Telangana High Court

A.Shekhar vs K.Ananthaiah Goud And Anr 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.762 of 2011

JUDGMENT:

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

decree dated 28.12.2010 passed in O.P.No.1353 of 2009 on the file of the

Chairman, Motor Accidents Claims Tribunal (for short "The Tribunal") - cum -

XIV Additional Chief Judge (Fast Track Court), Hyderabad, seeking

enhancement of compensation.

2. The claim petition was filed by the claimant under Section 163-A of the

Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the injuries

sustained by him in a motor vehicle accident.

3. The case of the claimant in brief was that he was aged 39 years, he was a

business man, R/o. Hasnabad, Kodangal Mandal, Mahaboobnagar District. On

01.06.2009, he along with his friends boarded a tempo trax / Toofan vehicle

bearing No.AP-28-W-6746 at Kodangal to go to Hyderabad and when reached

opposite Deer Park, Aziznagar, Moinabad at about 10:30 PM, the driver of the

vehicle drove the same with high speed in a rash and negligent manner and hit a

road side tree, due to which, the vehicle was completely damaged. The

claimant sustained injuries to both bones of right leg, left foot, injury to

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forehead (3 x 3 cm), laceration to right leg, right sole injury and multiple

fractures all over the body. Immediately after the accident, he was shifted to

Osmania General Hospital, Hyderabad where he was admitted as in-patient

from 01.06.2009 to 06.06.2009. After his discharge from the said hospital on

06.06.2009, he got re-admitted in C.C.Shroff Memorial Hospital on 06.06.2009

and was discharged on 24.06.2009. Police Moinabad registered a case in Crime

No.121 of 2009 under Section 337 of IPC against the driver of the Tempo Trax /

Toofan vehicle. Even after taking best treatment, the fracture sustained by him

was not cured and he incurred permanent disability. Due to the permanent

disability, the petitioner lost his earning capacity. As such, the petitioner

claimed compensation from respondents 1 and 2, the owner and insurer of the

tempo tax / toofan vehicle bearing No.AP-28-W-6746.

4. The respondent No.1 remained ex-parte.

5. The respondent No.2 filed counter denying the petition averments. The

respondent No.2 contended that the compensation claimed was excessive,

exorbitant and called for strict proof of the petition averments.

6. The Tribunal framed the issues and caused enquiry. The claimant

examined himself as PW.1 and got examined the orthopedic surgeon who

treated him at C.C.Shroff Memorial Hospital, Hyderabad as PW.2 and got

marked Exs.A1 to A6 on his behalf. The respondent No.2 failed to adduce any

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oral evidence, but got filed the copy of the Insurance Policy and marked the

same as Ex.B1. On considering the oral and documentary evidence on record,

the Tribunal held that the accident occurred was only due to the rash and

negligent driving of the driver of the Tempo Tax / Toofan Vehicle bearing

No.AP-28-W-6746 and that the petitioner sustained grievous injuries in the said

accident and the respondents Nos.1 and 2 were jointly and severally liable to

pay compensation to the petitioner.

7. With regard to the quantum of compensation, the Tribunal considered the

age of the petitioner as 39 years as per Ex.A2, the certified copy of Medico

Legal Certificate (for short "MLC") and had taken the multiplier as "16" as per

the Second Schedule appended to the Motor Vehicles Act. The Tribunal

considered the income of the petitioner as Rs.3,000/- per month in the absence

of any income proof and had taken the disability of the petitioner at 20% as per

the evidence of PW.2 and assessed the loss of future earnings as Rs.3,000 x 12 x

16 x 20% = Rs.1,15,200/-. The Tribunal awarded Rs.9,000/- towards two

lacerations and two abrasions sustained by the injured claimant and awarded an

amount of Rs.3,000/- towards pain and suffering due to the fracture injury, an

amount of Rs.38,300/- towards medical expenses and extra nourishment,

Rs.15,000/- for removal of implants, Rs.1,000/- towards transportation charges.

In total, awarded an amount of Rs.1,81,500/- with interest @ 7.5 % per annum

from the date of petition till the date of deposit.

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8. Aggrieved by the said award of the Tribunal, the claimant preferred this

appeal contending that the Tribunal ought to have considered the loss of earning

capacity of the claimant as 100%, as the petitioner was unable to do his

avocation as earlier to earn his livelihood. The petitioner was entitled to grant a

further sum of Rs.4,60,800/- towards future loss of earning capacity apart from

all other counts. The Tribunal ought to have awarded Rs.35,000/- towards

expenses for removal of implants and prayed to enhance the compensation.

9. Heard Sri T.Vishwarupa Chary, learned counsel for the appellant and Sri

N.S.Bhaskar Rao, learned counsel for the respondent No.2 - Insurance

Company.

10. The learned counsel for the appellant contended that for a business man

in the absence of proof of income, the income ought to have been taken as

Rs.10,000/- per month as per the judgment of the Hon'ble Apex Court in Prema

Devi Yadav & Others v. National Insurance Company Limited and

Another 1, future prospects had to be considered even for self-employed persons

as per the judgment of the Hon'ble Apex Court in Syed Sadiq, etc. v.

Divisional Manager, United India Insurance Company Limited 2 . The

Tribunal failed to award any amounts towards loss of earnings during the period

of treatment and attendant charges. The amount awarded under the other heads

2022 Law Suit SC 725

(2014) 2 SCC 735

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for removal of implants, pain and suffering, extra nourishment were very

meager and prayed to enhance the compensation.

