Sukka Lingaswamy vs M.Shankar Rao Anr
2023 Latest Caselaw 1124 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                    M.A.C.M.A. No.3969 of 2014

JUDGMENT:

Not being satisfied with the quantum of compensation awarded

by the Chairman, Motor Accident Claims Tribunal-cum-I Additional

District Judge, Nalgonda in O.P. No.990 of 2010, dated 01.06.2012,

the present appeal is filed by the claimant seeking enhancement of

compensation.

2. For the sake of convenience, the parties have been referred to as

arrayed before the Tribunal.

3. The facts in issue are as under:

On 30-09-2010 the petitioner after unloading the material, was

returning in the van to Hyderabad from Visakhapatnam and at 10-30

p.m., when he reached near P.M.Palem Police Station limits on

National Highway No.5, he stopped his van on the extreme left side of

the road to clean the front mirrors and was about to board the van, in

the mean time, the driver of the lorry bearing No. AP 35 V 6111 came

with high speed in rash and negligent manner and dashed the van, due

to which he fell down and received serious injuries. Immediately he

was taken to K.G.H. Hospital, Visakhapatnam in 108 ambulance

where he was treated as in-patient for about two days and from there

he was shifted to Sai Sanjeevini Hospital, Dilsukhnagar, Hyderabad,

where he was treated as inpatient for about two months. Due to the

compressed fractures of lower part of the body, he was effected

paraplegia. He is still undergoing treatment at his residence.

According to the petitioner, he was aged about 33 years, working as

driver in TCI Express Couriers, Hyderabad and was earning

Rs.5,000/- per month besides batha and due to the injuries sustained

by him in the said accident, he was paralysed and completely bed

ridden and 100% permanently disabled and is leading death bed life

and needs attendant throughout life. Thus, he is claiming

compensation of Rs.10,00,000/- under various heads against the

respondent Nos.1 and 2, who are the owner and insurer of the

offending lorry.

4. First respondent remained exparte. Second respondent filed

counter disputing the manner of accident, age, avocation and income

of the injured, nature of injuries sustained by the petitioner and the

treatment taken by him.

5. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.4,89,000/- towards

compensation to the appellant-claimant against the respondent Nos.1

and 2 jointly and severally, along with proportionate costs and interest

@ 6% per annum from the date of petition till the date of realisation,

as against the claim of Rs.10,00,000/- laid by the appellant-claimant

for the injuries sustained by him in a road accident that occurred on

30.9.2010. However, the appellant filed I.A. No.1 of 2022 before this

Court seeking enhancement of compensation from Rs.10,00,000/- to

Rs.25,00,000/- and the same was ordered on 28.11.2022.

6. Heard the learned counsel for the appellant-claimant and the

learned Standing Counsel for the second respondent-Insurance

Company. Perused the material available on record.

7. The learned counsel for the appellant-claimant has submitted

that although the claimant, by way of evidence of P.Ws.1 to 3 and

Exs.C.1 to C.14, established the fact that the petitioner has sustained

grievous injuries in the accident and became permanently disabled, the

Tribunal awarded very meager amount under various heads.

8. The learned Standing Counsel appearing on behalf of second

respondent-Insurance Company sought to sustain the impugned award

of the Tribunal contending that considering the avocation of the

petitioner, the learned Tribunal has awarded reasonable compensation

and the same needs no interference by this Court.

9. 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

by the respondent-Insurance Company.

10. Now the question that arises for consideration is whether the

compensation awarded by the tribunal is just and equitable?

11. The main contention advanced by the learned counsel for the

appellant is that in order to establish the fact that on account of the

injuries sustained by the claimant in the accident, he has suffered

permanent disability, he examined himself as PW-1 and reiterated the

contents of the petition. A perusal of the record discloses that as the

claimant is not in a position to move from the bed, his evidence was

recorded through Advocate-Commissioner and as such, the documents

were marked under 'C' series. Apart from him, he also examined

PWs.2 and 3. PW-2 Orthopedic Surgeon who has given treatment to

him stated that he has performed surgery and the petitioner has to live

completely on bed till his death as he cannot move from the bed and

further stated that he has issued disability certificate under Ex.C7. He

also stated that he has conducted operation to stabilize the spine to

facilitate the injured in the wheel chair movement to prevent bed

source. So, the evidence of PW-2 supported the medical record which

discloses that the claimant was completely bed ridden due to the

injuries and his body was paralyzed and he is not in a position to

move.

