Telangana High Court
Sbi General Insurance Co. Ltd vs V. Shivalingam on 13 September, 2022
Bench: G.Anupama Chakravarthy
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
M.A.C.M.A.Nos.126 and 331of 2021
COMMON JUDGMENT :
These two appeals are arising out of the same order dated
26.05.2020, in M.V.O.P.No.362 of 2015 on the file of Motor
Accident Claims Tribunal-cum-XXVI Additional Chief Judge, City
Civil Court, Hyderabad. MACMA.No.126 of 2016 is filed by the
Insurance Company, to set aside the orders in the O.P., whereas,
MACMA.No.331 of 2021 is filed by the claimant for enhancement
of compensation from Rs.9,00,000/- to Rs.14,00,000/-.
2. For the sake of convenience, the parties are referred to as
arrayed in the O.P. Since these appeals are filed disputing the
income of the claimant and also the compensation granted by the
Tribunal, the appreciation of evidence would be with respect to the
said aspects alone.
3. The O.P. is filed by the claimant/V.Shivalingam under
Section 166 of the Motor Vehicles Act claiming compensation of
Rs.9,00,000 for the injuries sustained by him in the accident that
occurred on 24.12.2014 at 12.45 p.m. at the Traffic Signal of
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MACMA.Nos.126 & 331 of 2021
Chandrayanagutta X Roads, Hyderabad, due to the rash and
negligent driving of the driver of the lorry bearing No.MH-31-CQ-
7177.
4. Heard both sides and perused the material on record.
5. The learned Standing Counsel for the Insurance Company
contended that the Tribunal ought to have seen that the claimant
failed to prove his avocation and income as on the date of the
accident, and therefore, it ought to have taken notional income of
the claimant as Rs.4,500/- per month instead of Rs.10,000/-. It is
further contended by the learned counsel for the Insurance
Company that the Tribunal has granted the estimated cost of
Rs.1,80,900/- under Ex.A-8 for artificial limb, instead of granting
the actual amount spent. Thus, it is contended that the
compensation granted by the Tribunal is on higher side, and
therefore, prayed to set aside the orders passed by the Tribunal.
6. On the other hand, the learned counsel for the claimant
contended that the Tribunal has granted lesser amount of
compensation though there is sufficient oral and documentary
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GAC, J
MACMA.Nos.126 & 331 of 2021
evidence on record and ought to have considered the income of the
claimant as Rs.15,000/- per month and also ought to have
considered the disability at 60% instead of 20%, and thus, prayed
to enhance the compensation accordingly.
7. The entire dispute in these appeals is with regard to the
income of the claimant. The claimant was aged 59 years and was
working as Security Guard as on the date of accident. The
pleadings disclose that the claimant worked as Security Guard in
M/s.Bhavya Real Estates on a monthly salary of Rs.10,000/- and
further he used to earn Rs.5,000/- per month by supplying water
saving instruments. But, there is no documentary evidence to
establish that the claimant used to earn Rs.15,000/- per month,
however, the tribunal has considered the income of the deceased as
Rs.10,000/-.
8. In order to support his contention, the learned counsel for the
claimant has relied on the judgment of Hon'ble Supreme Court in
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GAC, J
MACMA.Nos.126 & 331 of 2021
Shiva Kumar v. Managing Director, BMTC1, wherein, their
Lordships have held as under:
"For a casual labour, who goes from house to house
and place to place doing his painting work, it is
difficult to get any evidence since there is no
employer. He does his daily work, sometimes piece
rated work as well. That is why, he made a moderate
self-estimation of his income as Rs.15,000/- to
Rs.16,500/- per month. In the absence of any serious
dispute on the part of the respondent on the avocation
and income, we are of the view that the Tribunal and
for that matter, the High Court should have accepted
the evidence of the appellant and therefore, we assess
his monthly income as Rs.15,000/- and after
deducting 1/3rd towards his personal expenses, the
income will be assessed for the purpose of
computation as Rs.10,000/- per month."
9. The above ratio cannot be applied to the facts and
circumstances of the present case. It was the specific pleading
before the Tribunal that the claimant had a monthly income of
Rs.15,000/- by working in a private Firm as Security Guard. But,
the claimant has not taken any steps to prove his income either by
examining the employer of the private Firm or by filing the salary
certificate before the Tribunal. Moreover, the Insurance Company
in this case is seriously disputing the income of the claimant.
Hence, it can be construed that the Tribunal has rightly assessed
IV (2017) ACC 51 (SC)
GAC, J
MACMA.Nos.126 & 331 of 2021
the monthly income of the claimant as Rs.10,000/- instead of
Rs.15,000/-, even in the absence of proper evidence, considering
the sole testimony of the claimant.
10. The learned counsel for the claimant has also relied on
another judgment of Hon'ble Supreme Court in Govind Yadav v.
New India Assurance Co. Ltd.2, wherein, their Lordships have
awarded Rs.2,00,000/- for future treatment and artificial limb and
Rs.1,50,000/- towards pain and suffering and Rs.1,50,000/- for loss
of enjoyment of life.
