Telangana High Court
Y Koteswara Rao, Hyd Died vs K.Annapurna, W.G.Dist And Anr on 19 February, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.82 of 2017
JUDGMENT:
1. Dissatisfied with the quantum of compensation awarded by
the Chairman, Motor Accidents Claims Tribunal-cum-XXV
Additional Chief Judge, City Civil Court, Hyderabad (for short, the
Tribunal), in M.V.O.P.No.693 of 2014, dated 15.11.2016, the
Appellant/claim petitioner filed the present Appeal seeking for
enhancement of compensation amount and during pendency of
Appeal, the Appellant No.1 had died and therefore, his Legal
Representatives, who are the wife, children and mother of the
deceased- Appellant No.1 were brought on record as Appellant
Nos.2 to 5 vide orders dated 24.01.2023 passed in I.A.No.2 of 2023
in MACMA.No.82 of 2017
2. For the sake of convenience, the appellant No.1 hereinafter
be referred as claim petitioner as arrayed before the Tribunal.
3. The brief facts of the case are that initially, the claim
petitioner/injured 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 Motor Vehicle Accident that
occurred on 28.01.2014. As per the version of the claim
petitioner, on 28.01.2014 at about 11.30 A.M, when the petitioner
was proceeding on his motor cycle bearing No.AP-20-AG-8538 to go
to his in-law's house which is situated at Darshi in Guntur District
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and when he reached near the entrance of Prakasham Barrage in
Vijawada City, one Maxi Cab bearing No.AP-37X-8118 which was
driven by its driver at a high speed in a rash and negligent manner,
came in opposite direction from Guntur side towards Vijaywada
City and dashed the motor cycle of the petitioner. As a result, the
petitioner/injured fell towards his left side and crushed in between
the parapet wall of the bridge and motor cycle wherein, the front
right wheel of the said Maxi cab ran over on his right leg and he
sustained fractures and severe injuries. Immediately, he was
shifted to Government Hospital, Vijayawada and as there was no
specialist at that time, he was shifted to private hospital at Guntur.
As the authorities of the private hospital at Guntur demanded him
to deposit advance amount, he was again shifted to Praja
Vaidyashala, Vijayawada I -Town, where he was treated by
Dr.Narender, Orthopaedic Surgeon and Dr.M.Kiran, Vascular
Surgeon who examined the petitioner and stated that he sustained
fractures to his right leg and injury on Head. The Police of
Vijayawada I Town Police Station, registered a case in Crime
No.121 of 2014 against the driver of the said Maxi Cab and
subsequently filed charge sheet against him for the offence
punishable under Section 338 IPC. The Doctor who treated him in
Praja Vaidyashala, advised the petitioner to take further treatment
for six months. The petitioner stated that he spent an amount of
Rs.3,50,000/- towards medical treatment and he had been
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suffering from permanent disability due to the injuries sustained
by him in the said accident. It is also stated by the
petitioner/injured that he has been working as Mason in KTPS,
Palvancha under a contractor by the date of accident and used to
get Rs.500/- per day. Due to the said accident, he is unable to
perform his duties as he did previously and hence, claiming
compensation of Rs. 15,00,000/- along with interest @ 18% per
annum and proportionate costs payable by Respondent Nos.1 & 2,
who are the owner and insurer of the said Maxi cab..
4. Respondent No.1, who is the owner of the Maxi Cab bearing
No.AP-37X-8118, remained exparte.
5. Respondent No.2, who is the insurer of the said Maxi Cab
filed its counter denying the averments made in the claim petition
such as manner of accident, involvement of Maxi cab, rash and
negligent driving of the driver of the said Maxi cab. He also stated
that Respondent No.1, who is the owner of the Maxi cab and the
police who registered the case against the driver of the said Maxi
cab, did not inform about the alleged accident and had not sent
copies of documents. Therefore, he is not liable to pay any
compensation and that the compensation claimed is excess and
exorbitant and hence, prayed to dismiss the claim against it.
6. Based on the above pleadings, the learned Tribunal had
framed the following issues:-
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i. Whether the accident took place due to rash and
negligent driving of the driver of Maxi Cab bearing NO.AP-
37X-8118 causing injuries to the petitioner?
ii. Whether the petitioner is entitled to compensation? If so,
how much and from whom?
iii. To what relief?
7. Before the Tribunal, on behalf of the petitioner/injured, PWs
1 to 5 were examined and Exs.A1 to A17, Exs.X1 & X2 were got
marked. Respondent No.1 remained exparte. On behalf of
Respondent No.2, no oral evidence was adduced. However, Ex.B1-
Attested copy of Insurance policy was marked on its behalf.
