Telangana High Court

Kondam Narayana vs Kotra Penta Reddy And Anr on 1 September, 2023

Bench: Laxmi Narayana Alishetty

                                                                            LNA,J
                                                      MACMA Nos.742 & 891 of 2015

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     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             M.A.C.M.A.NOs.742 and 891 OF 2015

COMMON JUDGMENT:

      Since both the Appeals are filed challenging the Award dated

26.02.2015 passed by the Principal Motor Accidents Claims

Tribunal-cum-Prl.District   Court,   Ranga    Reddy    District,             in

M.V.O.P.No.15 of 2021 (for short, 'MACT'), both Appeals are

disposed of by this common judgment.


2.    M.A.C.M.A.No.742 of 2015 has been filed by the claimant

seeking enhancement of the compensation against the award

passed by the MACT, whereas, M.A.C.M.A.No.891 of 2015 is filed

by the insurance company challenging the award passed by the

MACT.


3.    The brief factual matrix of the present appeals is as under.


4.    On 01.12.2011 at about 12.00 noon, while the claimant-

injured was proceeding from Kandukur Cross Roads towards

Dasarlapally village on his Scooter bearing registration No.AP-37-

9151 and when he reached the Highway of Kandukur, TATA Indica

Car bearing registration No.AP-29-BL-2289 came at high speed in

a rash and negligent manner and dashed the scooter of the
                                                                            LNA,J
                                                     MACMA Nos.742 & 891 of 2015

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claimant, due to which he fell down and sustained grievous

injuries. He was shifted to Krishna Sai Multi Speciality Hospital,

Karmanghat, where, he was treated as inpatient from 01.12.2011

to 15.12.2011. He suffered injuries consisting of a deep lacerated

wound on the right thigh exposing bone, compound comminuted

fracture of the right lower end of femur and comminuted

compound fracture of right patella and underwent surgery of right

leg and fixed rod on the right leg.   He was under treatment as

inpatient from 01.12.2011 to 15.12.2011 and from 04.02.2013 to

18.02.2013.


5.    The petitioner-injured claimed that he was aged about 45

years at the time of the accident and was earning Rs.6,000/- per

month as labour. He claimed that he was hale and healthy prior to

the accident and was supporting his family with his earnings and

that due to the accident, he had suffered mental agony, permanent

disability and thus, claimed compensation of Rs.6,00,000/-.


6.    Respondent no.1, who is owner of the vehicle, filed counter

denying the claim of the petitioner and contended that the accident

was occurred purely due to rash and negligent driving of the

petitioner himself. He denied that the age and income of the
                                                                               LNA,J
                                                        MACMA Nos.742 & 891 of 2015

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petitioner and that the petitioner sustained any injuries and

incurred medical expenses etc. He further contended if the

petitioner is entitled for any compensation, it is for the respondent-

2 insurance company to pay the same as the vehicle was insured

with the insurance company.


7.    Respondent No.2-insurance company filed counter denying

the claim of the petitioner and contended that accident occurred

due to rash and negligent driving of the two vehicles and that the

petitioner sustained injuries. He further contended that if any

compensation is liable to be paid, it is for the respondent no.1 to

pay the same and prayed that petition be dismissed.


8.    In order to substantiate the case, PWs.1 and 2 were

examined on behalf of the petitioner-injured and Exs.A1 to A11

were marked. On behalf of 2nd respondent-insurance company,

none were examined and Ex.B1 i.e., insurance policy is marked.


9.    The MACT taking into consideration the evidence, material

placed before it and on elaborate reasoning held that the petitioner

suffered injuries of grave nature due to rash and negligent driving

of the driver of TATA Indica Car bearing registration No.AP-29-BL-

2289 and awarded total compensation of Rs.5,58,350/-, under the
                                                                                 LNA,J
                                                          MACMA Nos.742 & 891 of 2015

                                  4


following heads, along with proportionate costs and awarded

interest @ 7.5% p.a., from the date of the petition till realization

vide award dated 26.02.2015.

      1) Loss of earnings                  -- Rs. 54,000.00
      2) Transportation charges            -- Rs. 40,000.00
      3) Extra nourishment                 -- Rs. 54,000.00
      4) Damages to clothing               -- Rs.      2,000.00
      5) Pain & Sufferings                 -- Rs.1,00,000.00
      6) Medical expenses                  -- Rs.2,60,350.00
      7) Disability & Loss of partial      -- Rs. 48,000.00
        earnings                             ------------------------
                                Total:         Rs.5,58,350.00
                                             --------------------

10. The MACT held that respondents 1 and 2 were held to be

jointly and severally liable to pay the said compensation.

11. Heard learned counsel Sri V.Atchuta Ram for the appellant-

injured and learned counsel Sri K.Ajay Kumar for the respondent-

insurance company.

12. The learned counsel for the claimant submitted that the

MACT has erred in not considering the case of the appellant and

did not award compensation for medical expenses and also

wrongly calculated the disability sustained by the claimant and

ought to have considered the disability of the claimant as 45%.

LNA,J MACMA Nos.742 & 891 of 2015

13. On the other hand, the learned counsel for the insurance

company submitted that the MACT is erred in awarding higher

compensation to the injured and ought not to have awarded future

expenditure, compensation for pain and suffering and

nourishment, particularly, where there is no certainty and interest

on future expenditure is not permissible. The MACT also erred in

arriving at Rs.3,000/- per month as income without any evidence

to that effect and prayed to set aside the award passed by the

MACT.

