1 of 3 MVOP.No.27-15, Dt.25.04.2022.
BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-III ADDITIONAL DISTRICT JUDGE (FTC-I) AT KHAMMAM.
Monday, this the 25 th day of April, 2022.
Present: MOHD.AFROZ AKTHAR,
Chairman, Motor Accident Claims Tribunal-cum- II Additional District Judge (FTC-I), Khammam, FAC, III Addl.District Judge (FTC-II), Khammam.
M.A.T.O.P. No. 27 OF 2015
BETWEEN:
Maddela Suresh, S/o late Swamy, Aged 23 years, Occu:Hamali, R/o Penuballi village and Mandal, Khammam District. …....Claim Petitioner.
And
1.P.Manohar, S/o Seetharamaiah, Aged:Adult, Occu:Owner of the DCM Van bearing No.AP.07-TU-4157, R/o H.No.3-114, Behind Venkateswara Theatre, Aswaraopeta village and Mandal, Khammam District.
2.The Shiram General Insurance Company Limited, Jaipur, reprseented by its Branch Manager, Branch Office, E-8, EPIP, RIICo Industrial Area, Sitapura, Jaipur, Rajasthan (Policy No.10003/31/11/63716 valid from 13.10.2013 to 12.10.2014).
…..Respondents.
This petition is coming on 21.03.2022 for final hearing before me in the presence of Sri.V.Ramakrishna, Advocatefor Claim Petitioner; Sri.B.Ramesh, Advocate for Respondent No.1 and that of Sri K.Rama Rao, Advocate for Respondent No.2; upon perusing the material papers on record, upon hearing the arguments of both sides and having stood over for consideration till this day, this Tribunal passed the following:
O R D E R
Initially, this claim petition was filed under Section 166 of Motor
Vehicles Act, 1988 seeking compensation of Rs.4,00,000/- on account of the injuries sustained by the petitioner in a motor vehicle accident that took place on 28.05.2014 at about 8.15 p.m. at Korlagudem village road, due to the rash and negligent driving by the driver of DCM Van bearing registration
No.AP.07-TU-4157. Subsequently, the claim of compensation was 2 of 3 MVOP.No.27-15, Dt.25.04.2022.
enhanced from Rs.4,00,000/- to Rs.10,00,000/- vide the orders in
I.A.No.383/2019 dated 16.04.2019.
2.i) The averments of the claim petition, in brief, are that claim petitioner is aged about 23 years and was hale, healthy and energetic prior to the date of accident. He was doing Hamali works and thereby earning
Rs.8,000/- per month.
ii) It is further averred that on 28.05.2014 the claim petitioner having dropped his cousin by name Dasu at Heritage Milk Dairy on his motor cycle bearing registration No.AP.20-AF-7898, started returning home.
While it was so and when he reached near Korlagudem village road at about 8.15 p.m. at that time the driver of DCM Van bearing registration
No.AP.07-TU-4157 by name Basva Ajay Kumar drove it in a rash and negligent manner at high speed dashed against the motor cycle of the claim petitioner from opposite direction. As a result of which, the claim petitioner fell down and sustained 1) comminuted compound fracture type II M/3 right femur, 2) D/e fracture right radius, 3) segmental fracture L/3 left radius, 4) cut external tender right, 5) fracture on 1, 2, 3, 4 mc left (fingers), 6) lacerated injury on scalp, 7) fracture right brachial plexus and multiple injuries all over the body. The said accident was occurred only due to the rash and negligent driving of DCM Van bearing registration No.AP.07-TU- 4157 by its driver. On lodging report, Police, Traffic, Kalluru registered a case in Crime No.140/2014 against the driver of the Crime DCM Van for the offence under Section 337 of I.P.C.
ii) it is further averred that immediately after the accident, the claim petitioner was shifted to Government Hospital, Penuballi, where first 3 of 3 MVOP.No.27-15, Dt.25.04.2022.
aid was given and as the condition of the claim petitioner was precarious, he was shifted to Srujan Ortho and Accident Care Hospital, Khammam, where he was treated as inpatient. During the course of treatment, x-rays were taken, CT scan was done, necessary clinical tests were conducted, bandages were applied and necessary operations were conducted apart from physiotherapy. Subsequently, he also took treatment at Karthik Super
Specialty Hospital, Khammam as an outpatient. Still he has been undergoing treatment in the said hospital and he also required operations.
So far the claim petitioner spent an amount of Rs.2,00,000/- towards medical and other expenses and he has to spend Rs.50,000/- towards further treatment. Due to the fractures over right femur and radius, the claim petitioner is unable to walk properly as he was before the accident and unable to attend to his normal duties as he sustained 50% permanent disability and confined to bed. He has deprived of his earnings during the course of treatment for a period of six months and also his future earning capacity is badly affected. In spite of taking better treatment, there is no normalcy in the condition of the petitioner and still he has been experiencing pain, suffering, swelling, mental agony and that he has to suffer the same throughout his life. Therefore, keeping in view the disability suffered by the petitioner on account of injuries in the accident, the claim petitioner claimed
Rs.10,00,000/- towards general and special damages and respondent No.1 and 2 being the owner and insurer of the Crime DCM Van, both are jointly and severally liable to pay the compensation to the claim petitioner. Hence the petition.
3. Respondent No.1 filed counter, denying the mode and manner of the accident described to have been taken place. It was further 4 of 3 MVOP.No.27-15, Dt.25.04.2022.
contended that there was no negligence on the part of the driver of the crime vehicle and there is no liability against respondent No.1. Respondent
No.1 further denied about the alleged medical expenses alleged to have been spent by the claim petitioner. The driver of the crime vehicle was holding valid driving licence at the material time of the accident and the crime vehicle was validly insured with the respondent No.2 company and insurance was subsisting by the date of accident. If any amount is to be granted towards the compensation to the claim petitioner, the same is liable to be paid by the respondent No.2-insurance company.
4. Respondent No.2-insurance company filed counter, denying the mode and manner of the accident described to have taken place and also the injuries sustained by the claim petitioner, disability if any in the resultant accident, amounts spent for treatment and medical expenses etc.,. This respondent does not admit the age, avocation and health condition of the petitioner at the material time of the accident and also does not admit the earnings of the claim petitioner at Rs.8,000/- per month as Hamali worker. In fact, this respondent does not admit that the person who drove the crime vehicle at the material time of the accident, was holding valid driving licence to drive such vehicle and that the vehicle in question was having valid permit, fitness certificate and was roadworthy to ply as on the date of alleged accident. Respondent No.2 does not admit the vehicle alleged to have been involved in the accident was insured with the respondent company at the time of accident as stated in the claim petition. In fact the accident took place due to the negligence on the part of the claim petitioner and there was no rash or negligence on the part of the driver of crime vehicle, but the claim petitioner and owner of the said vehicle colluded with 5 of 3 MVOP.No.27-15, Dt.25.04.2022.
each other and got foisted a false case against the driver of the crime vehicle in order to have wrongful gain and as such the claim petition is not maintainable. Respondent No.2 seeks protection under Section 145 (b) &
(d), 146, 147 and 149 of M.V.Act and Section 64-VB of the Insurance Act.
The claim of compensation is highly excessive and and exhorbitant and as such the respondent No.2 is not liable to pay any compensation to the claim petitioner and prayed to dismiss the petition with costs.
5. On the above pleadings and the material on record, my learned predecessor-in-office framed the following issues:
i) Whether the accident occurred on 28.05.2014 at about 8.15 p.m. at Korlagudem village road, on Kalluru to Sathupally R & B Road, due to the rash and negligent driving of the driver of DCM Van bearing registration No.AP.07/TU-4157?
ii) Whether the claim petitioner is entitled for compensation as prayed for, if so to what amount and from which of the respondents?
iii) To what relief?