8. After considering the entire evidence and documents filed by
both sides, the learned Tribunal awarded an amount of
Rs.08,70,100/- towards compensation with interest @ 8% from the
date of petition till the date of decree and thereafter @ 6% per
annum till realization. Aggrieved by the same, the present Appeal
by the Appellant No.1/claim petitioner.
9. Heard the submission of the learned counsel for Appellants
and the learned Standing Counsel for Respondent No.2-Insurance
Company.
10. The main contention of the learned counsel for the
appellants is that though PW2 in his evidence deposed that the
appellant used to earn Rs.500/-per day as Mason, but the learned
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Tribunal without considering the same, had fixed the income of
Rs.200/- per day, which is contrary to the evidence of PW2. He
also contended that the learned Tribunal erred in fixing the
disability@ 20% instead of 50% as per the disability certificate
issued under Ex.A15. He also stated that the Tribunal ought to
have taken the disability @ 100% as the appellant suffered from
shortening of right leg limping due to which, it is impossible for
him to work as Mason. He further contended that the Tribunal
had not granted any amount towards transport and did not
consider Exs.A9 & A10 which are the advance paid receipts and
medical bills of the appellant and hence, prayed to allow the appeal
by enhancing the compensation.
11. Per contra, the learned Standing Counsel for Respondent
No.2-Insurance Company argued that the learned Tribunal, after
considering all the aspects, has awarded reasonable compensation
for which interference of this Court is not necessary.
12. Now, the point that emerges for consideration is,
Whether the order of the learned Tribunal requires
interference of this Court?
POINT:-
13. This Court has perused the entire evidence and documents
filed by both sides. The Appellant No.1/claim petitioner examined
himself examined as PW1 and reiterated the contents of the claim
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petition and deposed about the manner of the accident. In support
of his contention, he got marked Ex.A1-Certified copy of FIR,
Ex.A2-Certified copy of charge sheet, Ex.A3-Certified copy of
Section 161 statement, Ex.A4-Certified copy of wound certificate,
Ex.A5- Certified copy of MVI report, Ex.A6- Copy of operation
report, Ex.A7-Copy of discharge summary, Ex.A8-Discharge
summary, Ex.A9- Bunch of advance paid receipts, Ex.A10-Bunch
of medical bills, Ex.A11-Blood purchase record, Ex.A12- Photos,
Ex.A13- Treatmenet certificate dated 06.12.2014, Ex.A14-X-ray
dt.22.12.2014, Ex.A15- disability certificate, Ex.A16-treatmenet
record and Ex.A17-Bunch of X-rays. In support of his contentions,
he also got examined PWs 2 to 5. PW2, who is a co-worker along
with PW1, deposed in his evidence about the earning capacity of
the claim petitioner as Mason. PW3, who is a Civil Surgeon
(Retired), stated in his evidence that he examined the claim
petitioner on 10.02.2015 and found fracture injuries on him and
issued disability certificate under Ex.A15. PW4, who is an
Orthopaedic Surgeon, deposed in his evidence that the petitioner
had admitted in his Hospital on 29.01.2014 and he treated the
petitioner and noticed four fracture injuries and two crush injuries.
PW5, who is a Consultant Vascular Surgeon at Peoples Clinic,
deposed in his evidence that the claim petitioner had admitted in
the Hospital on 29.01.2014 and he treated him from 29.01.2014 to
13.03.2014 and found three fracture injuries and one crush injury
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to right calf and multiple laceration over right leg. Nothing worthy
was elicited from PWs.1 to 5 during their cross-examination.
14. It is pertinent to state that there is no dispute regarding the
manner of accident which occurred due to the rash and negligent
driving of the driver of the Maxi cab bearing No.AP-37X-8118 and
the injuries sustained by petitioner in the said accident. The only
dispute raised is with regard to considering the income of the claim
petitioner by the Tribunal. Learned counsel for appellants
contended that though PW2 in his evidence deposed that the
appellant used to earn Rs.500/-per day as Mason, but the learned
Tribunal without considering the same, had fixed the income of
Rs.200/- per day, which is contrary to the evidence of PW2. In this
regard, it is pertinent to note that neither the petitioner nor PW2
filed any documents showing that the petitioner used to earn
Rs.500/- per day as Mason. Therefore, the learned Tribunal by
considering the age of appellant no.1 and by applying minimum
wages that are payable to a Mason, fixed the monthly income of the
appellant No.1 as Rs.6,000/- for which this Court finds it
reasonable and is not inclined to interfere with the same.
15. Coming to the aspect of assessing disability, it is the
contention of the learned counsel for appellants that the learned
Tribunal failed to consider Ex.A15-Disability Certificate issued by
PW3. In this regard, it is pertinent to refer the evidence of PWs 3
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& 4, who are the Doctors who examined the petitioner. PW3 is the
person who examined appellant No.1 and issued Ex.A15-Disability
Certificate on 10.02.2015 by assessing the disability @ 50%. In his
cross-examination, he admitted that he had not treated the
petitioner and further stated that there is no Medical Board at King
Koti Hospital and admitted that he issued Ex.A15-Disability
Certificate in his personal capacity.
