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2020 DIGILAW 398 (AP)

Ramba Venkata Rao v. Kosara Balakrishna

2020-05-28

NINALA JAYASURYA

body2020
JUDGMENT : The present appeal is preferred by the appellant, who is claimant in M.V.O.P.No.262 of 2012 on the file of the Motor Accidents Claims Tribunal-cum-Judge, Family Court-cum-III Additional District Judge, Vizianagaram, (hereinafter referred to, as ‘the Claims Tribunal’). 2. The appellant/claimant filed the aforesaid claim petition claiming an amount of Rs.2,50,000/-towards compensation for the injuries sustained by him in a motor vehicle accident. The Claims Tribunal, by its Award dated 29.12.2014, partly allowed the claim petition awarding compensation of Rs.83,000/-. 3. The brief facts of the case are that the claimant, while proceeding along with his daughter on their TVS XL moped bearing No.AP35 G 7065 towards Balaramapuram village from his house on 06.05.2009 at about 2.30 p.m., met with an accident due to the rash and negligent driving of auto bearing No.AP35 V 0705, and as a result of the same, the appellant/claimant and his daughter fell down on the road and he sustained fracture to his right hand and injury of right foot. It is his case that he used to do agriculture and earn Rs.200/-per day, and as a result of the injuries sustained in the accident, he suffered permanent disability, untold pain and mental agony. It is his further case that he incurred a sum of Rs.35,000/-towards transportation to hospital, medicines and extra nourishment. In all, in view of the accident, the appellant/claimant claimed an amount of Rs.2,50,000/-towards compensation. 4. The owner and the driver of the offending vehicle remained ex parte. The third respondent/insurance company filed counter denying the material averments in the claim petition and contested that the insurance company is not liable to pay compensation as claimed. 5. The appellant/claimant, in support of his case, examined himself as P.W.1 and the doctor who treated him as P.W.2 and marked Exs.A1 to A7. On behalf of the insurance company, its legal executive was examined as R.W.1 and Junior Assistant of Regional Transport Office was examined as R.W.2 . Exs.B1 to B6 were marked on behalf of the respondent No.3. 6. On behalf of the insurance company, its legal executive was examined as R.W.1 and Junior Assistant of Regional Transport Office was examined as R.W.2 . Exs.B1 to B6 were marked on behalf of the respondent No.3. 6. The Claims Tribunal, on considering the rival contentions, while holding that the accident occurred due to the rash and negligent driving of the driver of auto bearing No.AP35 V 0705, assessed and awarded a sum of Rs.30,000/-under the head shock, pain, suffering and loss of amenities of life; an amount of Rs.20,000/-for one grievous injury and one simply injury sustained by the claimant/petitioner; an amount of Rs.10,000/-towards medical and incidental expenses and Rs.22,500/-towards compensation for loss of earning capacity due to disability by assessing disability at 10% and income of the appellant/claimant at Rs.15,000/-per annum. Thus, in all, the Claims Tribunal awarded a total compensation of Rs.30,000 + 20,000 + 22,500 + 10,000 = Rs.82,500/-and rounded it to Rs.83,000/-, with interest @ 7.5% per annum from the date of petition till the date of realization. Aggrieved by the said Award of the Claims Tribunal in partially allowing the claim, the present Appeal is filed for the balance amount of Rs.1,67,000/-which was not granted by the Claims Tribunal. 7. Heard, the learned counsel for the appellant and also learned standing counsel for the third respondent/insurance company. 8. Learned counsel for the appellant submits that the Claims Tribunal erred in taking notional income instead of income as claimed by the claimant/appellant for calculating compensation towards disability suffered by the appellant and it ought not to have disbelieved the income of the claimant in the absence of contrary evidence. The learned counsel further submits that the Claims Tribunal erred in awarding meager sum under the head of medical expenses etc., The learned counsel for the appellant further submits that in the facts and circumstances of the case, the Claims Tribunal ought to have allowed the Claim in toto. 9. Per contra, the learned standing counsel for the respondent No.3 submits that the Claims Tribunal, after examining the claim, has rightly awarded the sums under various heads which is just and reasonable and therefore the same warrants no interference by this Court in the present Appeal. 10. 9. Per contra, the learned standing counsel for the respondent No.3 submits that the Claims Tribunal, after examining the claim, has rightly awarded the sums under various heads which is just and reasonable and therefore the same warrants no interference by this Court in the present Appeal. 