National Insurance Co Ltd vs Papula Ramachandra Reddy Anr
2022 Latest Caselaw 5614 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                    M.A.C.M.A.No.953 OF 2016
JUDGMENT:

This appeal is directed against the award dated 28.03.2013 in

M.V.O.P.No.1698 2002, on the file of the IX-Additional Chief

Judge (FTC), City Civil Court, Hyderabad (for short 'the

Tribunal'), wherein the said claim application filed by the first

respondent herein seeking compensation, was allowed, awarding

compensation of Rs.6,84,000/- with interest at 7% per annum from

the date of petition.

2. Heard learned counsel for the appellant-insurer and learned

counsel for the first respondent-claimant. None appeared for the

second respondent. Perused the record.

3. The first respondent-claimant filed claim application seeking

compensation of Rs.1,50,000/- for the injuries sustained by him in

a motor vehicle accident that occurred on 17.05.2002 at about

10:15 p.m. According to the claimant, on that day, while he was

proceeding on his Kinetic Honda bearing No.AP 9 AA 9931, a

Tata Indica car bearing No.DL 09 CA 6092, driven by its driver in

a rash and negligent manner dashed his kinetic Honda. As a result,

he fell down and sustained fracture of right tibia, head injury,

laceration of both hands, injuries to cervical spine, chest, besides

other multiple injuries all over his body. He was shifted to

Apollo Hospital and was admitted as inpatient. The claimant

was aged 40 years at the time of accident and was an employee

of Punjab and Sind Bank, drawing a salary of Rs.16,000/-

per month. He spent considerable amounts towards medical

expenses, besides other amounts and suffered pain and mental

agony. He was unable to walk properly and was limping.

Police, Kharkana, Secunderabad registered a case in Cr.No.67 of

2002 against the driver of the car.

4. Respondent No.2-owner of the car remained ex parte before

the Tribunal. The appellant-insurer filed counter opposing the

claim and denying its liability to pay the compensation.

5. Originally, the claim petition filed by the claimant was

disposed of by the Tribunal on 23.12.2005 by awarding

compensation of Rs.75,000/- with interest at 9% per annum from

the date of petition. Not satisfied with the same, the claimant

filed M.A.C.M.A.No.982 of 2006 before this court and by order

dated 03.03.2011, this court allowed the appeal and remanded

the matter to the Tribunal for deciding the correctness

of compensation awarded in favour of the claimant with liberty

to both parties to adduce further evidence. Subsequent to remand,

the claimant filed amendment petition in I.A.No.962 of 2012

before the Tribunal seeking enhancement of total compensation

to Rs.6,05,000/- as against the claim of Rs.1,50,000/-. After

amendment, either of the parties failed to adduce oral or

documentary evidence and relied on the same evidence adduced

before the Tribunal prior to remand.

6. On a consideration of the evidence available on record, the

Tribunal held that the accident occurred due to the rash and

negligent driving of the Tata Indica car by its driver. The Tribunal

further held that the claimant is entitled for a total compensation

of Rs.6,84,000/-, which incldues the compensation of Rs.75,000/-

already awarded by the Tribunal before remand. Accordingly, an

award was passed for the said amount with interest 7% per annum

from the date of petition till realization. Aggrieved by the said

award of compensation, the present appeal is filed by the appellant-

insurer.

7. Learned counsel for the appellant-insurer contends that the

Tribunal erred in awarding enhanced compensation on the same

oral and documentary evidence, without there being any additional

evidence adduced by the claimant, and the compensation awarded

by the Tribunal is on higher side. In the disability certificate, it is

no where mentioned about the shortening of the leg and limping.

For the above reasons, the award of the Tribunal may be set aside.

8. Learned counsel for the first respondent-claimant supports

the award passed by the Tribunal and submits that there is no error

in the award passed by the Tribunal and the appeal is de void of

merits and prayed to dismiss the same.

9. The question that arises for determination is - whether the

award of compensation by the Tribunal is on the higher side

warranting interference?

10. The finding of the Tribunal that the accident occurred due to

the rash and negligent driving of the car by its driver is not

seriously disputed by the appellant-insurer.

