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2020 DIGILAW 358 (AP)

D. Veeraraghavulu v. R. Mileari

2020-05-15

M.GANGA RAO

body2020
JUDGMENT : The appellant -injured claimant preferred this appeal, under Section 173 of the Motor Vehicles Act, 1988, (‘the Act’ for short), not being satisfied with the quantum of compensation awarded by the learned Chairman, Motor Accident Claims Tribunal -cum III Additional District Judge, Tirupati, in MVOP.No.103 of 2003. 2. Heard the submissions of the learned counsel for the appellant/claimant and the learned counsel for the second respondent/insurance company. This appeal against the 1st respondent owner of the vehicle was dismissed for default vide order, dated 05.07.2016. 3. The parties in this appeal shall hereinafter be referred to as they are arrayed in the Original Petition before the Tribunal. 4. The facts that lead the claimant to file this appeal are as follows: Petitioner filed claim petition under Section 166(1)(a) of the Act stating that on 23.05.2002 at about 10:00 PM while the petitioner was going to his village from Mitta Kandriga and when he reached near Kosala Nagaram village, a Matador milk van bearing No.TN 21/A 9623 came behind the petitioner and dashed him. As a result, the petitioner sustained grievous injuries and was shifted to Government hospital for treatment. He underwent operation. The accident was reported to Station House Officer, Vijayapuram Police Station and the same was registered as Crime No.27 of 2002. The same is pending before the Judicial Magistrate of First Class, Nagari. He was hale and healthy at the time of accident. He is doing commission business besides cultivating agricultural land. He used to get earn Rs.30,000/-per annum on commission business and cultivation and contribute the same for the welfare of the family. But due to the accident, he became dependant. The accident occurred due to the rash and negligent driving of the driver of Matador Milk van belonging to the 1st respondent and insured with the 2nd respondent. Hence, both the respondents are jointly and severally liable to pay the compensation. 1st respondent remained ex parte before the Tribunal. 2nd respondent filed a written statement disputing the averments in the petition. Based on the pleadings, the Tribunal framed the following issues for trial. 1. Whether the pleaded accident occurred and if so was it due to the fault of the driver of 1st respondent Matador van bearing No. TN 21 A 9623? 2. 2nd respondent filed a written statement disputing the averments in the petition. Based on the pleadings, the Tribunal framed the following issues for trial. 1. Whether the pleaded accident occurred and if so was it due to the fault of the driver of 1st respondent Matador van bearing No. TN 21 A 9623? 2. Whether the Matador van in question belongs to R1 and stood insured with R.2/insurance company by the date of accident and if so whether policy covers the risk of the petitioner? 3. Whether the petitioner suffered injuries and entitled to compensation and if so to what amount and from which of the respondents? 4. Whether the O.P is bad for non joinder of necessary parties? 5. To what relief? At trial, the injured claimant was examined as PW1. The Doctor who treated the claimant was examined as PW2. Exhibits A-1 to A-6 were marked on the side of the claimant. No oral and documentary evidence was adduced on the side of the respondents. On merits and by the orders impugned in this appeal, the Tribunal allowed the claim petition in part with proportionate costs and awarded a compensation of Rs.78,000/-with interest at 7.5% per annum simple from the date of the petition till the date of realization. As already noted, not being satisfied with the compensation awarded, the present appeal is filed. 5. Sri J. Ugra Narasimha, learned counsel for the claimant contended that the Tribunal has grossly erred in taking the income of the deceased as Rs.20,000/-per annum instead of Rs.30,000/-. The Tribunal has taken only 30% as disability whereas as per the evidence of PW2 – the Doctor and exhibit A5 – disability certificate, the disability is 60%. No reason is given by the Tribunal for taking 30% disability instead of 60%. The Tribunal failed to award co under all the eligible heads. The Tribunal has not granted just compensation to the petitioner for the injuries sustained and disability suffered. The compensation awarded is not just, fair and reasonable in the facts and circumstances of the case. Petitioner is doing agriculture business besides commission business. Due to 60% disability he is not able to do cultivation and became a dependant on the family members. Hence, the appeal may be allowed and the compensation to which the claimant is entitled to may be awarded having regard to the facts and circumstances of the case. 6. Petitioner is doing agriculture business besides commission business. Due to 60% disability he is not able to do cultivation and became a dependant on the family members. Hence, the appeal may be allowed and the compensation to which the claimant is entitled to may be awarded having regard to the facts and circumstances of the case. 6. Sri Naresh Byrapaneni, learned standing counsel for the insurance company strenuously contended that the Tribunal has rightly taken the permanent disability of the petitioner as 30% and granted compensation of Rs.78,000/-with interest at 7.5% per annum from the date of petition till date of realisation with proportionate costs. Adequate compensation was thus awarded. The evidence on record shows that the disability is only 30%. The disability is not with reference to the entire body. Hence, the Tribunal rightly scaled down the percentage of disability. Without adducing any evidence, the claimant is not entitled to claim that the disability impacted his earning capacity by 60%. Hence, by any standards, the compensation awarded by the learned Chairman of the Tribunal is just and fair and needs no upward revision. The appeal is devoid of merit and is liable to be dismissed. 