Andhra Pradesh High Court - Amravati
Palakeerthi Lakshmaiah vs Ch.Seshagiri on 10 July, 2019
Author: Gudiseva Shyam Prasad
Bench: Gudiseva Shyam Prasad
HON'BLE SRI JUSTICE GUDISEVA SHYAM PRASAD
M.A.C.M.A.No. 2301 of 2009
ORDER:
This appeal is arising out of the Judgment and Decree dated 09.01.2009 passed in MVOP No.1292 of 2007 by the Motor Vehicles Accidents Claims Tribunal-cum-X Additional District & Sessions Judge (FTC), Guntur at Narasaraopet (for short "the tribunal").
The appellant is the petitioner/injured, respondent No.1 is the owner of the crime vehicle bearing No. AP 27W 4639 and respondent No.2 is the owner of the crime vehicle.
The case of the appellant is that on 12.08.2007 at about 10.00 p.m. while the appellant/petitioner was proceeding in a lorry bearing No.AP 27W 4639 along with its cleaner with a cement load from Dachepalli to Madras and when they reached near bye-pass road, Ongole, the driver of the lorry drove the same in a rash and negligent manner without blowing horn and without following the traffic rules and regulations, dashed against the stationed lorry bearing No.AP 4V 9499 from its behind, as a result, the appellant/petitioner received crush injury and multiple fracture to his left leg and the front portion of the lorry was completely damaged. Immediately, he was shifted to Government Hospital, Ongole for first aid and thereafter, he was shifted to Government General Hospital, Guntur, where he underwent an operation to his left leg was amputated up to hip joint. Apart from that, skin grafting was also done. Due to the amputation and loss of left lower limp, he was unable to move from bed. He could not attend to his personal duties without the assistance of others. A case in crime No.371 of 2007 was registered by Ongole Taluk Police Station, Ongole, for the offence under Section 338 against the driver of the lorry and after completion of investigation, police filed charge sheet. As the driver of the lorry was responsible for causing the accident due 2 to which the petitioner became disabled and unable to attend to his daily work and as he incurred huge expenditure for his treatment, he laid a claim against the owner and the insurer of the offending lorry bearing No.AP 27W 4639 for a sum of Rs.3,00,000/-.
Before the tribunal, respondent No.1, owner of the lorry remained ex-parte.
The contesting respondent No.2 filed its counter denying the material allegations made in the petition and inter-alia contended that on the date of accident, the driver of the offending lorry had no valid driving licence. The owner of the vehicle had violated the terms and conditions of the insurance policy. It is further submitted that there was contributory negligence on the part of the drivers of both the lorries involved in the accident. At the time o accident, there is no existence of insurance policy of the crime vehicle. Therefore, the insurance company is not liable to pay compensation to the petitioner.
Based on the above averments, the tribunal framed issues and on appreciation of oral and documentary evidence available on record, more particularly, the evidence of P.Ws.1 and 2 coupled with Exs.A1 to A6, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending lorry and accordingly, allowed the petition in part by awarding compensation of Rs.1,85,000/- with proportionate costs and subsequent interest at the rate of 7.5% p.a. from the date of filing of the petition till the date of realization. Dissatisfied with the compensation amount awarded by the tribunal, the petitioner filed the present appeal.
Heard learned counsel for the appellant.
None appeared for respondents.
3Sri K.Siva Rama Krishna, learned counsel representing Sri N.Subba Reddy, submits that the quantum of compensation awarded by the Tribunal is inadequate and it ought to have awarded just and reasonable compensation under various heads. He submits that the tribunal ought to have granted adequate compensation under the head of pain and suffering. He submits that the tribunal erred in not awarding fair compensation towards attendant charges, special diet and other incidental expenses arose during the course of treatment. He submits that the tribunal applied the wrong multiplier for the age of the petitioner was 25 years and the multiplier ought to have been applied as '18' as per Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another1.
Perused the oral and documentary evidence available on record and the impugned record.
It is not in dispute that the appellant/petitioner met with the accident and sustained injuries and amputation.
