Judgment:
HON'BLE SRI JUSTICE B.N. RAO NALLA C.M. A. No.4692 o”
06. 08.2012 Gundala Yadaiah s/o. Papaiah 1) S.Shyam Prasad s/o. Sudharshan 2)The National Insurance Co. Ltd., D.O. II, Somajiguda, Hyderabad, rep. by its Manager Counsel for the Appellant: Ms. K.Rajitha Counsel for Respondent No.2: Ms. S.N.Padmini GIST : HEAD NOTE : ?Cases referred : (2009) 6 SCC 12.JUDGMENT
: The claimant seeking enhancement of compensation preferred this Civil Miscellaneous Appeal against the judgment and decree in O.P. No.315 of 2002 dated 27.8.2003 passed by the learned Chairman, Motor Accidents Claims Tribunal, Nalgonda, whereby and whereunder the Tribunal awarded a compensation of Rs.59,200/- under the Motor Vehicles Act, 1988 (for short 'the MV Act') as against the claim of Rs.1,50,000/-.
2. The appellant herein is claimant and the respondents are owner of the tempo van bearing not AP 2.- U - 4045 and its insurer respectively on which the claimant was said to be working as a cleaner on a monthly salary of Rs.3,000/-.
3. The parties are referred to as they are arrayed before the Tribunal.
4. The case of the claimant is that on 23-01-2002 in the evening, while the tempo van, in which he was present as cleaner, transporting some load from Hyderabad to Nagarjunasagar, on the way at about 10.30 p.m. in the outskirts of Kurmeda village, the driver of the van, who was also an employee of respondent No.1, drove it in a rash and negligent manner and while trying to overtake a bullock cart, hit the lorry bearing not AP-20T- 5082, which was coming in the opposite direction, and due to which accident took place, as a result, the claimant suffered fracture to his right thigh bone and also the right knee and other grievous injuries all over the body. His further case is that he incurred huge medical expenditure for the treatment and despite that he could not recover fully and he suffered permanent disability, as such, he claimed a compensation of Rs.1,50,000/-.
5. Respondent No.1 - owner of the tempo van remained ex parte. Respondent No.2 - Insurance Company filed its counter denying the case of the claimant stating that the van was not involved in any accident and the claimant has not suffered any injuries. It is its further case that the claimant was not an employee of respondent No.1, the driver of the van was not having valid driving licence to drive the same and the van is not roadworthy and that the tempo van of respondent No.1 was not insured with it. It also pleaded that the compensation claimed is excessive.
6. Based on the pleadings of both parties, the Tribunal framed the following issues: "1. Whether the pleaded accident occurred, resulting in injuries to the claimant and if so, was it due to the fault of the driver of the tempo van bearing not AP- 24U-4045? 2. Whether this O.P. is maintainable in this tribunal or whether the claimant should work out his remedies before the prescribed authorities under the Workmen's Compensation Act? 3. Whether the van No. AP024U-4045 belongs to R-1 and stood insured with R-2 insurance company on the date of accident and if so, does that policy cover the risk of the claimant? 4. Whether the claimant is in principle entitled to compensation and if so, to what amount and what is the liability of the respondents? 5.To what relief?" 7. To prove his case, the claimant himself got examined as PW.1 and got marked Exs.A.1 to A.10. On behalf of the respondents, no oral evidence was adduced except marking Ex.B.1, copy of the insurance policy dated 26-02-2001.
8. The Tribunal after taking into consideration the evidence of PW.1 and Exs.A- 1 to A-10 and Ex.B-1, awarded an amount of Rs.59,200/- as compensation. Being dissatisfied with the quantum of compensation, the claimant preferred this appeal seeking enhancement of compensation.
9. Now the case of the claimant is that the Tribunal awarded a very low compensation though he suffered fracture of right thigh bone and permanent disability and that the Tribunal also failed to award compensation for transportation and extra nourishment separately. Further, it is also his case that the Tribunal erroneously assessed his monthly income at Rs.1,000/- though he was earning Rs.3,000/- per month as cleaner and that even as per Schedule - II of MV Act, the income of non-earning persons shall be taken at Rs.15,000/- per annum. Further, the Tribunal, instead of multiplier '18', it has wrongly applied multiplier '17' for computing compensation towards permanent disability.
10. On the other hand, the learned standing counsel for the insurance company supported the impugned judgment contending that though there is no documentary evidence in support of the income of the claimant and that he was an employee of respondent No.1, the Tribunal awarded compensation to the claimant for the injuries sustained in the accident and in fact, the same is on higher side, as such, there are no grounds warranting interference of this Court with the impugned judgment.
11. Since the insurance company has not preferred any appeal, there is no need to go into the question of accident.
12. In the circumstances, the only point that arises for consideration is whether there are any grounds for enhancing the quantum of compensation? POINT:
13. The case of the claimant is that he has suffered fracture in the lower 1/3rd of his thigh bone. Ex.A.3 - wound certificate issued by the Government Hospital, Deverkonda supports the case of the claimant that he suffered fracture of his thigh bone. Ex.A.6 - disability certificate issued by the Chairman of the District Medical Board, Government Hospital, Nalgonda also shows that the fracture sustained by the claimant resulted in 5% partial permanent disability. These Exs.A.3 and A6 are not disputed. However, the Tribunal awarded a sum of Rs.10,000/- towards fracture and pain and suffering, and Rs.5,000/- towards loss of amenities in life for the partial permanent disability suffered by him under the head of non-pecuniary losses. However, considering the age of the claimant, who is 21 years old as on the date of the accident, and gravity of the fracture and pain and suffering sustained by him to his thigh bone, this Court is of the view that awarding another sum of Rs.5,000/- towards fracture and pain and suffering under non-pecuniary losses would meet the ends of justice and the same is accordingly awarded.
