Telangana High Court

S.Sudhakar vs Smt. Radhabai Vittal Jadhav And Another on 28 December, 2023

Author: G.Radha Rani

Bench: G.Radha Rani

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                                                                       Dr.GRR, J
                                                                 macma_2001_2011


      THE HONOURABLE Dr. JUSTICE G.RADHA RANI

                       M.A.C.M.A.No.2001 of 2011


JUDGMENT:

This appeal is preferred by the injured claimant aggrieved by the award

and decree dated 10.06.2011 passed by the I Additional Metropolitan Sessions

Judge-cum - XV Additional Chief Judge, Hyderabad in O.P.No.1616 of 2008

seeking enhancement of compensation.

2. The case of the injured claimant was that on 20.05.2008 at about 11:00

PM, while he along with his friend Tarachand were coming from Zaheerabad to

Sadasivapet after attending the last rites of their relative, on reaching PSML

Company on N.H.No.9, a DCM van bearing No.MH-14-V-5705 driven by its

driver in a rash and negligent manner, hit the petitioner and his friend while

overtaking another vehicle in opposite direction, due to which the petitioner and

his friend fell down. The petitioner sustained head injury, right occipital bone

fracture, PCL avulsion fracture right, segmental communital fracture of both

bones of right leg and ilizarov fixator was applied. He also sustained laceration

injuries on both hands, disfiguration of forehead, abrasion on thigh, eye and

nasal bone injuries. After the accident, he became unconscious. The petitioner

and his friend were shifted to Area Hospital, Sangareddy, but the doctors

Dr.GRR, J macma_2001_2011

advised to shift the petitioner to Gandhi Hospital, as the fractures and other

injuries were serious. To save the life of the petitioner, he was shifted to

Remedy Hospital, Kukatpally, Hyderabad, wherein he was admitted as in-

patient and was operated on 24.05.2008. The petitioner was discharged on

28.05.2008 at his request, as the hospital authorities demanded to deposit a sum

of Rs.50,000/-, but due to his financial condition, the petitioner could not

deposit the said amount.

2.1. He further stated that Police of PS Sadasivapet registered a case in Crime

No.112 of 2008 for the offence under Section 338 of IPC. He further submitted

that he was aged about 22 years and was earning Rs.5,000/- per month by the

date of the accident. He sustained 100% loss of income. He was unable to

drive the vehicle, as such, claimed an amount of Rs.4,00,000/-under various

heads from the owner and insurer of the DCM van bearing No.MH-14-V-5705.

3. The respondent No.1 - the owner of the DCM van remained ex-parte.

4. The respondent No.2 - Insurance Company filed counter and called for

strict proof of the petition averments. The respondent No.2 also called for strict

proof that the driver of the insured vehicle was holding a valid and effective

driving license by the date of the accident.

5. During the course of enquiry, the petitioner examined himself as PW.1

and got examined a consultant orthopedic surgeon in Remedy Hospital,

Dr.GRR, J macma_2001_2011

Kukatpally as PW.2 and the Billing Manager at Remedy Hospital as PW.3.

Exs.A1 to A12 were marked on behalf of the 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 MLC, Exs.A4 and A5 were the discharge

summaries of Remedy Hospital for the period of his admission in the said

hospital from 24.05.2008 to 28.05.2008 and 27.06.2008 to 01.07.2008

respectively, Exs.A6 and A7 were the bill settlements at the time of discharge

on the above two occasions, Ex.A8 were the advance receipts, Ex.A9 were a

bunch of medical bills, Ex.A10 were the investigation reports, Ex.A11 was the

salary certificate and Ex.A12 was the X-ray film.

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

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

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

Tribunal held that the accident occurred was due to the rash and negligent

driving of the driver of the DCM van bearing No.MH-14-V-5705 and that the

respondents 1 and 2 were jointly and severally liable to pay compensation to the

petitioner.

8. With regard to the quantum of compensation, the Tribunal considered the

age of the petitioner as 24 years and though the petitioner filed a salary

certificate marked as Ex.A11, as there was no connecting evidence to show that

Dr.GRR, J macma_2001_2011

the petitioner was working as a computer training instructor and that he was

getting Rs.5,000/-per month, disbelieved the same and considered the notional

income of the injured claimant as Rs.15,000/-per annum as per the second

schedule to the Motor Vehicles Act and applied multiplier "17". Though, PW.2

- orthopedic surgeon stated that the claimant sustained partial and permanent

disability to an extent of 25% to 30%, taken the view that the said assessment

was on higher side and reduced it to 10% and awarded an amount of

Rs.25,500/- as his future loss of earnings.