6. During the course of trial, claim petitioner was examined as
P.W.1 and P.Ws.2 to 4 on commission and got marked Exs.A1 to A10 besides Ex.C1. On behalf of respondents, no oral evidence is adduced, but respondent No.2 marked Ex.B1-copy of insurance policy on its behalf.
7.Arguments of either side were heard and the records are perused. Apart from oral arguments, the counsel for the claim petitioner also submitted written arguments.
ISSUE No.1:
8.The case of the claim petitioner is that due to rash and negligent driving by the driver of DCM Van bearing registration No.AP.07- 6 of 3 MVOP.No.27-15, Dt.25.04.2022.
TU-4157, the accident occurred causing grievous and multiple injuries to the claim petitioner. On the other hand, the case of the contesting respondent is one of total denial and it is their case that there was no negligence on the part of the driver of the crime vehicle and the accident occurred only due to the negligence on the part of the claim petitioner.
9. Before dealing with such contention, it is apt to refer to the settled legal position with regard to the standard of proof required to prove the factum of the accident.
10. It is well settled principle of law reiterated in Catena of decisions of the Hon’ble Supreme Court and the Hon’ble High Courts from time to time including the judgments in Bimla Devi & Ors vs Himachal Road
Transport Corporation reported in (2009) 13 SCC 530, Shaik Yakub V/s.
Reported in ALD (5) 439: 2007 (2) Andhra Weekly Reporter 359 and also reiterated in a recent decision in Anita Sharma and others V/s New India
Assurance Company Limited and another reported in 2021 (1) ALT 1 (SC), wherein it is held that in case of proof of an accident in an enquiry in a motor vehicle claim, the claimants need not establish their case beyond reasonable doubt and it would be suffice if the case is proved on the touch stone of preponderance of probability. It is also the principle evolved in these judgments that the documents relating to the investigation done by the police in filing charge sheet against the driver of the crime vehicle responsible for the accident, can be relied upon during the course of enquiry conducted in a motor vehicle accident claim, without the need of formal proof of those documents.
7 of 3 MVOP.No.27-15, Dt.25.04.2022.
11. Guided by the above said settled proposition enunciated by the superior courts, now this Tribunal proceeds to evaluate the oral and documentary evidence adduced by the claim petitioner to prove issue No.1.
Claim Petitioner herein is examined as P.W.1. In his chief affidavit, he has reiterated the contents of the claim petition and during his cross examination, nothing adverse is elicited to discredit the evidence of P.W.1.
P.W.1 went on to deny the suggestions that the driver of bus drove the bus with utmost care and caution and the accident occurred only due to the negligence on the part of the claim petitioner only, the accident occurred.
12. Coming to the documentary evidence, Ex.A1 is the certified copy of First Information Report in Crime No.103/2017 of P.S.Khammam
Traffic, Khammam, which was registered against the driver of the crime vehicle herein in connection with the accident, in question. Ex.A2 is the certified copy of the charge sheet filed against the driver of crime vehicle in connection with the accident, in question. Exs.A1 and A2 are the relevant documents for the purpose of this issue. Ex.A1 shows that the driver of the crime vehicle was shown as accused in a crime registered under Section 337 of I.P.C. which shows about causing injuries to the claim petitioner in the accident by his rash and negligent act. Ex.A2 is the charge sheet filed by the investigating officer. A perusal of Ex.A2 shows that after full-fledged investigation, the investigating officer has filed charge sheet fastening the liability of the accident on the driver of the DCM Van bearing registration
No.AP.07-TU-4157. Considering Exs.A1 and A2, this Tribunal holds that the claim petitioner could prove his case that the accident occurred as a result of rash and negligent driving on the part of the driver of DCM Van bearing registration No.AP.07-TU-4157, in which the claim petitioner sustained 8 of 3 MVOP.No.27-15, Dt.25.04.2022.
injuries in the said accident. Accordingly, this issue is answered in favour of the claim petitioner.
ISSUE No:2:
13. The case of the claim petitioner is that due to the said accident, he suffered disability to the extent of 55% of right upper limb and the medical board has issued disability certificate marked as Ex.A4. It is his further case that he was hale and healthy prior to the accident, earning
Rs.8,000/- per month by doing Hamali work and that he spent huge amounts for treatment and he undergone treatment for a long period and he required to undergo surgeries for implantation and also for surgeries for removal of implants and he is unable to do his regular duties and unable to move his hand freely.
14. In order to prove his case, the claim petitioner examined himself as P.W.1 and also examined the doctors, who gave treatment to him at Khammam, the Neuro Doctor of NIMS Hospital, Hyderabad and also the doctor, who is a member of Medical Board, who issued disability certificate and these witnesses were examined as P.Ws.2 to 4. In his chief examination as P.W.1, he reiterated the contents of his claim petition and in his cross examination, it is elicited that he did not file any document showing his age or his profession or income.
15. P.W.2-Doctor P.N.V.S.V.Prasad is an Orthopedic Surgeon, under him the claim petitioner took treatment, and he deposed that claim petitioner was admitted in his hospital on 29.05.2014 with multiple injuries and he operated petitioner twice on 06.06.2014 and 10.06.2014 respectively and he inserted a nail to his right femur injury, K wire fixation to his 9 of 3 MVOP.No.27-15, Dt.25.04.2022.
metacarpal fractures and plating to his right radius along with extenson tendon repair. P.W.2 further deposed that thereafter he was under follow up treatment till January, 2018 and his implants were removed. P.W.2 further deposed that claim petitioner developed brain hemorrhage for which the
Dr.P.Asadharan, a Neuro surgeon treated him and claim petitioner developed right brachial plexus injury for which the claim petitioner took treatment at NIMS Hospital. P.W.2 further deposed that at the time of his giving evidence, he found that claim petitioner cannot flex his right knee fully and he could not rotate his right fore arm and the power of his right fingers is Grade-IV. P.W.2 further deposed that due to such injuries, it will be difficult for claim petitioner for squatting and going upstairs, he cannot have his food normally because of the stiffness and loss of power in his right hand.
16. P.W.3-R.Srikanth, Professor, Plastic Surgery department deposed that claim petitioner was admitted in their hospital in NIMS
Hospital, Hyderabad on 05.12.2014 with a diagnosis of right radial upper brachial plexus injury with paralysis of right shoulder and right elbow. P.W.3 deposed that he operated the claim petitioner on 09.12.2014 and and application of plexus exploration and nerve transfer were done. He further deposed that claim petitioner was recovered 70% and there was improvement in the shoulder and elbow movements and due to incomplete recovery the right side is not normal like the left side of the body of the claim petitioner and he further deposed that he will able to lift load like a normal person.
17. P.W.4-Dr.T.Madan Singh is a member of medical board, who issued Ex.A4 issued disability certificate by deposing that there was 55% 10 of 3 MVOP.No.27-15, Dt.25.04.2022.
disability to right upper limb of the claim petitioner. The discharge summary, outpatient tickets, medical prescriptions, medical investigation reports and medical bills, which are marked as Exs.A5 to A10 clearly goes to show about the multiple injuries and severity of the injuries sustained by the claim petitioner in the alleged accident.
18. Thus, the above oral and documentary evidence clearly show that the claim petitioner sustained grievous injuries in the accident in question which involved the DCM Van bearing registration No.AP.07.TU- 4157 and that he took treatment at Srujan Hospital of P.W.2 and also at
NIMS Hospital for a long period and that he sustained disability of right upper limbs. In view of the above said abundant evidence on record, this court has no hesitation to hold that P.W.1 is entitled for compensation.
