Telangana High Court

Adnan Masood , Adnan Be Masood vs J. Sitamahalaxmi And Another on 12 December, 2023

Author: G. Radha Rani

Bench: G. Radha Rani

      THE HONOURABLE DR.JUSTICE G. RADHA RANI

                       M.A.C.M.A.No.2226 of 2009


JUDGMENT:

This appeal is filed by the injured claimant aggrieved by the award and

decree passedin O.P.No.2957 of 2003 dated 10.02.2006 on the file of the V

Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad - cum -

XIX Additional Chief Judge, Hyderabad seeking enhancement of compensation.

2. The appellant - claimant filed claim petition under Section 166 of the

Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the

injuries sustained by him in a motor vehicle accident. The claimant stated that

on 04.10.2003 at about 01:45 hours, while he along with his brother were

proceeding on their Yamaha Motorcycle bearing No.AP-24-C-9013 from

Keshavagiri towards Mahaboobnagar Cross Roads and when reached near

Chandrayangutta opposite to Milan Hair Cutting Saloon, a lorry bearing No.AP-

11-T-9077 coming from Mahaboobnagar Cross Roads towards Keshavagiri in

opposite direction driven by its driver in a rash and negligent manner with high

speed hit the Yamaha Motorcycle, due to which the petitioner, who was

travelling as a pillion rider and his brother, who was the rider of the motorcycle

fell down on the road and sustained fracture injuries. Immediately after the

accident, the Police of PS Chandrayangutta shifted the petitioner and his brother

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to Owaisi Hospital and Research Centre, Hyderabad and registered a case vide

Crime No.109 of 2003 under Section 337 of IPC against the driver of the lorry

bearing No.AP-11-T-9077.

3. The petitioner further submitted that he was working as an employee in a

chicken centre and was earning Rs.4,500/- per month by the date of the

accident. He sustained fracture shaft of right femur and grievous injuries all

over the body. An operation was performed on him and iron rods were inserted.

Due to the accident and consequential fractures, he sustained lot of pain and

discomfort and became permanently disabled. He was unable to attend to his

job in chicken centre. He spent huge amount towards medicines and treatment.

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

lorry bearing No.AP-11-T-9077, as such claimed compensation from

respondents 1 and 2, the owner and insurer of the said lorry.

4. The respondent No.1 remained ex-parte.

5. The respondent No.2 filed counter denying the petition averments. He

called for strict proof of age, occupation, income of the petitioner, treatment

taken by him and the disability sustained by him. He contended that the

accident if any occurred was due to the rash and negligent driving of the rider of

the Yamaha Motorcycle and called for strict proof that the rider of the

motorcycle was having valid and effective driving license to drive the

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motorcycle at the material time of the accident. He also called for strict proof

that the driver of the lorry drove the lorry in a rash and negligent manner and

was having a valid and effective driving license to drive the vehicle involved in

the accident. He further contended that the owner of the lorry had not intimated

about the occurrence of the accident and that the liability would arise only when

the vehicle owner complied with the policy conditions and statutory obligations

under the Motor Vehicles Act. He also contended that the insurance company

was not aware of the criminal proceedings launched in Crime No.109 of 2003

by PS Chandrayangutta against the driver of the lorry.

6. The Tribunal after framing the issues, conducted an enquiry. The

petitioner examined himself as PW.1 and examined the doctor who treated him

at Owaisi Hospital as PW.2. Exs.A1 to A8 were marked on behalf of the injured

petitioner. Ex.A1 was the certified copy of the FIR, Ex.A2 was the certified

copy of the charge sheet, Ex.A3 was the certified copy of the discharge card,

Ex.A4 were the medical bills, Ex.A5 was the discharge summary, Ex.A6 was

the bill issued by Bhagawan Devi Hospital, Ex.A7 was the receipt and Ex.A8

was a pharmaceutical bill dated 05.12.2005.

7. The respondent No.2 - Insurance Company had not adduced any oral

evidence, but got marked the copy of the Insurance Policy as Ex.B1.

Dr.GRR, J macma_2226_2009

8. On considering the oral and documentary evidence on record, the

Tribunal partly allowed the petition awarding a sum of Rs.41,000/- as against

the claim of Rs.2,00,000/- claimed by the petitioner with proportionate costs

and interest @ 7 % per annum from the date of petition till the date of

realization.

9. Aggrieved by the said award and decree, the injured claimant preferred

this appeal contending that the compensation awarded under the heads medical

expenditure, future medical expenditure, extra nourishment, pain and shock

were very low. The Tribunal failed to appreciate the evidence of PW.2, who

stated that the petitioner was in requirement of a future surgery for removal of

nail. No amount was awarded for the disability sustained by the claimant. The

Tribunal failed to note that the claimant was not in a position to attend to his

normal work and prayed to enhance the compensation from Rs.41,000/- to

Rs.2,00,000/- as claimed by the claimant.

10. Heard Sri T.Viswarupa Chary, learned counsel for the appellant -

claimant and Sri V.SambasivaRao, learned counsel for the respondent No.2 -

Insurance Company.

