Telangana High Court
T. Ravinder vs Anil Kumar And Another on 23 January, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
M.A.C.M.A. No.1626 of 2011
JUDGMENT:
This appeal is filed by the claimant-injured aggrieved by the
award and decree dated 09.11.2010 passed in O.P. No.1158 of
2009 by the Motor Accidents Claims Tribunal cum XIII Additional
Chief Judge (FTC), City Civil Court, Hyderabad (for short 'the
Tribunal').
2. The appellant-claimant filed a petition under Section 166
of the M.V. Act, claiming compensation of Rs.2,00,000/- for the
injuries sustained by him in a motor vehicle accident, alleging that
he was aged 33 years and was running a Kirana and General Stores
at Ashok Nagar, Hyderabad and was earning Rs.15,000/- per
month by the date of the accident. On 14.05.2009 at 5.30 PM
while he, along with his father, was proceeding on a Hero Honda
Motor Cycle from Srirangavaram of Medchal Mandal towards
Hyderabad and on reaching Srirangavaram x-roads, an Alto Car
bearing No.AP 28 AS 5735 coming in opposite direction in a rash
and negligent manner with high speed while trying to overtake a
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lorry hit the motorcycle of the claimant, due to which he and his
father fell down and sustained severe injuries. The claimant
sustained fracture of left leg, blunt injury on stomach, head injury,
lacerations and abrasions on both hands and other multiple injuries
all over the body. Immediately, he was shifted to Balaji Hospital,
Medchal and after first aid, he was shifted to Nivedita Hospital,
wherein he was admitted as in-patient from 15.05.2009 to
19.05.2009 and sustained permanent disability. The claimant
submitted that the fracture of left tibial condyle was operated and
fixed with screws and nails. But, his left leg was shortened and his
movements were restricted resulting limp while walking. He
further submitted that police of Medchal registered a case vide
Crime No.168 of 2009 for the offence under Section 338 of IPC
against the driver of the Alto Car bearing No.AP 28 AS 5735 and
claimed compensation from respondent Nos.1 and 2, the owner and
Insurer of the Alto Car.
3. The respondent No.1 remained ex parte.
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4. The respondent No.2-Insurance Company filed counter
denying the petition averments. The respondent No.2 called for
strict proof of the petition averments and contended that the claim
of Rs.2,00,000/- was excessive and there was no basis for the said
calculation and prayed to dismiss the petition.
5. The Tribunal, after framing the issues, conducted an
enquiry. The claimant examined himself as PW.1 and got
examined the Orthopedic Surgeon, who treated him at Nivedita
Hospital, as PW.2 and got marked Exs.A1 to A13. No oral
evidence was adduced by respondent No.2, but a copy of the policy
was marked as Ex.B1. The Tribunal on considering the oral and
documentary evidence on record, held that the accident was
occurred due to the rash and negligent driving of the driver of the
car bearing No.AP 28 AS 5735 and the respondent Nos.1 and 2
were jointly and severally liable to pay the compensation to the
claimant.
6. With regard to the quantum of compensation, the
Tribunal awarded an amount of Rs.5,000/- towards grievous injury
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sustained by the claimant, Rs.5,000/- towards pain and suffering,
Rs.30,000/- towards medical expenses, Rs.10,000/- towards future
medical expenses for removal of implants, Rs.9,000/- towards loss
of income for a period of 3 months @ Rs.3,000/- per month and
Rs.1,000/- towards extra nourishment and transportation. Thus, in
all, the Tribunal awarded an amount of Rs.60,000/- with interest at
6% per annum from the date of petition till realization.
7. Aggrieved by the said award of the Tribunal, the claimant
preferred this appeal contending that the Tribunal failed to consider
the disability sustained by the claimant as stated by PW.2 doctor,
who treated him at Nivedita Hospital. The Tribunal failed to
consider the documents marked under Exs.A7, A9 and A10 -
medical bills filed by the claimant and not considered Ex.A11, the
estimate issued by the Sablok Hospital for removal of nails. The
Tribunal had not awarded adequate amounts for pain and suffering,
loss of amenities in life, loss of income, transportation, extra
nourishment etc., and that the interest also ought to have been
awarded at 9% per annum and prayed to enhance the amount
awarded towards compensation.
