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2020 DIGILAW 359 (AP)

Lavate Venkati v. I. Chandra Sekhara Rao

2020-05-15

M.GANGA RAO

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JUDGMENT : The appellant - injured claimant preferred this appeal, under Section 173 of the Motor Vehicles Act, 1988, (‘the Act’ for short), against the order, dated 22.07.2006, of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Srikakulam, in MVOP.No.423 of 2001. 2. Heard the submissions of the learned counsel for the appellant/claimant, through video conference. Though respondents are served with notices, no appearance is made. 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 are as follows: Petitioner filed claim petition under Section 166 of the Act stating that on 18.11.2000 while he was going to his village on his cycle, on the left side of the road margin, and reached near Regulapadu village, the driver of the 1st respondent, who was driving the lorry bearing No.ORK 7605, drove the said vehicle in a rash and negligent manner and dashed the petitioner’s cycle, as a result of which the petitioner fell down and sustained severe injuries and suffered amputation of his fingers and was hospitalized and spent about Rs.20,000/-towards medical and travelling expenses and also engaged a person to assist during the treatment and spent another Rs.5,000/-and another Rs.5,000/-for extra nourishment food. On account of injuries the petitioner sustained permanent disability and loss of income. Therefore, he claimed a sum of Rs.20,000/- towards mental agony, pain and suffering and Rs.1,50,000/- towards loss of income. Thus, the total compensation claimed is Rs.2,00,000/- with costs and interest. The lorry of the 1st respondent was 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. At trial, the injured claimant was examined as PW1. The Doctor who treated the claimant was examined as PW2. Exhibits A-1 to A-5 and X1 were marked on the side of the claimant. On behalf of 2nd respondent, RW1 was examined and exhibits B1 & B2 [Copy of policy & Certificate of Driving Licence] were marked. On merits and by the orders impugned in this appeal, the Tribunal allowed the claim petition in part and awarded a compensation of Rs.1,52,200 with interest at 7.5% per annum from the date of the petition till the date of realization. On merits and by the orders impugned in this appeal, the Tribunal allowed the claim petition in part and awarded a compensation of Rs.1,52,200 with interest at 7.5% per annum from the date of the petition till the date of realization. Not being satisfied with the compensation awarded, the present appeal is filed by the injured claimant. 5. Learned counsel for the claimant submitted that the Tribunal erred in applying the multiplier ‘16’ by taking the age of the claimant as 39 years, which is said to be the age of the claimant as on the date of giving evidence instead of taking the age of the deceased as on the date of accident. The Tribunal instead of taking the percentage of disability as 50% as per exhibit A5 physically handicapped certificate, erred in taking the percentage of disability as 20%. The claimant is a Kalasi and he used to earn Rs.3,000/-per month. He lost two fingers and also suffered fracture to two ribs and thigh bone in the accident. It is a permanent disability. In view of the loss of two fingers, he lost hand grip and not able to do Kalasi work. The claimant lost 100% earning capacity. If the Tribunal was not inclined to take 100% disability, it ought to have taken the disability of the claimant as 50% as per exhibit A5, when the veracity of the said certificate is not disputed, as the claimant could not work as a Kalasi due to loss of his two fingers. The Tribunal assessed the age of the claimant as 39 years as on the date of giving evidence in the year 2006 whereas the accident occurred on 18.11.2000. The age of the claimant as on the date of giving evidence needs to be reduced by around five years for arriving at the appropriate multiplier. Accordingly, the age of the claimant has to be taken as 34 years and appropriate multiplier has to be applied. The claimant was in the hospital for more than one month. He is entitled for loss of earnings @ Rs.3,000/-during that period. The Tribunal has