Telangana High Court
G.Sathyamma vs T.Mohammed Shareef And Anr on 13 June, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No.27 of 2014
JUDGMENT:
1. This Motor Accidents Civil Miscellaneous Appeal is filed aggrieved by the judgment dated 13.09.2013 in O.P.No.530 of 2010, passed by the District Judge-cum-Motor Accidents Claims Tribunal, Mahabubnagar (for short 'the Tribunal') disputing the quantum of compensation awarded by the Tribunal.
2. The appellant before this Court is claimant in the aforesaid OP.
3. Heard Sri. M.Govind Reddy, learned counsel for the appellant and Sri. A. Ramakrishna Reddy learned Standing Counsel appearing for Respondent No.2.
4. The brief facts of the case are that on 29.03.2009 at 8.45 a.m. the appellant, her husband and a few others were travelling to Hyderabad from Moosapet in an auto. As they reached Rajapur Village, the car bearing No. AP-21-TV-137 being driven in a rash and negligent manner collided with the auto. The auto toppled due to the crash, resulting in injuries to the appellant and the other passengers. The appellant claims to have sustained grievous 2 injuries on her right back, abrasion of extensor aspect of right elbow, laceration of left upper eye lid, abrasion to left ankle and several other injuries. She was initially admitted to SVS Hospital, Mahabubnagar, where she was treated for three days before being admitted to Care Hospital Hyderabad where she received treatment for one month. The appellant had filed the subject OP seeking a compensation of Rs.4,00,000/-.
5. The Tribunal, on considering the oral and documentary evidence on record, had held that the accident occurred due to the rash and negligent driving of the car by the respondent No.1 herein. Further, basing on the evidence of the PW-2 i.e., Dr. S Chakradhar Goud and the disability certificate marked as Ex.A-5, the Tribunal held that the appellant suffered 35% permanent disability. Thus, the Tribunal allowed the OP in part and awarded a total compensation of Rs.2,77,000/- along with proportionate costs and interest @ 6% p.a. from the date of award.
6. The present appeal is preferred aggrieved by the said order.
7. It is the contention of the appellant that, the Tribunal had erred in not granting future medical expenses even after observing that she would need to undergo a surgery for removal of implants; 3 that the Tribunal had arbitrarily fixed her income as Rs.3,000/- per month despite the appellant earning Rs.5,000/- per month; that the Tribunal had failed to consider the disability suffered by her led to a total loss of income; and that the Tribunal had applied the wrong multiplier while calculating loss of earnings.
8. Learned Standing Counsel appearing for respondent No.2 contended that the compensation awarded by the Tribunal was just and did not warrant enhancement by this Court.
9. I have taken note of respective contentions and perused the record.
10. The grounds of challenge in this appeal are that the Tribunal failed to consider the medical expenses incurred and to be incurred by the appellant, and that her permanent disability led to a total loss of earnings, while computing compensation. Therefore, it shall be examined whether the Tribunal had granted just compensation.
11. In the facts at hand, the appellant was 26 years at the time of the accident and was working as a daily laborer. Prior to the accident she claims to have been earning Rs.5,000/- per month. The Tribunal rejected the claim of the appellant as she failed to produce documentary evidence of her income and occupation, and 4 determined her monthly income as Rs.3,000/-, on an assumption that the minimum wages were at least Rs.100/- per day.
12. While dealing with a similar question the Supreme Court in Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited1, held that a coolie cannot be expected to produce documentary evidence to prove his income, and that the Tribunal should accept the claim of a person with respect to his income, if such claim is not exorbitant and if the respondent does not lead any evidence proving such claim as incorrect.
13. In the present case, though the respondents opposed the appellant's contention before the Tribunal, they did not lead any evidence to support their stand. Further, the income fixed by the Tribunal on an assumption of the minimum wages being Rs.100/- per day, cannot be sustained, as the daily wages for unskilled labour in the year 2004-05 itself was Rs.150/- per day. Thus, taking into consideration the appellant's occupation, her age, and the daily wages in 2009, her claim that she was earning Rs.5,000/- per month, does not appear to this Court to be an exorbitant claim and is justified.
1 (2011)13SCC236 5
14. Further, though the evidence of PW-3 revealed that the appellant may have been on complete bed rest for nearly 2 months after the surgery and treatment in the hospital, and might have incurred considerable expenses towards extra nourishment, attendant and transportation charges, the Tribunal had failed to grant loss of earnings for the period of recovery. Therefore, taking into consideration that the appellant was a laborer doing strenuous physical work, and that an injury to the spine would have confined her to the bed, it is just to calculate total loss of earnings for a period of 5 months.
