Telangana High Court
Mohd.Khader , Mohd.Quadri vs Sondam Sudhakar Goud And Anr on 7 June, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.1259 OF 2017
JUDGMENT:
Heard Sri C.M.Prakash, learned counsel for the
appellant/claimant and there is no representation on behalf of
respondent no.2-insurance company.
2. The present appeal has been filed by the
appellant/claimant aggrieved and dissatisfied with the award
passed by the Motor Accidents Claims Tribunal-cum-XII Chief
Juge, (FTC), City Civil Court, Hyderabad (for short, 'Tribunal') in
M.V.O.P.No.311 of 2010, dated 12.03.2012 and thereby seeking
for enhancement of compensation.
3. The appellant herein is the petitioner/claimant,
respondent No.1 herein is the respondent no.1-owner of crime
vehicle and respondent No.2 herein is the respondent no.2-
insurance company before the Tribunal. For convenience, the
parties hereinafter are referred to as they are arrayed before the
Tribunal.
4. The brief factual matrix of the present appeal is as under.
4.1. On 14.08.2008 at about 11.30 p.m., while the petitioner
was proceeding on his motorcycle bearing registration No.AP-
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11-AA-6893 as rider along with his friend as pillion rider from
Chennareddynagar towards Azampura, Chaderghat, Hyderabad
and when they reached near Musi bridge, auto bearing
registration no.AP-28-Y-3400 (hereinafter referred to as
offending vehicle) came in opposite direction in rash and
negligent manner and dashed the motor cycle of the petitioner,
as a result, he sustained grievous fracture injuries; that
immediately he was shifted to Osmania General Hospital for
treatment, subsequently shifted to NIMS Hospital and
thereafter, he was shifted to Decan College of Medical Sciences
(PEH), Shah Ali Banda, Hyderabad, where he was treated as
inpatient.
4.2. The Police, Amberpet Police Station, Hyderabad,
registered a case in Crime No.351/2008 under Section 337 of
IPC against the driver of the offending vehicle and filed charge
sheet.
4.3. The Petitioner has filed claim petition against owner of the
vehicle and insurance company under Section 166 of Motor
Vehicles Act, 1988 before the Tribunal claiming compensation of
Rs.2,50,000/- along with interest from the date of filing of claim
petition to till the date of realization.
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4.4. The petitioner was aged about 22 years as on the date of
accident, hale and healthy and was a Karate Coach and used to
earn more than Rs.5,000/- per month and contribute the same
to his family. He was admitted as inpatient and underwent
surgery and bedridden for about six months and incurred
medical expenses of Rs.75,000/-.
5. The Respondent No.1-owner of offending vehicle remained
ex-parte. The 2nd respondent-Insurance Company filed counter
denying all the allegations made in the claim petition and
further contended that petitioner has to prove that he sustained
injuries in the accident and that the crime vehicle was duly
insured with the respondent no.2, and finally, prayed to dismiss
the claim petition.
6. On the basis of the pleadings, the MACT has framed the
following issues:
i) Whether the accident resulting in injuries to the
petitioner occurred owing to rash and negligent driving of
the driver of auto bearing no.AP-28-Y-3400?
ii) Whether the petitioner is entitled any compensation
and if so, what amount and from whom ?
iii) To what relief?
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7. In order to substantiate the case, on behalf of the
petitioner, P.Ws.1 to 4 were examined and Exs.A1 to A10 were
marked. To disprove the claim of the petitioner, 2nd respondent-
insurance company neither examined any witness nor produced
any document.
8. The Tribunal, on due consideration of the oral evidence
and material placed on record, came to conclusion that the
accident took place due to rash and negligent driving of
offending vehicle and awarded compensation of Rs.1,90,000/-
along with interest @ 6% per annum from the date of petition till
the date of realization. The owner of the offending vehicle and
the Insurance company i.e., respondent Nos.1 & 2 were held to
be jointly and severally liable to pay the said compensation.
9. During the course of hearing of the appeal, learned
counsel for appellant/petitioner submitted that the Tribunal
erred in awarding meager compensation amount without
considering the earning capacity of the petitioner and future
prospects; that as per Ex.A4-disability certificate, petitioner
suffered disability of 40%, however, the Tribunal erred in
considering the disability as 8% only as per Workmen's
Compensation Act, which is contrary to law; that Tribunal erred
in adopting multiplier 17 instead of 18; that the Tribunal erred
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in not awarding amounts towards grievous injuries and also
towards medical bills and prayed to enhance the compensation
amount.
10. The main contention raised by the learned counsel for the
appellant in the appeal is that though P.Ws.2 and 3, who are
the doctors and treated the petitioner, had assessed the
disability sustained by the petitioner at 40%, the Tribunal erred
in not considering the same and erroneously assessed the
disability to the extent of 8% only.