As regards quantum of compensation is concerned, it is stated that at the time of accident the petitioner was working as a lorry cleaner and earning monthly salary of Rs.2500/- apart from Rs.300/- to Rs.400/- per month as batta. At the time of accident, the appellant/petitioner was aged about 23 years and hale and healthy and he was unmarried. Due to the permanent disability and injuries sustained by him in the accident, he could not attend to his work as previously he used to do. Therefore, he lost his earning capacity. He also lost his marriage prospects. In fact, in support of his earning capacity, the petitioner has not filed any documentary evidence viz., salary certificate etc. But as per the decision in Latha Wadhwa and ors V.State of Bihar and 1 2009 (6) SCC 121 4 Ors2, In the absence of proof of income, the notional income of Rs.3000/- per month can be taken into consideration in a case of a worker /labourer working in an organized sector. At the time of accident, the petitioner was working as a lorry cleaner. The tribunal has taken the income of the petitioner as Rs.15,000/- per annum (Rs.50/- per day) and the multiplier of '17' was applied. Admittedly, at the time of accident, the petitioner was unmarried, and aged about 23 years. The appropriate multiplier as per Sarla Verma's case cited supra (1) is "18" and half of the income has to be deducted towards his personal expenses out of his contribution to his family. Then the annual income of the petitioner comes to Rs.36,000/- and after deducting 50% of the income, his contribution comes to Rs.18,000/- and the appropriate multiplier is '18' as per his age of 23 years.
P.W.2, Doctor deposed that the petitioner sustained fracture to both bones of left leg and the crushed left lower limb was amputated, above knee level. He further deposed that the medical board, Guntur, examined the petitioner and opined that the petitioner sustained 70% disability. Considering the evidence of P.W.2 coupled with Ex.A6 disability certificate, the tribunal rightly fixed the disability at 70%. The total amount awarded under the head of disability comes to Rs.2,26,800/- (Rs.18,000/- x 18 x 70%) As regards the aspect of loss of marriage prospects is concerned, learned counsel for the petitioner relied upon the decision in Dinesh Singh V.Bajaj Allianz General Insurance Co. Ltd.,3 wherein the apex Court enhanced the compensation. The total amount of Rs.1,00,000/- was awarded to the appellant in the said decision, under the head of 'loss of marriage prospects'. Following the said ratio, the petitioner is granted an amount of Rs.70,000/- under the head of 'loss of marriage prospects'. Keeping in view his occupation and earning capacity.
2. MANU/SC/0456/2001 3 MANU/SC/0357/2014 5 The learned counsel for the petitioner sought for enhancement of compensation towards attendant, transport and special diet. The tribunal, in fact, granted very meager amount of Rs.4,500/- already towards the said heads. As per the evidence available on record, the petitioner underwent operation for amputation of his left leg and was in hospital nearly three months. During the said period, the petitioner might have incurred considerable amount of computation. Therefore, Rs.5,000/- each is awarded towards Attendant, transport and extra-nourishment respectively (Rs.5,000/- x 3 = Rs.15,000/-). An amount of Rs.50,000/- is awarded under the head of 'pain and suffering'.
Learned counsel for the appellant relied upon the decision in Nagappa Vs.Gurudayal Singh and Ors4, wherein it was observed that there is no bar to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. Therefore, it was held that the claimant though does not claim the compensation under various heads, it is open to him/her to claim compensation on the grounds not stated earlier, which were not specified in the application.
As per the evidence on record, the appellant/petitioner sustained disability of 70% and left lower limb was amputated. Therefore, an amount of Rs.50,000/- is granted towards pain and suffering for the amputation of left leg.
Learned counsel for the appellant submits that the tribunal did not award any amount under the heads of future medical expenses and loss of income for three months during the period he has undergone treatment. Considering the said submission, an amount of Rs.20,000/- is awarded under the head of 'future medical expenses' and an amount of Rs.9,000/- is
4.MANU/SC/110/2002 6 awarded under the head of 'loss of income' for a period of three months (Rs.3,000 x 3 = Rs.9,000/-).
The compensation awarded under all heads is as follows:
S.No. Heads of injury Compensation Compensation awarded by awarded by tribunal this court Rs. Rs.
1 Disability 1,78,500.00 2,26,800.00
2 Attendant, 4,500.00 15,000.00
transport and
extranourishment
3 Future medical -- 20,000.00
expenses
4. Loss of earning -- 9,000.-00
for 3 months
5. Pain and 2,000.00 50,000.00
suffering
6. Loss of Marriage -- 70,000.00
prospects
1,85,000.00 3,90,800.00
In the result, the appeal is allowed and the compensation awarded by the tribunal is enhanced from Rs.1,85,000/- to Rs.3,90,800/- with proportionate costs with interest at 7.5% p.a. from the date of petition till the date of realization. The respondents are directed to deposit the enhanced compensation amount within two months from the date of receipt of the copy of the order. On such deposit, the appellant is permitted to withdraw the same. No order as to costs.
Miscellaneous petitions if any pending, shall stand closed.
_______________________ GUDISEVA SHYAM PRASAD, J 10.07.2019 Mjl /*