19.The aspects of awarding compensation in case of personal injuries is very well discussed by the Hon’ble Apex Court in Raj Kumar Vs.
Ajay Kumar and another in Civil Appeal Nos.8981 of 2010 (Arising out of
SLP (C) No.10383 of 2007), In the said decision, the Hon’ble Apex Court has observed as to under which head compensation could be awarded and at para No.5 of the judgment stated that in such a case pecuniary damages and non-pecuniary damages shall be awarded and pecuniary damages includes treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure and it also include loss of earnings during the course of treatment and also about loss of future earnings on account of permanent disability. Similarly non-pecuniary damages include damages for pain, suffering and treatment and also loss of amenities and also expectation of life.
11 of 3 MVOP.No.27-15, Dt.25.04.2022.
20. For ascertaining just compensation in case of injuries suffered, the age and income of the injured are crucial factors to be determined. No doubt, the claim petitioner did not file any documents in proof of his age and annual income. However, the age of the claim petitioner mentioned in
Ex.A1-First Information and Ex.A2-charge sheet cannot be taken into consideration. In Exs.A1 and A2, the age of the petitioner is mentioned as 23 years as on the date of accident. Hence, the said age of 23 years as mentioned in Exs.A1 and A2 is being taken into consideration for the purpose of calculation of compensation.
21.So far as the income of the claim petitioner is concerned, though it is his case that he was earning Rs.8,000/- per month by doing
Hamali work at the relevant time, however, as stated earlier, he did not file any piece of paper to substantiate the same. Nevertheless even an unskilled labour or a coolie might have been earning Rs.150/- per day during the year 2014 when the alleged accident took place. Therefore, in the absence of any documentary evidence showing the income of the petitioner, this Tribunal intends to take Rs.150/- per day as the income of the petitioner treating him as unskilled labour/coolie and his monthly income comes to
Rs.4,500/- and his annual income comes to Rs.54,000/-.
22. Now since this Tribunal has arrived at the annual income and ascertained the age, now I shall proceed to assess the compensation under various heads.
MEDICAL EXPENSES:
23.Under Ex.A9 the claim petitioner has filed number of medical bills totaling to Rs.51,115/- and P.W.2 doctor, who treated the claim 12 of 3 MVOP.No.27-15, Dt.25.04.2022.
petitioner has testified in his evidence about the claim petitioner incurring the expenses as mentioned in those bills marked as Ex.A9. Hence, this
Tribunal intends to award the same as it is under the head of medical expenses.
LOSS OF EARNINGS:
24.The evidence of doctors i.e., P.Ws.2 and 3 clearly show that claim petitioner was under treatment in Khammam and later in December, 2014 he went to NIMS Hospital, Hyderabad, where he was operated by
P.W.3. Ex.A6 outpatient card of NIMS Hospital show that he went to said hospital up to the year 2016. Considering all the medical records and the evidence of doctors, it can safely be held that the claim petitioner might have been confined to bed by losing his earnings at least 12 months/1 year.
Therefore, awarding of compensation for a period of one year towards loss of earnings, in the considered opinion of this court, is just and proper.
Hence, an amount of Rs.54,000/- is hereby awarded as compensation towards loss of earnings.
LOSS OF FUTURE EARNINGS ON ACCOUNT OF PERMANENT
DISABILITY:
25.The Hon’ble Apex Court in Raj Kumar Vs Ajay Kumar at para
Nos.7 and 8 observed that the extent of disability of a limb or any part of the body expressed in terms of percentage of disability, obviously cannot be assumed to be the extent of disability of the whole body. It is further observed by the Apex Court that where the claimant suffers permanent disability as a result of the injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity and the 13 of 3 MVOP.No.27-15, Dt.25.04.2022.
percentage of economic loss i.e., percentage of loss of earning capacity will be different from the percentage of permanent disability. For better and proper appreciation and also for just decision, the relevant portions of the above said decision at para Nos.7 and 8 are extracted hereunder.
“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body……...” 8.Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).”
Keeping in view the above judgment, now this court proceeds to evaluate the evidence available on record to assess the loss of future earnings on account of his sustaining permanent disability. Ex.A4 is the disability certificate issued by the Medical Board and it shows that P.W.1 sustained 14 of 3 MVOP.No.27-15, Dt.25.04.2022.
55% of permanent disability to his right upper limb. It is relevant to state here that this disability refers to only particular part of the body and it does not refer the disability to the whole body and further perusal of Ex.A4 also shows that petitioner can perform the work by standing, sitting, by underlying, by bending, by walking and by reading and writing. It is the case of the claim petitioner that he was a Hamali, however, as discussed earlier this tribunal has assessed his income by considering him as unskilled labourer or a coolie. It is relevant to state here that there is no other rebuttal contention on behalf of insurance company so far as the avocation of the petitioner is concerned. It is also relevant to state here that P.W.2-Doctor, who operated and fixed the implants and later removed the implants, testified that the claim petitioner cannot rotate his right forearm and the power of his right fingers is Grade-IV and he cannot flex his right knee fully and it will be difficult for him in squatting and going for upstairs. P.W.3-
Doctor at NIMS Hospital testified that right side of claim petitioner is normal like the left side of the body. Considering such version of both the doctors and keeping in view his avocation which is of unskilled labour/coolie, this tribunal is of the considered opinion that the functional disability of his whole body can be assessed at 50%.
26.The annual income of P.W.1/claim petitioner was arrived at
Rs.54,000/- @ Rs.4,500/- per month. To the said amount, if the future prospectus @ 40% is added Rs.54,000/- x 40/100=21,600/- and if it is added to Rs.54,000/-, the amount comes to Rs.75,600/-, which is the total annual income of the petitioner.
15 of 3 MVOP.No.27-15, Dt.25.04.2022.
27. Now this tribunal proceeds to assess the loss of future earnings/amount on account of permanent disability and the same is calculated as under:
28.It is settled proposition of law that for calculating the loss of earnings on account of permanent disability, again the multiplier which is used to determine the loss of dependency in case of deaths, has to be taken into account. The multiplier applicable for the age group of 21 to 25 years was held to be 18 as per the table given in Sarla Verma’s case. If the annual income of the petitioner is multiplied with multiplier 18, the total income comes to Rs.13,60,800/- (Rs.75,600/- x 18=Rs.13,60,800/-). 50% thereof comes to Rs.6,80,400/- (Rs.13,60,800/-/ 2= Rs.6,80,400/-). Thus, the amount of Rs.6,80,400/- is just compensation under the head of loss of earnings and future prospectus on account of permanent disability.
PAIN AND SUFFERING:
29.As discussed earlier and as could be seen from the abundant medical record produced by the claim petitioner, he has been operated and implants were inserted on his right fore arm, left femur and he was also treated for his neuro paralysis problem and he had been under treatment at
Srujan Orthopedic Hospital and also at NIMS Hospital, Hyderabad and
P.W.2 certified about his suffering six grievous injuries. Considering all the above pain and suffering undergone by P.W.1 can easily be imagined.
Therefore, in the opinion of this tribunal, an amount of Rs.60,000/- is considered to be a just compensation to be awarded under the head of pain and suffering.
TRANSPORTATION:
16 of 3 MVOP.No.27-15, Dt.25.04.2022.
30.The medical record reveals that more particularly the O.P. card he went to NIMS Hospital, Hyderabad on number of occasions and he took treatment at Srujan Orthopedic Hospital at Khammam. Admittedly, the claim petitioner is a resident of Penubally. In such a case for travelling to
Khammam and to NIMS Hospital, Hyderabad from his native place
Penubally, the claim petitioner must have incurred huge expenditure for transportation. Therefore, in the opinion of this court, an amount of
Rs.25,000/- would be just compensation under the head of transportation.
