S. Srinivas vs V. Nageshwar Rao,
2023 Latest Caselaw 64 Tel

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

       M.A.C.M.A. Nos. 4015 of 2014 & 4277 of 2014

COMMON JUDGMENT:

      By order, dated 07.04.2014, the learned Chairman, Motor

Accident Claims Tribunal-cum-Additional chief Judge, City Civil

Courts at Hyderabad (for short, 'the tribunal') partly allowed

O.P.No.2887    of   2011   awarding     total   compensation   of

Rs.19,02,140/- in favour of the claimant towards compensation.

Seeking enhancement of compensation, the claimant preferred

MACMA No. 4015 of 2014 and challenging the quantum of

compensation as excessive, the Insurance Company-M/s. Royal

Sundaram Alliance Insurance Company Limited, respondent No.

2 before the tribunal, preferred MACMA No. 4277 of 2015.

2. For the sake of convenience, the parties have been

referred to as arrayed before the Tribunal.

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

Motor Vehicles Act claiming compensation of Rs.30,00,000/- for

the injuries sustained by him in a motor vehicle accident that

took place on 01.12.2011. It is stated that on 01.12.2011, at

about 13:45 hours, while the claimant was proceeding on his

motorcycle towards Hi-tech city and when he reached the

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railway station flyover of high-tech city, the offending vehicle

i.e., Car bearing No.AP 37 BD 4116, owned by respondent No.1

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

a rash and negligent manner at high speed, dashed the

motorcycle of the claimant, as a result of which, the claimant

fell down and sustained grievous injuries. Immediately after the

accident, the claimant was shifted to Anupama Hospital; from

there he was shifted to Sunshine Hospital, where he underwent

operation to his spinal cord and incurred Rs.5,00,000/- towards

medical expenses. It is further stated that due to the injuries

on the spinal cord, the claimant is unable to do any work,

confined to bed and therefore, he laid the claim-petition

claiming compensation of Rs.30,00,000/-.

4. Considering the claim-petition, counter filed by the

Insurance Company and 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 driver of the

Car and awarded total compensation of Rs.19,02,140/- with

interest @ 7.5% per annum payable by respondent Nos.1 and 2

jointly and severally. Aggrieved by the said order, the Insurance

Company as well as the claimant filed the present appeals.

MGP, J Macma_4015_2014&4277_2014

5. Heard both sides and perused the material on available

on record.

6. The learned counsel for the appellant, claimant, submits

that the claimant has sustained grievous injuries i.e., (i) spinal

cord fracture (traumatic paraplegia) curved by D-12

compression; (ii) fracture with cord edema and proximal tibia

fracture right apart from other injuries. The claimant had

underwent for spinal cord surgery; that he had taken follow up

treatment; prolonged physiotherapy; that due to the injury to

the spinal cord fracture, the claimant is confined to bed; that

his limbs became defunct; his movements are restricted and

still undergoing treatment. It is contended that subsequent to

the operation at Sunshine Hospital on 01.12.2011, he was again

admitted at Ravi Helios Hospital on 27.12.2011 and discharged

only on 22.03.2012. Even thereafter, he was again admitted at

Udai Clinic on 03.10.2012 and was discharged on 04.10.2012.

It is contended that though P.W.5, the Associate Professor at

Gandhi Medical College, deposed that the claimant is suffering

with post-traumatic para paralysis i.e., weakness in both lower

limbs and suffered with permanent disability at 50%, the actual

MGP, J Macma_4015_2014&4277_2014

functional disability is 100% as the claimant is completely

confined to bed. It is further submitted that though the

tribunal has taken the monthly income of the claimant at

Rs.10,000/-, did not add future prospects to the established

income of the claimant and since the claimant has been

completely confined to bed, the tribunal ought to have awarded

the compensation duly adding future prospects. It is contended

that inasmuch as the claimant has suffered fracture to spinal

cord and confined to bed, the amount of Rs.2,000/- awarded

towards extra nourishment; Rs.1,500/- awarded towards

transportation to hospitals; Rs.25,700/- awarded towards

future medical expenses are meager and needs enhancement. It

is lastly contended that the tribunal was not justified in not

awarding amounts towards physiotherapy expenses; loss of

earnings during treatment period; loss of amenities in life;

attendant charges and pain and suffering. Therefore, the

learned counsel sought for enhancement of the compensation

awarded by the tribunal.