11. The learned counsel for the respondent No.2 on the other hand contended

that no disability certificate issued by the Medical Board was filed by the

claimant. The claimant failed to prove his avocation by adducing any cogent

evidence. No evidence was adduced to show that the implants were removed

though the accident occurred on 01.06.2009 and contended that no interference

was required in the award of the Tribunal and prayed to dismiss the appeal.

12. Perused the record.

13. PW.1 stated in his claim petition that he was a business man, but had not

disclosed what business he was doing. During cross-examination, he stated that

he was having a rice mill at Hasnabad at his native place, but admitted that he

did not file any document in proof of it and that he was earning Rs.10,000/- per

month by the date of the accident. In the absence of any proof of income filed

by the claimant, 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 Case

(cited supra), wherein the income of the vegetable vendor is considered as

Rs.6,500/- per month for the date of accident occurred in the year 2008. As the

above judgment also would disclose that future prospects have to be considered

even for self-employed people, considering the age of the claimant as 39 years,

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which was not disputed, the future prospects can be taken at 40% of the income

considered. As such, the income of the claimant including his future prospects

can be taken as Rs.6,500/- + Rs.2,600/- (40% of Rs.6,500/-) = Rs.9,100/-. As

the petition was filed under Section 163-A of Motor Vehicles Act, the Tribunal

had rightly taken the multiplier as "16" as per the Second Schedule appended to

the Motor Vehicles Act.

14. The orthopedic surgeon of C.C.Shroff Memorial Hospital, Hyderabad

who treated the claimant was examined as PW.2. He stated that the claimant

was admitted in his hospital on 05.06.2009 with injury to right leg and right

knee, alleged to have sustained on 01.06.2009 in a Road Traffic Accident and

that immediately after the accident, he was picked up by 108 Ambulance and

was admitted in Osmania General Hospital on 01.06.2009. He got discharged

and came to his clinic on 05.06.2009. He was diagnosed with comminuted

fracture of upper third tibia with extension to knee joint. He advised surgery

and operated him on 11.06.2009, wherein open reduction and internal fixation

was done and was discharged on 24.06.2009 after removal of sutures. He

further examined him on 16.09.2010 and found that the claimant was unable to

sit and squat and was facing difficulty for going to toilet as the movements of

knee were restricted in terminal ranges and his disability to sit on ground was of

permanent nature and assessed the disability as 20%. As such, the same is

rightly considered by the Tribunal. Hence, the future loss of earnings due to the

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permanent disability can be assessed as Rs.9,100 x 12 x 16 x 20% =

Rs.3,49,440/-.

15. Considering the fracture injury sustained by the claimant, the loss of

earnings during the period of treatment can be assessed for a period of three

months. As such as an amount of Rs.6,500 x 3 = Rs.19,500/- is awarded.

16. The Tribunal had rightly awarded an amount of Rs.38,300/- towards

medical bills as per the evidence of PW.2 and Ex.A5. The amount of Rs.3,000/-

awarded by the Tribunal towards pain and suffering due to the fracture injury

sustained by the appellant - claimant is considered as inadequate and as such the

same can be enhanced to Rs.20,000/-. The amount of Rs.9,000/- awarded

towards other simple injuries required no interference. As the petitioner was

admitted in Osmania General Hospital as well as in a private hospital for a

period of about 25 days, his family members might have attended him during

the period of his treatment and also subsequently during the period of his

recovery by leaving their work. As such it is considered fit to award an amount

of Rs.10,000/- towards attendant charges. As the claimant belonged to

Hasnabad of Kodangal Mandal, Mahaboobnagar District and had taken

treatment at Hyderabad, he might have incurred some amount towards

transportation charges "to and fro" to the hospitals at the time of accident as

well as subsequently during his visits as out-patient. As such, it is considered fit

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to enhance the amount awarded by the Tribunal to Rs.5,000/- under this head.

As the appellant - claimant might have incurred some amount towards extra

nutritious diet taken by him during the period of his recovery, it is considered fit

to award an amount of Rs.5,000/- towards extra nourishment. The Tribunal

awarded an amount of Rs.15,000/- for removal of implants as against the

evidence of PW.2, who assessed the same as Rs.25,000/- As such, it is also

considered fit to enhance the amount for future medical expenses from

Rs.15,000/- to Rs.25,000/-.

17. Hence, the compensation entitled to the appellant - claimant under

various heads is as follows:

         S. No.   Heads                         Compensation Awarded
         1.       Future loss of earnings due   Rs.3,49,440/-
                  to permanent disability
                  sustained by the claimant
         2.       Loss of income during the     Rs..19,500/-
                  period of treatment
         3.       Medical Expenses              Rs.38,300/-
         4.       Future Medical Expenses       Rs.25,000/-
         5.       Pain and Suffering            Rs.29,000/-
         6.       Attendant Charges             Rs.10,000/-
         7.       Transportation                Rs.5,000/-
         8.       Extra Nourishment             Rs.5,000/-
         Total:                                 Rs.4,81,240/-

18. The petitioner claimed an amount of Rs.4,00,000/-. But as there is no

restriction on this Court to restrict the award to the amount claimed, but can

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

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

Court in Nagappa v. Gurudayal Singh & Others 3 , Ibrahim v. Raju 4 ,

Magma General Insurance Co. Limited v. Nanu Ram @ Chuhru Ram 5 ,

Ramla and Others v. National Insurance Co. Limited and Others 6, it is

considered fit to award an amount of Rs.4,81,240/- with interest @ 7.5% per

annum subject to payment of deficit court fee by the petitioner.

19. In the result, the M.A.C.M.A is allowed enhancing the compensation

from Rs.1,81,500/- awarded by the Tribunal to Rs.4,81,240/- with interest @