Telangana High Court
M Yadaiah Yadagiri vs U Raghavendra Royal Sundram Alliance ... on 6 July, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HON'BLE SRI JUSTICE K. LAKSHMAN
M.A.C.M.A. No.1715 OF 2014
JUDGMENT:
Assailing the order and decree dated 24.01.2013 in O.P. No.681 of 2011 passed by the Motor Accidents Claims Tribunal - cum - X Additional Chief Judge (Fast track Court), Hyderabad (for short 'the Tribunal'), appellant - claimant filed the present appeal.
2. Vide the aforesaid order, the Tribunal has awarded an amount of Rs.2,00,000/- (Rupees two lakhs only) towards compensation with proportionate costs and interest @ 7.5% per annum thereon from the date of petition till the date of realization against respondent Nos.1 and 2, owner and insurer of the crime vehicle jointly and severally, as against the claim of Rs.4,00,000/- (Rupees four lakhs only) made by the appellant.
3. Heard Mr. K. Harimohan Reddy, learned counsel for the appellant - claimant and Mr. Kota Subba Rao, learned counsel for respondent No.2 - Insurer.
4. Perused the material on record. On the analysis of the entire evidence, both oral and documentary, the Tribunal gave a specific finding that the accident had occurred due to rash and negligent driving of the driver of the lorry bearing registration No.AP 29U 8614. Admittedly, the Insurer did not prefer any appeal challenging the said finding. Therefore, the said finding has attained finality.
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5. In view of the above, the only question that falls for consideration in the present appeal is with regard to the enhancement of compensation.
6. It is the specific contention of the claimant that though he claimed an amount of Rs.4.00 lakhs towards compensation under various heads, the Tribunal has awarded only an amount of Rs.2.00 lakhs with interest at 7.5% per annum thereon. According to the claimant, the Tribunal did not award any compensation towards loss of amenities. To prove the injuries, the claimant examined himself as PW.1 and also examined the doctor who treated him as PW.2. Apart from the oral evidence, the claimant filed Ex.A3 - medico legal record, Ex.A4 - discharge summary, Ex.A5 - prescriptions (2 in number), Ex.A6 - disability certificate, Ex.A7 - bunch of medical bills (26 in number) for Rs.11,881/- and Ex.A9 - X-ray films (6 in number).
7. As per the deposition of PW.2 and also Ex.A4 - discharge summary, the claimant/injured sustained both bone fracture to his right leg, head injury and blunt injury all over the body. He was shifted to Shadan Hospital for treatment. Ex.A4 - discharge summary discloses the diagnosis and the treatment in respect of the said injuries. In the said hospital, the claimant injured underwent surgery on 10.08.2010. After discharge, he had taken treatment under PW.2, the doctor at Sai Specialty Clinics, Secunderabad. PW.2 gave Ex.A6 - disability certificate. As per Ex.A6, partial, permanent and functional KL,J 3 MACMA No.1715/2014 disability of the claimant injured is around 30% and loss of earning capacity is 70%. During cross-examination, PW.2 - doctor, who issued Ex.A6 - disability certificate has admitted that he has assessed the disability of the claimant by following ALIMCO manual guidelines. Patient has stiffness and reduced movements in right knee and right ankle with limb length discrepancy of one inch. PW.2 advised the claimant to carry a hand stick for support and shoe raise on right side. Patient cannot sit, squat, walk, normally, cannot carry weight and climb up and down stairs. Whereas, the learned counsel for Insurer would contend that PW.2 - doctor, who issued Ex.A6 - disability certificate is not competent to issue the said certificate. PW.2 did not conduct even tests while issuing Ex.A6. He would further contend that the Tribunal and this Court are having power to disagree with the opinion of the doctor.
8. On perusal of the entire evidence including the depositions of PW.1 and PW.2 and Ex.A4 - discharge summary, Ex.A3 - medical legal record, Ex.A8 - positive photographs (4 in number), Ex.A9 - X- ray films and Ex.A5 - prescriptions, PW.2, the doctor, who treated the claimant injured, stated that permanent, partial and functional disability of the claimant is 30% and loss of earning capacity is 70%. The said doctor assessed the said disability by following ALIMCO manual guidelines. According to him, the claimant has to carry a hand stick for support and shoe raise on right side. The claimant cannot sit, squat, walk, normally cannot carry weight and climb up KL,J 4 MACMA No.1715/2014 and down stairs. It is not in dispute that the Tribunal can disagree with the opinion of the Medical Expert. But, the said disagreement should be a reasoned one. To disprove the disability and the injuries sustained by the claimant, Insurer did not examine any witness and did not file any document except Ex.B1 - Insurance Policy. Respondent No.2 - Insurer failed to elicit anything from PW.1 and PW.2 during their cross-examination to disprove the said disability. Thus, by considering the depositions of PW.1 and PW.2 and Ex.A6 - disability certificate, the disability of the claimant can safely be concluded at 30% instead of 20% considered by the Tribunal. Even in the present appeal, respondent No.2 failed to establish any ground or circumstance to interfere with the disability of the claimant at 30%. As already stated supra, in fact, Insurer did not file any appeal challenging the impugned order wherein the Tribunal considered the disability of the claimant as 30%. In view of the same, the said finding of the Tribunal is reasoned finding. This Court is satisfied with the reasons given by the Tribunal.