EXTRA-NOURISHMENT:
31. Considering the injuries sustained and surgeries underwent by
P.W.1 for his injuries and also for the disability suffered by him, he must have taken some extra-nourished food for vitamins and for other bony health. Therefore, having taken into mind, this tribunal award an amount of
Rs.20,000/- which would be just compensation under the head of extra nourishment.
ATTENDANT CHARGES:
32. Since P.W.1 is inpatient in Srujan Hospital, Khammam and also
NIMS Hospital, Hyderabad and thereafter also he took bed rest, the services of some attendant must be required for him to attend his necessities. Therefore, taking into account, this tribunal award an amount of
Rs.10,000/- is just and reasonable under the head of attendant charges
33. Thus,the petitioner is entitled compensation under the following heads:
Sl.Nature of the compensation Amount awarded in No.rupees 17 of 3 MVOP.No.27-15, Dt.25.04.2022.
1Pain and sufferings Rs. 60,000-00 2Loss of earnings during theRs. 54,000-00 course of treatment 3Loss of future earnings onRs. 6,80,400-00 account of permanent disability 4Towards Medical expensesRs. 52,115-00 5Towards transportation chargesRs. 25,000-00 6Towards extra-nourishment Rs. 20,000-00 expenses 7Towards attendant charges Rs. 10,000-00
TOTAL COMPENSATIONRs. 9,01,515-00 AMOUNT (Rupees Nine Lakh One Thousand Five Hundred and Fifteen only) 34. So far as fixing the liability is concerned, admittedly, respondent
No.1 is the owner of the crime vehicle and respondent No.2 is the insurer.
Ex.B1 is insurance policy of the crime vehicle and perusal of the same shows that insurance policy was in force as on the date of accident.
Therefore, both respondents 1 and 2 are jointly and severally liable to pay the compensation to the claim petitioner. Accordingly, this issue is answered.
ISSUE No.3:
35.In view of my findings on issues No.1 and 2, the claim petitioner is awarded compensation of Rs.9,01,515/- together with interest @ 7.5%
P.A. from the date of petition till the date of depositing of the compensation payable by respondent Nos.1 and 2 jointly and severally. Accordingly, this issue is answered.
RESULT:
18 of 3 MVOP.No.27-15, Dt.25.04.2022.
In the result, the claim petition is allowed with costs by awarding compensation of Rs.9,01,515/- (Rupees Nine Lakh One Thousand Five
Hundred and Fifteen only) directing the respondent Nos.1 and 2 jointly and severally liable to pay the said compensation amount to the claim petitioner with subsequent interest at the rate of 7.5% P.A. from the date of filing of the petition till the date of depositing of the compensation amount. The time for depositing of the awarded amount is (30) days. On deposit, the claim petitioner is permitted to withdraw entire compensation along with components of interest accrued thereon and costs. The fee of the counsel for the claim petitioner is fixed at Rs.5,000/-.
Dictated to the Stenographer, corrected and pronounced by me in
Open Court, this the 25th day of April, 2022.
CHAIRMAN,
MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-III ADDL.DISTRICT JUDGE,
(FTC-I) KHAMMAM.
-APPENDIX OF EVIDENCE-
WITNESSES EXAMINED FOR
Claim Petitioner:
P.W.1 : Maddela Suresh-Claim Petitioner. P.W.2 : Dr.P.N.V.S.V.Prasad, Srujana Ortho and Accident Care Hospital, Khammam-Treated the Claim petitioner. P.W.3 : Dr.R.Srikanth, Plastic Surgeon, NIMS Hospital, Hyderabad- Treated the claim petitioner. P.W.4 : Dr.T.Madan Singh, Medical Superintendent, Government District Headquarters Hospital, Khammam-Issued the Disability certificate.
Respondents:
-None-
EXHIBITS MARKED FOR
Claim Petitioner:
Ex.A1: Certified copy of First Information Report along with report in Crime No.140/2014 of P.S.Kalluru. Ex.A2: Certified copy of charge sheet with memo of evidence in 19 of 3 MVOP.No.27-15, Dt.25.04.2022.
C.C.No.345/2015 on the file of Principal Judicial Magistrate of First Class, Sathupally. Ex.A3 : Certified copy of Medical Certificate issued by Srujan Ortho and Accident Care Hospital, Khammam. Ex.A4: Physically handicapped certificate issued by Medical Board, Government Headquarters Hospital, Khammam Ex.A5: Discharge summaries numbering (02) issued by Srujan Ortho and Accident Care Hospital, Khammam. Ex.A6: Discharge summary issued by NIMS Hospital, Hyderabad. Ex.A7: Outpatient medical record issued by NIMS Hospital, Hyderabad. Ex.A8: Medical prescriptions numbering (09). Ex.A9: Medical investigation reports numbering (06). Ex.A10:Medical bills numbering (48) worth Rs.52,115/-. Ex.A12:X-ray and CT scan films numbering (07).
Ex.C1 : Discharge summary dated 12.12.2014.
Respondents:
Ex.B1 : Attested copy of insurance policy.
CHAIRMAN,
MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-III ADDL.DISTRICT JUDGE,
(FTC-I) KHAMMAM.
Compared by:
20 of 3 MVOP.No.27-15, Dt.25.04.2022.
BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-II ADDITIONAL DISTRICT JUDGE (FTC-I) AT KHAMMAM.
Monday, this the 25 th day of April, 2022.
Present: MOHD.AFROZ AKTHAR,
Chairman, Motor Accident Claims Tribunal-cum- II Additional District Judge (FTC-I), Khammam.
M.A.T.O.P. No. 27 OF 2015
Presented on:05.10.2018. Filed on:26.10.2018.
BETWEEN:
Maddela Suresh, S/o late Swamy, Aged 23 years, Occu:Hamali, R/o Penuballi village and Mandal, Khammam District. …....Claim Petitioner.
And
1.P.Manohar, S/o Seetharamaiah, Aged:Adult, Occu:Owner of the DCM Van bearing No.AP.07-TU-4157, R/o H.No.3-114, Behind Venkateswara Theatre, Aswaraopeta village and Mandal, Khammam District.
2.The Shiram General Insurance Company Limited, Jaipur, reprseented by its Branch Manager, Branch Office, E-8, EPIP, RIICo Industrial Area, Sitapura, Jaipur, Rajasthan (Policy No.10003/31/11/63716 valid from 13.10.2013 to 12.10.2014).
…..Respondents.
CLAIM FOR:
This petition has been by the claim petitioner filed under Section 166 of Motor Vehicles Act, 1988 against the Respondents Nos.1 and 2, who are the owner and insurer of DCM Van bearing registration No.AP.07-TU-4157, claiming compensation of Rs.10,00,000/- towards general and special damages on account of injuries sustained by petitioner in a motor accident with future interest @ 18% P.A. from the date of accident till the date of realization and for awarding costs of the claim petition.
CAUSE OF ACTION AND TERRITORIAL JURISDICTION:
The cause of action arose on 28.05.2014 at about 20.15 hours at Korlagudem village road, Kalluru to Sathupally R & B Road, where the accident had occurred which falls under the limits of P.S.Kalluru Police Station.
COURT FEE:
That on the claim of Rs.10,00,000/-, court fee of Rs.9,360/- is payable under Rule 475 (i) (b) of A.P.M.V.Rules. In lieu of court fee, the said amount 21 of 3 MVOP.No.27-15, Dt.25.04.2022.
of Rs.9,360/- has been deposited in State Bank of Hyderabad, Rotary Nagar Branch, Khammam vide counter folio dated 29.12.2014 and .