14. Coming to the question of loss of earnings, the case of the claimant as PW.1 is that he is working under respondent No.1 as cleaner on the van bearing No. AP 2.- U - 4045 at the time of accident. To dispute the same, as rightly found by the Tribunal, the right person is respondent No.1, who was ex parte, as such, there is no option except to accept the case of the claimant as it does not suffer from any inherent improbability. Further, the case of the claimant is that he was earning a sum of Rs.3,000/- per month as on the date of the accident as cleaner and he could no longer work as a cleaner and he could not do any other job efficiently. However, as no evidence was adduced by the claimant to support his case that he was earning Rs.3,000/- per month, the Tribunal has fixed his monthly income at Rs.1,000/- per month for calculation of loss of earnings. However, the case of the claimant is that the Tribunal wrongly fixed his income at Rs.1,000/- per month since even as per Schedule - II of the MV Act itself, the income of non - earning persons shall be taken at Rs.15,000/- per annum, whereas the Tribunal fixed his income less than that though his case is that he is earning Rs.3,000/- per month.
15. No doubt, the oral evidence of the claimant as PW.1 is that he was earning a sum of Rs.3,000/- per month by working as cleaner on the tempo van under respondent No.1. But, he failed to examine his employer (respondent No.1) or produced any documentary evidence to show his actual monthly income. In the absence of the same, the Tribunal took his income at Rs.1,000/- per month which in the opinion of this Court is not reasonable, since it ought to have taken his annual income at Rs.15,000/- per annum, which is fixed as annual income for the non-earning persons as per Schedule - II of the MV Act. Accordingly, the income of the claimant is fixed at Rs.15,000/- per annum as per Schedule - II of the MV Act instead of Rs.12,000/- per annum as fixed by the Tribunal since he could not produce any documentary evidence in proof of his actual monthly earnings. Thus, the monthly income of the claimant comes to Rs.1,250/-.
16. Now coming to the question of loss of earnings for a period of four months, during which time he could not have attended any work due to the fracture, it comes to Rs.5,000/- (Rs.1,250/- p.m. x 4 months) instead of Rs.4,000/- awarded by the Tribunal, and the same is accordingly awarded. Thus, a sum of Rs.1,000/- is enhanced towards loss of earnings.
17. Coming to the question of multiplier, according to the claimant as on the date of the accident he was aged 21 years and there is no serious dispute about the same. Therefore, the Tribunal relying on Schedule - II of MV Act, applied multiplier '17' for computing compensation for loss of future earnings due to the permanent disability. However, in view of the decision of the Apex Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another1, for the age group of the claimant, the appropriate multiplier is '18'.
18. Coming to the question of loss of future earnings due to the partial permanent disability suffered by the claimant, Ex.A.6 - disability certificate issued by the District Medical Board, Nalgonda shows that he has suffered 5% partial permanent disability, which is also not in serious dispute. Thus, if the annual earnings of the claimant is computed by applying multiplier '18' as per Sarla Verma's case referred supra, it comes to Rs.2,70,000/- (Rs.15,000/- p.a. x multiplier 18), out of which 5% of the amount comes to Rs.13,500/- (Rs.2,70,000/- / 5%). Accordingly, a sum of Rs.13,500/- is awarded towards future loss of earnings due to 5% partial permanent disability suffered by the claimant, instead of Rs.10,200/- awarded by the Tribunal. Thus, a sum of Rs.3,300/- is enhanced towards future loss of earnings due to permanent disability.
19. Coming to the medical expenses, the case of the claimant is that he incurred Rs.52,141/- towards medical expenses, but the Tribunal has awarded only a sum of Rs.30,000/-, which includes medical expenses, transportation charges and extra nourishment, opining that none were examined from NIMS hospital or any other Doctor to prove his medical expenses. However, the case of the claimant is that the Tribunal ought to have awarded under the heads of transportation and extra nourishment separately and that the amount awarded towards medical expenses is very meagre.
20. Since the claimant has suffered fracture to his thigh bone, he must have incurred some amount towards transportation as he could not move on his own either to go to hospital or to attend his natural needs, and also some amount towards extra nourishment for speedy recovery. Hence, this Court is of the view that awarding a sum of Rs.2,500/- under each head i.e. transportation and extra nourishment would meet the ends of justice and the same is accordingly awarded. However, this Court is of the view that the amount of Rs.30,000/-awarded by the Tribunal towards medical expenses is reasonable and there is no need to enhance the same.
21. Thus, this Court awards (a) a sum of Rs.20,000/- towards fracture of thigh bone and pain and suffering instead of Rs.15,000/-, (b) Rs.5,000/- towards loss of earnings instead of Rs.4,000/-, (c) Rs.13,500/- towards future loss of earnings due to permanent disability instead of Rs.10,200/-, (d) Rs.5,000/- towards transportation and extra nourishment apart from Rs.30,000/- towards medical expenses as granted by the Tribunal. Thus, this Court is of the opinion that enhancing a sum of Rs.14,300/- in all would meet the ends of justice and the same is accordingly enhanced as has already been held hereinabove. The point is accordingly answered.
22. In the result, the appeal is partly allowed awarding a compensation of Rs.73,500/- (Rupees seventy three thousand five hundred) only instead of Rs.59,200/- awarded by the Tribunal. The claimant is entitled to interest on the amount awarded by the Tribunal at 9% per annum with proportionate costs as awarded by the Tribunal. However, the claimant is entitled to interest on the enhanced compensation at 7.5% per annum only from the date of petition till realisation. __________________ B.N. RAO NALLA, J