Telangana High Court
Md. Feroz Ahmed, Warangal District vs Ch.Laxminarayana, Warangal District ... on 23 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1967 of 2015
JUDGMENT:
Being not satisfied with the quantum of compensation awarded in the award and decree, dated 20.08.2008 passed in M.V.O.P.No.352 of 2007 on the file of the Chairman, Motor Accident Claims Tribunal-cum-II Additional District Judge, Warangal (for short "the Tribunal"), the appellant/claimant preferred the present appeal seeking enhancement of the compensation.
2. Brief facts of the case are that the appellant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.5,30,000/- for the injuries sustained by him in a road accident that occurred on 20.06.2004. It is stated that on 20.06.2004 the appellant and his friend were going to Banjarupally in auto bearing No.AP 36 V 7533 and when the said auto reached near Dharmaram medical factory, one DCM Van bearing No.AP 36 V 7948 driven by its driver in a rash and negligent manner at high speed and dashed the auto in which the appellant was traveling, due to which the appellant and 2 GSD, J Macma_1967_2015 other inmates of the auto sustained injuries. Immediately after the accident the appellant was shifted to Aravind Hospital, Warangal, for treatment, where an operation was conducted and he has incurred huge amount for his treatment. Since the accident occurred due to the rash and negligent driving of the driver of the DCM Van, the appellant filed the claim-petition against the respondents 1 and 2, being the owner and insurer of the said DCM Van. Considering the claim and the counter filed by the 2nd respondent, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.1,60,000/- with 7.5% interest per annum. Challenging the same, the present appeal has been filed by the appellant.
3. Learned Counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal is on lower side. It is further submitted that as per the disability certificate, the appellant had sustained 40% permanent disability, but the Tribunal did not consider the said disability and did not award any amount for the disability sustained by him. Therefore, it is argued that the income of the appellant 3 GSD, J Macma_1967_2015 may be taken into consideration reasonably and prayed to enhance the same.
4. Learned Standing Counsel appearing for the 2nd respondent-Insurance Company fairly admits that no amount was awarded by the Tribunal for the disability sustained by the appellant and that the appellant is entitled loss of earnings on account of 40% disability sustained by him.
5. A perusal of the impugned order would show that the Tribunal has framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the DCM Van bearing No.AP 36 V 7948 by its driver, to which the Tribunal after considering the evidence of P.W.1 coupled with the documentary evidence, has categorically observed that the appellant sustained grievous injuries in the accident caused due to the rash and negligent driving of DCM Van by its driver and has answered in favour of the appellant and against the respondents. Further, the insurance company has not produced any evidence on record to show that there was no negligence on the part of the driver of the DCM Van. Therefore, I see no reason to interfere with the finding of the Tribunal that the 4 GSD, J Macma_1967_2015 accident occurred due to the rash and negligent driving of the driver of DCM Van.
6. 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 evidence corroborating the 1 MACD 2011 (SC) 33 5 GSD, J Macma_1967_2015 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 actuals 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)."
7. 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 6 GSD, J Macma_1967_2015 only for the physical injury and treatment but also for the loss of earning, inability to lead a normal life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident.
8. In order to establish the disability sustained by him, the appellant has got marked Ex.A7-disability certificate. A perusal of Ex.A7, Disability Certificate discloses that the appellant has sustained disability at 40% as he sustained multiple fractures to his right leg. Thus, the permanent disability sustained by the appellant is fixed at 40%. In view of nature of disability sustained, the appellant is entitled to loss of earnings due to disability.
9. The contention of the learned Standing Counsel for the Insurance Company is that no document has been filed to prove the income of the appellant. In Latha Wadhwa vs. State of Bihar2 the Apex Court held that even there is no proof of income and earnings, it can be reasonably estimated minimum at Rs.3,000/- per month for any non-earning member. Therefore, this Court is inclined to take the income of the 2 (2001) 8 SCC 197 7 GSD, J Macma_1967_2015 appellant at Rs.3,000/- per month. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation3, the suitable multiplier to be adopted for calculating the loss of earnings would be '18' as the appellant was aged about 22 years at the time of accident. Therefore, the loss of earnings on account of his 40% disability would be Rs.3,000/- x 12 x 18 x 40/100 = Rs.2,59,200/-. Believing the medical bills filed by the appellant, the Tribunal has rightly awarded Rs.90,000/- towards medical expenses, which need not be disturbed. Though the learned Tribunal has categorically held that as per Ex.A2-injury certificate, the appellant had sustained fracture of cut muscle of thigh, fracture of right thigh bone, fracture of right knee, fracture of right ligament and also one simple injury and he took treatment for a considerable period, the amount of Rs.62,000/- awarded by the Tribunal under the head of pain and suffering appears to be too meager and this Court inclined to enhance the same to Rs.80,000/-. Thus, in all the appellant is entitled to Rs.4,40,200/- (Rs.80,000/- towards pain and suffering, Rs.90,000/- towards medical expenses, Rs.9,000/- towards loss of earnings for three months, Rs.2,000/- towards transportation 3 2009 ACJ 1298 8 GSD, J Macma_1967_2015 charges and Rs.2,59,200/- towards loss of earnings on account of 40% permanent disability sustained by the appellant).
10. Accordingly, the appeal is allowed in part by enhancing the compensation from Rs.1,60,000/- to Rs.4,40,200/-. The enhanced amount will carry interest at 7.5% p.a. from the date of award passed by the Tribunal i.e., 20.08.2008 till the date of realization, payable by respondents 1 and 2 jointly and severally. It is made clear that in view of the order, dated 15.09.2015 passed by this Court in M.A.C.M.A.M.P.No.748 of 2010, the appellant is not entitled to interest for the delay period of (314) days. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________ JUSTICE G. SRI DEVI 23.06.2022 gkv 9 GSD, J Macma_1967_2015