DECREE:
This petition is coming on 21.03.2022 for final hearing before me in the presence of Sri.V.Ramakrishna, Advocatefor Claim Petitioner; Sri.B.Ramesh, Advocate for Respondent No.1 and that of Sri K.Rama Rao, Advocate for Respondent No.2; upon perusing the material papers on record, upon hearing the arguments of both sides and having stood over for consideration till this day, this Tribunal doth order and decree that,
1.That the claim petition be and is hereby allowed partly with proportionate costs.
2.That the Claim Petitioner be and is hereby awarded a sum of
Rs.9,01,515/-(Rupees Nine Lakh One Thousand Five Hundred and
Fifteen only) towards together with interest at the rate of 7.5% per annum from the date of petition till the date of realization.
3. That Respondents 1 and 2 are jointly and severally liable to pay the compensation to the claim petitioners. Time for depositing of awarded amount is (30) days.
4. On deposit, the claim petitioner is permitted to withdraw entire compensation amount along with components of interest accrued thereon and costs. The rest of the claim of the petitioner is dismissed.
5. The fee of the counsel for the claim petitioner is fixed at Rs.5,000/-.
6. That the Respondents No.1 and 2 do also pay to the Claim Petitioner a sum of Rs. towards proportionate costs of the claim petition.
Given under my hand and the seal of this Tribunal, on this the 25th day of April, 2022.
Chairman, M.A.C.T-cum- II Addl.District Judge, (FTC-I) Khammam.
22 of 3 MVOP.No.27-15, Dt.25.04.2022.
PARTICULARS OF COSTS
Sl.Description of theFor PetitionerFor R.1 FOR R.2 No.document
1.Stamps on petition9,360-00---
2. Stamps on power2-002-002-00
3. Stamps on process---
4.Stamps on documents-------
5. Stamps on petitions-------
6. Advocate’s Fee5,000-00 (Fixed by the Court)
7.Publication ---
8. Commissioner’s fee
9. Misc. & Type Charges
Total Rs.2-002-00
Chairman, M.A.C.T-cum- II Addl.District Judge, (FTC-I) Khammam.
23 of 3 MVOP.No.27-15, Dt.25.04.2022.
BEFORE THE CHAIRMAN, MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-II ADDITIONAL DISTRICT JUDGE (FTC-I) AT KHAMMAM.
Monday, this the 25 th day of April, 2022.
Present: MOHD.AFROZ AKTHAR,
Chairman, Motor Accident Claims Tribunal-cum- II Additional District Judge (FTC-I), Khammam.
M.A.T.O.P. No. 27 OF 2015
BETWEEN:
Maddela Suresh, S/o late Swamy, Aged 23 years, Occu:Hamali, R/o Penuballi village and Mandal, Khammam District. …....Claim Petitioner.
And
1.P.Manohar, S/o Seetharamaiah, Aged:Adult, Occu:Owner of the DCM Van bearing No.AP.07-TU-4157, R/o H.No.3-114, Behind Venkateswara Theatre, Aswaraopeta village and Mandal, Khammam District.
24 of 3 MVOP.No.27-15, Dt.25.04.2022.
2.The Shiram General Insurance Company Limited, Jaipur, reprseented by its Branch Manager, Branch Office, E-8, EPIP, RIICo Industrial Area, Sitapura, Jaipur, Rajasthan (Policy No.10003/31/11/63716 valid from 13.10.2013 to 12.10.2014).
…..Respondents.
This petition is coming on 21.03.2022 for final hearing before me in the presence of Sri.V.Ramakrishna, Advocatefor Claim Petitioner; Sri.B.Ramesh, Advocate for Respondent No.1 and that of Sri K.Rama Rao, Advocate for Respondent No.2; upon perusing the material papers on record, upon hearing the arguments of both sides and having stood over for consideration till this day, this Tribunal passed the following:
O R D E R
Initially, this claim petition was filed under Section 166 of Motor
Vehicles Act, 1988 seeking compensation of Rs.4,00,000/- on account of the injuries sustained by the petitioner in a motor vehicle accident that took place on 28.05.2014 at about 8.15 p.m. at Korlagudem village road, due to the rash and negligent driving by the driver of DCM Van bearing registration
No.AP.07-TU-4157. Subsequently, the claim of compensation was enhanced from Rs.4,00,000/- to Rs.10,00,000/- vide the orders in
I.A.No.383/2019 dated 16.04.2019.
2.i) The averments of the claim petition, in brief, are that claim petitioner is aged about 23 years and was hale, healthy and energetic prior to the date of accident. He was doing Hamali works and thereby earning
Rs.8,000/- per month.
ii) It is further averred that on 28.05.2014 the claim petitioner having dropped his cousin by name Dasu at Heritage Milk Dairy on his motor cycle bearing registration No.AP.20-AF-7898, started returning home.
While it was so and when he reached near Korlagudem village road at about 8.15 p.m. at that time the driver of DCM Van bearing registration
No.AP.07-TU-4157 by name Basva Ajay Kumar drove it in a rash and 25 of 3 MVOP.No.27-15, Dt.25.04.2022.
negligent manner at high speed dashed against the motor cycle of the claim petitioner from opposite direction. As a result of which, the claim petitioner fell down and sustained 1) comminuted compound fracture type II M/3 right femur, 2) D/e fracture right radius, 3) segmental fracture L/3 left radius, 4) cut external tender right, 5) fracture on 1, 2, 3, 4 mc left (fingers), 6) lacerated injury on scalp, 7) fracture right brachial plexus and multiple injuries all over the body. The said accident was occurred only due to the rash and negligent driving of DCM Van bearing registration No.AP.07-TU- 4157 by its driver. On lodging report, Police, Traffic, Kalluru registered a case in Crime No.140/2014 against the driver of the Crime DCM Van for the offence under Section 337 of I.P.C.
ii) it is further averred that immediately after the accident, the claim petitioner was shifted to Government Hospital, Penuballi, where first aid was given and as the condition of the claim petitioner was precarious, he was shifted to Srujan Ortho and Accident Care Hospital, Khammam, where he was treated as inpatient. During the course of treatment, x-rays were taken, CT scan was done, necessary clinical tests were conducted, bandages were applied and necessary operations were conducted apart from physiotherapy. Subsequently, he also took treatment at Karthik Super
Specialty Hospital, Khammam as an outpatient. Still he has been undergoing treatment in the said hospital and he also required operations.
So far the claim petitioner spent an amount of Rs.2,00,000/- towards medical and other expenses and he has to spend Rs.50,000/- towards further treatment. Due to the fractures over right femur and radius, the claim petitioner is unable to walk properly as he was before the accident and unable to attend to his normal duties as he sustained 50% permanent 26 of 3 MVOP.No.27-15, Dt.25.04.2022.
disability and confined to bed. He has deprived of his earnings during the course of treatment for a period of six months and also his future earning capacity is badly affected. In spite of taking better treatment, there is no normalcy in the condition of the petitioner and still he has been experiencing pain, suffering, swelling, mental agony and that he has to suffer the same throughout his life. Therefore, keeping in view the disability suffered by the petitioner on account of injuries in the accident, the claim petitioner claimed
Rs.10,00,000/- towards general and special damages and respondent No.1 and 2 being the owner and insurer of the Crime DCM Van, both are jointly and severally liable to pay the compensation to the claim petitioner. Hence the petition.
