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2012 DIGILAW 1050 (AP)

P. Thimma Reddy v. Sohan Lal

2012-10-19

K.G.SHANKAR

body2012
Judgment M.A.C.M.A.M.P. No. 4914 of 2012: The order dated 13-6-2012 passed in C.M.A.No.590 of 2003 is set aside and the appeal is restored to its original file. C.M.A. No. 590 of 2003: 2. The appellant filed the claim petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 (the Act, for short) before the Chairman, Motor Accident Claims Tribunal cum II Additional District Judge, Kurnool (the Tribunal, for short), claiming compensation at Rs.10,00,000/-for the injuries sustained by him in a vehicular accident. After due trial, compensation was awarded at Rs.5,60,600/-by the Tribunal together with interest at 9% per annum from the date of the petition till deposit. Aggrieved by the same, the claimant preferred the appeal. The Facts: 3. The claimant was proceeding on a motorcycle along with one K. Maheswara Reddy to Kurnool on 01-01-2000. At the outskirts of Kurnool, at about 3.30 a.m., the lorry owned by the 1st respondent bearing registration No. MP 14K 1218 hit the motorcycle from the opposite side. The claimant sustained injuries on his leg and hands. Considering that the accident was due to the rash and negligent driving of the lorry by the driver, the claimant sought compensation at Rs.10,00,000/-. Findings: 4. It may be noticed that there is no cross appeal or cross objections. Thus, the insurer, who contested the case, does not dispute its liability nor does it question the quantum of compensation awarded. It is the claimant that filed the appeal questioning the quantum of compensation awarded. It therefore may be accepted that the accident was due to the rash and negligent driving of the driver of the offending lorry confining the controversy to the quantum of compensation only. The claimant, who examined himself as P.W.1, deposed that he sustained fracture of the left leg and left hand, that he was initially shifted to Gowri Gopal Hospital, Kurnool and that he was later shifted to Nizams Institute of Medical Sciences (NIMS), Hyderabad. He was said to be inpatient for about 24 days at NIMS. Unfortunately, he suffered amputation of the left leg up to thigh level. The claimant was a student of B.Com., at the time of the accident. He deposed that he was participating in sports and was also attending to agricultural work at his native place during vacations. 5. He was said to be inpatient for about 24 days at NIMS. Unfortunately, he suffered amputation of the left leg up to thigh level. The claimant was a student of B.Com., at the time of the accident. He deposed that he was participating in sports and was also attending to agricultural work at his native place during vacations. 5. The claimant did not choose to examine any doctor albeit he produced Ex.A-8 copy of the disability certificate showing amputation of the leg up to thigh level and that the disability was 70%. The rate of disability that the claimant has been suffering from has not been spoken to by any Medical Officer. However, in view of Ex.A-8 disability certificate from the Medical Board, the Tribunal considered it appropriate to accept the same determining the rate of disability at 70%. Sri P. Venkateswarlu, learned Standing Counsel for the insurer, inter alia, contended that the rate of disability could not have been at 70% and that where the claimant did not choose to examine any doctor to prove the disability, the disability may be at not more than 60% under Entry No.19 of Part 2 of Schedule I of the Workmen’s Compensation Act, 1923. The relevant entry reads “amputation below middle thigh to 8.89 cms. below knee”. In the present case, the amputation was up to the thigh. Therefore, the rate of disability can be determined at 60%. However, while the Tribunal determined the rate of disability at 70%, no cross appeal was laid by the insurer. I therefore consider that the rate of disability as determined at 70% by the Tribunal deserves to be maintained. 