4Kala Satish, Nalgonda Dist vs M/S Ncl Industries, Hyderabad Anr
2022 Latest Caselaw 949 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                 M.A.C.M.A. No.3231 of 2014

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the order and decree, dated 11.06.2014, passed in

M.V.O.P.No.390 of 2011 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-Special Sessions Judge for Trial of

SCs/STs (POA) Cases-cum-Additional District Judge, Nalgonda

(for short "the Tribunal"), 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.13,00,000/- for

the injuries sustained by him in a road accident that occurred

on 26.09.2000. It is stated that on that day, the appellant was

driving his auto for collection of milk and when the auto

reached Sarvaram Major Canal, one Toyota Innova Car bearing

No.AP-09-BJ-4347 driven by its driver in a rash and negligent

manner at high speed and dashed the auto of the appellant. As

a result of which, the appellant sustained spinal injury and

other injuries all over his body and immediately after the

accident, he was shifted to Kamineni Hospital, L.B.Nagar,

Hyderabad and Narketpally, Osmania General Hospital,

Hyderabad and NIMS Hospital, Hyderabad and he spent

Rs.2,00,000/- for treatment. Since the accident occurred due

to the rash and negligent driving of the driver of the Innova Car,

the appellant filed the claim-petition against the respondents

1 and 2, being the owner and insurer of the said Innova Car.

Before the Tribunal, the 1st respondent remained ex parte

and the 2nd respondent filed counter denying the averments

made in the claim-petition. It is also stated that the appellant

shall prove that the accident occurred due to rash and negligent

driving of the driver of the Car and the driver of the car was

having valid driving licence to drive the Car. It is further stated

that the compensation claimed is arbitrary and excessive.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the petitioner sustained injuries in a motor accident due to rash and negligent driving of the driver of the Toyota Innova Car bearing No.AP-09-BJ-4347?

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

3) To what relief?

On behalf of the appellant, P.Ws.1 to 4 were examined

and Exs.A1 to A12 were marked. On behalf of the respondents,

no oral evidence was adduced but Ex.B1 and Ex.C1 were

marked.

After analyzing the evidence available on record, the

Tribunal held that the appellant had sustained grievous injuries

in the accident caused due to the rash and negligent driving of

the driver of the Car and accordingly awarded an amount of

Rs.64,000/- 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. It is further submitted that as per the disability

certificate, the appellant had sustained 80% permanent

disability, but the Tribunal did not consider the said disability

and did not award any amount for the disability sustained by

him. 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 i.e.,

marriage prospects. Therefore, it is argued that the income of

the appellant may be taken into consideration reasonably and

prayed to enhance the same.

Learned Standing Counsel appearing for the 2nd

respondent-Insurance Company fairly admits that no amount

was awarded by the Tribunal for the disability sustained by the

appellant and that the appellant is entitled loss of earnings on

account of 80% disability sustained by him.

A perusal of the impugned order would show that the

Tribunal has framed Issue No.1 as to whether the accident had

occurred due to rash and negligent driving of the Car bearing

No.AP-09-BJ-4347 by its driver, to which the Tribunal after

considering the evidence of P.W.1 coupled with the

documentary evidence, has categorically observed that the

appellant sustained grievous injuries in the accident caused due

2017 ACJ 2700

to the rash and negligent driving of Car by its driver and has

answered in favour of the claimant and against the respondents.

Further, the insurance company has not produced any evidence

on record to show that there was no negligence on the part of

the driver of the Innova Car. Therefore, I see no reason to

interfere with the finding of the Tribunal that the accident

occurred due to the rash and negligent driving of the driver of

Innova Car.

In order to award compensation in case of personal

injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and

another2 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.

MACD 2011 (SC) 33

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

(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.

In order to establish his case, the appellant examined

himself as PW.1 and the Doctors, who treated him, as P.Ws.2

to 4. A perusal of Ex.A8, Disability Certificate discloses that the

appellant has sustained disability at 80% as his limbs were

paralyzed. Thus, the functional disability sustained by the

appellant is fixed at 80%, as stated by the doctor, which is

supported by the disability certificates. In view of nature of

disability sustained, the appellant is entitled to loss of earnings

due to disability.

The contention of the learned Standing Counsel for the

Insurance Company is that no document has been filed to prove

the income of the appellant. In Latha Wadhwa vs. State of

Bihar3 the Apex Court held that even there is no proof of

income and earnings, it can be reasonably estimated minimum

at Rs.3,000/- per month for any non-earning member.

(2001) 8 SCC 197

Therefore, this Court is inclined to take the income of the

appellant at Rs.3,000/- per month. Apart from the same, the

appellant is also entitled to addition of 40% towards future

prospects, as per the decision of the Hon'ble Supreme Court in

Pranay Sethi (1 supra). Therefore, monthly income of the

appellant comes to Rs.4,200/- (Rs.3,000/- + Rs.1200/-) and the

annual income would be Rs.50,400/-. Taking the income of the

appellant at Rs.50,400/- per annum, the loss of earnings

sustained by the appellant with the disability at 80% would be

Rs.40,320/- per annum. In view of the judgment of Sarla Verma

Vs. Delhi Transport Corporation4, the suitable multiplier to be

adopted for calculating the loss of earnings would be '18'.

Therefore, the loss of earnings on account of his disability would

be Rs.40,320/- x 18 = Rs.7,25,760/-. Admittedly, the appellant

had taken treatment in various hospitals as inpatient and he

also filed medical bills i.e., Ex.A9 for Rs.30,000/- and Ex.A11 for

Rs.81,550/-, therefore, he is also entitled to Rs.1,11,550.00

towards medical expenses and also entitled to Rs.25,000/-

towards attendant charges as his limbs were completely

paralysed.

2009 ACJ 1298

So far as loss of amenities and loss of expectation of life is

concerned in Kavita v. Deepak and others5the Apex Court held

that victims of accident, who are disabled either permanently

or temporarily, adequate compensation should be awarded not

only for the physical injury and treatment but also for the loss

of earning and inability to lead a normal life and enjoy

amenities, which one would have enjoyed had it not been for

the disability. The Supreme Court further held that the amount

awarded under the head of loss of earning capacity is distinct

and does not overlap with amount awarded for pain, suffering,

loss of enjoyment of life and medical expenses. Relying upon

the decision of Nizam's Institute of Medical Sciences v.

Prasanth S.Dhananka6, the Apex Court also held that

"assuming the claimant's life expectancy to be 55 years, we

deem it appropriate to award a sum of Rs.3,00,000/- under the

head of loss of amenities and loss of expectation of life".

In the instant case, since the appellant has already

suffered various injuries and he sustained 80% of the disability

because of the paralysis of his limbs and was treated in various

(2012) 9 SCC 604

(2009) 6 SCC 1

hospitals, this Court deems it fit to award a sum of

Rs.2,00,000/- towards loss of amenities and loss of expectation

of life. Thus, in all the claimant is entitled to a sum of

Rs.10,62,310/- as compensation.

Accordingly, the appeal is allowed in part by enhancing

the compensation from Rs.64,000/- to Rs.10,62,310/-. The

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

of order passed by the Tribunal i.e., 11.06.2014 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 02.03.2022 gkv