9. As discussed supra, the respondents failed to disprove the disability, loss of earning capacity as mentioned in Ex.A6 either during cross-examination of PW.1 and PW.2 or by examining any witness and filing any document. Nothing was elicited from PW.1 and PW.2 during cross-examination to disprove Ex.A6.
10. The Tribunal has awarded an amount of Rs.11,881/- towards medical expenses by considering the medical bills 26 in number filed KL,J 5 MACMA No.1715/2014 and marked vide Ex.A7. Respondent No.2 - Insurer failed to disprove the said bills either by adducing contra evidence or from PW.1 during cross-examination. Therefore, the Tribunal has rightly awarded the said amount and needs no interference by this Court. The Tribunal also awarded an amount of Rs.1,000/- towards damages to clothes and another sum of Rs.5,000/- towards transport charges. The said amounts are reasonable and, therefore the same are maintained.
11. The Tribunal has awarded an amount of Rs.10,000/- towards extra nourishment. In the present case, the claimant sustained grievous injuries in the manner stated above. He underwent surgery in Shadan Hospital. After discharge, he has taken treatment with PW.2 in Sai Specialty Clinic. To prove the same, he examined PW.2 before the Tribunal. Therefore, the claimant is entitled for an amount of Rs.25,000/- and, accordingly, the same is awarded as against the amount of Rs.10,000/- awarded by the Tribunal.
12. The Tribunal has awarded an amount of Rs.13,919/- towards attendant charges. As already stated above, the claimant sustained grievous injuries and as per the evidence of PW.2, he cannot sit and squat normally. Considering the same, the claimant is entitled to Rs.15,000/- in place of Rs.13,919/- awarded by the Tribunal.
13. The Tribunal has awarded an amount of Rs.15,000/- towards pain and suffering and mental agony. Respondent No.2 did not file any appeal challenging the same. Therefore, the same is maintained.
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14. The Tribunal has awarded an amount of Rs.18,000/- towards loss of earnings for a period of six months @ Rs.3,000/- per month and another sum of Rs.10,000/- towards partial loss of earnings. In view of the above discussion, the said amounts are maintained.
15. The learned counsel for the claimant would contend that due to accident, the claimant is unable to do his normal work which he used to do before the accident. He would refer to the deposition of PW.2, the doctor, who treated the claimant in support of the same. As per the deposition of PW.2, he advised the claimant to carry a hand stick for support and shoe raise on right side. He further deposed that the claimant cannot sit, squat, walk and normally cannot carry weight and climb up and down stairs. Therefore, the claimant is entitled for compensation under the head of loss of amenities. In support of the same, the learned counsel relied on a decision in Charan Singh v. G. Vittal Reddy1 rendered by a Division Bench of High Court for the State of Andhra Pradesh at Hyderabad. In the said decision, it was held that compensation in respect of non-scheduled injuries, any qualified doctor can assess the loss of disability vis-à-vis earning capacity and that it is not necessary that the same doctor who treated the injured has to assess. In the said case, the issue was considered under Workmen's Compensation Act, 1923. It was further held by the Division Bench that permanent disability cannot be assessed immediately on the next day of the sustaining the injuries and that in 1 . 2003 (4) ALD 183 (DB) KL,J 7 MACMA No.1715/2014 order to assess the permanent disability, naturally, wounds have to be healed so as to make assessment of the permanent disability in relation to loss of earning capacity.
16. On the other hand, Mr. Kota Subba Rao, learned counsel for the Insurer by referring to the principle held in Raj kumar v. Ajay Kumar2 would contend that heads under which compensation is awarded in personal injury cases including the loss of future earnings on account of permanent disability. He would further contend that in routine personal injury cases, compensation will be awarded only under heads of; i) expenses relating to treatment, ii) loss of earnings, loss of future earnings during the period of treatment; and iii) damages for pain, suffering and trauma. By referring to the said decision, he would contend that the claimant is not entitled for any amount either for loss of amenities or future earnings.
17. He has also relied on another decision in D.M., Oriental Insurance Company Limited v. Swapna Nayak3, wherein the Hon'ble Supreme Court held that compensation cannot be awarded for future prospects and also under the head "loss of amenities" in a routine manner. The Tribunal has to assess the same on the analysis of the entire evidence, both oral and documentary. On the same principle, he has also relied on another decision in S. Perumal v. K. Ambika4.