Permanent Disability:

11. Though the claimant contended that he sustained permanent disability,

had not stated the nature of the disability sustained by him nor filed any

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certificate issued by the Medical Board. He got examined the doctor who

treated him at Owaisi Hospital as PW.2. PW.2 stated that the claimant was

admitted in Owaisi Hospital on 04.10.2003 following a road traffic accident and

that he sustained injury to right thigh (fracture shaft of right femur) for which he

was operated with K-Nail fixation and had a satisfactory recovery and was

discharged on 18.10.2003. He stated that the claimant could not perform

sporting activities that includes difficulty in vigorous activity. He would be

unable to perform jobs like Police and sportsmen, otherwise he could perform

activities of daily living. He stated that the nature of injuries sustained by the

claimant was grievous and the disability would be around 10% and further

submitted that the claimant could not perform hard labour work and would be

able to perform hard work only after K-Nail removal, but even then he would be

having difficulty in prolonged standing and the disability after K-Nail removal

would be less than 5%. Even in his cross-examination, he stated that the

fracture was united.

12. The petitioner was not doing any job requiring vigorous activity. He was

not a sports person or not doing any police job. As per his evidence, he was an

employee in a chicken centre which does not require performing any hard work.

As the evidence of the doctor also would disclose that the fracture was united

and there is no evidence that the petitioner was suffering with any continuing

disability, the Tribunal had rightly not awarded any amount under this head.

Dr.GRR, J macma_2226_2009

This Court does not find any illegality in the award of the Tribunal for not

awarding any amount towards permanent disability.

Loss of Earnings:

13. The Tribunal awarded an amount of Rs.20,000/- towards grievous injury

sustained by the claimant. Rs.7,000/- towards medical expenses, Rs.10,000/-

towards future medical expenses for removal of K-Nail operation, Rs.2,000/-

for extra nourishment and Rs.2,000/- towards shock and pain, in all awarded a

sum of Rs.41,000/-

14. As seen from the above heads awarded, no amount was awarded towards

loss of income sustained by the claimant during the period of his treatment. The

petitioner stated that he was working as an employee in a chicken centre and

was earning Rs.4,500/- per month. The accident occurred in the year

2003.Considering the judgment of the Hon'ble Apex Court in Sri

Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance

Company Limited 1, wherein a labour was also considered to be earning

Rs.4,500/- per month for the accident occurred in the year 2004, the amount

stated by the claimant as his earnings is considered not unreasonable.

Considering the nature of the injury sustained by the claimant i.e. fracture shaft

of right femur and that he was admitted in the hospital from 04.10.2003 to

(2011) 13 SCC 236

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18.10.2003 i.e. for a period of two weeks and thereafter was also admitted once

again in the Owaisi Hospital from 03.12.2003 to 05.12.2003, he might have

taken bed rest for a period of six months and the loss of earnings could be

calculated as Rs.4,500 x 6 = Rs.27,000/-.

Medical Expenses:

15. The petitioner had filed discharge summary issued by the Owaisi Hospital

and Research Centre marked under Ex.A3 and a bunch of medical bills marked

under Ex.A4 for an amount of Rs.36,732/-. As the evidence of PW.2, doctor

who treated him in the Owaisi Hospital would prove the admission of the

injured claimant in the said hospital and the bills issued by the said hospital

marked under Ex.A4, it is considered fit to award the above amount actually

incurred by the petitioner towards his treatment at the said hospital for the

injuries sustained by him in the motor vehicle accident.

Future Medical Expenses:

16. As the evidence of PW.2 also would disclose that the petitioner would

require another surgery for removal of K-Nail inserted and that it would require

an amount of Rs.15,000/, it is considered fit to award the said amount towards

the future medical requirements of the claimant.

Dr.GRR, J macma_2226_2009

Pain and Suffering:

17. The Tribunal awarded an amount of Rs.20,000/- under this head for the

grievous injury sustained by the claimant. The same is considered as just and

reasonable.

Attendant Charges:

18. As some of the family members might have attended the petitioner during

the period of his treatment at the hospital and after his discharge from the

hospital for a certain period, it is considered fit to award an amount of

Rs.10,000/- under this head.

Extra Nourishment:

19. The Tribunal awarded an amount of Rs.2,000/- only under this head. But

considering the nature of the injuries sustained by the claimant, as the loss of

earnings are also calculated for a period of six months, it is also considered fit to

award an amount of Rs.10,000/- under this head.

Transportation:

20. As the petitioner might have incurred some amount towards

transportation 'to and fro' to the hospital, it is considered fit to award an amount

of Rs.5,000/- under this head.

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21. Hence, the compensation entitled by the petitioner under various heads is

as follows:

         Sl. No.              Heads               Compensation amount to
                                                         be entitled
         1.        Permanent Disability          Nil
         2.        Loss of Earnings              Rs.27,000/-
         3.        Medical Expenses              Rs.36,732/-
         4.        Future Medical Expenses       Rs.15,000/-
         5.        Pain and Suffering            Rs.20,000/-
         6.        Attendant charges             Rs.10,000/-
         7.        Extra Nourishment             Rs.10,000/-
         8.        Transportation                Rs.5,000/-
         Total:                                  Rs.1,23,732/-

22. As the Tribunal awarded only an amount of Rs.41,000/-, it is considered

fit to enhance the amount to Rs.1,23,732/-, which is considered as just and

reasonable.

23. In the result, the appeal is allowed in part enhancing the compensation

from Rs.41,000/- to Rs.1,23,732/- with interest @ 7.5 % per annum on the

enhanced amount. The respondent No.2 - Insurance Company is directed to

deposit the above amount with interest within a period of two months from the

date of receipt of a copy of this judgment, after deducting the amount deposited

if any earlier. After deposit of the said amount, the appellant - claimant is

permitted to withdraw the same.

No order as to costs.

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