Telangana High Court

Golla Chinna Venkataiah, Mahabubnagar vs The Apsrtc, Rep. By Its Rm, Mahabubnagar on 21 February, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                      M.A.C.M.A.No.1432 of 2011

JUDGMENT:

This appeal is filed by the injured claimant aggrieved by the award and

decree dated 01.04.2011 passed in O.P.No.722 of 2008 on the file of the Family

Court - cum - Additional District Judge, Mahabubnagar, seeking enhancement

of compensation from 60,000/- awarded by the Tribunal to Rs.2,60,000/- as

claimed by him.

2. The claimant filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988 stating that he was aged 35 years, eking out his livelihood

by driving his own auto and earning Rs.500/- per day by the date of the

accident. On 20.01.2006 morning, while he was proceeding in his own auto

bearing No.AP-22-T-6136 from Bhoothpur Village to Molgara Village of

Mahabubnagar District and when reached near Bhoothpur X-Roads at about

07:30 AM, an APSRTC bus bearing No.AP-11-Z-5818 of Picket, Hyderabad

Depot coming from Kurnool side, driven by its driver with high speed and in a

rash and negligent manner, hit the petitioner's auto. Due to which, the

petitioner sustained grievous injuries. The Police, Annasagar registered a case

in Crime No.17 of 2006 under Section 337 of IPC against the driver of the

APSRTC (TSRTC) bus bearing No.AP-11-Z-5818 of Picket, Hyderabad Depot.

Dr.GRR, J macma_1432_2011

He further submitted that he sustained fracture of third finger of right hand,

contusion on right elbow, abrasion on right elbow and other multiple bleeding

and invisible injuries all over the body. Immediately after the accident, he was

shifted to Government Hospital, Mahabubnagar, where he was treated as in-

patient from 20.01.2006 to 24.01.2006. Subsequently, he took treatment with a

private Orthopedic Surgeon and spent Rs.20,000/- towards medicines and

treatment. He was bed-ridden and lost earnings for the said period. He was

subjected to physical and mental agony. He was unable to drive the auto and

became permanently disabled and engaged another driver to drive the auto. As

such, claimed compensation from the Regional Manager of TSRTC,

Mahabubnagar.

3. The respondent filed counter.

4. The respondent called for strict proof of the petition averments and

contended that the accident was due to the negligence of the petitioner, who

drove his auto in a rash and negligent manner, as such, he was not entitled for

any compensation. The Insurance Company of the auto was also a proper and

necessary party. The compensation claimed by the petitioner was excessive,

arbitrary and out of all proportions and prayed to dismiss the petition.

5. Basing on the said pleadings, the Tribunal framed the issues and caused

enquiry.

Dr.GRR, J macma_1432_2011

6. The petitioner examined himself as PW.1 and got examined the doctor, a

member of Medical Board who issued the disability certificate as PW.2 and got

marked Exs.A1 to A5 in support of his contention.

7. The respondent failed to adduce any oral or documentary evidence on his

behalf.

8. The Tribunal on considering the oral and documentary evidence on

record held that the accident was due to the rash and negligent driving of the

driver of the RTC bus, as such, the respondent was liable to pay compensation

to the claimant.

9. With regard to the quantum of compensation, the Tribunal awarded an

amount of Rs.20,000/- towards "pain and suffering", Rs.30,000/- towards

permanent disability, Rs.5,000/- towards medical expenses, Rs.3,000/- towards

loss of earnings, Rs.2,000/- towards extra nourishment and transportation. In

total awarded an amount of Rs.60,000/- with interest @ 7.5 % per annum.

10. Aggrieved by the said award and decree, the appellant - claimant

preferred this appeal contending that the Tribunal awarded meager

compensation. Though the Tribunal observed that the claimant sustained post

traumatic stiffness of 3rd, 4th and 5th fingers with ankylosis of right finger joint,

erred in not taking into consideration the loss of earning capacity of the

petitioner and that he was unable to drive the auto and sustained 100%

Dr.GRR, J macma_1432_2011

functional disability on account of the injuries sustained by him. The Tribunal

failed to take into consideration that the claimant had not only taken treatment

in a Government Hospital but also at a private Hospital. The claimant being a

rustic villager, could not preserve the medical bills and the bills for

transportation, as such the Tribunal awarded meager amounts under those heads

and prayed to enhance the compensation.

11. Heard the learned counsel for the appellant - claimant and the learned

Standing Counsel for the TSRTC.

12. On a perusal of the evidence of the witnesses, the claimant examined

himself as PW.1 and stated that he sustained fracture of 3rd finger of right hand,

contusion on right elbow, abrasion on right elbow and other multiple and

invisible injuries all over the body. Immediately after the accident, he was

shifted to Government Hospital, Mahabubnagar, where he was treated as in-

patient from 20.01.2006 to 24.01.2006 vide in-patient No.1292. Subsequently,

he took treatment with a private Orthopedic Surgeon and spent Rs.20,000/- for

medicines and treatment. During the period of treatment, he was bed-ridden and

lost his earnings. He was also subjected to mental agony, pain and financial

loss. He was unable to drive the auto and unable to attend to his daily work and

became permanently disabled.