16. PW4, who is an Orthopaedic Surgeon and who treated the
petitioner as inpatient from 29.01.2014 to 13.03.2014, stated that
the petitioner is having resting of movement of hip joint and is
walking with limp. He is also having shortening of right limb and
the approximate disability of the right lower limb is around 40%
which is permanent and partial.
17. Therefore, from the above evidence of PWs1, 3 & 4, it is
evident that the petitioner had sustained fracture injuries to his
right leg and was admitted as inpatient in Praja Vaidyashala,
Vijayawada and took treatment for 43 days in the said hospital.
Hence, there is variation in assessing the disability by PWs 3 & 4.
However, PW4 is an Orthopaedic Surgeon who treated the
petitioner and assessed the disability @ 40%. The learned Tribunal
ought to have considered the same and would have fixed the
disability @ 40%. But, the Tribunal, without considering either the
evidence of PW3 or PW4 or the disability assessed by them, has
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fixed the disability @ 20% without assigning any reason. Hence,
this Court is inclined to interfere with the same for the reason that
the Orthopaedic Surgeons are the right persons to assess the
disability and the petitioner had taken all steps to examine them.
Hence, this Court is of the considered opinion that the evidence of
PW4, who treated appellant No.1 and assessed the disability @
40%, can be taken into consideration and is inclined to fix the
disability @40%. It is also pertinent to state that the learned
Tribunal had taken 50% towards future prospects for the disability
sustained by him which is on higher side. As per the decision of
the Hon'ble Supreme Court in National Insurance Company
Limited Vs. Pranay Sethi and others 1 the future prospects for a
self employed person below the age of 40 years is taken as 40%.
Hence, this Court is inclined to interfere with the finding of the
learned Tribunal so far as future prospects are concerned.
Furthermore, there is no income proof filed to show that he is
working as Mason and earning Rs.15,000/- per month. Therefore,
the learned Tribunal had rightly taken the income of the
petitioner/injured @ 6,000/- per month. If 40% is added towards
future prospects, then the future monthly income of the deceased
comes to Rs.8,400/-. Since the disability is assessed @ 40%, the
loss of earnings comes to Rs.3,360/- . As the petitioner was 29
2017 ACJ 2700
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years old at the time of the accident therefore, by applying
appropriate multiplier '17' as per the guidelines laid down by the
Apex Court in Sarla Verma v. Delhi Transport Corporation 2 ,
the total loss of income comes to Rs.6,85,440/-(Rs.3,360 x 12 x
17). Apart from this, the Tribunal granted an amount of
Rs.3,69,817/ towards medical treatment; Rs.80,000/- towards
four grievous injuries; Rs.5,000/- towards simple injury;
Rs.30,000/- towards pain and suffering; Rs.18,000/- towards loss
of earnings for three months to the appellant No.1 which requires
no interference by this Court. Thus, in all, the appellants are
entitled for a compensation of Rs.11,88,257/-. Out of which,
Appellant No.2, being wife, is entitled for Rs.5,88,257/- and
Appellant No.5, being mother of appellant No.1, is entitled for
Rs.1,00,000/- and Appellant Nos.3 & 4, who are the children of
Appellant Nos.1 & 2, are entitled for Rs.2,50,000/- each.
Appellant Nos.3 & 4 being minors, as such, the amount
apportioned to them shall be deposited in any Nationalized Bank
until they attain majority and since Appellant No.2 is their natural
mother, she is entitled to withdraw the interest accrued on such
deposited amount.
18. Insofar as the interest is concerned, this Court, by relying
upon the decision of the Hon'ble Apex Court reported in Rajesh
2009 ACJ 1298 (SC)
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and others v. Rajbir Singh and others 3 is inclined to fix the rate
of interest @ 7.5% per annum from the date of petition till the date
of realization.
19. In the result, the Appeal is partly allowed by enhancing the
compensation awarded by the Tribunal from Rs.8,70,100/- to
Rs.11,88,257/-. The enhanced amount shall carry interest @ 7.5%
per annum from the date of petition till the date of realization,
payable by Respondent Nos.1 to 2 jointly and severally within a
period of one month from the date of receipt of a copy of this order.
On such deposit, the Appellant Nos.2 to 5 are entitled to withdraw
the amount as per the apportionment indicated above. There shall
be no order as to costs.
20. Miscellaneous petitions pending, if any, shall stand closed.
__________________________________
JUSTICE M.G. PRIYADARSINI
Dt.19.02.2024
ysk
3 2013 ACJ 1403 = 2013 (4) ALT 35
