Telangana High Court
Mud Laxmi, Nizamabad Dt., vs A.Raja Babu, Nizamabad Dt., And ... on 17 March, 2023
Bench: T.Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.644 OF 2014
ORDER:
1. This Motor Accident Civil Miscellaneous Appeal is preferred
by the claimant aggrieved by the judgment, dt.29.10.2009, in
O.P.No.1031 of 2006, passed by the Motor Accident Claims
Tribunal-cum-III Additional District Judge at Nizamabad
(hereinafter referred to as 'the Tribunal') disputing the quantum of
compensation awarded and seeking enhancement of the
compensation as awarded by the Tribunal.
2. The case of the Appellant is that, on the afternoon of
04.06.2006, while she was walking on the side of the road with her
bullock cart towards Burgul Tanda, a car bearing No.AP 25 J 5066
driven at a high speed, in a rash and negligent manner hit her from
behind near Uthnoor 'T' road, Daggi; and that the accident had
resulted in fracture of left leg tibia and fibula, fracture to left hand,
injury to left eye, head injury and skull fracture, along with other
bodily injuries. The Appellant claims to be admitted as in-patient
and received treatment for 13 days at Government Hospital,
Nizamabad where her left leg was operated and rods were inserted;
that as a result of the said accident caused by the offending vehicle,
she has become permanently disabled, and has incurred an
expenditure of Rs.2,00,000/-. Seeking compensation for the injury
caused to her, the Appellant had filed the aforesaid OP claiming a
compensation of Rs.3,00,000/-.
3. The Tribunal on considering the oral and documentary evidence
on record, had held that the accident had occurred due to the rash
and negligent driving of the Respondent No.1. On holding so, the
Tribunal allowed the OP in part and awarded a total compensation
of Rs.30,000/- along with proportionate costs and interest @ 7.5%
p.a. from the date of award. The instant appeal is filed aggrieved by
the quantum of compensation.
4. It is the contention of the Appellant that, the injuries received
by her were grievous in nature, due to which she is permanently
disabled; and that she is unable to walk or perform her regular
duties, as such the Tribunal erred in calculation of compensation.
She further contends that the Tribunal erred in considering the
evidence on record.
5. Learned Standing Counsel appearing for the Respondent No.2
contended that the appellant failed to produce medical records of
the treatment she received and had also not produced evidence of
her permanent disability. He thus contended that, the compensation
awarded by the Tribunal was just and did not warrant enhancement
by this Court.
6. Heard Sri. P. Radhive Reddy, learned counsel for the
Appellant, and Sri. V.Venkata Rami Reddy learned Standing
Counsel appearing for the Respondent No.2. Despite service of
notice none appeared for Respondent No.1.
7. I have taken note of their respective contentions and perused the
record.
8. The only ground of challenge in this appeal is that the
Tribunal had calculated compensation without considering the fact
of the Appellant's permanent disability and the medical expenses
incurred by her. The Tribunal on examining the injury certificate
marked as Ex.A-3, had held that she had received a simple head
injury, and a grievous injury to the left upper end of tibia. Apart
from Ex.A-6 and Ex.C2 which show a fracture to the left leg, she
had not adduced any further evidence to substantiate her claim
pertaining to the other injuries. The order of the Tribunal would
also reveal that the Appellant did not lead evidence in proof of the
medical treatment received or medical expenses incurred by her.
The medical bill marked as Ex.A-5 only accounted to Rs.990/- out
of the total expenditure claimed to have been incurred by the
Appellant. It is also pertinent to note that, the Appellant though
claimed permanent disability, did not adduce any evidence in proof
of the same. Thus, in view of this Court, the Appellant had failed to
establish that the injuries received by her led to permanent
disability.
9. Insofar as the question of determination of just compensation
for the injuries sustained, it is to be noted that the Appellant had
suffered a fracture to the upper left end of tibia i.e., left knee joint.
The evidence of PW-2 who is a Civil Assistant Surgeon at the
Government Hospital, Nizamabad along with the case sheet
marked as Ex.C-1 and X-Ray marked as Ex.C2 clearly establish
the injury sustained by her. Having observed that the Appellant
had received treatment for 13 days as in-patient, the Tribunal had
grossly erred in not awarding loss of earnings under a separate
head. A fracture to the knee joint would ordinarily take 4 - 6
months to heal. Further, the evidence of PW-2 shows that he had
treated the injury by way of a plaster of paris casting, in turn
decreasing her mobility. It is but obvious that the Appellant who is
an agriculturalist doing strenuous physical work, would be
prevented from earning a living till the entire process of recovery
was completed. Therefore, taking into consideration these factors
it is just to calculate the loss of earnings for a period of 4 months,
as against one month awarded by the Tribunal.