Dr.GRR, J macma_1432_2011

13. He got examined a member of the Medical Board as PW.2. PW.2 stated

that the petitioner appeared before the Medical Board on 18.05.2010 and he

examined the injured and found post traumatic stiffness of 3rd, 4th and 5th fingers

with ankylosis of right ring finger distal joint, having disability of 30%, which

was partial and permanent. The patient was having problem in attending to his

regular physical work, he could not lift heavy weights and also could not do

agricultural work.

14. The Tribunal observed that the driving of the auto would not involve

physical work and lifting heavy weights. As such awarded a lump sum amount

of Rs.25,000/-. Observing that as the disability could be cured with

physiotherapy, awarded a further sum of Rs.5,000/- for physiotherapy expenses.

In total awarded an amount of Rs.30,000/- towards permanent disability and

physiotherapy.

15. PW.2 was a member of the Medical Board. His competency for issuing

the disability certificate marked under Ex.A4 was not disputed. As Ex.A4

would disclose that the petitioner was suffering with post traumatic stiffness of

3rd, 4th and 5th fingers with ankylosis of right ring finger joint and the movement

of right hand wrist and fingers are necessary for driving the auto, which he was

unable to do after the accident, the petitioner sustained functional disability.

PW.2 assessed the same as 30%. There was no cross-examination on this

Dr.GRR, J macma_1432_2011

witness to show that the said disability could be cured with physiotherapy. The

evidence of PW.1 would disclose that he had engaged a driver to drive the auto,

as he was unable to drive the same. As such, though the petitioner was unable

to drive the auto or unable to do agricultural work, he had not sustained 100%

loss due to this disability. As such, it is considered fit to accept the evidence of

PW.2 with regard to the assessment of the disability as 30%, which was not

only physical but also functional.

16. The petitioner stated his age as 35 years and his earnings as Rs.500/- per

day in his petition and evidence. As Exs.A1 to A3 documents are also showing

the age of the claimant as 35 years, the same can be taken as such. However in

the absence of any evidence, the income of the injured claimant can be

considered as Rs.4,500/- per month as per the judgment of the Hon'ble Apex

Court in Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance

Insurance Company Limited 1. As the future prospects also to be considered

even in injury cases in case of self-employed persons or persons on fixed

salaries, as per the judgment of the Hon'ble Apex Court in National Insurance

Company Limited v. Pranay Sethi and Others 2 and considering the age of

the petitioner as 35 years, 40% is to be added towards his future prospects.

Hence, the income of the petitioner including his future prospects can be

considered as Rs.4,500 + Rs.1,800/- (40% of Rs.4,500/-) = Rs.6,300/-. As per

(2011) 13 SCC 236

2017 ACJ 2700

Dr.GRR, J macma_1432_2011

the judgment of the Hon'ble Apex Court in Sarla Verma (Smt.) and Others v.

Delhi Transport Corporation and Another 3, multiplier "16" is taken as per

the age of the claimant. Hence, the loss of income due to permanent disability

sustained by the claimant can be considered as Rs.6,300 x 12 x 16 x 30% =

Rs.3,62,880/-.

17. The Tribunal awarded an amount of Rs.20,000/- towards "pain and

suffering" by awarding Rs.17,500/- towards grievous injury and Rs.2,500/- for

the simple injury sustained by the claimant. However, it is considered fit to

award an amount of Rs.20,000/- towards the grievous injury and Rs.2,500/- for

the simple injury. As such, the same can be enhanced to Rs.22,500/- under the

head "pain and suffering".

18. The petitioner had taken treatment in Government Hospital,

Mahabubnagar for four days and thereafter stated to have taken treatment in a

private hospital, but had not filed any documents in support of his contention.

The Tribunal awarded an amount of Rs.5,000/- towards medical expenses in the

absence of producing any medical bills. However, it is considered fit to

enhance the said amount to Rs.10,000/-.

19. The loss of income during the period of treatment is considered for a

period of one month by the Tribunal. As the income of the petitioner is

2009 ACJ 1298

Dr.GRR, J macma_1432_2011

considered as Rs.4,500/- per month, the same can be considered for a period of

three months and it is considered just to award an amount of Rs.4,500/- x 3 =

Rs.13,500/- under the head 'loss of income'.

20. The Tribunal awarded Rs.2,000/- under the head 'extra nourishment' and

'transportation' together. The same can be enhanced to Rs.2,000/- each.

21. Hence, the compensation entitled by the appellant - claimant under

various heads is as follows:

       S. No.                   Heads                          Compensation
         1.     Loss of future prospects due to          Rs.3,62,880/-
                permanent disability
         2.     Loss of income during the period of      Rs.13,500/-
                treatment
         3.     Pain and suffering                       Rs.22,500/-
         4.     Medical expenses                         Rs.10,000/-
         5.     Extra Nourishment                        Rs.2,000/-
         6.     Transportation                           Rs.2,000/-
                                                Total:   Rs.4,12,880/-

22. Though, the petitioner claimed an amount of Rs.2,60,000/-, but as there is

no restriction on this Court to limit the award to the amount claimed, but can

award the amount what it considers as just and reasonable, even if it is more

than the amount claimed by the claimant, as per the judgments of the Hon'ble

Apex Court in Nagappa v. Gurudayal Singh & Others 4, Ibrahim v. Raju 5,

Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 6 ,

(2003) 2 SCC 274

2011 ACJ 2845

2018 ACJ 2782

Dr.GRR, J macma_1432_2011

Ramla and Others v. National Insurance Co. Limited and Others 7, it is

considered fit to award the above amount of Rs.4,12,880/- with interest @ 7.5%