10. Having heard the rival submissions, it is to be examined as to whether the compensation amount as awarded by the Claims Tribunal is just and proper or warrants any enhancement in the light of the submissions made by the counsel for the appellant and in the facts and circumstances of the case. 11. On examination of the Award, it is seen that a clear finding is recorded by the Claims Tribunal insofar as negligence on the part the driver of the auto in causing the accident resulting in injuries to the appellant/claimant. As regards income of the appellant/claimant, the Claims Tribunal assessed annual income of the appellant/claimant @ Rs.15,000/-per annum and disability at 10%, for computing the compensation towards loss of earning capacity. Though the claimant claimed in the petition that he used to do agriculture and earn Rs.200/-per day(Rs.6,000/-per month) which is not controverted by the insurance company, the Claims Tribunal adopted the notional income @ Rs.15,000/-per annum. In the present case, the accident took place in the year 2009 and the amount of Rs.200/-per day as claimed by the claimant is just and reasonable. The Claims Tribunal, in the absence of any evidence contrary to the claim, which is just and reasonable, ought not to have taken the annual income of the claimant at Rs.15,000/-. The Hon’ble Supreme Court in Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited, (2011) 6 ALD 75 (SC) took the monthly earning of a coolie @ Rs.4,500/-while determining the compensation in respect of an accident that took place in the year 2004, and the relevant portion of the Judgment in the present context may be extracted hereunder: 14: In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning Rs.4,500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of Rs.3,000/- only on the assumption that wages of the labourer during the relevant period viz., in the year 2004, was Rs.100/- per day. This assumption in our view has no basis. This claim is reduced by the Tribunal to a sum of Rs.3,000/- only on the assumption that wages of the labourer during the relevant period viz., in the year 2004, was Rs.100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of Rs.3,000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between Rs.100/- to Rs.150/- per day or Rs.4,500/- per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4,500/- to Rs.3,000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4,500/-. Further, the Hon’ble Supreme Court in Syed Sadiq & Others v. Divisional Manager, United India Insurance Company, (2014) 2 SCC 735 has taken the annual income of a vegetable vendor at Rs.6,500/- per month. If the same principle is adopted, then the appellant would be entitled to more compensation. We, therefore, accept his statement that his monthly earning was Rs.4,500/-. Further, the Hon’ble Supreme Court in Syed Sadiq & Others v. Divisional Manager, United India Insurance Company, (2014) 2 SCC 735 has taken the annual income of a vegetable vendor at Rs.6,500/- per month. If the same principle is adopted, then the appellant would be entitled to more compensation. In the light of the judgments of the Hon’ble Supreme Court, this Court is inclined to take annual income of the appellant/claimant as claimed i.e., Rs.6,000/-per month which comes to Rs.72,000/-per annum, for computing compensation towards loss of earning capacity. Basing on the evidence of P.W.2-Doctor and Exs.A2 and A6, the Claims Tribunal took into consideration disability suffered by the appellant/claimant at 10%. Further the age of the appellant/claimant as 39 years at the time of the accident, is not in dispute. As per the law laid down by the Hon’ble Apex Court in Sarla Verma’s case, the appropriate multiplier for the age group in between 36 to 40 years is Rs.15’. Taking into consideration the disability at 10% and the applicable multiplier of Rs.15’, the petitioner/claimant is entitled to a sum of Rs.1,08,000/-( Rs.72,000 x 15 x 10/100) and accordingly the same is awarded. 12. Further, considering the nature of injuries and the treatment taken, the claimant is entitled to a reasonable sum of Rs.22,000/-under the head of medical expenses, extra nourishment and attendant charges as against Rs.35,000/-, apart from the amounts awarded by the Claims Tribunal under the heads shock, pain and suffering and injuries. Thus, in all, the appellant/claimant is entitled to a sum of Rs.1,80,000/-as mentioned below. Compensation towards loss of earning capacity Rs.1,08,000/- Shock, Pain etc. Rs. 30,000/- Grievous Injury + Simple Injury Rs. 20,000/- Medical Expenses, extra nourishment, attendant and transportation charges Rs. 22,000/-Rs.1,80,000/- 13. Accordingly, the appellant/claimant is awarded compensation of Rs.1,80,000/-against the respondent Nos.1, 2 and 3 jointly and severally with interest @ Rs.7.5% p.a. from the date of petition till the date of realization. The third respondent is directed to deposit amounts so awarded after giving credit to the amounts, if any, already deposited into the Court, within two months from the date of receipt of copy of this Order. On deposit of the amounts, the appellant/claimant is entitled to withdraw the entire amount with interest and costs. 14. Accordingly, the Appeal is partly allowed as indicated above. On deposit of the amounts, the appellant/claimant is entitled to withdraw the entire amount with interest and costs. 14. Accordingly, the Appeal is partly allowed as indicated above. No order as to costs. Miscellaneous petitions pending, if any, in the appeal shall stand closed.