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2012 DIGILAW 210 (AP)

P. Venkatesh @ K. Venkatesham v. V. Venkat Ratnam

2012-02-24

R.KANTHA RAO

body2012
Judgment : This appeal is filed by the injured claimant against the Judgment and award dated 01.02.2008 passed by the Motor Vehicle Accident Claims Tribunal cum XIII Additional Chief Judge, City Civil Court, Hyderabad in O.P.No.1334 of 2006 for enhancement of compensation. I have heard Sri C.M.Prakash, learned counsel appearing for the appellant and Sri P.Harinath Gupta, learned counsel appearing for the 2nd respondent/insurance company. The appellant/claimant Mr. P.Venkatesh @ K.Venkatesham received injuries in a motor vehicle accident occurred at about 12 hours on 11.12.2005 on the outskirts of Malkapuram Village, near Choutuppal due to involvement of bus bearing No. AP 7 V 6099. The first respondent is the owner of the said bus and the second respondent/National Insurance Company Limited is the insurer. Both the respondents are held jointly and severally liable to pay compensation to the appellant by the learned Tribunal below which finding has become final. Since there is no challenge to the said finding, the present appeal only relates to the quantum of compensation and it is filed by the claimant seeking enhancement of compensation on the ground that it is not just and reasonable. Against the claim of Rs.5 lakhs made by the appellant, the learned Tribunal awarded compensation of Rs.2,25,280/-which is now assailed in the present appeal on the ground that it is very low. The main contention urged by the learned counsel appearing for the appellant/claimant is that though the appellant sustained permanent disability, the learned Tribunal granted only an amount of Rs.51,500/-and erred in not granting any amount towards loss of earnings/permanent disability. It is the contention of the learned counsel that the appellant, who was driver of heavy goods vehicle sustained fracture of right leg and ultimately, the right leg below knee was amputated in KIMS, Hyderabad. The petition under Rule 27 of Order 41 CPC has been filed in this appeal on behalf of the appellant to admit the discharge summary certificate along with amputation photo dated 30.01.2009 issued by the KIMS Hospital as additional evidence and the same is allowed. The report of discharge summary certificate is marked as Ex.A.16 and the photograph is marked as Ex.A.17. There is no dispute about the fact that the injuries sustained to the right leg of the appellant ultimately resulted in the amputation of his right leg below knee. The report of discharge summary certificate is marked as Ex.A.16 and the photograph is marked as Ex.A.17. There is no dispute about the fact that the injuries sustained to the right leg of the appellant ultimately resulted in the amputation of his right leg below knee. As per the evidence of PW.2-Orthopaedic surgeon and Ex.A.11 disability certificate, the learned Tribunal noticed that the appellant received the following injuries: 1. Grade-III Compound comminuted Segmental fracture lower end of shaft of left femur. 2. Fracture of both bones right leg. Grade-III Compound. 3. Grade-III Compound Bimallulor fracture right ankle. 4. Deep lacerated open would right leg. According to the opinion of PW.2, the injuries 1 to 3 are grievous and injury No.4 is simple in nature. His evidence further reveals that multiple operations have been conducted on the appellant. The disability was said to be 60% according to PW.2. The learned Tribunal however, did not consider the percentage of disability spoken to by PW.2 on the ground that the disability certificate Ex.A.11 is not issued by the medical board constituted for the said purpose and that PW.2 is not one of the members of the medical board. Now the said question does not arise because subsequent to rendering the judgment by the learned Tribunal, the right leg of the appellant was amputated below the knee and therefore, the disability assessed by the PW.2 can be accepted. The learned Tribunal for the total injuries sustained by the appellant awarded a sum of Rs.51,500/-, i.e. an amount of Rs.41,500/-for grievous injuries and one simple injury and Rs.10,000/-towards disability. The approach adopted by the Tribunal below in my view is erroneous and the Tribunal ought to have computed compensation basing on multiplier method considering the disability certificate and also the evidence of PW.2, orthopedic surgeon, who is competent to speak about the disability. The learned tribunal in the absence of any convincing evidence regarding the income of the appellant rightly considered it as Rs.3,000/-per month. The appellant is aged 38 years on the date of accident. His annual income comes to Rs.36,000/-. The multiplier relevant to the age of the injured-claimant as per the judgment in SARALA VARMA AND OTHERS v DELHI TRANSPORT CORPORATION AND ANOTHER ( 2009 ACJ 1298 )is ‘15’. The loss of earnings of the appellant therefore comes to Rs.36,000/-x 15 x 60/100 = Rs.3,24,000/-. His annual income comes to Rs.36,000/-. The multiplier relevant to the age of the injured-claimant as per the judgment in SARALA VARMA AND OTHERS v DELHI TRANSPORT CORPORATION AND ANOTHER ( 2009 ACJ 1298 )is ‘15’. The loss of earnings of the appellant therefore comes to Rs.36,000/-x 15 x 60/100 = Rs.3,24,000/-. The amounts granted by the learned Tribunal i.e. Rs.12,000/-towards loss of past earnings, Rs.2,000/-towards transport expenses, Rs.5,000/-towards extra nourishment, Rs.1,29,780/-towards medical expenses considering the medical bills filed by the appellant and they being reasonable, do not require any interference in this appeal. In view of granting an amount of Rs.3,24,000/-towards loss of earnings, no separate amount can be granted to the appellant for the injuries and the amount of Rs.51,500/-granted towards simple and grievous injuries and disability by the Tribunal have to be deducted from the aforesaid amount. The difference amount towards loss of earnings comes to Rs.3,24,000/-minus Rs.51,500/-= Rs.2,72,500/-. However, the amount of Rs.15,000/ granted towards pain and suffering being not just and reasonable is enhanced to Rs.50,000/-in this appeal. This apart, an amount of Rs.1,00,000/-is granted towards future medical expenses and purchase of artificial limb. Therefore, the appellant is entitled for total compensation as under: i) Rs.3,24,000-00 towards loss of earnings ii) Rs. 12,000-00 towards loss of past earnings iii) Rs. 2,000-00 towards transport charges iv) Rs. 5,000-00 towards extra nourishment v) Rs. 1,29,780-00 towards medical expenses vi) Rs. 50,000-00 towards pain and suffering vii) Rs. 1,00,000-00 towards future medical expenses and purchase of artificial limb. Total Rs.6,22,780-00 The enhancement therefore, would be Rs.6,22,780/-minus 2,25,280/-= Rs.3,97,500/-. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation. With the above enhancement in the compensation, the appeal filed by the appellant/injured claimant is allowed. There shall be no order as to costs.