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8. Heard Sri Kasireddy Jagathpal Reddy, learned counsel
for the appellant-claimant and Sri N.S. Bhaskar Rao, learned
counsel for the respondent No.2-Insurance company.
9. The learned counsel for the appellant-claimant contended
that though the appellant claimed that he was earning Rs.15,000/-
per month from his business of running Kirana and General Stores,
the Tribunal had considered a notional income of Rs.3,000/- per
month. Even in the absence of filing proof of income, the Tribunal
ought to have taken atleast a sum of Rs.6,500/- per month as the
income of the appellant as per the judgment of the Hon'ble Apex
Court in Syed Sadiq and Others v. Divisional Manager, United
India Insurance Company Limited 1 . The Tribunal failed to
consider the evidence of PW.2 with regard to assessment of
disability. Even in the absence of the certificate issued by the
Medical Board, the evidence of the doctor, who treated, shall be
considered and relied upon the judgment of this Court in A.
Chalapathi v. Satyanarayana N. Nuwal and others 2 . It is
further contended that the Tribunal ought to have applied the
(2014) 2 SCC 735
(2010) 4 ALD 217
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multiplier method and ought to have awarded future prospects in
assessing the loss of income.
10. The learned counsel for the respondent No.2-Insurance
Company, on the other hand, contended that no evidence was
adduced by the claimant to show that the implants were removed.
No X-rays were obtained by PW.2 before assessing the disability.
No proof of income was filed by the claimant. In the absence of the
`same, the income of the claimant can be considered as only
Rs.4,500/- per month as per the judgment of the Hon'ble Apex
Court in Ramachandrappa v. The Manager, Royal Sundaram
Alliance Insurance Company Limited 3 . In the absence of any
evidence that the rods were removed, the amount of Rs.10,000/-
awarded by the Tribunal also need to be deducted from the
compensation awarded and prayed to dismiss the appeal.
11. In view of the rival contentions of both the learned
counsel, the point for consideration is as to whether the Tribunal
assessed the compensation in a proper manner or not?
(2011) 13 SCC 236
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12. The claimant who was examined as PW.1 stated in his
evidence about the injuries sustained by him and that immediately
after the accident, he was shifted to Balaji Hospital, Medchal and
after first aid, he was shifted to Nivedita Hospital, where he was
admitted as inpatient and Dr.Sree Ramulu, Orthopedic Surgeon had
treated him. He stated that he was operated in Nivedita Hospital
for left leg on 15.05.2009, rods were inserted and he was
discharged on 19.05.2009 and he was advised to take bed-rest for
three months. He stated that he had regularly taken follow up
treatment. He incurred bills worth Rs.57,509/-. He further stated
that due to fracture injury, his left leg was shortened and he was not
in a position to move from bed and facing difficulty in sitting and
squatting and he was limping while walking and he was unable to
fold his leg, due to the injuries, he sustained permanent disability to
an extent of 100%.
13. He got examined the Orthopedic Surgeon of Nivedita
Ortho Centre as PW.2. PW.2 stated that he was practicing in
Nivedita Ortho Centre since 1985 and that the claimant came to his
hospital on 15.05.2009 with an injury to left tibia. He found that
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there was fracture of tibial condyle and the same was operated and
fixed with screws and nails on the same day i.e. on 15.05.2009 and
the claimant was discharged on 19.05.2009. He stated that the
claimant came to him regularly for follow up treatment for removal
of sutures and for physiotherapy. The disability was permanent, the
claimant would have difficulty in terminal movements of knee
joint. He assessed the functional and physiological disability of the
claimant as 10 to 15% and stated that the operation for removal of
implants might cost Rs.10,000/- to Rs.15,000/-. He admitted that
the claimant incurred an expenditure of Rs.27,000/- towards his
treatment.