9. The Tribunal awarded an amount of Rs.25,000/-for fracture of both bones

of right leg and right knee and awarded Rs.15,000/-for fracture of right skull

bone and awarded Rs.7,500/- for the three simple injuries @ Rs.2,500/-under

the head "pain and suffering". The Tribunal awarded an amount of

Rs.1,07,706/- towards medical expenses, Rs.1,500/-towards transportation

charges and Rs.1,500/-towards attendant charges. In total, the Tribunal awarded

an amount of Rs.1,83,706/- as against the claim of Rs.4,00,000/-with interest @

7.5% per annum from the date of petition till the date of realization.

10. Aggrieved by the said award and decree, the claimant preferred this

appeal contending that in the absence of proof of income also, the Tribunal

ought to have considered the income of the claimant as Rs.4,500/-per month and

ought to have considered the disability as 25% as deposed by the doctor who

treated the appellant. The Tribunal ought to have given credence to the

Dr.GRR, J macma_2001_2011

evidence of PW.2, who categorically deposed that the appellant was treated for

ilizarov fixator to right leg and was operated by bone grafting and skin grafting

to the right leg. As the fractures were grievous in nature, the Tribunal ought to

have awarded compensation under various heads as claimed by the claimant.

11. Heard Sri Jagathpal Reddy Kasi Reddy, learned counsel for the appellant

- claimant and Sri T.Ramulu, learned counsel for the respondent No.2 -

Insurance Company.

12. The appellant in his claim petition stated that he was working as a driver

and that he sustained 100% functional disability, as he was unable to drive the

vehicle due to the accident. But however filed Ex.A11 certificate issued by one

M/s.Cyber Matrix Computer Education, Shastri Road, Sadasivapet, stating that

the claimant was working as a Computer faculty with them and teaching

computer education to students from February, 2008, and that they were paying

an amount of Rs.5,000/- per month to him. The Tribunal on considering that no

witness was examined in support of the said certificate, considered his income

notionally. As the petitioner also failed to file any certificate in proof of his

educational qualification, the Tribunal not considering the said certificate is

considered as proper. But, however, even in the absence of any evidence, even

an agricultural labourer or a worker is considered as earning Rs.4,500/- per

month as per the judgment of the Hon'ble Apex Court in Sri Ramachandrappa

Dr.GRR, J macma_2001_2011

v. The Manager, Royal Sundaram Alliance Insurance Company Limited 1,

it is considered appropriate to take the income of the injured claimant as

Rs.4,500/- per month.

13. The Hon'ble Apex Court in Pappu Dev Yadav v. Naresh Kumar &

Others 2, held that there was no justification for the High Court to have read the

previous rulings of the court to exclude the possibility of compensation for

future prospects in accident cases involving serious injuries resulting in

permanent disablement and such a narrow reading of Pranay Sethi Case was

illogical, because it denies altogether the possibility of the living victims

progressing further in life in accident cases. As such, an addition of 40% of

income is considered appropriate to be taken towards future prospects, as the

age of the claimant was considered as 24 years at the time of the accident by the

Tribunal. As such an amount of Rs.4,500/- + Rs.1,800/- = Rs.6,300/- per month

is considered towards future prospects

14. The petitioner stated his age as 22 years in the claim petition. In Ex.A1,

the certified copy of the FIR along with the complaint, the age of the petitioner

was shown as 23 years. Ex.A3, the certified copy of MLC would show the age

of the claimant as 23 years. Exs.A4 and A5 would show the age of the claimant

as 21 years. The Tribunal considered the age of the claimant as 24 years. As

2011 ACJ 2426

AIR 2020 SC 4424

Dr.GRR, J macma_2001_2011

the age of the claimant was between 21 to 25 years, the proper multiplier

applicable to his age as per the judgment of the Hon'ble Apex Court in

Smt. Sarla Verma & Others v. Delhi Transport Corporation and Another 3

is 18.