10. Further, the Tribunal though accepted that the Appellant was
engaged in agricultural activities, had not calculated monthly
income accordingly. Prior to the accident, the Appellant claims to
have earned Rs.10,000/- per month by cultivating commercial
crops, contrarily the Tribunal had determined her monthly income
as Rs.2,400/- by taking her daily wage to be Rs.80/-. The order of
the Tribunal is bereft of reasons for rejecting the Appellant's claim
with respect to her monthly income.
11. While dealing with the question of determination of income
of a person, the Supreme Court in Ramachandrappa Vs. The
Manager, Royal Sundaram Alliance Insurance Company
Limited1, has held as under:
"14. In the instant case, it is not in dispute that the Appellant was aged
about 35 years and was working as a Coolie and was earning ' 4500/-
per month at the time of accident. This claim is reduced by the Tribunal
to a sum of ' 3000/- only on the assumption that wages of the labourer
during the relevant period viz. in the year 2004, was ' 100/- per day.
This assumption in our view has no basis. Before the Tribunal,
though Insurance Company was served, it did not choose to appear
before the Court nor did it repudiated the claim of the claimant.
Therefore, there was no reason for the Tribunal to have reduced
the claim of the claimant and determined the monthly earning a
sum of ' 3000/- per month. Secondly, the Appellant was working as
a Coolie and therefore, we cannot expect him to produce any
documentary evidence to substantiate his claim. In the absence of
any other evidence contrary to the claim made by the claimant, in
our view, in the facts of the present case, the Tribunal should have
accepted the claim of the claimant. We hasten to add that in all cases
and in all circumstances, the Tribunal need not accept the claim of the
claimant in the absence of supporting material. It depends on the facts
of each case. In a given case, if the claim made is so exorbitant or if the
claim made is contrary to ground realities, the Tribunal may not accept
the claim and may proceed to determine the possible income by
resorting to some guess work, which may include the ground realities
prevailing at the relevant point of time. In the present case, Appellant
was working as a Coolie and in and around the date of the accident, the
wage of the labourer was between ' 100/- to 150/- per day or ' 4500/- per
month. In our view, the claim was honest and bonafide and, therefore,
there was no reason for the Tribunal to have reduced the monthly
earning of the Appellant from ' 4500/- to ' 3000/- per month. We,
therefore, accept his statement that his monthly earning was ' 4500/-"
From the above position of law, it is clear that the Tribunal should
accept the claim of a person with respect to his income, if such
(2011)13SCC236
claim is not exorbitant and if the Respondent does not lead any
evidence proving such claim as incorrect.
12. In the present case, the Respondent No.2 though opposed the
Appellant's contention, did not lead any evidence to disprove the
same. Although the Appellant claims to have been earning
Rs.10,000/- per month in absence of substantial evidence, this
Court is reluctant to accept the same. Even if the notional income
of the Appellant is determined assuming she is a housewife, by
virtue of the Supreme Court's decision in Kirti and Ors. Vs.
Oriental Insurance Co. Ltd2, it is clear that the notional income
fixed by the Tribunal is wholly inadequate. However, as the
Appellant is an earning member, it is appropriate to determine her
notional income while considering her supposed monthly income
in relation to her occupation, and the daily wages at the relevant
period. Thus, this Court is of the view that it is just to fix her
monthly income as Rs.4,500/-.
13. Lastly, this Court is of the view that the Appellant being
confined to her bed would need expenses for extra nourishment
(2021) 2 SCC 166
during the span of her recovery i.e., for 4 months as discussed
supra.
14. Thus, the compensation awarded to the Appellant is
modified as under:
Head of Compensation Enhancement by this
Compensation awarded by the Court
Tribunal Amount (in Rupees)
Amount (in
Rupees)
Loss of Earnings - 18,000/-
Medical Expenses 5,000/- 5,000/-
and Attendant
charges
Extra nourishment 2,500/- 10,000/-
Transport Charges 2,500/- 2,500/-
Damages for pain, 20,000/- 30,000/-
suffering and trauma
TOTAL 30,000/- 65,500/-
15. Accordingly, this Motor Accident Civil Miscellaneous
Appeal is partly allowed. The compensation awarded by the
Tribunal is enhanced from Rs.30,000/- to Rs.65,500/- The
Respondents No. 1 & 2 are directed to deposit the enhanced
compensation with interest at the rate of 7.5% per annum from date
of the claim petition till realization, within three months from the
date of this order. On such deposit, the Appellant is permitted to
withdraw the same along with interest accrued.
16. Pending miscellaneous petitions if any, shall stand closed.
No order as to costs.
______________________
T. VINOD KUMAR, J
Date: 17.03.2023.
MRKR/VSV
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.644 OF 2014
17.03.2023
MRKR/VSV