7. The issue that falls for consideration is: ‘Whether the petitioner is entitled for enhancement of the compensation over and above the compensation awarded by the Tribunal? 8. The Tribunal, based on the evidence of PW1 coupled with exhibits A1 & A2, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle driven by its driver in a rash and negligent manner. The Tribunal has quantified the compensation by taking the annual income of the deceased at Rs.20,000/-per month. For computation of the annual income of the claimant, the Tribunal, basing on exhibit A6, has taken into account the income arrived from cultivation of the agricultural land of Ac.2.39 cents @ Rs.20,000/-per year but the earnings from commission business were not taken into consideration on the ground that no evidence is placed before the Tribunal. As on the date of accident, the age of the petitioner is 48 years. By applying the multiplier ‘13’ loss of dependency was arrived at Rs.2,60,000/-(Rs.20,000/-x 13). As per exhibit A5 – disability certificate issued by PW2, the disability of the petitioner was assessed at 60%. As on the date of accident, the age of the petitioner is 48 years. By applying the multiplier ‘13’ loss of dependency was arrived at Rs.2,60,000/-(Rs.20,000/-x 13). As per exhibit A5 – disability certificate issued by PW2, the disability of the petitioner was assessed at 60%. However, the Tribunal based on the discrepancy with regard to the disability of the petitioner, in the evidence of PW2, and having regard to the nature of the injuries sustained by the petitioner in the motor accident, assessed the disability of the petitioner as 30% and granted compensation of Rs.78,000/-(Rs.2,60,000/-x 30/100) along with interest at 7.5% per annum from the date of petition till the date of realisation and rejected the rest of the claim. 9. Having regard to the facts and circumstances of the case and submissions of the counsel for the claimant and the standing counsel for the insurance company, this Court felt that there is no reason for the Tribunal for disbelieving the income of the petitioner @ Rs.30,000/-per month from commission business and cultivation having agricultural land of Ac.2.39 cents. The petitioner is aged about 48 years. He was hale and healthy and maintaining his family. The Tribunal ought to have seen as to what could be the evidence to be produced by the petitioner to prove his income from commission business. The Tribunal ought to have considered the fact that counsel appearing for the petitioner filed written arguments and pleaded that the petitioner used to earn Rs.150/-per day as a commission agent. The MV Act dealing with compensation is a benevolent legislation and considering the various judgments of the Hon’ble Supreme Court, in particular Ramachandrappa’s case, the petitioner’s annual income could be taken as Rs.24,000/-viz., Rs.2,000/-per month. As the petitioner was of 48 years of age, the Tribunal has rightly applied the multiplier ‘13’. If the annual income of the deceased is multiplied by ‘13’, it works out to Rs.24,000/-x 13 = Rs.3,12,000/-. Based on the evidence of PW2 and exhibit A5, the Tribunal has rightly taken the disability of the petitioner at 30%. Since the petitioner’s disability is assessed as 30%, the loss of annual dependency works out to Rs.93,600/-[Rs.3,12,000/-x 30/100). Further, the petitioner is entitled for compensation of Rs.5,000/-, Rs.10,000/-, Rs.5,000/-and Rs.5,000/-under the heads ‘transportation charges’, ‘medical expenses’, ‘pain and suffering’ and ‘extra nourishment’ respectively. Since the petitioner’s disability is assessed as 30%, the loss of annual dependency works out to Rs.93,600/-[Rs.3,12,000/-x 30/100). Further, the petitioner is entitled for compensation of Rs.5,000/-, Rs.10,000/-, Rs.5,000/-and Rs.5,000/-under the heads ‘transportation charges’, ‘medical expenses’, ‘pain and suffering’ and ‘extra nourishment’ respectively. Accordingly, the claimant is held entitled to the total compensation amount of Rs.1,18,600/-[Rs.93,600/-+ Rs.25,000/-]. The claimant claimed compensation of Rs.1,62,000/-. The compensation as determined and to be awarded worked out to Rs.1,18,600/-. Thus, the compensation granted by this Court over and above the compensation awarded by the Tribunal is Rs.40,600/-. The issue is accordingly answered. 10. In the result, the appeal is partly allowed with proportionate costs awarding a total compensation of Rs.1,18,600/-(Rupees One Lakh Eighteen Thousands and Six Hundred only). On the compensation already awarded by the Tribunal, the trial Court had granted interest at 7.5% per annum simple. The insurance company is directed to deposit before the Tribunal, within two months from the date of the receipt of a copy of this judgment, the enhanced portion of compensation i.e., Rs.40,600/-(Rupees Forty Thousand and Six Hundred only) (Rs.1,18,600/--Rs.78,000/-) with interest at 7.5% per annum simple from the date of the original petition till the date of deposit. The already awarded compensation or any portion thereof, if not already paid or deposited as per the award of the Tribunal, the same may also be deposited accordingly. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.