11. According to the claimant, he was shifted to Apollo Hospital

immediately after the accident and was admitted as inpatient.

At the time of admission, he was having bicondylar fracture of

right tibia along with head injury and was treated with POP

immobilization and was put on neurological observation.

According to P.W.2, Dr.S.V.Chandrasekhar Reddy, Orthopaedic

Surgeon, Apollo Hospital, who treated the claimant, no surgery

was done to the claimant. He certified that the discharge certificate

Ex.A-3 was issued by their hospital.

12. The claimant produced disability certificate in Ex.A9 issued

by P.W.2. A perusal of the said certificate discloses that the

claimant sustained 50% disability, which is permanent and partial.

P.W.2 stated that the said certificate was issued on the basis of

malunited fractures and secondary osteoarthritis. He also stated

that the claimant can neither stand for a long time nor walk for long

distances in view of the said disability.

13. The claimant was hale and healthy prior to the accident and

was an employee of Punjab and Sind Bank and drawing a gross

salary of Rs.16,786.44 Ps and net salary of Rs.14,126.44 Ps.

The Tribunal had computed the income of the claimant by taking

his salary at Rs.16,000/- per month and by applying the disability

at 50% arrived at the compensation, but strangely awarded

compensation of Rs.5,84,000/- towards partial and permanent

disability and loss of future earning capacity without any basis.

As far as disability of the claimant is concerned, a perusal of the

disability certificate-Ex.A-9 reveals that the claimant suffered

50% permanent partial disability and in view of the evidence of

P.W.2 that the claimant cannot stand for a long time and cannot

walk long distances, it cannot be said that the disability would

make him totally lose his employment or that he cannot work as

an employee of Punjab and Sind Bank. As such, considering the

facts and circumstances of the case, the functional disability of the

claimant can be assessed at only 20%. The income of the claimant

basing on Ex.A-7 can be considered at Rs.16,000/- per month.

After deducting 50% towards personal expenses, the income of the

claimant would come to Rs.8,000/- (Rs.16,000/- x 50/100).

By adding additional 50% towards future prospects to the monthly

income of the claimant, as per the decision of the Hon'ble Apex

Court in NATIONAL INSURANCE COMPANY LIMITED v.

PRANAY SETHI AND OTHERS1, it works out to Rs.4,000/-

(Rs.8,000/- x 50/100) and the monthly income of the claimant

comes to Rs.12,000/- (Rs.8,000/- + Rs.4,000/-). Considering the

age of the as 40 years, the appropriate multiplier, as per the

decision of the Hon'ble Court in SARLA VARMA v. DELHI

TRANSPORT CORPORATION2 is '16'. The claimant is,

therefore, entitled to a compensation of Rs.6,91,200/- [(Rs.12,000/-

x 20/100 + 20/100 x 50/100 x Rs.12,000) x 12 x 16)] under the

head of loss of future income.

14. Further, the award of Rs.20,000/- towards medical expenses,

Rs.20,000/- towards transportation to hospital, damage to cloths

and attendant charges, Rs.15,000/- towards pain and suffering and

Rs.10,000/- towards loss of pleasure and amenities of life by the

Tribunal is just compensation and warrants no interference and

they are hereby confirmed. As this court has calculated the

compensation under head of loss of future income, the amount of

Rs.35,000/- awarded by the Tribunal towards loss of earnings is

2017 ACJ 2700

2009(6) SCC 121

set aside. If that is so, the compensation awarded by the Tribunal

under different heads comes to Rs.65,000/- (Rs.20,000/-,

Rs.20,000/-, Rs.15,000/-, Rs.10,000/-). Thus, in all, the claimant is

entitled for a total compensation of Rs.7,56,200/- (Rs.6,91,200/- +

Rs.65,000/-). Since no cross appeal is filed by the claimant, the

claimant is entitled for the compensation of Rs.6,84,000/- awarded

by the Tribunal.

15. In the result, the appeal is dismissed. There shall be no order

as to costs.

16. Pending miscellaneous applications, if any, shall stand

closed.

_______________________ A.SANTHOSH REDDY, J 03.11.2022 Lrkm