G.Shiva Kumar vs N.Sridhar
2023 Latest Caselaw 2925 Tel

     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                  M.A.C.M.A No.321 of 2014

JUDGMENT:

This M.A.C.M.A filed by the appellant/petitioner

aggrieved by the Award and decree dt.03.11.2010 in O.P. No.2 of

2007 passed by the Chairman, Motor Accidents Claims

Tribunal-cum-XX Additional Chief Judge, City Civil Court,

Secunderabad (for short, 'the Tribunal').

2. For convenience, the parties will be hereinafter

referred to as they are arrayed before the Tribunal.

3. Brief facts of the case are that on 06.12.2006 at

about 11.30 a.m., while the petitioner stood to cross the road

near Narsapur "X" road, Balanagar, opposite Sri Raghavendra

Wines shop, the driver of the lorry bearing No.AP-09-X-3499

came from Shapur Nagar, drove the same in a rash and

negligent manner at high speed and dashed the petitioner's right

leg, the petitioner sustained grievous injuries on all over the

body including a right leg fracture of both bones. Immediately,

he was shifted to Gandhi Hospital, Secunderabad, where he was

treated as an inpatient and underwent surgery. Balanagar

Police registered a case in Cr.No.373 of 2006 against the driver 2 RRN,J MACMA No.321 OF 2014

of the offending lorry. Hence, he filed the claim petition claiming

compensation of Rs.2,00,000/-.

4. Before the Tribunal, respondents No.1 and 2 filed

their respective counters denying the petition allegations and

prayed to dismiss the claim petition.

5. The petitioner, to prove his case, examined PWs.1

and 2 and got marked Exs.A1 to A10 and Ex.C1. On behalf of

the respondents no oral evidence was adduced. However, on

behalf of No.2, Ex.B1 was marked.

6. On considering the oral and documentary evidence

available on record, the Tribunal awarded compensation of

Rs.1,46,000/- with interest @ 7% per annum to the petitioner

payable by the respondents. Aggrieved by the same, the present

appeal is filed by the petitioner.

7. Heard both sides and perused the record.

8. Learned Counsel for the petitioner has contended

that the Tribunal erred in deducting 1/3rd towards personal

expenses in a claim for injuries, and the Tribunal granted very

meagre compensation. Accordingly, prayed to allow the appeal.

9. Per contra, learned counsel for respondent No.2 has

contended that the Tribunal has rightly awarded the 3 RRN,J MACMA No.321 OF 2014

compensation to the petitioner and no interference is required

by this Court. Accordingly, prayed to dismiss the appeal.

10. The issue with regard to the involvement of the lorry

bearing No.AP-09-X-3499 and the manner of the accident was

rightly decided in favour of the petitioner as the respondents

failed to adduce any contrary evidence or elicit anything material

in the cross-examination of PW.1. As such the aspect of

negligence needs no scrutiny. The respondents are liable to

compensate the petitioner jointly and severally, as observed by

the Tribunal. The only point to be answered in the present

appeal is whether the petitioner is entitled to enhancement of

the compensation awarded by the Tribunal or not.

11. With regard to compensation, the petitioner deposed

that he was admitted in the Gandhi Hospital as he received a

fracture of both bones of his right leg and other grievous

injuries. He was doing cloth business and used to earn

Rs.9,000/- per month, and he lost the said income due to the

said accident. He spent Rs.25,000/- towards medical expenses,

and now he cannot walk, sit and squat properly. The Medical

Board, Gandhi Hospital, assessed 45% of permanent disability.

In proof of injuries, he filed Ex.A4/Medical certificate, Ex.A5/X-

ray films, Ex.A6/handicapped certificate, Ex.A7/outpatient 4 RRN,J MACMA No.321 OF 2014

card, Ex.A8/medical bills and Ex.A10/original discharge card.

The petitioner also examined PW.2/Dr. G. Ramesh, Orthopedic

surgeon, deposed that the petitioner was admitted on

06.12.2006 at 5.40 p.m. in Ortho-3 Unit, Gandhi Hospital with

RTA with fracture of bones, right lower leg and multiple

abrasions on the right and he was discharged on 14.12.2007.

He was discharged under Ex.A10/medical certificate and

Ex.A6/physical disability issued by the Gandhi Hospital. He

also deposed that Ex.A7/prescriptions and Ex.A8 medical bills

pertaining to the patient. The patient was operated in unit 3

and he produced a case-sheet under Ex.C1. He further

deposed that though he does not issue disability certificate, but

on physical examination of the patient, the Gandhi Hospital,

Medical Board issued that certificate. The respondents have

not adduced any evidence to deny the evidence on petitioner

side.