2 . 2011 (1) ACJ 1 3 . 2017 ACJ 627 4 . 2015 ACJ 1117 KL,J 8 MACMA No.1715/2014
18. The learned counsel for the Insurer further relied on the decision in Sunil Kumar v. Ram Singh Gaud5, wherein the Hon'ble Apex Court held that compensation has to be awarded towards loss of future income on consideration of entire evidence, more particularly, injuries sustained by the injured and on assessing the loss of future income. Thus, the compensation cannot be awarded under the heads of loss of amenities and future prospects in a routine manner. By referring to the said decision, the learned counsel for respondent No.2
- Insurer would contend that compensation cannot be awarded in a routine manner towards loss of amenities and future prospects.
19. In the present case, the Tribunal has considered the loss of earning capacity of the claimant as 70% and the disability as 30%. The Tribunal has also considered the monthly earning capacity of the claimant as Rs.3,000/-. According to the claimant, he was painter at the time of accident and used to earn an amount of Rs.5,000/- per month. However, he has not filed any document in proof of the said income, nor examined any witness to that effect. On the analysis of the entire evidence, both oral and documentary, the Tribunal considered the monthly earning capacity of the claimant as Rs.3,000/-. The same is reasonable.
20. As already stated above, PW.2, the doctor, who treated the claimant, has categorically held that the claimant sustained grievous injuries and he assessed the permanent, partial and functional 5 . 2008 ACJ 9 KL,J 9 MACMA No.1715/2014 disability of the claimant as 30% and loss of earning capacity as 70%. According to him, the claimant cannot sit, squat, walk and normally he cannot weight and climb up and down. Admittedly, the claimant was painter as on the date of accident. There is no contra evidence to disprove the same. In view of the specific evidence of PW.2 and also Ex.A6 - disability certificate, in the present case, the claimant is entitled for compensation under loss of amenities. According to this Court, an amount of Rs.50,000/- is awarded towards loss of amenities and future prospects and, accordingly, the same is awarded. In view of the above said specific findings with regard to disability, avocation and monthly earning capacity of the appellant - claimant, the contention of the learned counsel for the Insurer that the compensation cannot be awarded in routine manner is not acceptable.
21. The Tribunal, while computing the loss of earnings, has taken the multiplier '16'. As per the medical record and other documents, the age of the claimant is mentioned as 35 years. The Insurer did not file any document to disprove the said age. Nothing contra was elicited from PW.1 during cross-examination. The age of the claimant can be considered as 35 years. As per the principle of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation6, relevant multiplier is '16'. Thus, the Tribunal has rightly applied the multiplier '16'. When the same is applied, the 6 . (2009) 6 SCC 121 KL,J 10 MACMA No.1715/2014 future loss of earnings to the extent of 30% would work out to Rs.1,72,800/- [ Rs.3,000/- x 12 x 16 x 30%].
22. As far as rate of interest is concerned, the Tribunal has awarded the interest at 7.5% per annum. Since the said rate of interest is reasonable and this Court has been consistently awarding the said rate of interest, the same is confirmed. In all, the appellant - claimant is entitled for the compensation under the following heads:
i) 30% disability .. Rs. 1,72,800/-
ii) Medical expenses .. Rs. 11,881/-
iii) Damages to clothes .. Rs. 1,000/-
iv) Transport charges .. Rs. 5,000/-
v) Extra-nourishment .. Rs. 25,000/-
vi) Attendant charges .. Rs. 15,000/-
vii) Pain and Suffering .. Rs. 15,000/-
viii) Loss of earnings for 6 months .. Rs. 18,000/-
ix) Loss of partial earnings .. Rs. 10,000/-
xi) Loss of amenities and future prospects .. Rs. 50,000/-
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Total .. Rs. 3,23,681/-
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23. In the result, the appeal is allowed in part. Accordingly, order and decree dated 24.01.2013 in O.P. No.681 of 2011 passed by the Tribunal are modified to the extent indicated above viz., enhancing the compensation to Rs.3,23,681 (Rupees three lakhs twenty three thousand six hundred and eighty one only) from Rs.2,00,000/- (Rupees two lakhs only) awarded by the Tribunal with interest at the rate of 7.5% per annum thereon from the date of petition till realization(excluding 107 days delay causing in preferring the present appeal) against respondent Nos.1 and 2, owner and insurer of the crime vehicle. The respondent Nos.1 and 2 are directed to deposit KL,J 11 MACMA No.1715/2014 the above said entire amount with interest and costs within one month from the date of receipt of certified copy of this judgment. However, there shall be no order as to costs.
As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.
___________________ K. LAKSHMAN, J th 06 July, 2020 Mgr