3. Respondent No.1 filed counter, denying the mode and manner of the accident described to have been taken place. It was further contended that there was no negligence on the part of the driver of the crime vehicle and there is no liability against respondent No.1. Respondent
No.1 further denied about the alleged medical expenses alleged to have been spent by the claim petitioner. The driver of the crime vehicle was holding valid driving licence at the material time of the accident and the crime vehicle was validly insured with the respondent No.2 company and insurance was subsisting by the date of accident. If any amount is to be granted towards the compensation to the claim petitioner, the same is liable to be paid by the respondent No.2-insurance company.
4. Respondent No.2-insurance company filed counter, denying the mode and manner of the accident described to have taken place and also the injuries sustained by the claim petitioner, disability if any in the resultant 27 of 3 MVOP.No.27-15, Dt.25.04.2022.
accident, amounts spent for treatment and medical expenses etc.,. This respondent does not admit the age, avocation and health condition of the petitioner at the material time of the accident and also does not admit the earnings of the claim petitioner at Rs.8,000/- per month as Hamali worker. In fact, this respondent does not admit that the person who drove the crime vehicle at the material time of the accident, was holding valid driving licence to drive such vehicle and that the vehicle in question was having valid permit, fitness certificate and was roadworthy to ply as on the date of alleged accident. Respondent No.2 does not admit the vehicle alleged to have been involved in the accident was insured with the respondent company at the time of accident as stated in the claim petition. In fact the accident took place due to the negligence on the part of the claim petitioner and there was no rash or negligence on the part of the driver of crime vehicle, but the claim petitioner and owner of the said vehicle colluded with each other and got foisted a false case against the driver of the crime vehicle in order to have wrongful gain and as such the claim petition is not maintainable. Respondent No.2 seeks protection under Section 145 (b) &
(d), 146, 147 and 149 of M.V.Act and Section 64-VB of the Insurance Act.
The claim of compensation is highly excessive and and exhorbitant and as such the respondent No.2 is not liable to pay any compensation to the claim petitioner and prayed to dismiss the petition with costs.
5. On the above pleadings and the material on record, my learned predecessor-in-office framed the following issues:
i) Whether the accident occurred on 28.05.2014 at about 8.15 p.m. at Korlagudem village road, on Kalluru to Sathupally R & B Road, due to the rash and negligent driving of the driver of DCM Van bearing registration No.AP.07/TU-4157?
28 of 3 MVOP.No.27-15, Dt.25.04.2022.
ii) Whether the claim petitioner is entitled for compensation as prayed for, if so to what amount and from which of the respondents?
iii) To what relief?
6. During the course of trial, claim petitioner was examined as
P.W.1 and P.Ws.2 to 4 on commission and got marked Exs.A1 to A10 besides Ex.C1. On behalf of respondents, no oral evidence is adduced, but respondent No.2 marked Ex.B1-copy of insurance policy on its behalf.
7.Arguments of either side were heard and the records are perused. Apart from oral arguments, the counsel for the claim petitioner also submitted written arguments.
ISSUE No.1:
8.The case of the claim petitioner is that due to rash and negligent driving by the driver of DCM Van bearing registration No.AP.07-
TU-4157, the accident occurred causing grievous and multiple injuries to the claim petitioner. On the other hand, the case of the contesting respondent is one of total denial and it is their case that there was no negligence on the part of the driver of the crime vehicle and the accident occurred only due to the negligence on the part of the claim petitioner.
9. Before dealing with such contention, it is apt to refer to the settled legal position with regard to the standard of proof required to prove the factum of the accident.
10. It is well settled principle of law reiterated in Catena of decisions of the Hon’ble Supreme Court and the Hon’ble High Courts from time to time including the judgments in Bimla Devi & Ors vs Himachal Road
Transport Corporation reported in (2009) 13 SCC 530, Shaik Yakub V/s.
29 of 3 MVOP.No.27-15, Dt.25.04.2022.
Reported in ALD (5) 439: 2007 (2) Andhra Weekly Reporter 359 and also reiterated in a recent decision in Anita Sharma and others V/s New India
Assurance Company Limited and another reported in 2021 (1) ALT 1 (SC), wherein it is held that in case of proof of an accident in an enquiry in a motor vehicle claim, the claimants need not establish their case beyond reasonable doubt and it would be suffice if the case is proved on the touch stone of preponderance of probability. It is also the principle evolved in these judgments that the documents relating to the investigation done by the police in filing charge sheet against the driver of the crime vehicle responsible for the accident, can be relied upon during the course of enquiry conducted in a motor vehicle accident claim, without the need of formal proof of those documents.
11. Guided by the above said settled proposition enunciated by the superior courts, now this Tribunal proceeds to evaluate the oral and documentary evidence adduced by the claim petitioner to prove issue No.1.
Claim Petitioner herein is examined as P.W.1. In his chief affidavit, he has reiterated the contents of the claim petition and during his cross examination, nothing adverse is elicited to discredit the evidence of P.W.1.
P.W.1 went on to deny the suggestions that the driver of bus drove the bus with utmost care and caution and the accident occurred only due to the negligence on the part of the claim petitioner only, the accident occurred.
12. Coming to the documentary evidence, Ex.A1 is the certified copy of First Information Report in Crime No.103/2017 of P.S.Khammam
Traffic, Khammam, which was registered against the driver of the crime vehicle herein in connection with the accident, in question. Ex.A2 is the certified copy of the charge sheet filed against the driver of crime vehicle in 30 of 3 MVOP.No.27-15, Dt.25.04.2022.
connection with the accident, in question. Exs.A1 and A2 are the relevant documents for the purpose of this issue. Ex.A1 shows that the driver of the crime vehicle was shown as accused in a crime registered under Section 337 of I.P.C. which shows about causing injuries to the claim petitioner in the accident by his rash and negligent act. Ex.A2 is the charge sheet filed by the investigating officer. A perusal of Ex.A2 shows that after full-fledged investigation, the investigating officer has filed charge sheet fastening the liability of the accident on the driver of the DCM Van bearing registration
No.AP.07-TU-4157. Considering Exs.A1 and A2, this Tribunal holds that the claim petitioner could prove his case that the accident occurred as a result of rash and negligent driving on the part of the driver of DCM Van bearing registration No.AP.07-TU-4157, in which the claim petitioner sustained injuries in the said accident. Accordingly, this issue is answered in favour of the claim petitioner.
ISSUE No:2:
13. The case of the claim petitioner is that due to the said accident, he suffered disability to the extent of 55% of right upper limb and the medical board has issued disability certificate marked as Ex.A4. It is his further case that he was hale and healthy prior to the accident, earning
Rs.8,000/- per month by doing Hamali work and that he spent huge amounts for treatment and he undergone treatment for a long period and he required to undergo surgeries for implantation and also for surgeries for removal of implants and he is unable to do his regular duties and unable to move his hand freely.
31 of 3 MVOP.No.27-15, Dt.25.04.2022.
14. In order to prove his case, the claim petitioner examined himself as P.W.1 and also examined the doctors, who gave treatment to him at Khammam, the Neuro Doctor of NIMS Hospital, Hyderabad and also the doctor, who is a member of Medical Board, who issued disability certificate and these witnesses were examined as P.Ws.2 to 4. In his chief examination as P.W.1, he reiterated the contents of his claim petition and in his cross examination, it is elicited that he did not file any document showing his age or his profession or income.
