Telangana High Court
P. Venkat Rao vs M/S Sri Balaji Timbers Another on 21 March, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1333 of 2013
JUDGMENT:
1. This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 05.12.2012 passed in M.V.O.P.No.2185 of 2010 on the file of Motor Vehicle Claims Tribunal-cum-XIV Additional Chief Judge, City Civil Courts, Hyderabad (for short, the Tribunal).
2. The brief facts of the case are that on 19.06.2010 at about 7.45 p.m while the petitioner and his friend were proceeding from Kukatpalli to Moosapet, on foot, and when they reached near Hero Honda Show room, a lorry bearing No.AP-29- TA-3134, driven by its driver in a rash and negligent manner, dashed the him and his friend, as a result of which, the petitioner sustained fracture injury to his head apart from other injuries. Immediately he was shifted to Remedy Hospital for treatment. Basing on a complaint, a case in Crime No.690 of 2010 has been registered against the driver of the offending Lorry. It is also stated that due to the injuries sustained him, the appellant cannot attend any work without assistance of an 2 GSD, J MACMA No.1333/2013 attendant and he became 100% disabled person and he lost his income. Since the accident occurred due to the rash and negligent driving of the driver of the Lorry, the appellant filed the above O.P. against the respondents 1 and 2, who are the owner and insurer of the said Lorry, claiming compensation of Rs.18,00,000/- for the disability sustained by him.
3. Before the Tribunal, the 1st respondent remained ex parte, whereas the 2nd respondent filed counter denying the averments of the claim petition including the age, income and avocation of the appellant and also denied the nature of injuries sustained and nature of treatment undergone by the appellant. It is also stated that the amount claimed is excessive and prayed to dismiss the claim petition.
4. Basing on the above pleadings, the following issues are framed before the Tribunal:-
1) Whether the pleaded accident dated 09.06.2010 has occurred owing to the rash and negligent driving of the lorry bearing No.AP-28-TA-3134 and whether the petitioner has sustained injuries in the said accident?3
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2) Whether the crime vehicle No.AP-28-TA-3134 was owned by the 1st respondent and insured with the 2nd respondent as on the date of accident, and whether the petitioner is entitled for compensation, if so, to what quantum and what is the liability of the respondents?
3) To what relief?
5. During trial, before the Tribunal, on behalf of the appellant, P.Ws.1 to 3 were examined and Exs.A1 to A9 and Ex.X1 were marked. On behalf of the respondents, no oral evidence was adduced except marking copy of policy as Ex.B1.
6. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the Lorry bearing No.AP-24-TA-3134 and awarded total compensation of Rs.5,05,000/- with interest @ 7.5% per annum. Being dissatisfied with the quantum of compensation, the appellant filed the present appeal, seeking enhancement of the same.
7. Heard both sides and perused the record. 4
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8. The finding of the Tribunal with regard to the manner in which the accident took place has become final since the same was not challenged by either of the respondents.
9. In order to award compensation in case of personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and another1 held as under:
"5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical 1 MACD 2011 (SC) 33 5 GSD, J MACMA No.1333/2013 evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items
(iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."
11. In the light of the principles laid down in the aforementioned case, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earning, inability to lead a normal life and enjoy amenities, 6 GSD, J MACMA No.1333/2013 which would have been enjoyed but for disability caused due to the accident.
10. A perusal of the judgment of the impugned order would show that since no document has been filed to prove the income of the appellant, the Tribunal has rightly estimated the income of the appellant at Rs.3,000/- per month. Taking the income of the appellant at Rs.36,000/- per annum, the loss of earnings sustained by the appellant with the disability at 100% would be Rs.36,000/- per annum. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation2, the suitable multiplier to be adopted for calculating the loss of earnings would be '13'. Therefore, the loss of earnings on account of his 100% disability as rightly awarded by the Tribunal would be Rs.4,68,000/-. Apart from the said amount, the tribunal has awarded an amount of Rs.35,000/- towards medical expenses.
11. Since the appellant sustained 100% disability in view of neurological and physical disability, he must have put to lot of mental agony, pain and suffering, hence the appellant is 2 2009 ACJ 1298 7 GSD, J MACMA No.1333/2013 entitled to Rs.50,000/- towards pain and suffering instead of Rs.2,000/- awarded by the Tribunal and a sum of Rs.25,000/- towards transportation charges, extra diet and attendant charges.
12. So far as loss of amenities and loss of expectation of life is concerned in Kavita v. Deepak and others3the Apex Court held that victims of accident, who are disabled either permanently or temporarily, adequate compensation should be awarded not only for the physical injury and treatment but also for the loss of earning and inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount awarded for pain, suffering, loss of enjoyment of life and medical expenses.
13. In the instant case, since the appellant has sustained 100% of the disability because of neurological and phuyscial disability, this Court deems it fit to award a sum of Rs.1,00,000/- towards 3 (2012) 9 SCC 604 8 GSD, J MACMA No.1333/2013 loss of amenities and loss of expectation of life. Thus, in all the appellant is entitled to a sum of Rs.6,78,000/- .
14. Accordingly, the appeal is allowed in part by enhancing the compensation from Rs.5,05,500/- to Rs.6,78,000/-. The enhanced amount will carry interest at 7.5% p.a. from the date of order passed by the Tribunal i.e., 05.12.2012 till the date of realization, payable by respondents 1 and 2 jointly and severally. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________ JUSTICE G. SRI DEVI 21.03.2022 ysk/trr/pgp 9 GSD, J MACMA No.1333/2013