15. Further, while calculating the loss of future earnings though the Tribunal had rightly referred to the case of Sarla Verma and Ors. Vs. Delhi Transport Corporation and Ors.2, it had erred in applying the correct multiplier. The correct multiplier as per column (4) in the Table in the above decision is 17 as the appellant was 26 years of age at the time of the accident. It is well settled that the percentage of loss of future earnings is not directly proportionate to the percentage of permanent disability. Once the Tribunal had concluded that a person suffered from permanent disability, it was required to determine the percentage of loss of 2 (2009)6SCC121 6 earnings by taking into factors like the occupation of the person, etc., The Supreme Court in Raj Kumar Vs. Ajay Kumar and Ors3, had observed as under:
"10.Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in 3 (2011)1SCC343 7 service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
16. Reverting to the facts at hand, the appellant had established to have undergone operation for D-12 and L-1 wedge compression fracture, by insertion of rods and screws. The evidence of PW-3 i.e., Dr. T. Narasimha Rao, who treated the appellant apart from corroborating the evidence filed by her, stated that she would incur future medical expenses of nearly Rs.70,000/- to Rs.80,000/- for removal of the rods inserted and that the 'Arogya Shree' scheme would not cover such further surgery. He further stated that she would experience difficulty in squatting, answering calls of nature, etc. That apart the evidence of PW-3 also establishes that she would have difficulties in leading a conjugal life.
17. The evidence of PW-2 i.e., Dr. Chakradhar Goud along with the disability certificate issued by the Medical Board, 8 Mahabubnagar, marked as Ex-A-5 would go to further establish that the appellant had suffered a 35% disability to her spine as a result of which she could not bend forward, stand for long durations or walk, carry out her daily activities etc. If these factors are taken into consideration, it is apparent that the appellant would no longer be able to eke out her livelihood by working as a daily laborer, since manual labor necessarily involves activities such as bending, walking/standing for long hours, etc. In addition to the same, taking note of the fact that the appellant was working as a labourer and not skilled to undertake other activities for earning her livelihood, in the view of this Court it is just to determine the functional disability as 70%.
18. Further, the appellant was treated as inpatient for 14 days, and marked bills amounting to Rs.5828/- as Ex.A-7 in proof of medical expenses. On considering the same, though the Tribunal observed that all medicines would not have been provided to the appellant under the 'Arogya Sree' Scheme, it erred in awarding a meager amount of Rs.6,000/- towards medical expenses. Considering the nature of her injury and the expenses incurred by her for 14 days, this Court is of the view that she would have incurred a minimum of Rs.800/- per month towards medicines, etc. 9 Therefore, this Court deems it just to award proportionate medical expenses for a period of 5 months amounting to Rs.4,000/- in addition to the amount awarded by the Tribunal. Further as PW-2 had deposed that the appellant would have to undergo another surgery for removal of implants, this Court is of the view that it is just to grant future medical expenses.
19. That apart as the evidence of PW-3 also establishes that she would have difficulties in leading a conjugal life, and would also need assistance in squatting etc, it is just to enhance the damages towards pain, suffering and trauma and award compensation towards loss of amenities of life.
20. Therefore, the loss of earnings of the Appellant during the period of treatment is Rs.25,000/- (5,000/- x 5). In the light of the Raj Kumar's case (supra) loss of earnings includes loss of earnings during the period of treatment and loss of future earnings on accounts of disability. While calculating loss of future earnings, in light of the decision of the Supreme Court in Pappu Deo Yadav vs. Naresh Kumar and Ors4, the Appellant is also entitled for an addition of 40% of her established income towards loss of future prospects. Thus, the monthly income of the Appellant is Rs.7,000/- 4 AIR 2020 SC 4424 10 (Rs.5000/- + 2,000/-). and the annual income of the Appellant is Rs.84,000/-. Accordingly, the loss of future earnings as a result of 70% disability is Rs.9,99,600 [Rs.58,800 (70% of the annual income) x 17 (multiplier)]. Therefore, the total loss of earnings are Rs.10,24,600/- (Rs.25,000 +Rs. 9,99,600/-)
21. Further, considering the prevalent rate of interest for nationalized banks in the year 2009, this Court is of the view that it is just to enhance the rate of interest from 6% to 7.5% per annum.
22. In view of the above findings, the compensation awarded to the Appellant is thus, modified as under:
Head of Compensation Compensation Enhancement by this awarded by the Court Tribunal Amount (in Rupees) Amount (in Rupees) Medical Expenses and 6,000/- 10,000/-
Extra nourishment
Attendant Charges and 20,000/- 20,000/-
Transport Charges
Damages for pain, 50,000/- 75,000/-
suffering and trauma
Loss of Earnings 2,01,600/- 10,24,600
Future Medical - 75,000/-
Expenses
Loss of Amenities of - 20,000/-
Life
TOTAL 2,77,000/- (rounded 12,24,600/-
of by the Tribunal)
11
23. Accordingly, this Motor Accident Civil Miscellaneous Appeal is allowed. The compensation awarded by the Tribunal is enhanced from Rs.2,77,000/- to Rs.12,24,600/-. The Respondents are directed to deposit the enhanced compensation with interest at the rate of 7.5% per annum from date of the claim petition till realization, within four months from the date of this order.
However, as the appellant has only claimed Rs.4,00,000/- in the original petition, she is directed to deposit the deficit court fee on the enhanced amount i.e., Rs.8,24,600/- before the Tribunal. On such deposit, the Appellant is permitted to withdraw the enhanced compensation along with interest accrued.
24. Pending miscellaneous petitions if any, shall stand closed. No order as to costs.
______________________ T. VINOD KUMAR, J 13th June, 2023.
mrkr/vsv 12 THE HON'BLE SRI JUSTICE T. VINOD KUMAR M.A.C.M.A. No. 27 of 2014 13.6.2023 Mrkr/vsv