15. P.W.2-Doctor P.N.V.S.V.Prasad is an Orthopedic Surgeon, under him the claim petitioner took treatment, and he deposed that claim petitioner was admitted in his hospital on 29.05.2014 with multiple injuries and he operated petitioner twice on 06.06.2014 and 10.06.2014 respectively and he inserted a nail to his right femur injury, K wire fixation to his metacarpal fractures and plating to his right radius along with extenson tendon repair. P.W.2 further deposed that thereafter he was under follow up treatment till January, 2018 and his implants were removed. P.W.2 further deposed that claim petitioner developed brain hemorrhage for which the
Dr.P.Asadharan, a Neuro surgeon treated him and claim petitioner developed right brachial plexus injury for which the claim petitioner took treatment at NIMS Hospital. P.W.2 further deposed that at the time of his giving evidence, he found that claim petitioner cannot flex his right knee fully and he could not rotate his right fore arm and the power of his right fingers is Grade-IV. P.W.2 further deposed that due to such injuries, it will be difficult for claim petitioner for squatting and going upstairs, he cannot have his food normally because of the stiffness and loss of power in his right hand.
32 of 3 MVOP.No.27-15, Dt.25.04.2022.
16. P.W.3-R.Srikanth, Professor, Plastic Surgery department deposed that claim petitioner was admitted in their hospital in NIMS
Hospital, Hyderabad on 05.12.2014 with a diagnosis of right radial upper brachial plexus injury with paralysis of right shoulder and right elbow. P.W.3 deposed that he operated the claim petitioner on 09.12.2014 and and application of plexus exploration and nerve transfer were done. He further deposed that claim petitioner was recovered 70% and there was improvement in the shoulder and elbow movements and due to incomplete recovery the right side is not normal like the left side of the body of the claim petitioner and he further deposed that he will able to lift load like a normal person.
17. P.W.4-Dr.T.Madan Singh is a member of medical board, who issued Ex.A4 issued disability certificate by deposing that there was 55% disability to right upper limb of the claim petitioner. The discharge summary, outpatient tickets, medical prescriptions, medical investigation reports and medical bills, which are marked as Exs.A5 to A10 clearly goes to show about the multiple injuries and severity of the injuries sustained by the claim petitioner in the alleged accident.
18. Thus, the above oral and documentary evidence clearly show that the claim petitioner sustained grievous injuries in the accident in question which involved the DCM Van bearing registration No.AP.07.TU- 4157 and that he took treatment at Srujan Hospital of P.W.2 and also at
NIMS Hospital for a long period and that he sustained disability of right upper limbs. In view of the above said abundant evidence on record, this court has no hesitation to hold that P.W.1 is entitled for compensation.
33 of 3 MVOP.No.27-15, Dt.25.04.2022.
19.The aspects of awarding compensation in case of personal injuries is very well discussed by the Hon’ble Apex Court in Raj Kumar Vs.
Ajay Kumar and another in Civil Appeal Nos.8981 of 2010 (Arising out of
SLP (C) No.10383 of 2007), In the said decision, the Hon’ble Apex Court has observed as to under which head compensation could be awarded and at para No.5 of the judgment stated that in such a case pecuniary damages and non-pecuniary damages shall be awarded and pecuniary damages includes treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure and it also include loss of earnings during the course of treatment and also about loss of future earnings on account of permanent disability. Similarly non-pecuniary damages include damages for pain, suffering and treatment and also loss of amenities and also expectation of life.
20. For ascertaining just compensation in case of injuries suffered, the age and income of the injured are crucial factors to be determined. No doubt, the claim petitioner did not file any documents in proof of his age and annual income. However, the age of the claim petitioner mentioned in
Ex.A1-First Information and Ex.A2-charge sheet cannot be taken into consideration. In Exs.A1 and A2, the age of the petitioner is mentioned as 23 years as on the date of accident. Hence, the said age of 23 years as mentioned in Exs.A1 and A2 is being taken into consideration for the purpose of calculation of compensation.
21.So far as the income of the claim petitioner is concerned, though it is his case that he was earning Rs.8,000/- per month by doing
Hamali work at the relevant time, however, as stated earlier, he did not file 34 of 3 MVOP.No.27-15, Dt.25.04.2022.
any piece of paper to substantiate the same. Nevertheless even an unskilled labour or a coolie might have been earning Rs.150/- per day during the year 2014 when the alleged accident took place. Therefore, in the absence of any documentary evidence showing the income of the petitioner, this Tribunal intends to take Rs.150/- per day as the income of the petitioner treating him as unskilled labour/coolie and his monthly income comes to
Rs.4,500/- and his annual income comes to Rs.54,000/-.
22. Now since this Tribunal has arrived at the annual income and ascertained the age, now I shall proceed to assess the compensation under various heads.
MEDICAL EXPENSES:
23.Under Ex.A9 the claim petitioner has filed number of medical bills totaling to Rs.51,115/- and P.W.2 doctor, who treated the claim petitioner has testified in his evidence about the claim petitioner incurring the expenses as mentioned in those bills marked as Ex.A9. Hence, this
Tribunal intends to award the same as it is under the head of medical expenses.
LOSS OF EARNINGS:
24.The evidence of doctors i.e., P.Ws.2 and 3 clearly show that claim petitioner was under treatment in Khammam and later in December, 2014 he went to NIMS Hospital, Hyderabad, where he was operated by
P.W.3. Ex.A6 outpatient card of NIMS Hospital show that he went to said hospital up to the year 2016. Considering all the medical records and the evidence of doctors, it can safely be held that the claim petitioner might 35 of 3 MVOP.No.27-15, Dt.25.04.2022.
have been confined to bed by losing his earnings at least 12 months/1 year.
Therefore, awarding of compensation for a period of one year towards loss of earnings, in the considered opinion of this court, is just and proper.
Hence, an amount of Rs.54,000/- is hereby awarded as compensation towards loss of earnings.
LOSS OF FUTURE EARNINGS ON ACCOUNT OF PERMANENT
DISABILITY:
25.The Hon’ble Apex Court in Raj Kumar Vs Ajay Kumar at para
Nos.7 and 8 observed that the extent of disability of a limb or any part of the body expressed in terms of percentage of disability, obviously cannot be assumed to be the extent of disability of the whole body. It is further observed by the Apex Court that where the claimant suffers permanent disability as a result of the injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity and the percentage of economic loss i.e., percentage of loss of earning capacity will be different from the percentage of permanent disability. For better and proper appreciation and also for just decision, the relevant portions of the above said decision at para Nos.7 and 8 are extracted hereunder.
“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body……...” 8.Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such 36 of 3 MVOP.No.27-15, Dt.25.04.2022.
permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).”
Keeping in view the above judgment, now this court proceeds to evaluate the evidence available on record to assess the loss of future earnings on account of his sustaining permanent disability. Ex.A4 is the disability certificate issued by the Medical Board and it shows that P.W.1 sustained 55% of permanent disability to his right upper limb. It is relevant to state here that this disability refers to only particular part of the body and it does not refer the disability to the whole body and further perusal of Ex.A4 also shows that petitioner can perform the work by standing, sitting, by underlying, by bending, by walking and by reading and writing. It is the case of the claim petitioner that he was a Hamali, however, as discussed earlier this tribunal has assessed his income by considering him as unskilled labourer or a coolie. It is relevant to state here that there is no other rebuttal contention on behalf of insurance company so far as the avocation of the petitioner is concerned. It is also relevant to state here that P.W.2-Doctor, who operated and fixed the implants and later removed the implants, 37 of 3 MVOP.No.27-15, Dt.25.04.2022.
testified that the claim petitioner cannot rotate his right forearm and the power of his right fingers is Grade-IV and he cannot flex his right knee fully and it will be difficult for him in squatting and going for upstairs. P.W.3-
Doctor at NIMS Hospital testified that right side of claim petitioner is normal like the left side of the body. Considering such version of both the doctors and keeping in view his avocation which is of unskilled labour/coolie, this tribunal is of the considered opinion that the functional disability of his whole body can be assessed at 50%.