not granted any amount towards extra nourishment. The claimant claimed Rs.20,000/-towards medical expenses & travelling charges and Rs.5,000/-towards attendant charges and Rs.5,000/-towards extra nourishment, Rs.20,000/-towards mental agony, pain and suffering and Rs.1,50,000/-towards loss of income (total Rs.2,00,000/-) but the Tribunal in all granted compensation of Rs.1,52,200/-only. He is entitled for loss of earnings @ Rs.3,000/-during that period. The Tribunal has not granted any amount towards extra nourishment. The claimant claimed Rs.20,000/-towards medical expenses & travelling charges and Rs.5,000/-towards attendant charges and Rs.5,000/-towards extra nourishment, Rs.20,000/-towards mental agony, pain and suffering and Rs.1,50,000/-towards loss of income (total Rs.2,00,000/-) but the Tribunal in all granted compensation of Rs.1,52,200/-only. 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. 6. I have gone through the order impugned. 7. The Tribunal, based on the evidence of PW1 stating that he was hale and healthy and doing Kalasi work and earning Rs.3,000/-per month, as on the date of accident, has taken the monthly income of the claimant as Rs.3,000/-per month, i.e., Rs.36,000/-per annum. The Tribunal, while observing that the age of the applicant was 39 years as on the date of giving evidence, has taken the relevant multiplier as ‘16’ to arrive at the loss of earnings of the claimant. Thus, the Tribunal arrived at loss of earnings of the claimant at Rs.5,76,000/-(Rs.36,000/-x 16). The application of multiplier ‘16’ could not be said to be wrong as the said multiplier has to be applied for the age group of 31 to 35 years of age and even according to the appellant – claimant he was aged 34 years as on the date of accident. However, the Tribunal instead of taking the permanent disability of the claimant as 50% as per exhibit A5 – physically handicapped certificate, has erred in taking 20% disability, as the claimant lost two fingers due to the injuries sustained in the accident thereby he lost ability to lift heavy or weight objects working as a Kalasi. The Tribunal rejected the said claim without any reason. Hence, the disability of the claimant could be taken as 50% as per exhibit A5 physically handicapped certificate given by a Doctor. Accordingly, the disability of the claimant is assessed as 50% and the loss of annual dependency works out to Rs.2,88,000/-[Rs.5,76,000/-x 50/100). Further, the petitioner is entitled for compensation of Rs.20,000/-(including Rs.12,000/-awarded by the Tribunal), 5,000/-and Rs.5,000/-under the heads ‘medical expenses & travelling charges’, ‘attendant charges’ and ‘extra nourishment’ respectively besides the compensation of Rs.25,000/-awarded by the Tribunal towards pain and suffering. Further, the petitioner is entitled for compensation of Rs.20,000/-(including Rs.12,000/-awarded by the Tribunal), 5,000/-and Rs.5,000/-under the heads ‘medical expenses & travelling charges’, ‘attendant charges’ and ‘extra nourishment’ respectively besides the compensation of Rs.25,000/-awarded by the Tribunal towards pain and suffering. Accordingly, the claimant is held entitled to the total compensation amount of Rs.3,43,000/-[Rs.2,88,000/-+ Rs.30,000/-+ Rs.25,000/-]. The claimant claimed compensation of Rs.2,00,000/-. The compensation as determined and to be awarded worked out to Rs.3,43,000/-. Though the compensation claimed by the injured claimant before the Tribunal was only Rs.2,00,000/-, in view of the decision of the Hon’ble Supreme Court in Nagappa v. Gurudayal Singh and others, AIR 2003 SC 674 there is no restriction under the provisions of M.V. Act that the compensation would be awarded only upto the claim made by the claimants. Hence, the compensation awarded by the Tribunal is enhanced from Rs.1,52,200/-to Rs.3,43,000/-. However, the appellant/injured claimant shall pay the difference of Court fee for the excess amount of compensation of Rs.1,43,000/-. 8. In the result, the appeal is accordingly allowed to the extent indicated above. 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 amount of compensation i.e., Rs.1,90,800/-with interest at 7.5% per annum from the date of the original petition till the date of deposit. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.