Andhra HC (Pre-Telangana)
K. Narasaiah vs M. Sreedhar Reddy And Another on 1 September, 2014
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
HONBLE SRI JUSTICE B. CHANDRA KUMAR
MACMA No. 2042 of 2006
01-09-2014
K. Narasaiah .. Appellant
M. Sreedhar Reddy and another .. Respondents
Counsel for Appellant : Sri M. Subrahmanyam
Counsel for respondent No.1 : ---
Counsel for respondent No.2 : Sri N. Mohan Krishna
<GIST:
>HEAD NOTE:
? CASES REFERRED :
1. (2013) 9 SCC 54
THE HONBLE SRI JUSTICE B. CHANDRA KUMAR
M.A.C.M.A. No. 2042 of 2006
Judgment:
Aggrieved by the award dated 31.08.2005 passed in OP No.236 of
2004 by the Motor Accidents Claims Tribunal-cum-District Judge, Nellore,
whereby and whereunder the Tribunal awarded compensation of
Rs.60,000/-, with interest at 7.5% p.a., from the date of petition till
realization, out of the claim of Rs.2,00,000/-, the claimant filed the
present appeal seeking enhancement of compensation.
The parties hereinafter will be referred to as they are arrayed
before the Tribunal for the sake of convenience.
The brief facts of the case are as follows. That on 12.04.2003 the
claimant and others were engaged an Auto bearing No. AP 26U 8296 to
go to Vavilla village from Atmakur and while they were returning from
Vavilla village to Nellore it is alleged that the lorry bearing No.AP 26 U
7225 being driven by its driver in a rash and negligent manner came and
dashed against the Auto near Inamadugu road centre at Kovur, as a result
of which the claimant and others sustained injuries. The claimant was
shifted to Government Hospital. It is the case of the claimant that in spite
of treatment he became permanently disabled due to fracture of D8 and
D9 vertebral of spine. It is also his case that he was aged about 32 years
at the time of accident and he was working as toddy tapper and earning
Rs.6,500/- per month.
The first respondent-owner of the vehicle remained ex parte. The
second respondent-Insurance Company filed counter and contested the
matter on various grounds.
The Tribunal framed various issues.
On behalf of the claimant the claimant himself was examined as
PW.1 and PWs.2 and 3 were examined and Exs.A1 to A6 were marked.
On behalf of the respondents none were examined but the copy of
insurance policy was marked as Ex.B1.
On the issue of negligence the Tribunal came to the conclusion that
the accident occurred due to rash and negligent driving of the driver of
the lorry. The said finding is not in dispute in this appeal. On issue No.2,
the Tribunal came to the conclusion that the claimant is entitled to a sum
of Rs.30,000/- towards pain and suffering, Rs.10,000/- towards medical
expenses, Rs.15,000/- towards disability and Rs.5,000/- towards loss of
earnings. Thus, in all, the Tribunal awarded Rs.60,000/-.
The main contention of the learned counsel for the claimant is that
after the accident the claimant is unable to do any work and there is total
loss of earnings and the Tribunal has not considered the future loss of
earnings and the functional disability sustained by the claimant. It is also
his submission that the amounts awarded on other heads is also on lower
side.
Learned counsel for the Insurance Company has supported the
award and submitted that the Tribunal has correctly awarded the
compensation and there are no reasons to interfere with the same.
The only point that arises for consideration is whether the claimant
is entitled for any amount of compensation.
In case of injuries the nature of injuries and the after effects of the
injuries should be taken into consideration. Whenever any injured has
sustained permanent disability, the permanent disability sustained by the
injured has to be assessed having regard to the nature of duties being
done by the injured prior to the date of accident. In case of labourers,
artisans or any other person, they have to do hard work by using both
upper and lower limbs. If any one of such limb becomes useless or if the
injured is not able to use even if one hand or one leg the labourers will
not be in a position to do the labour work. In such cases normally there
will be total loss of earnings. Except doing some work while sitting at
home they cannot do any other work. Therefore, in all the cases where
there is evidence to show that the injured sustained permanent disability,
such loss of functional disability has to be assessed. In a case where a
person can simply sit and do work in an office in front of a computer or
any other job where he need not stand or need not do any work with his
legs or can do work with one hand, in such cases the loss of earnings can
be very less and only notional loss of earnings may have to be assessed.
Everything depends upon the nature of work done by the injured prior to
the accident.