7. On the other hand, the contention of the learned Standing

Counsel appearing for the insurance company, is that the

Tribunal erred in awarding Rs.5,00,000/- towards treatment

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and medicines without considering the fact that the claimant

has already received Rs.90,000/- under medi -claim policy the

said reimbursement of treatment/medical expenses disentitle

the applicant to claim compensation under the Act as it is

nothing but double-benefit.

8. Insofar as the manner in which the accident took place,

the Tribunal has framed the Issue No.1 as to whether the

accident had occurred due to rash and negligent driving of the

driver of the Car, and having considered the evidence of P.W.1

and Exs.A.1 & A.2, it has categorically observed that the

accident has occurred due to the rash and negligent driving of

the driver of the car and has answered the issue in favour of the

claimant and against the respondents which needs no

interference by this Court.

9. Insofar as the quantum of compensation is concerned, as

seen from Ex.A.3, wound certificate, the claimant has sustained

fracture of proximal tibia and fracture of neck of fibula right and

those injuries are grievous in nature. Ex.A.4, discharge

summary issued by Sunshine Hospital, shows that the claimant

was admitted in the hospital on 01.12.2011 and underwent

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surgery and was discharged on 10.12.2011. So also, Ex.A.5,

discharge summary issued by Ravi Helios Hospital, shows that

he was admitted in the said hospital on 27.12.2011 and

discharged on 22.03.2012. It is also on record that he had

taken continuous physiotherapy for muscular stimulation for

left lower limb. Exs.A.6 and A.7, discharge summaries, further

disclose that the claimant had taken follow up treatment.

10. P.W.2, Neuro-Surgeon of Sunshine Hospital, deposed

regarding the treatment taken by the claimant and he further

deposed that the claimant suffered D-12 compression fracture

of spine and spinal cord edema and contusion and that the

claimant underwent surgery for spine injury. It is his specific

evidence that due to the injuries, the claimant is not in a

position to walk, bear weight on both legs and he cannot do his

normal duties. He further asserted that Exs.A.3, A.4, A.8, A.9,

A.16 and A.24 are issued from their hospital. P.W.4, the

Physiotherapist at Ravi Helios Hospital, deposed as to the

claimant's taking physiotherapy under him for muscular

stimulation. He too deposed that in spite of the physiotherapy,

the claimant was unable to stand and walk due to the defunct

of lower limbs. P.W.5, the Assistant Professor at Gandhi

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Medical Hospital, deposed that the claimant has suffered 50%

permanent disability and he has substantiated Ex.A.20,

disability certificate, issued by the competent Medical Board in

assessing the disability of the claimant at 50%. From the above

evidence, it is clear that in spite of continuous treatment and

physiotherapy, the claimant is unable to walk and move and

has been bedridden. Such being the case, though the medical

board assessed the disability of the claimant at 50%, this Court

is inclined to fix the functional disability at 75%.

11. Coming to the income, the claimant was aged 38 years as

seen from Ex.A.20. According to the claimant, he was working

as employee in M/s. MetaMax Communications Limited and

getting income of Rs.11,500/- per month. Though he filed

Ex.A.18, pay slips and Ex.A.19, appointment letter, issued by

MetaMax Communications Limited, since none connected

thereto was examined, the tribunal has rightly fixed the monthly

income of the claimant at Rs.10,000/-.

12. Insofar as the future prospects are concerned, recently,

the Apex Court in Sidram v. The Divisional Manager, United

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India Insurance Company Limited (CIVIL APPEAL No. 8510

OF 2022, dated 16.11.2022) has observed as under:-

"31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death."

(emphasis added)

13. In view of above said decision, the appellant is entitled to

future prospects. As the age of the appellant is 38 years at the

time of the accident, he is entitled the future prospects at 40%

as per the decision of the Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others1.

