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2021 DIGILAW 840 (AP)

Chalapaka Suresh v. B. Sankara Rao

2021-12-07

NINALA JAYASURYA

body2021
JUDGMENT : The present appeal is preferred by the injured claimant, aggrieved by the order and decree dated 23.12.2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Srikakulam (for short “the Claims Tribunal) in O.P.No.136 of 2000 wherein an amount of Rs.1,99,000/- was awarded as against the total claim of Rs.3,00,000/-. 2. Heard Mr. Aravala Rama Rao, learned counsel for the appellant/claimant, and Smt. Medida Manimma, learned counsel for the 3rd respondent-Insurance Company. 3. The appellant/claimant filed the above mentioned original petition stating inter alia that on 21.03.1999 he boarded a bus bearing registration No.AP 35T 4077 to go to Visakhapatnam and on the way when the bus reached Budumuru junction, the driver of the said bus dashed against a lorry, as a result of which, the claimant sustained grievous and multiple injuries. He underwent treatment in Gayatri Nursing Home and despite the same, his right hand was amputated below the shoulder in view of the crush injuries sustained by him. He claimed an amount of Rs.3,00,000/- towards compensation against the respondents including the 3rd respondent-Insurance Company. In support of his case, the claimant examined P.Ws.1 to 3 and got marked Exs.A.1 to 9 and Ex.X.1. 4. The original petition against the 1st respondent was dismissed as not prosecuted. The 2nd respondent-owner of the offending vehicle remained ex parte. The 3rd respondent-Insurance Company filed its counter and resisted the claim of the claimant. In support of its case, the Insurance Company examined R.W.1 and got marked Ex.B.1-copy of Insurance Policy. 5. The Claims Tribunal, while taking the disability of the claimant at 75% as assessed by P.Ws.2 & 3, arrived at the compensation of Rs.1,99,000/- by taking the income of the claimant at Rs.1,000/- p.m. and awarding Rs.25,000/- towards medical expenses, Rs.5,000/- towards extra nourishment and travelling expenses and Rs.25,000/- towards pain, suffering and mental agony. 6. Learned counsel for the appellant/claimant inter alia contends that the amount as awarded by the Claims Tribunal is not just or tenable and the claimant is entitled for more compensation. He submits that because of the accident, the claimant, who belongs to goldsmith community, lost his hand and therefore, the loss of professional skills should be treated as 100%. While contending that the monthly income of Rs.1,000/- as taken by the Claims Tribunal is not just or tenable, he submits that Rs.2,000/- as claimed towards monthly income is very reasonable. He submits that because of the accident, the claimant, who belongs to goldsmith community, lost his hand and therefore, the loss of professional skills should be treated as 100%. While contending that the monthly income of Rs.1,000/- as taken by the Claims Tribunal is not just or tenable, he submits that Rs.2,000/- as claimed towards monthly income is very reasonable. The Claims Tribunal, according to the learned counsel for the appellant, erred in awarding meager sums towards pain and suffering and extra nourishment and travelling expenses. He submits that in view of amputation of the right hand up to right arm level, the claimant not only lost professional earnings, but also his marriage prospects are effected. He further submits that the appellant is also entitled for the amount towards future prospects, apart from enhancement of the compensation towards pain and suffering, extra nourishment, travelling expenses, etc. The learned counsel places reliance on the judgments of the Hon’ble Supreme Court in Govind Yadav Vs. New India Insurance Company Limited, reported in 2011 (10) SCC 683 , and Jagadish Vs. Mohan, reported in 2018 (4) SCC 571 , and also the judgment of the Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in C.N. Somasekhar Reddy Vs. I.D.L. Chemicals Limited, Hyderabad, reported in 2010 (1) ALD 659 (DB). Contending so, the learned counsel submits that it is a fit case for enhancement of the compensation and accordingly, urges that the appeal may be allowed by awarding just and reasonable compensation. 7. Per contra, learned cunsel for the 3rd respondent-Insurance Company submits that there is a variation in the version of the claimant with regard to the occurrence of the accident and the claimant sustained injuries due to his negligence and therefore, he is not entitled for any compensation. However, the Claims Tribunal considered the monthly income of the claimant at Rs.1,000/-, which according to the learned counsel, itself is excessive, as the claimant is learning goldsmith work and not earning any income therefrom. The learned counsel further submits that the disability of 75% as adopted by the Claims Tribunal is tenable and in the light of the same, the contention of the claimant that he lost his professional skills to the extent of 100% cannot be accepted. The learned counsel further submits that the disability of 75% as adopted by the Claims Tribunal is tenable and in the light of the same, the contention of the claimant that he lost his professional skills to the extent of 100% cannot be accepted. She submits that as the accident occurred in the year 1999, the claimant is not entitled for the benefit of the judgment in National Insurance Company Limited Vs. Pranay Sethi, reported in 2017 (16) SCC 680 . She further submits that the contention of the claimant that because of amputation of his right hand, his marriage prospects were effected, deserves no consideration, in the absence of any supporting material to that effect. The learned counsel would urge that the order under challenge warrants no interference, as the same is reasonable. 8. This Court has considered the contentions advanced by both sides and perused the material on record. 9. It is not in dispute that the appellant/claimant belongs to goldsmith community and he is learning goldsmith work. The Claims Tribunal, by referring to Ex.A.1 wherein it was mentioned that the claimant was learning goldsmith work under the guidance of his father, had taken the average income of the claimant at Rs.1,000/- p.m. as against Rs.2,000/- p.m. on the premise that the claim of the claimant that he was earning Rs.2,000/- p.m., is exorbitant. Stating that in view of the unforeseen circumstances there may or may not be possibility to the claimant to continue the goldsmith work or otherwise he may also take up some other avocation, the Claims Tribunal tried to justify fixation of the monthly income of the claimant at Rs.1,000/- p.m. The view of the Claims Tribunal, in the opinion of this Court, is purely on the basis of assumptions and therefore, not tenable. The Claims Tribunal, in the considered opinion of this Court, failed to see the positive side of the prospects of the claimant who belongs to goldsmith community and is learning goldsmith work under the guidance of his father. Even the claimant takes up any other avocation also, he would earn more than Rs.1,000/- p.m. Viewed from any angle, this Court is of the considered opinion that the Claims Tribunal is not right in its approach. 