12. The Tribunal observed that as per the evidence of

the petitioner, PW.2/doctor and Ex.A4/medical certificate, the

petitioner received grievous injury and Ex.A5 X-ray shows

fracture of right leg. Ex.C-1 copy of the case sheet of the

petitioner discloses that the petitioner received fracture of both

bones of right leg. So, the petitioner received one fracture. The 5 RRN,J MACMA No.321 OF 2014

petitioner filed Ex.A6/handicapped certificate showing that he

had been suffering with disability of 45%. Ex.A6 is proved by

examining PW.2/doctor, but PW.2 deposed that he cannot say

the actual disability without seeing the patient, but he deposed

that on physical examination only the Medical Board issued

disability certificate. According to Ex.A6 issued by Gandhi

Hospital, due to stiffness and restriction in view of the fracture

on right leg on both bones, they assessed disability of 45%.

According to PW.1 also, he is unable to walk, sit and squat

properly. So, the Tribunal assessed the disability @ 25%, but

not 45%. It is pertinent to mention here that there are catena

of judgments that Courts have no power to either increase or

decrease the disability. As such, this Court is of the view that

the Tribunal erred in reducing the disability from 45% to 25%.

Hence, it is established that the petitioner suffered a disability

of 45%.

13. The Tribunal observed that in the chargesheet, the

profession of the petitioner was shown as cloth business and

referring to his caste as Padmasali, but the petitioner has not

adduced any independent evidence for income of Rs.9,000/-,

but as cloth business at least his income would be Rs.150/- per

day and his monthly income would be Rs.4,500/-. At this 6 RRN,J MACMA No.321 OF 2014

juncture, learned counsel for the petitioner relied upon the

judgment of the Hon'ble Supreme Court in Sidram Vs.

Divisional Manager, United India Insurance Company

Ltd., 1 wherein it was held as under:

59. Thus, we are of the view, more particularly keeping in mind the dictum of this Court in the case of Kirti (supra) that it is not necessary to adduce any documentary evidence to prove the notional income of the victim and the Court can award the same even in the absence of any documentary evidence. In the case of Kirti (supra) it was stated that the Court should ensure while choosing the method and fixing the notional income that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.

60. In the overall view of the matter, we are convinced that we should determine the notional income of the appellant herein at Rs. 8,000/- per month. The same would result in the compensation being enhanced.

14. With great respect to the above said judgment, this

Court is inclined to fix the notional income of the petitioner at

Rs.6,500/- per month as the petitioner has not adduced any

evidence to prove his income. To this, 25% is to be added

towards future prospects as per the decision of the Hon'ble

Supreme Court in National Insurance Company Ltd. Vs.

(2023) 3 SCC 439 7 RRN,J MACMA No.321 OF 2014

Pranay Sethi 2 as the petitioner was aged 45 years. The

annual income of the deceased including future prospects

would come to Rs.97,500/- (Rs.6,500/- + 25% x 12). The

appropriate multiplier as per the decision of Sarla Verma Vs.

Delhi Transport Corporation 3 is "14".

15. The petitioner suffered 45% disability as per Ex.A6

and the same is taken for the purpose of calculation of future

loss of income. Thus, the total loss of future income due to

disability would come to Rs.6,14,250/- (Rs.97,500/- x 14 x

45/100).

16. As rightly contended by the learned counsel for

petitioner that the Tribunal has grossly erred in deducting 1/3rd

of the income of the petitioner towards personal expenses, which

should not have been done. The Tribunal has rightly awarded

Rs.5,000/- towards pain but very meagerly awarded Rs.1,000/-

towards extra nourishment and Rs.1,000/- towards

transportation. This Court is inclined to enhance the same as

Rs.5,000/- towards extra nourishment and Rs.5,000/- towards

transportation. In all, the petitioner is entitled to Rs.6,29,250/-

17. The Tribunal granted interest @ 7% p.a. on the

compensation considering the rate of interest which was

(2017) 16 SCC 680.

(2009) 6 SCC 121.

                                   8                                     RRN,J
                                                         MACMA No.321 OF 2014

prevailing at that time. However, this Court is inclined to award

interest at 7.5% p.a. on the enhanced amount.

18. Though the claimed amount is Rs.2,00,000/-,

invoking the principle of just compensation, and in view of the

law laid down by the Hon'ble Supreme Court in Rajesh vs.

Rajbir Singh 4, and in a catena of decisions, this Court is

empowered to grant compensation beyond the claimed amount.

However, the petitioners/appellants shall pay the deficit Court

fee on the enhanced compensation.

19. Accordingly, the M.A.C.M.A. is allowed by enhancing

the compensation amount awarded by the Tribunal from

Rs.1,46,600/- to Rs.6,29,250/- (Rs. Six lakh, twenty nine

thousand, two hundred and fifty only) with interest at 7.5% per

annum on the enhanced amount from the date of petition till the

date of realisation. The respondents are directed to deposit the

said amount together with costs and interest within two months

from the date of receipt of a copy of this judgment after

deducting the amount, if any, already deposited. Upon such

deposit, the petitioner is permitted to withdraw the entire

amount subject to payment of the deficit Court fee. There shall

be no order as to costs.

    MANU/SC/0480/2013
                           9                                   RRN,J
                                               MACMA No.321 OF 2014

As a sequel, miscellaneous applications, if any pending,

shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J

06th day of October, 2023.

BDR