In the instant case the claimant was working as toddy tapper. As a
Toddy Tapper he has to climb the trees. Even one of the hands becomes
ineffective he cannot work as a toddy tapper. As seen from the evidence
let in, in this case the injured, who is examined as PW.1 has categorically
deposed that after the accident he is unable to climb the trees to tap
toddy. It is also his case that he is unable to attend his normal duties and
he could not do any normal duties for about six (6) months. It is also his
case that due to fracture to his spinal card he cannot walk properly and he
is getting pain in his leg and his left hand is paralyzed and he became
permanently disabled. Now it has to be seen whether the contention of
the injured is supported by any medical evidence. PW.2 is the Doctor
from Government Headquarters Hospital, Nellore. According to PW.2 the
claimant was admitted in the hospital on 12.04.2003 and discharged on
14.05.2003. He examined the claimant in the Government Hospital and
found the following injuries.
1. Multiple abrasions over the left side of face and chin.
2. 5 x 1 centimeter lacerated injury over the left fore-head.
3. 3 x 3 centimeter abrasion over the right hand.
4. Multiple abrasions over the chest.
5. Pain in the dorsal region of spine (noted by inpatient
doctor/Ortho).
PW.2 opined that the injuries 1 to 4 are simple in nature and injury
No.5 is grievous one. According to PW.2, deformity of spine present both
the lower limbs are normal, there is difficulty in lifting the left upper limb.
He further opined that the claimant may find difficulty for prolonged
standing and doing heavy work. The doctor assessed the disability at
20% of spine. PW.2 has categorically deposed that the claimant cannot
climb toddy trees at present and in future. It is elicited in the cross-
examination that the claimant was given free treatment in the
Government Hospital. PW.2 denied the suggestion that the claimant can
do any work as before. Ex.A3 is the wound certificate and Ex.A4 is the
out-patient ticket issued by the Government Headquarters Hospital,
Nellore, showing the date of admission and date of discharge. The case
sheet is marked as Ex.A6. The nature of injuries sustained by the
claimant, period of treatment and the operations conducted on him are
noted in the case sheet. It is noted in the case sheet that the claimant
complained a pain in dorsal spine and weakness of the left upper limbs.
Thus, it appears that the evidence of the claimant is supported by the
medical evidence. It is clear from the evidence that the claimant cannot
do any hard work and cannot climb the trees though the disability to spine
is estimated at 15 to 20%. Since according to PW.2 there is difficulty for
prolonged standing and doing heavy work and there is difficulty in lifting
the left upper limb, I am of the view that the total loss of earnings shall
be estimated at 75% since it appears that the claimant cannot do any
hard work and that he can do some work while in sitting position.
As far as earnings of the claimant is concerned, according to PW.1
he was earning Rs.6,500/- per month. According to PW.3 the claimant
was a member of toddy tappers society and earning Rs.200/- to Rs.300/-
per day by way of toddy tapping. Having regard to the nature of job and
having regard to the future prospects of his income I consider it just and
reasonable to take his income at Rs.4000/- per month. 75% of the same
would come to Rs.3000/- per month and annual loss of earnings would
come to Rs.36,000/-. If the same is multiplied with 16 the total loss of
earnings would come to Rs.5,76,000/-
Having regard to the nature of injuries and disability sustained by
the claimant, I consider it just and reasonable to award Rs.10,000/-
towards loss of amenities of life, Rs.10,000/- towards loss of expectation
of life, Rs.10,000/- towards disability, discomfort and inconvenience,
Rs.3,000/- towards extra nourishment, Rs.3,000/- towards attendant
charges, Rs.2,000/- towards transportation charges and Rs.20,000/-
towards pain and suffering. Thus, in all, the claimant is entitled to total
compensation of Rs.6,34,000/-.
In view of the judgment of the Apex Court reported in Rajesh v.
Rajbir Singh , irrespective of the amount claimed by the claimants
towards compensation it is the duty of the Courts to award just and
reasonable compensation. However, the claimants have to pay the deficit
court fees.
Accordingly, the MACMA is allowed awarding total compensation of
Rs.6,34,000/-. The Tribunal awarded interest at 7.5% p.a., from the date
of petition till realization and there is no need to disturb the same.
However, the claimant is directed to pay deficit court fee before drafting
the decree. In the circumstances, no costs.
As a sequel, the miscellaneous, if any, pending in this appeal shall
stand closed.
___________________
B. CHANDRA KUMAR, J.
Date: 01.09.2014