14. The Tribunal disbelieved the evidence of PW.2
observing that PW.2 was examined in the year 2010 i.e. one year
after the operation. PW.2 stated that the claimant had shortening of
leg to an extent of ½ inch, but no X-rays were obtained by him to
assess the disability. No reasons were assigned by PW.2 for
shortening of the bone. No document was filed before the court
that he sustained disability. As such, the evidence of PW.2 was not
correct with regard to assessment of disability. The Tribunal
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further observed that without any proper and reasonable cause,
PW.2 had assessed the disability to help the claimant.
15. This Court in A. Chalapathi's case (2 supra) held that
"In my considered opinion, nothing more is
required than the testimony of the qualified
Orthopedic surgeon, who treated the appellant,
to show that the appellant has suffered the
permanent disability to the extent of 20%.
Unless the Court finds the evidence of the doctor
not worthy of acceptance by giving cogent
reasons, the opinion of a qualified doctor, that
too, of the doctor who conducted the surgery
and treated the patient, cannot be discredited."
This Court further observed that:
"As regards the contention of the counsel for the
appellant that the evidence of PW. 2 regarding
the permanent disability is rejected without any
basis, I find force in the said contention as well.
PW.2 is a qualified Orthopedic surgeon.
Undisputedly, he has treated the appellant. He
has categorically deposed that the appellant has
suffered permanent disability to the extent of
20% on account of shortening of leg. However,
by a strange process of reasoning the Tribunal
rejected this evidence by stating that the
appellant has not obtained a certificate from the
medical board. The Tribunal has not traced any
statutory provision under which medical board is
constituted and obtaining of the permanent
disability certificate from the medical board is
made obligatory for claimants under the Motor
Vehicles Act, 1988."
16. This Court also accepts the view taken in A.
Chalapathi's case (2 supra), as PW.2, a qualified Orthopedic
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Surgeon, who treated the claimant had given his evidence stating
that the claimant suffered permanent disability to an extent of 10 to
15% by giving cogent reasons stating that the claimant would be
having difficulty in terminal movements of knee joints and that he
was unable to sit and squat. Hence, it is considered fit to accept the
evidence of PW.2 in considering the permanent disability of the
claimant as 15%. As the claimant stated that he was a businessman,
running a Kirana and General Stores, even in the absence of any
reliable proof of income, the income of the claimant can be
considered as Rs.6,500/- per month as per the judgment of the
Hon'ble Apex Court in Syed Sadiq's case (1 supra) wherein the
income of a vegetable vendor is considered as Rs.6,500/- per
month for the accident occurred in the year 2008. The Hon'ble
Apex Court also considered the loss of future prospects observing
that:
14.... In our view, it will be naive to say that the
wages or total emoluments/income of a person
who is self-employed or who is employed on a
fixed salary without provision for annual
increment, etc., would remain the same
throughout his life.
15. The rise in the cost of living affects everyone
across the board. It does not make any
distinction between rich and poor. As a matter of
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fact, the effect of rise in prices which directly
impacts the cost of living is minimal on the rich
and maximum on those who are self-employed
or who get fixed income/emoluments. They are
the worst affected people. Therefore, they put
extra efforts to generate additional income
necessary for sustaining their families.
17. Although, the wages/income of those
employed in unorganized sectors has not
registered a corresponding increase and has not
kept pace with the increase in the salaries of the
Government employees and those employed in
private sectors but it cannot be denied that there
has been incremental enhancement in the
income of those who are self-employed and
even those engaged on daily basis, monthly
basis or even seasonal basis. We can take
judicial notice of the fact that with a view to
meet the challenges posed by high cost of living,
the persons falling in the latter category
periodically increase the cost of their labour. In
this context, it may be useful to give an example
of a tailor who earns his livelihood by stitching
cloths. If the cost of living increases and the
prices of essentials go up, it is but natural for
him to increase the cost of his labour. So will be
the cases of ordinary skilled and unskilled
labour, like, barber, blacksmith, cobbler, mason
etc.
18. Therefore, we do not think that while
making the observations in the last three lines of
paragraph 24 of Sarla Verma's judgment, the
Court had intended to lay down an absolute rule
that there will be no addition in the income of a
person who is self-employed or who is paid
fixed wages. Rather, it would be reasonable to
say that a person who is self-employed or is
engaged on fixed wages will also get 30 per cent
increase in his total income over a period of time
and if he / she becomes victim of accident then
the same formula deserves to be applied for
calculating the amount of compensation."
