R. Madhusudhan vs Ma Majeed
2023 Latest Caselaw 1358 Tel

      HONOURABLE JUSTICE M.G. PRIYADARSINI

               M.A.C.M.A. No.1113 of 2019

JUDGMENT:

Being not satisfied with the quantum of

compensation awarded in the order and decree, dated

28.03.2014, passed in M.V.O.P.No.67 of 2013 on the file of

the Chairman, Motor Accident Claims Tribunal-cum-XXV

Additional Chief Judge, City Civil Court, 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 166 of

the Motor Vehicles Act claiming compensation of

Rs.15,00,000/- for the injuries sustained by him in a road

accident that occurred on 03.06.2012. According to the

appellant, on 03.06.2012 he was proceeding from Yashoda

Hospital, Secunderabad towards Malkajgiri on his Pulsar

motorcycle bearing No. AP 28 BK 3474 and while he was at

Subash Nagar X roads, the driver of Maruti Omni bearing

No. AP 09 AQ 8666 drove it in a rash and negligent manner

and dashed him, due to which, he fell down on the road

and sustained grievous injuries to his right leg.

Immediately he was shifted to Oxygen Hospital and from

there he was shifted to NIMS where he was treated as

inpatient. An eyewitness to the accident filed a complaint

before the police, who registered a case against the driver

of the said van. The petitioner sustained three fractures

and he was treated as inpatient from 3.6.2012 to

26.6.2012 and again he was admitted in the hospital on

25.7.2012 and on 1.8.2012 his right leg was amputated up

to below knee level as there was gradual loss of vascularity

of foot and gross infection. He was discharged from the

hospital on 6.8.2012. He spent Rs.1,00,000/- for his

treatment and he needs Rs.3,00,000/- for purchasing

artificial limb. It is further stated that prior to the

accident, the appellant was hale and healthy and was

earning Rs.9,000/- per month as a driver with one

Dr.Pradeep Kumar Mishra at Yashoda Hospital,

Secunderabad. In view of the above accident, he was bed

ridden for more than three months in the hospital and due

to amputation of right leg, he is not in a position to attend

any job. He is unmarried and his chance of getting good

match has become remote due to amputation of his right

leg. Therefore, he laid the claim against the respondents,

seeking compensation.

3. Respondent No.1 remained exparte. Respondent

No.2 filed counter disputing the manner of accident, age,

avocation and income of the petitioner, nature of injuries

sustained by him which resulted permanent disability. It

is further contended that the compensation claimed by the

petitioner is highly excessive and therefore, prays to

dismiss the petition.

4. 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.12,00,000/- with future interest at 6% 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. It is also submitted that though

the tribunal has taken the income of the petitioner at

Rs.10,000/-, erroneously deducted half of the income

towards his personal expenses and further the tribunal did

not consider the future prospects and awarded meager

amount and therefore, seeks enhancement of

compensation.

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. Coming to the quantum of compensation, the

appellant examined himself as PW.1 apart from PWs.2 to 5.

The order of the trial Court shows that the petitioner has

produced disability certificate, photographs which shows

that his right leg below the knee was amputated.

According to PW-1 and the Medical Officer, in view of crush

injury, PW-1 was again admitted in the hospital on

25.7.2012, undergone a surgery and was discharged from

the hospital on 6.8.2012. PW-2 along with team of doctors

attended the said operation and he opined that in view of

the amputation of right leg, PW-1 was not in a position to

work as a driver and thereby the disability shall be

calculated as 100%. Further PW-3 Billing clerk examined

to prove the payment of Rs.49,125/- to the hospital. PW-4

who is an independent witness deposed that the petitioner

worked as car driver from August 2010 and he used to pay

Rs.9,000/- per month. He issued Ex.A14 certificate to

prove the same. According to PW-5, he examined the

petitioner on 3.6.2014 and issued Ex.A19 quotation for

fixing artificial right lower limb and estimate its cost as

Rs.2,17,100/- which consist of demountable below knee

assy Elite foot, below knee fairing, pyramid adpatro elamp

ankle fairing, ELDT, fit kit lock cover fabric, socket charges

and fitment charges etc.

9. Coming to the disability, the main contention of the

learned counsel for the appellant is that though P.W.2-

Doctor stated that the claimant has sustained 100% of the

disability and the claimant is not in a position to work as

driver due to the amputation of his right leg, the trial court

has taken the income of PW-1 at Rs.10,000/- per month,

but wrongly deducted Rs.5,000/- towards his personal

expenses and awarded meagre amount. Considering the

evidence of PW-2, it is very clear that the petitioner is not

in a position to attend his work as a driver due to his

amputation. Therefore, this Court is inclined to fix the

disability of PW-1 at 100%. According to PWs.1 and 4

coupled with Ex.A4, and the appellant being aged about 26

years and as the accident took place in the year 2011, this

Court is inclined to fix the income of the appellant at

Rs.9,000/- per month.

10. 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."

11. In view of above said decision, the appellant is

entitled to future prospects. As the age of the appellant is

26 years at the time of the accident, he is entitled for

future prospects at 40%. Therefore, by adding 40% future

prospects, the monthly income of the appellant comes to

Rs.12,600/- (Rs.9,000/- + Rs.3,600/- = 12,600). 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 '17'. Therefore,

the loss of earnings on account of the disability would be

Rs.12,600/- x 12 x 17 = Rs.25,70,400/-.

2009 ACJ 1298

12. Further, as seen from the record, considering

Ex.A4,A7, A9, A10, an amount of Rs.80,327/- is awarded

to the petitioner towards medical bills. Considering the

nature of injury sustained by the petitioner, an amount of

Rs.30,000/- is awarded towards pain and sufferance,

Rs.5,000/- is awarded towards transportation charges,

Rs.25,000/- is awarded towards extra nourishment and

attendant charges and Rs.1,00,000/- for purchase of

artificial limb. The petitioner is also entitled for

Rs.1,00,000/- towards loss of marriage prospects. Thus,

in all the appellant is entitled to a sum of Rs.29,10,727/-

as compensation.

13. At this stage, the learned Counsel for the Insurance

company submits that the appellant claimed only a sum of

Rs.15,00,000/- as compensation and the quantum of

compensation which is now awarded goes beyond the claim

made which is impermissible under law.

14. In view of the Judgments of the Apex Court in

Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another2 and

(2011) 10 SCC 756

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.

15. Accordingly, the appeal is allowed by enhancing the

compensation from Rs.12,00,000/- to Rs.29,10,727/-.

The enhanced amount shall carry interest at 7.5% p.a.

from the date of petition till the date of realization to be

payable by the respondent Nos.1 and 2 jointly and

severally. The amount shall be deposited within a period

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

order. On such deposit, the appellant is permitted to

withdraw the entire compensation amount. However, the

appellant is directed to pay Deficit Court Fee on the

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

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

23.03.2023 pgp

2003 ACJ 12 (SC)