6. There is no proof regarding the income of the claimant. The Tribunal considered the income of the claimant at Rs.2,000/-per month and worked out the amount of compensation. Sri G. Venkata Reddy, learned counsel for the claimant, on the other hand, placed reliance upon GOVIND YADAV v. NEW INDIA INSURANCE CO. LTD. ( (2011) 10 SCC 683 ) and contended that the income of the claimant deserves to be fixed at Rs.4,000/-per month. The accident in that case occurred in 2004. The Supreme Court considered it appropriate to determine the income of the claimant at Rs.3,000/-per month on the basis of the then prevalent minimum wages. In the present case, the accident occurred on 01-01-2000. The accident in that case occurred in 2004. The Supreme Court considered it appropriate to determine the income of the claimant at Rs.3,000/-per month on the basis of the then prevalent minimum wages. In the present case, the accident occurred on 01-01-2000. There is no proof from either side as to the minimum wages by the date of the accident. In view of Delhi Transport Corporation v. Arun Sondhi (1997 ACJ 1286) relied upon by the Tribunal where the loss of earning capacity was determined at Rs.2,000/-for an accident which occurred prior to 1997, it would be just and proper to determine the income of the claimant at Rs.2,500/-taking it as the minimum wages at the time of the accident. 7. The claimant was about 21 years old at the time of the accident. Consequently, the appropriate multiplier applicable is ‘18’. Where the income of the claimant is considered to be Rs.2,500/-per month, the annual income is Rs.30,000/-. If Rs.30,000/-is multiplied by 18, the amount would be Rs.5,40,000/-. However, as disability is 70% only if Rs.5,40,000/-is reduced to 70%, the amount would be Rs.3,78,000/-. I therefore consider that the claimant would be entitled to compensation at Rs.3,78,000/-(Rupees three lakhs and seventy eight thousand only) towards partial permanent disability. The Tribunal awarded Rs.1,75,000/-(Rupees one lakh and seventy five thousand only) on the whole towards pain and sufferance, loss of enjoyment in life and future assistance and other heads apart from granting Rs.1,00,000/-(Rupees one lakh only) towards hospital charges and medical expenses. The claimant is entitled to both these amounts. The claimant accordingly is entitled to compensation at: (a) Compensation towards … Rs.3,78,000/-partial permanent disability (b) Compensation towards … 1,75,000/-pain and sufferance, loss of enjoyment in life and future assistance and other damages (c) Compensation towards … 1,00,000/-hospitalisation and medical expenses Total … Rs.6,53,000/- 8. The claimant shall be entitled to compensation at Rs.6,53,000/-(Rupees six lakhs and fifty three thousand only). I make it clear that the amount of Rs.1,75,000/-(Rupees one lakh and seventy five thousand only) awarded would include extra nourishment and loss of marriage prospects. The Tribunal awarded interest at 9% per annum. I consider that the claimant is entitled to interest at 9% per annum as awarded by the Tribunal. This appeal therefore deserves to be allowed in part granting compensation at Rs.6,53,000/-in favour of the claimant. 9. Accordingly, the appeal is allowed in part. The Tribunal awarded interest at 9% per annum. I consider that the claimant is entitled to interest at 9% per annum as awarded by the Tribunal. This appeal therefore deserves to be allowed in part granting compensation at Rs.6,53,000/-in favour of the claimant. 9. Accordingly, the appeal is allowed in part. Compensation is granted at Rs.6,53,000/-(Rupees six lakhs and fifty three thousand only) together with interest at 9% per annum from the date of the petition till deposit and costs pro rata in favour of the claimant. The insurer and the owner of the offending vehicle, who are the respondents 1 and 2, are jointly and severally liable to satisfy the award. 10. After deposit, the claimant is entitled to withdraw Rs.2,00,000/-(Rupees two lakhs only) at the first instance. The balance shall lie in Fixed Deposit. The claimant shall be entitled to withdraw the balance in instalments at Rs.2,00,000/-(Rupees two lakhs only) once in every 3 (three) years. As the last instalment, the claimant shall be entitled to withdraw the balance together with accrued interest and costs of the claim. The appeal however is allowed in part without costs. In case of urgent need for withdrawal, the claimant may approach the Tribunal and seek for appropriate order of release.