11. Perusal of the record and material placed on record would
show that the petitioner had sustained two grievous injuries i.e.,
comminuted fracture of the right patella and fracture of lateral
condyle of right tibia and he underwent surgery; that petitioner
claimed that due to injuries suffered in the accident, he became
disable and produced Ex.A4-disability certificate issued by
P.W.2. However, petitioner has not filed any document to show
that he was treated by P.W.2 at any point of time; that PW.3-
Dr.Jagadishwar Rao, who actually treated the petitioner, stated
that he treated and found fracture patella comminuted right
side, fracture lateral condyle femur, which are grievous in
nature. P.W.3 further deposed that petitioner cannot do normal
work as he was earlier prior to the accident, however, he has
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not assessed the disability sustained by the petitioner. As per
Ex.A6-certificate issued by Global Taekwondo Academy, the
petitioner has not attended his duty over a period of four
months and thereafter he attended the duty, which clearly
shows that the statement of P.W.3 that the petitioner cannot
work as Karate coach as earlier is not correct.
12. In D.Sampath vs. United India Insurance Company
Limited and another 1, relied upon by the learned counsel for
appellant, the Hon'ble Supreme Court held as under:
"6. It is no doubt true that, while making assessment,
there is an element of guesswork, but that guesswork
again must have reasonable nexus to the available
material/evidence and the quantification made. In the
instant case, the claimant had not only examined
himself to sustain the claim made in the petition, but
also Dr.J.R.R.Thiagarajan, P.W.3, who has stated that
the claimant has suffered 75% disability, by referring to
the disability certificate issued by a competent doctor
who had treated the claimant. Though the doctor is
cross-examined at length by the learned advocate for
the insurance company, nothing adverse to the interest
of the claimant is elicited. Therefore, the Tribunal has
rightly accepted the evidence of doctor, P.W.3.
However, the High Court has taken 50% disability into
account while calculating the loss of income. This, in
our view, is the mistake committed by the High Court."
(2011) 15 SCC 160
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13. In the case on hand, P.W.3-Doctor, who actually treated
the petitioner, had not issued a certificate to the extent of
disability suffered by the petitioner; that PW.2-Doctor, who did
not treat the petitioner, had issued Ex.A4-disability certificate
show that petitioner sustained disability to the extent of 40%
without mentioning reasons for such disability. In view of the
above decision cited by the appellant, while making assessment,
there must be some guess work that must have reasonable
nexus to the available material/evidence. But, in the present
case, P.W.2 who did not treat the appellant issued Ex.A4-
disability certificate without assigning any reasons. Therefore,
the Tribunal did not consider Ex.A4 and construed the disability
of the appellant as 8% basing on Workmen's Compensation Act.
The appellant failed to make out any case warranting this Court
to interfere with the observation of the Tribunal.
14. In view of the above discussion, facts and circumstances
of the case, and legal position, this Court is of the opinion that
the Tribunal had rightly taken the disability of petitioner at 8%,
which is just and proper in considering the compensation
towards loss of earning capacity of the petitioner. Thus, the
citation relied upon by the learned counsel for appellant does
not come to the aid of the appellant.
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15. Insofar as other contention of the appellant that the
Tribunal erred in applying the multiplier '17' is concerned, as
per the record, the age of the appellant was shown as 22 years
as on the date of the accident. Therefore, the Tribunal ought to
have applied multiplier 18 instead of 17 as per the Sarla Verma
vs. DTC [(2009) 6 SCC 121]. If 18 multiplier is applied, the loss
of earnings would come to Rs.86,400/- (Rs.5,000/- x 12 x 18 x
8/100), which the petitioner is entitled towards disability.
16. The other contention raised by the learned counsel for
appellant is that Tribunal had meager amount towards grievous
injuries. A perusal of the record would show that the petitioner
sustained two grievous injuries i.e., fracture to right patella and
fracture to lateral condyle right tibia and other multiple injuries
all over body, which is evident from the evidence of P.W.3 and
Ex.A3-discharge card. In considered view of this Court, taking
into consideration the evidence of P.W.3-Doctor and Ex.A3, and
injuries sustained by the appellant, appellant is entitled to
Rs.50,000/- towards two fracture injuries as against Rs.10,000/-
awarded by Tribunal.
17. In considered opinion of this Court, the interest awarded by
the Tribunal is meager and therefore, requires interference of this
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Court and accordingly, the interest is revised to 7.5% per annum
instead of 6% per annum awarded by the Tribunal.
18. In the result, the compensation amount awarded towards
disability and the fracture injuries is liable to be modified to the
above extent. There shall be no change with regard to the
amounts awarded by the Tribunal on other heads.
19. Thus, the appellant is entitled to a total compensation
under the following heads:
Sl.No. Particulars Amount
1 Towards grievous injuries Rs. 50,000.00
2 Towards medical expenses Rs. 11,000.00
3 Towards pain and suffering Rs. 50,000.00
4 Loss of earnings due to disability Rs. 86,400.00
5 Towards loss of estate Rs. 30,000.00
6 Towards transportation and extra Rs. 7,400.00
nourishment
Total: Rs.2,34,800.00
20. Accordingly, the Appeal is allowed in part, enhancing the
compensation from Rs.1,90,000/- to Rs.2,34,800/- with
interest at the rate of 7.5% from the date of the petition till the
date of realization. The respondent Nos.1 & 2 are directed to
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deposit the entire compensation amount within a period of six
weeks from the date of receipt of copy of this order by duly
adjusting the amounts, if any, already deposited/paid to the
appellant/claimant. There shall be no order as to costs.
21. Pending miscellaneous applications if any shall stand
closed. [[
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LAXMI NARAYANA ALISHETTY,J
Date: 07.06.2024
kkms