11. In the further judgment of Hon'ble Supreme Court in
Jagdish v. Mohan & others3, their Lordships have held as under:
"In the judgment of the Constitutional Bench in
Pranay Sethi (2017 ACJ 2700 SC), this Court has
held that the benefit of future prospects should not be
confined only to those who have permanent job and
would extend to self-employed individuals. In the
case of self-employed person, an addition of 40% of
established income should be made where the age of
the victim at the time of accident is below 40 years.
Hence, in the present case, the appellant would be
entitled to an enhancement of Rs.2,400/- towards loss
of future prospects".
II (2012) ACC 519 (SC)
2018 ACJ 1011
GAC, J
MACMA.Nos.126 & 331 of 2021
As per the above ratio, the claimant herein is entitled for future
prospects, but as he was aged 59 years as on the date of accident,
he is entitled for only 10% of future prospects.
12. PW-1 is the claimant, who deposed about his age, income
and the injuries sustained by him in the accident. The evidence of
PW-2, who is the Billing Manager of Yashoda Hospital, disclose
that the claimant/PW-1 paid an amount of Rs.1,09,500/- after due
discount of Rs.2,108/-. The evidence of PW-3 disclose that being
the Chief Operating Officer in the college of Park Radsun Artificial
Limb Clinic, he gave an estimation under Ex.P-9 for the artificial
limb, to a tune of Rs.1,80,900/-.
13. The evidence of PW-4 i.e. Orthopedic Surgeon, disclose that
he assessed the disability of the claimant at 20% partial permanent
functional and loss of the earning capacity at 60%. It can be
construed that there is loss of earning capacity of the claimant to an
extent of 60% but not the disability. Therefore, the tribunal has
rightly considered the disability as 20%, basing on Ex.A-6 issued
by PW-4.
GAC, J
MACMA.Nos.126 & 331 of 2021
14. On perusal of the order of the Tribunal, it is evident that the
Tribunal has awarded the following amounts under different heads;
1. Loss of future earnings - Rs.2,16,000/-
(for 10 months + 20% disability)
2. Bed rest for 3 months - Rs.30,000/-
3. Transportation - Rs.10,000/-
4. Extra-nourishment - Rs.20,000/-
5. Medical expenses - Rs.1,51,876/-
6. Artificial foot - Rs.1,80,900/-
7. Pain and suffering - Rs.80,000/-
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TOTAL - Rs.6,88,776/-
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15. The monthly income of the claimant is Rs.10,000/- and if
10% future prospects is added as per the ratio formulated by the
Hon'ble Supreme Court in National Insurance Co. Ltd. v.
Pranay Sethi & others4, it would come to Rs.11,000/-. As per the
judgment of Hon'ble Supreme Court in Smt. Sarla Verma v.
Delhi Transport Corporation & another5, the multiplier
applicable for the age group of 55 to 60 years is '9'. The annual
income of the claimant would come to Rs.1,32,000/- (Rs.11,000 x
12). If multiplier '9' is applied, it would come to Rs.11,88,000/-.
If 20% disability is added, then it would come to Rs.2,37,600/-
2017 ACJ 2700
(2009) 6 SCC 121
GAC, J
MACMA.Nos.126 & 331 of 2021
[Rs.11,88,000 X 20/100]. In view of granting loss of earnings
including future prospects, the question of again granting loss of
earnings for ten months will not arise. The Tribunal has already
granted an amount of Rs.10,000/- towards transportation and
Rs.20,000/- towards extra-nourishment and also granted
Rs.1,51,876/- towards medical expenses. Further, the claimant is
also entitled for an amount of Rs.1,80,900/- towards artificial limb.
In view of the judgments of the Hon'ble Apex Court, the claimant
is also entitled to an amount of Rs.1,50,000/- towards pain and
suffering. As there is no pleading for future treatment, no amount
is awarded for the same.
16. Thus, the claimant is entitled to the following amounts under
different heads;
1. Loss of future earnings - Rs.2,37,600/-
2. Transportation - Rs.10,000/-
3. Extra-nourishment - Rs.20,000/-
4. Medical expenses - Rs.1,51,876/-
5. Artificial foot - Rs.1,80,900/-
6. Pain and suffering - Rs.1,50,000/-
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TOTAL - Rs.7,50,376/-
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GAC, J
MACMA.Nos.126 & 331 of 2021
17. Accordingly, the appeal filed by the Insurance Company i.e.
MACMA.No.126 of 2021 is hereby dismissed and the appeal filed
by the claimant i.e. MACMA.No.331 of 2021 is allowed by
enhancing the compensation from Rs.6,88,776/- to Rs.7,50,376/-
with costs and interest at the rate of 7.5% per annum from the date
of petition till the date of realisation. The claimant is permitted to
withdraw the said amount as the accident took place in the year
2014.
Pending miscellaneous applications, if any, in both the
appeals, shall stand closed.
________________________________
G.ANUPAMA CHAKRAVARTHY, J
Date: 13.09.2022
ajr