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Therefore, considering that the appellant/
claimant was self employed and was 24 years of
age, we hold that he is entitled to 50% increment
in the future prospect of income based upon the
principle laid down in the Santosh Devi v.
National Insurance Company Limited."
17. Considering the age of the claimant as 33 years, which
was not disputed, the multiplier applicable is '16' as per the
judgment of the Hon'ble Apex Court in Sarla Verma v. Delhi
Transport Corporation 4 and the future prospects can be taken as
40%, as per the judgment of the Hon'ble Apex Court in National
Insurance Company v. Pranay Sethi & Ors. 5. As such, the loss
of income due to the permanent disability sustained by the claimant
can be assessed as Rs.6,500/- + Rs.2,600/- (40% of Rs.6,500/-) x
12 x 16 x 15/100 = Rs.2,62,080/-. The loss of earnings during the
period of treatment can be calculated for a period of three months
as Rs.6,500/- x 3 = Rs.19,500/-.
18. As the evidence of PW.2 would disclose that the
claimant incurred an amount of Rs.27,000/- towards medical bills,
it is considered fit to award the same. As the evidence of PW.2
(2009) 6 SCC 121
2017 (16) SCC 680
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also would disclose that the claimant required a further surgery for
removal of implants, it is also considered fit to award an amount of
Rs.15,000/- towards future medical expenses as assessed by PW.2.
The amount of Rs.5,000/- awarded by the Tribunal towards pain
and suffering is considered as inadequate in view of the evidence
of PWs.1 and 2 that the said injury had also resulted in permanent
disability resulting in shortening of his left leg by half an inch
which brings a change in his physical appearance and lowers his
self confidence. As such, it is considered fit to award an amount of
Rs.25,000/- under this head and Rs.10,000/- for loss of amenities in
life. As some of the family members of the claimant might have
attended him during the period of his treatment and subsequently
during the period he confined to bed and during the period of his
recovery by leaving their regular work, it is consider fit to award an
amount of Rs.5,000/- under this head. As the Tribunal awarded
only an amount of Rs.1,000/- towards transportation and extra
nourishment, the same is considered as meager and it is considered
fit to award an amount of Rs.5,000/- each under these heads.
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19. As such, the amount of compensation entitled by the
appellant-claimant under various heads is as follows:
1. Loss of income due to
permanent disability : Rs.2,62,080/-
2. Loss of earnings during
the period of treatment : Rs. 19,500/-
3. Medical expenses : Rs. 27,000/-
4. Future medical expenses : Rs. 15,000/-
5. Pain and suffering : Rs. 25,000/-
6. Loss of amenities in life : Rs. 10,000/-
7. Attendant charges : Rs. 5,000/-
8. Extra nourishment : Rs. 5,000/-
9. Transportation to Hospital : Rs. 5,000/-
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Total : Rs.3,73,580/-
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20. As this Court is having power to grant just and
reasonable compensation to which the appellant-claimant is
entitled as per the judgments of the Hon'ble Apex Court
in Nagappa v. Gurudayal Singh 6 and Ramla v. National
Insurance Company Limited 7, it is considered fit to enhance the
compensation amount from Rs.60,000/- awarded by the Tribunal to
Rs.3,73,580/-, which is considered as just and reasonable.
(2003) 2 SCC 274
(2019) 2 SCC 192
Dr.GRR,J
21. In the result, the appeal is allowed enhancing the
compensation from Rs.60,000/- as awarded by the Tribunal to
Rs.3,73,580/- (Rupees three lakhs seventy three thousand five
hundred and eighty only) with interest at 7.5% per annum on the
enhanced amount. The respondent No.2 - Insurance Company is
directed to deposit the said amount within a period of two (02)
months from the date of receipt of a copy of this judgment, after
deducting the amount deposited, if any. On such deposit, the
appellant - claimant is permitted to withdraw the entire amount
subject to deposit of court fee on the amount awarded more than
the claim.
Miscellaneous petitions pending, if any, shall stand closed.
______________________
Dr. G. RADHA RANI, J
January 23, 2024
KTL