14. The points for consideration are:

(i) Whether the injured is entitled for enhancement of compensation ?

(ii) Whether the award passed by MACT is liable to be set aside ?

(iii) To what relief ?

Consideration:

MACMA NO.742 OF 2015:

15. With regard to the loss of earnings, the MACT came to

finding that it would take about 1½ year for healing of the injuries

and therefore, the MACT has considered 18 months period as loss LNA,J MACMA Nos.742 & 891 of 2015

of earnings. The MACT had taken the monthly salary of the

claimant as Rs.3000/- per month and arrived at Rs.54,000/-

(Rs.3000/- x 18 months) as total income of earnings.

16. In Ramachandrappa vs. Manager, Rayal Sundaram

Alliance Insurance Company Limited 1, the Hon'ble Apex Court

at paragraph-13 observed that,

(i) appellant was aged about 35 years and was working as coolie and was earning Rs.4,500/- per month at the time of the accident.

......

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.

(ii) At paragraph-14, the Hon'ble Apex Court observed that 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 guesswork, which may include the ground realities prevailing at the relevant point of time."

17. The Motor Vehicle Act is a beneficial legislation aimed at

providing relief to the victims or their families, therefore, in view of

the judgment of Hon'ble Apex Court in Ramachandrappa (supra),

this Court is of the considered view that monthly earnings of the

(2011) 13 SCC 236 LNA,J MACMA Nos.742 & 891 of 2015

claimant can be taken as Rs.4,500/-, even in the absence of any

evidence and by taking monthly earnings as Rs.4,500/-, the loss of

earnings of the claimant for a period of 18 months comes to

Rs.81,000/-. Thus, compensation towards loss of earnings

enhanced from Rs.54,000/- to Rs.81,000/-.

18. With regard to the disability and loss of partial earnings of

the claimant, the MACT awarded 45% of the disability. However,

the MACT divided the body of the claimant into four equal parts

consisting of 4 limbs and a trunk and out of the cent percent, the

MACT divided 20% each to the above four parts of the body of the

claimant i.e., @ 20% each. The MACT has considered the age of

claimant as 45 years, and by taking multiplier as 15, awarded

Rs.48,000/- towards compensation for disability and loss of partial

earnings.

19. In Raj Kumar vs. Ajay Kumar and another 2, the Hon'ble

Apex Court held as under:

"Assessment of future loss of earnings due to permanent disability

8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being.

Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of

(2011) 1 SCC 343 LNA,J MACMA Nos.742 & 891 of 2015

treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation."

LNA,J MACMA Nos.742 & 891 of 2015

20. P.W.2-Dr.M.Durga Prasad, who treated the claimant,

deposed that claimant sustained the injuries i.e., 1) Grade III B

Compound communicated fracture of right leg (lower end femur)

supre condoyle inter contrary and 2) grade II communicated

compound right patella fracture and lacerated wound on the right

thigh (bone exposing) and conducted surgery on 06.12.2011 and

re-surgery of non union communicated fracture supre condoyle

inter right femur on 09.02.2013. He further deposed that the

patient cannot bend his knee joint and the patient was having 45%

permanent disability and Exs.A4 to A8 were issued by their

hospital and he opined that injuries sustained by the claimant are

grievous injuries in nature. The claimant also produced Ex.A10-

disability certificate dated 13.09.2012 issued by the Medical Board,

Area Hospital, Vanasthalipuram, showing that he sustained 45% of

disability.

21. On due consideration of the evidence of P.W.2 and Ex.A10-

disability certificate dated 13.09.2012 issued by the Medical Board,

Area Hospital, Vanasthalipuram, this Court is of view that claimant

has suffered permanent disability to an extent of 45% of the right LNA,J MACMA Nos.742 & 891 of 2015

leg and therefore, he is entitled to claim on account of said

disability.

22. In the light of evidence of P.W.2 as well as disability

certificate dated 13.09.2012 issued by the Medical Board, the view

taken by the MACT limiting the disability to the extent of 20% is

erroneous and requires interference by this Court and accordingly,

modified.

23. As the income of the claimant is assessed at Rs.54,000/- per

annum, the loss of earning due to functional disability would be

45% of Rs.54,000/-, which comes to Rs.24,300/- per annum. As

the age of the claimant at the time of accident was 45, the

multiplier applicable would be 14. Therefore, the loss of disability

and loss of partial earnings would be Rs.3,40,200/- (Rs.24,300/- x

14). Thus, compensation towards disability and loss of partial

earnings is enhanced from Rs.48,000/- to Rs.3,40,200/-.

24. In considered view of this Court, the amounts under the

other heads awarded by the MACT are proper and reasonable.

25. In the light of the aforesaid discussion, the appellant no.1 is

entitled to the following amounts:

LNA,J MACMA Nos.742 & 891 of 2015

Sl.No. Head Compensation awarded

1 Loss of earnings Rs. 81,000.00

2 Transportation charges Rs. 40,000.00

3 Extra nourishment Rs. 54,000.00

4 Damages to clothing Rs. 2,000.00

5 Pain & sufferings Rs.1,00,000.00

6 Medical expenses Rs.2,60,350.00

7 Disability & Loss of partial earnings Rs.3,40,200.00

Total compensation awarded: Rs.8,77,550.00

MACMA NO.891 OF 2015: