murali Reddyand ...
2022 Latest Caselaw 6648 Tel

     HONOURABLE JUSTICE M.G. PRIYADARSINI

              M.A.C.M.A. No.1033 of 2019

JUDGMENT:

Being not satisfied with the quantum of

compensation awarded in the order and decree, dated

24.04.2013, passed in M.V.O.P.No.600 of 2011 on the file

of the Special Judge for Trial of Offences under SC/ST

(POA) Act-cum-V Additional District and Sessions Judge,

Medak at Sangareddy (for short "the Tribunal"), the

appellant/claimant preferred the present appeal seeking

enhancement of the compensation.

2. The facts, in issue, are as under:

The appellant filed a petition under Section 166 of the

Motor Vehicles Act claiming compensation of Rs.6,00,000/-

for the injuries sustained by her in a road accident that

occurred on 03.10.2011. According to the appellant, on

03.10.2011, the appellant, her husband and children were

returning from Sadasivpet on a motorcycle bearing No.AP

37 AA 5994 and at about 11:00 p.m., when they reached

Athmakur 'T' Road, one Lorry bearing No.AP 02 W 5159,

owned by respondent No.1 and insured with respondent

No.2, being driven by its driver in a rash and negligent

manner at high speed dashed the motorcycle. As a result,

the appellant has sustained injuries. Immediately after the

accident, the appellant was shifted to Government

Hospital, Sangareddy and thereafter took treatment in

Gandhi Hospital, Secunderabad and Yashoda Hospital,

Hyderabad. The appellant had undergone operation and

her left leg below the knee was amputated. It is further

stated that prior to the accident, the appellant was hale

and healthy and was earning Rs.8,000/- per month by

doing tailoring work and due to amputation of her left leg

below the knee, she is unable to do the tailoring work and

she lost her income, therefore, she laid the claim against

the respondents, seeking compensation.

3. After considering the claim and the counter filed by

respondent No.2, and on evaluation of the evidence, both

oral and documentary, the learned Tribunal has partly

allowed the O.P. and awarded compensation of

Rs.3,98,100/- with interest at 7.5% per annum.

Challenging the quantum of compensation awarded, the

present appeal is filed by the appellant/claimant.

4. Heard learned counsel for the appellant and learned

Standing Counsel for respondent No.2.

5. 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.3 and

Ex.A7, Disability Certificate, amply established that the

appellant had sustained 85% permanent disability as her

left leg was amputated below the knee, but the Tribunal

without considering the same, has erroneously taken the

disability at 60%. It is also submitted that as per the

principles laid down by the Apex Court in National

Insurance Company Limited Vs. Pranay Sethi and

others1, the appellant is also entitled to the future

prospects at 40% and also Rs.3,00,000/- under the heads

of loss of expectation of life and loss of amenities in life.

Therefore, it is argued that the income of the appellant may

be taken into consideration reasonably and prayed to

enhance the same.

2017 ACJ 2700

6. Per contra, the learned Standing 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.

7. 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.

8. The short question that arises for consideration is

"whether the compensation awarded by the Tribunal is just

and equitable"?

9. In order to establish her case, the appellant examined

herself as PW.1 and the Doctors, who treated her, as

P.Ws.2 and 3. In support of the injuries as well as the

disability sustained by her, the appellant got marked

Exs.A4, A5 and A7. As per the evidence of P.W.2 coupled

with the documentary evidence i.e., Ex.A5-discharge

summary, the appellant has sustained fracture injury to

her left leg and her left leg below the knee was amputated.

P.W.3, the member of the Southern Disability Camp, had

deposed in his evidence that the appellant was suffering

with permanent disability at 85% as her left leg was

amputated below the knee and he issued Ex.A7-disability

certificate.

10. 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.3-the Doctor stated that the claimant has

sustained 85% of the disability, but the Tribunal has taken

60% disability.

11. As per the Guidelines for evaluation of various

disabilities and procedure for certification, issued by the

Government of India, Ministry of Social Justice &

Empowerment, the percentage of disability of lower limb for

amputation below the knee lower 1/3rd of leg is 60%. In

the instant case, the left leg of the appellant was

amputated below the knee. Therefore, considering the

facts of the case, this Court is inclined to fix the disability

at 65%.

12. As regards the income of the appellant, as per Ex.A8,

the licence issued by the Gram Panchayat Office, Pulkal,

the appellant was doing tailoring work. Considering Ex.A8

and the appellant being aged about 34 years, doing

tailoring work and as the accident took place in the year

2011, this Court is inclined to fix the income of the

appellant at Rs.6,000/- per month.

13. Insofar as the future prospects are concerned,

recently, the Apex Court in Sidram v. The Divisional

Manager, United India Insurance Company Limited

(CIVIL APPEAL No. 8510 OF 2022, dated 16.11.2022) held

as under:-

"31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death."

14. In view of above said decision, the appellant is

entitled to future prospects. As the age of the appellant is

36 years at the time of the accident, she is entitled the

future prospects at 40%.

15. Therefore, by adding 40% future prospects, the

monthly income of the appellant comes to Rs.8,400/-

(Rs.6,000/- + Rs.2400/-). 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 '16'. Therefore, the loss of earnings on account of

the disability would be Rs.8,400/- x 12 x 16 x 65/100 =

Rs.10,58,320/-.

16. Further, as seen from the record, though the

appellant has proved that she has taken treatment in a

corporation hospital i.e., Yashoda Hospital, Hyderabad, for

a considerable period, no amount was awarded by the

Tribunal towards attendant charges. Further, the amount

awarded under the heads of transportation and extra

nourishment i.e., Rs.1000/- and Rs.1500/- also appears to

be very meagre. Therefore, this Court is inclined to award

a sum of Rs.25,000/- towards medical expenses and

Rs.15,000/- towards transportation, extra nourishment

and attendant charges. Since there was an amputation of

2009 ACJ 1298

left leg below the knee, the Tribunal has rightly awarded a

sum of Rs.50,000/- four purchase of artificial limb. Thus,

in all the appellant is entitled to a sum of Rs.11,38,320/-

as compensation.

17. At this stage, the learned Counsel for the Insurance

company submits that the appellant claimed only a sum of

Rs.6,00,000/- as compensation and the quantum of

compensation which is now awarded would go beyond the

claim made which is impermissible under law.

18. In view of the Judgments of the Apex Court in

Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another3 and

Nagappa Vs. Gurudayal Singh4 the appellant is entitled

to get just compensation even if it is more than the amount

what was claimed by the appellant.

19. Accordingly, the appeal is allowed by enhancing the

compensation from Rs.3,98,100/- to Rs. 11,38,320/-. The

enhanced amount shall carry interest at 7.5% p.a. from the

date of order passed by the Tribunal till the date of

realization. The 2nd respondent is directed to deposit the

(2011) 10 SCC 756

2003 ACJ 12 (SC)

said amount within two months from the date of receipt of

a copy of this judgment. On such deposit, the appellant is

permitted to withdraw the entire compensation amount.

However, the appellant is directed to pay Deficit Court Fee

on the enhanced amount. There shall be no order as to

costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

09.12.2022 tsr

HONOURABLE JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.1033 of 2019

DATE: 09-12-2022