2017 ACJ 2700

MGP, J Macma_4015_2014&4277_2014

14. Therefore, by adding 40% future prospects, the monthly

income of the appellant comes to Rs.14,000/- (Rs.10,000/- +

Rs.4,000/-). In view of the judgment of Sarla Verma Vs. Delhi

Transport Corporation2, the suitable multiplier to be adopted

for calculating the loss of earnings would be '15'. Therefore, the

loss of earnings on account of the disability comes to

Rs.14,000/- x 12 x 15 x 75/100 = Rs.18,90,000/-. However,

the amount awarded by the tribunal towards medical expenses

is not interfered with. As rightly pointed out by the learned

counsel for the claimant, considering the fact that the claimant

suffered fracture to spinal cord, has taken follow up treatment

for a considerable period at different hospitals, confined to bed,

the amounts awarded under the heads of transportation

charges; extra nourishment; future medical expenses are

meagre and need to be enhanced. So also, considering the

nature of injuries and the period of treatment, the tribunal was

not right in denying the amounts under the heads of pain &

suffering; attendant charges; physiotherapy expenses; loss of

earnings during treatment; and loss of amenities in life.

Therefore, considering the medical evidence, nature of injuries

2009 ACJ 1298

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and length of treatment, this Court is inclined to enhance the

amounts as under:-

Sl.N   Claim made under the Amount                    Amount now
o.     head                 granted                by granted/
                            tribunal                  enhanced by
                                                      this Court
1.     Transport to Hospitals         1,500/-         25,000/-

2.     Medical expenses               4,32,940/-       4,32,940/-

3.     Extra Nourishment              2,000/-          20,000/-

4.     Pain & Suffering               ---              40,000/-

5.     Attendant Charges              ---              25,000/-

6.     Future medical expenses        25,700/-         50,000/-

7.     Physiotherapy expense          ---              30,000/-

8.     Loss of earnings during ---                     1,00,000/-
       treatment period
9.     Loss of amenities to life ---                   1,00,000/-

10.    Future loss of earnings        14,40,000/-      18,90,000/-

       Total amount                   19,02,140/-      27,12,940/-

15. There remains the contention of the learned Standing

Counsel for the Insurance Company that since the claimant has

already been reimbursed Rs.90,000/- towards

treatment/medicine expenses under Medi-claim policy, the said

amount has to be deducted from the compensation amount.

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This Court sees no force in the said contention since the said

reimbursement of expenses under an independent contract of

insurance has no bearing upon the claim under a statutory

liability. Moreover, the applicant had paid premium for

purchasing the said insurance. Thus, the benefit, which

emanated from the said contract, cannot be adjusted against

the compensation payable under the Act. In a recent judgment

delivered by the Hon‟ble Bombay High Court in Royal

Sundaram Alliance Insurance Co. Ltd. -v- Ajit Chandrakant

Rakvi and Ors.3, the issue of double-benefit has been decided

in a similar manner basing on the decision of the Apex Court in

Helen C. Rebello v. Maharashtra State Road Transport

Corporation and Another4. It was held by the court that the

nature of the proceedings under the Act is of relevance and a

claim petition for compensation in regard to motor accident filed

by the injured is neither a suit nor an adversarial lis in the

traditional sense. Thus, the benefits emanating from an

independent and unconnected contract of insurance cannot be

considered by the Tribunal as it besets with variables rooted in

contract.

2020 ACJ 691

1999 ACJ 10 (SC)

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16. In the result, M.A.C.M.A. No. 4015 of 2014 filed by the

claimant stands allowed in part enhancing the quantum of

compensation awarded by the tribunal from Rs.19,02,140/- to

Rs.27,12,940/- to be paid by the respondents jointly and

severally. Consequently, M.A.C.M.A. No. 4277 of 2014 stands

dismissed. The enhanced amount shall carry interest at 7.5%

per annum from the date of filing of the O.P. till the date of

realization. The respondent No. 2 is directed to deposit the

amount within a period of two months from the date of receipt

of a copy of this order. On such deposit, the claimant is entitled

to withdraw the same. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ JUSTICE M.G.PRIYADARSINI 05.01.2023 Tsr

MGP, J Macma_4015_2014&4277_2014

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

M.A.C.M.A. Nos. 4015 of 2014 & 4277 of 2014

DATE: 05-01-2023