S Shiva Shankar, Hyderabad vs Mohd Ibrahim Ali Imran, Hyderabad ...
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        HONOURABLE JUSTICE M.G. PRIYADARSINI

                  M.A.C.M.A. No.361 of 2015

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the award and decree, dated 21.11.2014, passed in

O.P.No.2271 of 2008 on the file of the Motor Accident Claims

Tribunal-cum-XVIII Additional Chief Judge-cum-IV Additional

Metropolitan Sessions Judge, Hyderabad (for short "the

Tribunal"), the appellant/claimant preferred the present appeal

seeking enhancement of the compensation.

2. The facts, in issue, are as under:

The appellant filed a petition under Section 163-A of the Motor

Vehicles Act claiming compensation of Rs.5,00,000/- for the

injuries sustained by him in a road accident that occurred on

25.05.2008. According to the appellant, on 25.05.2008, the

appellant, along with his friend, Mr. Mr.Jagan, was proceeding

on a motorcycle as pillion rider and when they reached near

Peeli Darga Kaman at about 10:30 a.m., one Bajaj Pulsar

Motorcycle bearing No.AP 11 B 1888, owned by respondent No.1

and insured with respondent No.2, driven by its driver in a rash

and negligent manner and dashed the motorcycle on which the

appellant was proceeding. As a result, the appellant had

sustained fracture of right hip joint, fracture of both bones of

right calf and other injuries all over the body. Immediately after

the accident, the appellant was shifted to Osmania General

Hospital, Hyderabad, where surgeries were conducted by

inserting rods for healing the fracture injuries. It is further

stated that prior to the accident, the appellant was hale and

healthy and was earning Rs.5,000/- per month by doing mason

work and due to the fracture injuries, he is incapacitated to

attend the mason work and he lost his income. Therefore, he

laid the claim against the respondents, seeking compensation.

3. Considering the claim and the counter filed by respondent

No.2, and on evaluation of the evidence, both oral and

documentary, the learned Tribunal has partly allowed the O.P.

and awarded compensation of Rs.2,50,000/- with interest at 7%

per annum. Challenging the quantum of compensation

awarded, the present appeal is filed by the appellant/claimant.

4. Heard learned counsel for the appellant and learned

Standing Counsel for respondent No.2.

5. Learned counsel for the appellant mainly submits that the

quantum of compensation awarded by the Tribunal is on lower

side and seeks enhancement of the same. He further submits

that the evidence of PW.3 and Ex.A3, Disability Certificate,

amply established that the appellant had sustained 40%

permanent disability as his right leg was shortened, but the

Tribunal without considering the same, has erroneously taken

the disability at 20%. Therefore, it is argued that by taking

consideration Ex.A3, disability certificate, and by assessing

permanent disability at 40%, just compensation may be

awarded.

6. Per contra, the learned Standing Counsel for the

Insurance Company submits that the quantum of compensation

awarded by the Tribunal is based on evidence and the same

needs no interference.

7. 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.

8. The short question that arises for consideration is

"whether the compensation awarded by the Tribunal is just and

equitable"?

9. In order to establish her case, the appellant examined

herself as PW.1 and the Doctors, who treated him, as P.Ws.2

and 3. In support of the injuries as well as the disability

sustained by him, the appellant got marked Ex.A3, disability

certificate. As per the evidence of P.W.3 coupled with the

documentary evidence i.e., Ex.A3-disability certificate, the

appellant has sustained fracture to his right leg and in view of

mal-union of the said fracture, the appellant is unable to walk,

sit and squat. P.W.3, an Orthopedic Surgeon, had deposed in

his evidence that there is shortening of right lower limb and he

assessed the disability at 40%. The main contention of the

learned counsel for the appellant is that though P.W.3-the

Doctor stated that the claimant has sustained 40% of the

disability, the Tribunal has taken 20% disability without there

being any valid reason. Therefore, considering the evidence of

P.W.3 coupled with Ex.A3, this Court is of the view that the

tribunal ought to have taken the disability sustained by the

appellant at 40%. Hence, this court is inclined to fix the

disability at 40%.

10. As regards the income of the appellant, considering the

age and avocation of the appellant, the Tribunal has rightly

fixed the income at Rs.5,000/- per month. As the appellant

was aged about 22 years at the time of the accident and the

claim-petition is filed under Section 163-A of the Motor Vehicles

Act, the appropriate multiplier is '17' as per the II Schedule of

the Motor Vehicles Act. Therefore, the loss of earnings on

account of the disability would be Rs.5,000/- x 12 x 17 x

40/100 = Rs.4,08,000/-. Further, the amount awarded under

the heads of medical expenses i.e., Rs.16,000/-; Rs.5,000/-

towards extra nourishment; Rs.5,000/- towards transportation

charges; Rs.5,000/- towards damage to clothing and

Rs.20,000/- towards pain and suffering appears to be correct,

which needs no interference. Thus, in all the appellant is

entitled to a sum of Rs.4,59,000/- as compensation.

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

the compensation from Rs.2,50,000/- to Rs.4,59,000/-. The

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

of the filing of the O.P. till the date of realization. The 2nd

respondent is directed to deposit the said amount within two

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

such deposit, the appellant is permitted to withdraw the entire

compensation amount. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

04.01.2023 tsr

HONOURABLE JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.361 of 2015

DATE: 04-01-2023