26.The annual income of P.W.1/claim petitioner was arrived at
Rs.54,000/- @ Rs.4,500/- per month. To the said amount, if the future prospectus @ 40% is added Rs.54,000/- x 40/100=21,600/- and if it is added to Rs.54,000/-, the amount comes to Rs.75,600/-, which is the total annual income of the petitioner.
27. Now this tribunal proceeds to assess the loss of future earnings/amount on account of permanent disability and the same is calculated as under:
28.It is settled proposition of law that for calculating the loss of earnings on account of permanent disability, again the multiplier which is used to determine the loss of dependency in case of deaths, has to be taken into account. The multiplier applicable for the age group of 21 to 25 years was held to be 18 as per the table given in Sarla Verma’s case. If the annual income of the petitioner is multiplied with multiplier 18, the total income comes to Rs.13,60,800/- (Rs.75,600/- x 18=Rs.13,60,800/-). 50% thereof comes to Rs.6,80,400/- (Rs.13,60,800/-/ 2= Rs.6,80,400/-). Thus, 38 of 3 MVOP.No.27-15, Dt.25.04.2022.
the amount of Rs.6,80,400/- is just compensation under the head of loss of earnings and future prospectus on account of permanent disability.
PAIN AND SUFFERING:
29.As discussed earlier and as could be seen from the abundant medical record produced by the claim petitioner, he has been operated and implants were inserted on his right fore arm, left femur and he was also treated for his neuro paralysis problem and he had been under treatment at
Srujan Orthopedic Hospital and also at NIMS Hospital, Hyderabad and
P.W.2 certified about his suffering six grievous injuries. Considering all the above pain and suffering undergone by P.W.1 can easily be imagined.
Therefore, in the opinion of this tribunal, an amount of Rs.60,000/- is considered to be a just compensation to be awarded under the head of pain and suffering.
TRANSPORTATION:
30.The medical record reveals that more particularly the O.P. card he went to NIMS Hospital, Hyderabad on number of occasions and he took treatment at Srujan Orthopedic Hospital at Khammam. Admittedly, the claim petitioner is a resident of Penubally. In such a case for travelling to
Khammam and to NIMS Hospital, Hyderabad from his native place
Penubally, the claim petitioner must have incurred huge expenditure for transportation. Therefore, in the opinion of this court, an amount of
Rs.25,000/- would be just compensation under the head of transportation.
EXTRA-NOURISHMENT:
31. Considering the injuries sustained and surgeries underwent by
P.W.1 for his injuries and also for the disability suffered by him, he must 39 of 3 MVOP.No.27-15, Dt.25.04.2022.
have taken some extra-nourished food for vitamins and for other bony health. Therefore, having taken into mind, this tribunal award an amount of
Rs.20,000/- which would be just compensation under the head of extra nourishment.
ATTENDANT CHARGES:
32. Since P.W.1 is inpatient in Srujan Hospital, Khammam and also
NIMS Hospital, Hyderabad and thereafter also he took bed rest, the services of some attendant must be required for him to attend his necessities. Therefore, taking into account, this tribunal award an amount of
Rs.10,000/- is just and reasonable under the head of attendant charges
33. Thus,the petitioner is entitled compensation under the following heads:
Sl.Nature of the compensation Amount awarded in No.rupees 1Pain and sufferings Rs. 60,000-00 2Loss of earnings during theRs. 54,000-00 course of treatment 3Loss of future earnings onRs. 6,80,400-00 account of permanent disability 4Towards Medical expensesRs. 52,115-00 5Towards transportation chargesRs. 25,000-00 6Towards extra-nourishment Rs. 20,000-00 expenses 7Towards attendant charges Rs. 10,000-00
TOTAL COMPENSATIONRs. 9,01,515-00 AMOUNT (Rupees Nine Lakh One Thousand Five Hundred and Fifteen only) 40 of 3 MVOP.No.27-15, Dt.25.04.2022.
34. So far as fixing the liability is concerned, admittedly, respondent
No.1 is the owner of the crime vehicle and respondent No.2 is the insurer.
Ex.B1 is insurance policy of the crime vehicle and perusal of the same shows that insurance policy was in force as on the date of accident.
Therefore, both respondents 1 and 2 are jointly and severally liable to pay the compensation to the claim petitioner. Accordingly, this issue is answered.
ISSUE No.3:
35.In view of my findings on issues No.1 and 2, the claim petitioner is awarded compensation of Rs.9,01,515/- together with interest @ 7.5%
P.A. from the date of petition till the date of depositing of the compensation payable by respondent Nos.1 and 2 jointly and severally. Accordingly, this issue is answered.
RESULT:
In the result, the claim petition is allowed with costs by awarding compensation of Rs.9,01,515/- (Rupees Nine Lakh One Thousand Five
Hundred and Fifteen only) directing the respondent Nos.1 and 2 jointly and severally liable to pay the said compensation amount to the claim petitioner with subsequent interest at the rate of 7.5% P.A. from the date of filing of the petition till the date of depositing of the compensation amount. The time for depositing of the awarded amount is (30) days. On deposit, the claim petitioner is permitted to withdraw entire compensation along with components of interest accrued thereon and costs. The fee of the counsel for the claim petitioner is fixed at Rs.5,000/-.
Dictated to the Stenographer, corrected and pronounced by me in
Open Court, this the 25th day of April, 2022.
41 of 3 MVOP.No.27-15, Dt.25.04.2022.
CHAIRMAN,
MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-II ADDL.DISTRICT JUDGE,
(FTC-I) KHAMMAM.
-APPENDIX OF EVIDENCE-
WITNESSES EXAMINED FOR
Claim Petitioner:
P.W.1 : Maddela Suresh-Claim Petitioner. P.W.2 : Dr.P.N.V.S.V.Prasad, Srujana Ortho and Accident Care Hospital, Khammam-Treated the Claim petitioner. P.W.3 : Dr.R.Srikanth, Plastic Surgeon, NIMS Hospital, Hyderabad- Treated the claim petitioner. P.W.4 : Dr.T.Madan Singh, Medical Superintendent, Government District Headquarters Hospital, Khammam-Issued the Disability certificate.
Respondents:
-None-
EXHIBITS MARKED FOR
Claim Petitioner:
Ex.A1: Certified copy of First Information Report along with report in Crime No.140/2014 of P.S.Kalluru. Ex.A2: Certified copy of charge sheet with memo of evidence in C.C.No.345/2015 on the file of Principal Judicial Magistrate of First Class, Sathupally. Ex.A3 : Certified copy of Medical Certificate issued by Srujan Ortho and Accident Care Hospital, Khammam. Ex.A4: Physically handicapped certificate issued by Medical Board, Government Headquarters Hospital, Khammam Ex.A5: Discharge summaries numbering (02) issued by Srujan Ortho and Accident Care Hospital, Khammam. Ex.A6: Discharge summary issued by NIMS Hospital, Hyderabad. Ex.A7: Outpatient medical record issued by NIMS Hospital, Hyderabad. Ex.A8: Medical prescriptions numbering (09). Ex.A9: Medical investigation reports numbering (06). Ex.A10:Medical bills numbering (48) worth Rs.52,115/-. Ex.A12:X-ray and CT scan films numbering (07).
Ex.C1 : Discharge summary dated 12.12.2014.
Respondents:
Ex.B1 : Attested copy of insurance policy.
42 of 3 MVOP.No.27-15, Dt.25.04.2022.
CHAIRMAN,
MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-II ADDL.DISTRICT JUDGE,
(FTC-I) KHAMMAM.
Compared by:
43 of 19 MVOP.No.27-15, Dt.25.04.2022. 44 of 19 MVOP.No.27-15, Dt.25.04.2022. 45 of 11 MVOP.No.757-18, Dt.30.12.2021.