12. PW-3 is the wife of the injured deposed that prior to the

accident, she used to go for labour works and used to earn Rs.150/-

per day, but as her husband was completely in bed, she is not in a

position to leave him and her earnings also effected due to this

accident. In view of the above evidence, it is very clear that the

petitioner/claimant has sustained severe injuries and has been

suffering with paraplegia and leading completely death bed life.

Therefore, the disability can be taken at 100%. According to the

petitioner, he used to work as Driver and earning Rs.5,000/- per month

and in proof of the same, he has filed Ex.C.12 driving license and

further Ex.C1 discloses that the occupation of the petitioner as driver.

However, except filing driving license, he has not perused any other

document to show that he is working as driver in TCI Express

Couriers, Hyderabad. However, considering the occupation of the

petitioner as driver, his income can be taken into consideration at

Rs.5,000/- per month, as the accident occurred in the year 2010.

13. Insofar as the future prospects are concerned, recently, the Apex

Court in Sidram v. The Divisional Manager, United India Insurance

Company Limited (CIVIL APPEAL No. 8510 OF 2022, dated

16.11.2022) held 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."

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

prospects. As the age of the appellant is 33 years at the time of the

accident, he is entitled the future prospects at 40%.

15. Therefore, by adding 40% future prospects, the monthly income

of the appellant comes to Rs.7,000/- (Rs.5,000/- + Rs.2000/-). In view

of the judgment of Sarla Verma Vs. Delhi Transport Corporation1,

the suitable multiplier to be adopted for calculating the loss of

earnings would be '16'. Therefore, the loss of earnings on account of

the disability would be Rs.7,000/- x 12 x 16 = Rs.13,44,000/-. Further

the tribunal awarded Rs.5,000/- towards attendant charges, Rs.5,000/-

towards transport charges and Rs.5,000/- towards food and

nourishment, which appears to be very less. Therefore, the claimant is

entitled for Rs.20,000/- towards extra nourishment and transport

2009 ACJ 1298

charges. The amount of Rs.50,000/- awarded by the tribunal towards

medical expenses is not disturbed. Since the claimant is 100%

disabled, an amount of Rs.20,000/- is awarded towards attendant

charges, Rs.1,00,000/- towards loss of amenities and expectation of

life, Rs.1,00,000/- towards future medical bills and Rs.50,000/-

towards pain and sufferance for the disability sustained by him. Thus,

in all the appellant is entitled to a sum of Rs.16,84,000/- as

compensation.

16. At this stage, the learned Counsel for the Insurance company

submits that the appellant claimed only a sum of Rs.10,00,000/- as

compensation and the quantum of compensation which is now

awarded would go beyond the claim made which is impermissible

under law.

17. In view of the Judgments of the Apex Court in Laxman @

Laxman Mourya Vs. Divisional Manager, Oriental Insurance

Company Limited and another2 and Nagappa Vs. Gurudayal Singh3

the appellant is entitled to get just compensation even if it is more than

the amount what was claimed by the claimant.

(2011) 10 SCC 756

2003 ACJ 12 (SC)

18. Accordingly, the appeal is allowed by enhancing the

compensation from Rs.4,89,000/- to Rs.16,84,000/-. The enhanced

amount shall carry interest at 7.5% p.a. from the date of petition till

the date of realization. The amount shall be deposited within a period

of one month from the date of receipt of a copy of this order.

However, the appellant is directed to pay Deficit Court Fee, if not

paid. On such deposit, the appellant is permitted to withdraw the

entire compensation amount without furnishing any security. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_____________________________ JUSTICE M.G. PRIYADARSINI

10.03.2023 pgp