Telangana High Court

Kelothu Bicha vs Tandra Durga Rao And 3 Others on 31 October, 2022

Bench: M.G.Priyadarsini

     THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

                M.A.C.M.A. No. 955 of 2014

JUDGMENT:

This appeal is filed by the claimant aggrieved by the

award and decree, dated 28.04.2008 passed in

M.V.O.P.No.1823 of 2005 on the file of the Principal Motor

Accidents Claims Tribunal (Principal District Judge) at

Warangal (for short, the Tribunal).

2. For the sake of convenience, hereinafter, the parties are

referred to as per their array before the Tribunal.

3. The claimant filed a petition under Section 166 of the

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

for the injuries sustained by him in a motor vehicle accident

that occurred on 19.09.2005. It is stated that on

19.09.2005, the petitioner was engaged as labourer on the

Lorry bearing Registration No.AP 13T 4446, owned by

respondent No. 2, insured with respondent Nos. 3 & 4, the

driver, respondent No. 1 and while the claimant and other

labourers were unloading the said poultry feed, the

respondent No. 1, driver of the Lorry reversed the lorry in

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rash and negligent manner without taking proper care, due

to which the rear side of the lorry hit the claimant. As a

result, the claimant sustained injury to his right thigh.

Based on the complaint, the Police, Wardhannapet,

registered a case in Crime No.123 of 2005 against the driver

of the lorry. Immediately after the accident, the claimant

was shifted to M.G.M. Hospital, Warangal and from there, he

was shifted to NIMS Hospital, Hyderabad, where he was

treated as inpatient and on 20.09.2005, his right leg was

amputated. Therefore, the claimant filed the aforesaid O.P.

against them seeking compensation of Rs.6.00 lakhs.

4. Before the Tribunal, respondent No.1 filed counter

contending that the accident occurred due to the negligence

of the claimant and that there was no negligence on his part.

Respondent No.2 filed counter contending that the offending

vehicle, lorry was validly insured with respondent No.3 as on

the date of accident. Respondent Nos.3 and 4 filed counter

denying the averments of the claim petition and contended

that the amount claimed is excessive and prayed to dismiss

the claim petition.

MGP, J Macma_955_2014

5. After considering the oral and documentary evidence

on record, the Tribunal came to the conclusion that the

accident occurred due to the rash and negligent driving of

the offending vehicle, Lorry by its driver and accordingly,

awarded total compensation of Rs.1,82,000/- with interest at

7.5% per annum, payable by respondent Nos.1 to 4 jointly

and severally. Being not satisfied with the said amount, the

claimant filed the present appeal seeking enhancement of

compensation.

6. Heard both sides. Perused the material available on

record.

7. Learned counsel for the appellant/claimant has mainly

submitted that the quantum of compensation awarded by

the Tribunal is on lower side. It is further submitted that as

per the disability certificate, Ex.A5, the claimant had

sustained 70% permanent disability, but the Tribunal did

not consider the said disability and did not award any

amount under the head of disability and the Tribunal

awarded only Rs.1,50,000/- in lumpsum for the injuries

sustained by him. It is also submitted that no amount was

MGP, J Macma_955_2014

awarded by the Tribunal under the head of pain and

suffering and attendant charges. Therefore, it is argued that

the income of the claimant may be taken into consideration

reasonably and prayed to enhance the same.

8. Learned Standing Counsel appearing for the Insurance

Company fairly admits that no amount was awarded by the

Tribunal for the disability sustained by the claimant and that

the claimant is entitled for loss of earnings on account of the

disability sustained by him.

9. 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.

10. 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)

MACD 2011 (SC) 33

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(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 future medical expenses - item (iii) -- depends upon specific medical

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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)."

11. 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.

12. In order to establish his case, the claimant himself

examined as PW.1 besides examining the doctors i.e., P.W.2,

who issued the disability certificate and P.W.3, who treated

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him. A perusal of Ex.A5, disability certificate, discloses that

the claimant has sustained disability at 70% as his right leg

was amputated. P.W.2 has stated that the right leg of the

claimant was amputated but he did not state that the

amputation was below the knee or above the knee. Thus,

this Court is inclined to fix the functional disability

sustained by the claimant at 50%. In view of nature of

disability sustained, the claimant is entitled to loss of

earnings due to disability.

13. The contention of the learned Standing Counsel for the

Insurance Company is that no document has been filed to

prove the income of the claimant. In Latha Wadhwa vs.

State of Bihar2, the Apex Court has 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. In the instant case, the claimant was

engaged as coolie and the accident occurred while the

claimant was unloading the poultry feed from the offending

lorry. Admittedly, the claimant was aged about 30 years and

he was an able bodied person at the time of the accident.

(2001) 8 SCC 197

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Therefore, considering the age and avocation of the claimant

and the prevailing rate of minimum wages at the relevant

point of time, this Court is inclined to take the income of the

claimant at Rs.4,500/- per month. Taking the income of the

claimant at Rs.4,500/- per month, the loss of earnings

sustained by the claimant with the disability at 50% would

be Rs.4,500/- x 12 x 50/100 = Rs.27,000/- per annum. In

view of the judgment of Sarla Verma Vs. Delhi Transport

Corporation3, considering the age of the clamant as 30

years, the suitable multiplier to be adopted for calculating

the loss of earnings would be '16'. Therefore, the loss of

earnings on account of his disability would be Rs.27,000/- x

16 = Rs.4,32,000/-. Admittedly, the claimant had taken

treatment in various hospitals as inpatient and he also filed

medical bills i.e., Ex.A6. Considering Ex.A6, medical bills,

the Tribunal has rightly awarded Rs.29,000/- towards

medical expenses, which needs no interference. The

Tribunal did not award any amount towards pain and

suffering and attendant charges. Admittedly, the claimant

had taken treatment in M.G.M. Hospital and NIMS Hospital,

2009 ACJ 1298

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Hyderabad for a considerable period and he had undergone

operation and his right leg was amputated, therefore, the

Tribunal ought to have awarded Rs.15,000/- towards

transportation, extra nourishment and attendant charges

instead of Rs.3,000/- as awarded by the Tribunal. Thus,

the claimant is entitled to Rs.20,000/- under the head of

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

extra nourishment and attendant charges. In the facts and

circumstances of the case, this Court feels that claimant is

entitled the following amount under various heads.

Sl.   Name of Head           Awarded     by Awarded      by
No.                          Tribunal        this Court
                             Rs.             Rs.
                             Ps.             Ps.
1.      Pain and suffering                --      20,000.00
2.      Medical expenses           29,000.00         29,000.00
3.      Loss of future           1,50,000.00      4,32,000.00
        income on account
        of 50% disability
        (4,500/-
        x12x50%x16)
4.      Transportation,             3,000.00         15,000.00
        attendant and
        extra nourishment
        Total:                   1,82,000.00      4,96,000.00

                                                       MGP, J
                                               Macma_955_2014

14. Accordingly, the appeal is allowed in part by enhancing

the compensation from Rs.1,82,000/- to Rs.4,96,000/-. The

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

date of award passed by the Tribunal till the date of

realization, payable by respondents 1 to 4 jointly and

severally. The Insurance Company is directed to deposit the

entire compensation amount within a period of two months

from the date of receipt of a copy of this judgment. On such

deposit, the claimant is permitted to withdraw the entire

amount without furnishing any security. There shall be no

order as to costs.

_______________________________ JUSTICE M.G. PRIYADARSINI