E.Visweswara Reddy, Balnagar, ... vs M.Lakshmi, Kukatpally, ...
2022 Latest Caselaw 6107 Tel

       HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

                 M.A.C.M.A. No.1686 of 2015

JUDGMENT:

Dissatisfied with the quantum of compensation awarded in

the order and decree, dated 11.12.2008, passed in O.P.No.1903

of 2007 on the file of the Motor Accident Claims Tribunal-cum-III

Additional Chief Judge, City Civil Court, Hyderabad (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.10,00,000/- for the

injuries sustained by him in a road accident that occurred on

21.09.2007. It is stated that on the fateful day, at 10:00 a.m.,

while the claimant was proceeding on a motorcycle, when he

reached near Hetro Drugs Pvt., Ltd., Suraram, R.R. District, the

crime vehicle i.e., bus bearing No. AP 28V 3558, owned by

respondent No. 1, insured with respondent No. 2 and hired with

respondent No. 3-RTC, being driven by its driver in a rash and

negligent manner at high speed, dashed the motorcycle, as a

result of which, the claimant sustained grievous injuries. He

was hospitalized and had to spend huge amount towards

treatment and medicines as his left leg was amputated above

knee level. He was aged about 45, doing business, earning

Rs.12,000/- per month and therefore, he filed the claim-

petition against the respondents.

Before the Tribunal, the respondent No. 1 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 bus. It is further stated

that the compensation claimed is arbitrary and excessive.

Respondent No. 3-RTC, hirer of the bus, filed its counter

contending that it is not liable to pay the compensation.

After analyzing the evidence available on record, the

Tribunal held that the claimant had sustained grievous injuries

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

the driver of the bus and accordingly allowed the O.P. in part

awarding an amount of Rs.3,80,000/- as compensation to be

paid by the respondent Nos. 1 & 2 while dismissing the claim as

against the respondent No. 3-RTC. Challenging the quantum of

compensation awarded being meagre, 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 due to the accident, left leg of

the claimant was amputated above knee level and as per the

medical evidence i.e., P.W.2 and Ex.A.7, disability certificate

issued by the NIMS Hospital, Hyderabad, he had sustained 80%

permanent disability, but the Tribunal without considering the

said evidence, has awarded lumpsum amount of Rs.3,00,000/-

under the heads of grievous injuries and permanent disability,

which is on lower side. 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 25% 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

compensation awarded by the tribunal.

2017 ACJ 2700

On the other hand, 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 disability sustained by him.

A perusal of the impugned order discloses that the

Tribunal having framed issue No. 1 as to whether the accident

had occurred due to rash and negligent driving of the bus by its

driver, and having considered the evidence of P.W.1 coupled

with the documentary evidence, categorically held that the

appellant sustained grievous injuries in the accident caused due

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

answered the issue in favour of the claimant and against the

respondents No. 1 & 2. 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 bus. 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 the bus. Even the tribunal has rightly dismissed the

claim petition as against respondent No. 3-RTC as it was mere

hirer of the bus.

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.

(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

MACD 2011 (SC) 33

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 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 doctor who treated him, as P.W.2.,

testified before the tribunal that the appellant sustained

fractures leading to amputation of left leg above knee level.

Ex.A.3, copy of M.L.C., discloses that the appellant sustained

fractures to left leg. According to P.W.2, due to the

amputation of left leg above knee level, the claimant became

permanently disabled. Ex.A.7, the disability certificate, issued

by the NIMS Hospital, discloses that the appellant had sustained

80% disability due to the amputation of left leg above the knee

level. Such being the situation, the tribunal was not right in

awarding a lumpsum amount of Rs.3,00,000/- in the form of

grievous injuries and permanent disability. Thus, considering

Ex.A.7 and the evidence of P.W.2, this Court is inclined to fix

the functional disability sustained by the appellant at 70%. In

view of nature of disability sustained, the appellant is entitled

to loss of earnings due to disability. Therefore, this Court is

inclined to award just compensation duly taking into

consideration the income of the appellant.

Although the appellant had claimed that he was doing

business and earning Rs.12,000/- per month, except, certain

documents i.e., Exs.A.12, A.13 and A.14, he has not produced

any authentic evidence to prove his nature of business and the

income derived therefrom. In the circumstances, considering

the fact that he is an income tax assessee, this Court is inclined

to fix the monthly income of the appellant at Rs.6,000/- per

month. In addition thereto, since the appellant was 47 years at

the time of accident, he is entitled to addition of 25% 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.7,500/- (Rs.6,000/- + Rs.1,500/-) and

the annual income comes to Rs.90,000/-. Taking the income of

the appellant at Rs.90,000/- per annum, the loss of earnings

sustained by the appellant due to the functional disability of

70% is determined at Rs.63,000/- per annum. In view of the

judgment of Sarla Verma Vs. Delhi Transport Corporation3,

the suitable multiplier to be adopted for calculating the loss of

earnings would be '13'. Therefore, the loss of earnings on

account of his disability is fixed at Rs.8,19,000/- (Rs.63,000 x

13). Since the appellant had to take treatment for 24 days as

inpatient and had to take follow up treatment, the tribunal has

rightly awarded the amount of Rs.80,000/- towards medical

expenses. However, considering the nature of injuries and the

period of treatment, this Court is inclined to award a sum of

Rs.6,000/- towards loss of earnings for the treatment period,

Rs.20,000/- towards pain and suffering and Rs.15,000/- towards

transport charges, extra nourishment and attendant charges.

2009 ACJ 1298

Thus, in all, the appellant is entitled for the just compensation

of Rs.9,40,000/-.

In the result, the appeal is allowed in part by enhancing

the compensation amount from Rs.3,80,000/- to Rs.9,40,000/-.

The enhanced amount shall carry interest at 7.5% per annum

from the date of order passed by the Tribunal till the date of

realization, payable by respondents 1 and 2 jointly and

severally. However, the appellant is not entitled for the

interest on the enhanced compensation for the period of delay

in preferring the appeal. Time to deposit the amount is two

months from the date of receipt of a copy of this order. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

________________________ JUSTICE M.G. PRIYADARSINI 23.11.2022 tsr

HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.1686 of 2015

DATE:23-11-2022