15. PW.2 stated that the claimant sustained fracture of both bones of right leg,

avulsion fracture of right ligament of knee, fracture of right skull bone and he

was treated systemically. Forehead laceration was sutured by neuro-surgeon

and the patient was operated by ilizarovering fixator to right leg and collagen

sheet application. Multiple blood transfusions were given and he improved

systemically. He was discharged from the hospital on 28.05.2008 and was

again readmitted on 27.06.2008 and was operated for bone grafting and skin

grafting to right leg and was discharged on 01.07.2008, the claimant sustained

25% - 30% partial and permanent disability.

16. Considering the evidence of PW.2, a qualified medical orthopedic

surgeon who stated about the disability sustained by the petitioner as 25% to

30% and nothing was elicited in his cross-examination to disbelieve the same, it

is considered fit to accept the disability as 25%. As such, the loss of earnings

sustained by the claimant due to partial and permanent disability can be

assessed as Rs.6,300 x 12 x 18 x 25% = Rs.3,40,200/-.

(2009) 6 SCC 121

Dr.GRR, J macma_2001_2011

17. The Tribunal awarded an amount of Rs.40,000/- towards pain and

suffering for the two grievous injuries sustained by the claimant and Rs.7,500/-

for the three simple injuries sustained by the claimant @ Rs.2,500/-per each

injury. However, considering the evidence of PW.2, as the petitioner was

admitted in the hospital twice for the injuries sustained by him and he was also

operated by bone grafting and skin grafting to the right leg by fixing

ilizarovering fixator and also sustained skull bone fracture and was moving

around the hospitals for a period of more than six months, it is considered fit to

enhance the amounts awarded by the Tribunal to Rs.75,000/- towards "pain and

suffering".

18. As no amount is awarded towards loss of earnings during the period of

his treatment i.e. for about six months, it is considered fit to award an amount of

Rs.4,500/- x 6 = Rs.27,000/- towards loss of earnings during the period of

treatment.

19. The Tribunal awarded an amount of Rs.1,07,706/-towards medical

expenses. Considering the evidence of PWs.2 and 3 and Exs.A6 and A7 (the

medical bills filed in support of the treatment), it is considered that there is no

necessity to interfere with the award on the said count.

20. As only a meager amount of Rs.1,500/-is awarded towards attendant

charges, it is considered fit to enhance the same to Rs.20,000/- under this head.

Dr.GRR, J macma_2001_2011

21. Considering the evidence of PWs.1 and 2, as the accident occurred to the

petitioner between Zaheerabad and Sadasivapet and was taken for first-aid to

the Area Hospital, Sangareddy and from there to Remedy Hospital, Kukatpally

where he was admitted twice and he was also attending the follow-up treatments,

it is considered fit to increase the amount of Rs.1500/-awarded towards

transportation charges to Rs.15,000/-. As no amount is awarded towards

extra-nourishment, it is also considered fit to award an amount of Rs.10,000/-

under this head.

22. Hence, the compensation entitled by the appellant -claimant under

various heads is as follows:

         S. No.    Heads                              Compensation Awarded
         1.        Loss of future income due to       Rs.3,40,200/-
                   partial and permanent disability
         2.        Loss of income during the period   Rs.27,000/-
                   of treatment (six months)
         3.        Medical Expenses                   Rs.1,07,706/-
         4.        Pain and Suffering                 Rs.75,000/-
         5.        Attendant Charges                  Rs.20,000/-
         6.        Transportation                     Rs.15,000/-
         7.        Extra Nourishment                  Rs.10,000/-
         Total:                                       Rs.5,94,906/-

23. The petitioner claimed an amount of Rs.4,00,000/-. But as there is no

restriction on this Court to restrict the award to the amount claimed, but can

award the amount what it considers as just and reasonable even if it is more than

the amount claimed by the claimant, as per the judgments of the Hon'ble Apex

Dr.GRR, J macma_2001_2011

Court in Nagappa v. Gurudayal Singh & Others 4 , Ibrahim v. Raju 5 ,

Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 6 ,

Ramla and Others v. National Insurance Co. Limited and Others 7, it is

considered fit to award an amount of Rs.5,94,906/- with interest @ 7.5% per

annum subject to payment of deficit court fee by the petitioner.

24. In the result, the M.A.C.M.A. is allowed awarding compensation of

Rs.5,94,906/- with interest @ 7.5% per annum. The respondents No.2 -