10. Be that as it may, the monthly income of the claimant claimed at Rs.2,000/- cannot be treated as excessive. Even the claimant takes up any other avocation also, he would earn more than Rs.1,000/- p.m. Viewed from any angle, this Court is of the considered opinion that the Claims Tribunal is not right in its approach. 10. Be that as it may, the monthly income of the claimant claimed at Rs.2,000/- cannot be treated as excessive. Accordingly, this Court is inclined to take the monthly income of the claimant at Rs.2,000/- which is just and reasonable. As the work of goldsmith requires use of both hands, the loss of one hand would totally affect the working skills permanently. Therefore, this Court finds justification in the submission made by the learned counsel for the claimant that the loss of earning capacity should be taken as 100%, though the disability was assessed at 75%. At this juncture, it may also be appropriate to refer to the finding of the Claims Tribunal that when the right hand was amputated up to the level of upper arm, it would also not be possible for having an artificial hand to work with the same. 11. In Jagadish’s case referred to supra, the Hon’ble Supreme Court, while dealing with the case of a claimant, who lost both his hands due to an accident, enhanced the compensation while referring to the earlier precedents. The Hon’ble Supreme Court, considering the case of the injured/claimant therein who was a skilled carpenter and self employed, held that the amount of Rs.6,000/- claimed as earnings per month cannot be regarded as unreasonable or contrary to a realistic assessment of the situation on the date of the accident. The Hon’ble Supreme Court had also applied the judgment of Pranay Sethi’s case in extending the benefit of future prospects @ 40% applicable to the age of the claimant. 12. In Govind Yadav’s case, which relates to a victim who lost his leg due to a road accident, the Hon’ble Supreme Court, while referring to a catena of judgments, held at para No.18 as follows : “18. In our view, the principles laid down in Arvind Kumar Mishra V. New India Assurance Co. Ltd. and Raj Kumar V. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. In our view, the principles laid down in Arvind Kumar Mishra V. New India Assurance Co. Ltd. and Raj Kumar V. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” The Hon’ble Supreme Court, in the facts and circumstances of the case, awarded a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to amputation of leg and a further sum of Rs.1,50,000/- towards loss of amenities and enjoyment of life. In this regard, the Hon'ble Supreme Court held at paras 25, 26 and 27 as follows : 25. The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the Appellant had remained in the hospital for a period of over three months. It is not possible for the Tribunals and the Courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. 26. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg. 27. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the Appellant will have to live for the rest of life with one artificial leg. 27. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the Appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life.” 13. Further, in C.N. Somasekhar Reddy’s case, a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad succinctly dealt with the matters pertaining to approach of Courts/Tribunals in considering the percentage of physical disability and functional disability resulting in loss of earning capacity and held at paras 23 and 32 as follows : “23. The Court should consider what is the percentage of physical disability and the functional disability resulting in loss of earning capacity. Each and every physical disability may not result in loss of earning capacity. For sustaining physical disability it may result in inconvenience and pain, for example in case of a teacher sustaining of even 30% or 40% of disability of left hand may not result in loss of earning capacity. However, for sustaining physical disability he may be entitled for compensation. But, in a case of a rickshaw puller, driver of a vehicle and Carpenter some percentage of disability of left hand may result in 100% functional disability resulting in loss of earning capacity. This distinction should be kept in mind. xxxxxx xxxx xxxxxxx xxxxx xxxxxx xxxxxxxx 32. What is to be assessed is whether the injured is in a position to do the same work which he was doing at the time of accident and what is the percentage of disability sustained by him i.e., his physical disability and functional disability. Functional disability should be assessed considering the nature of work he was previously doing. While assessing the disability, the Doctors have to consider these aspects and issue disability certificate both in respect of physical disability and functional disability. The Tribunal will have an advantage of looking at the claimant while recording his evidence. Functional disability should be assessed considering the nature of work he was previously doing. While assessing the disability, the Doctors have to consider these aspects and issue disability certificate both in respect of physical disability and functional disability. The Tribunal will have an advantage of looking at the claimant while recording his evidence. It may be useful and desirable if the Tribunal notes in the deposition with regard to the condition of the claimant, deformity, scar marks stiffness at the joints etc. If the Tribunal feels that it may be necessary in the interest of justice to refer the claimant to the Medical Board, the Tribunal may refer the claimant to the medical board or to any competent doctor. However, the loss of earning capacity has to be determined considering the nature of work which he was doing prior to the date of accident. Therefore, even where physical disability is not 100%, the functional disability and loss of earning capacity may be 100%. Even in the absence of satisfactory medical evidence, in the interest of justice, the Tribunal may consider whether the claimant can do the same work which he was doing prior to the accident and if not, what is the percentage of functional disability. For example, if the movements of right hand of a Carpenter are restricted at the wrist, though the Doctor may say that it is only 30% disability, but admittedly the Carpenter will not be in a position to do the work which he was doing previously. Then, in such a case, the disability has to be assessed on the basis of the incapacity to do the work which he was doing at the time of accident. Therefore, whether the claimant has sustained fracture or not, his disability has to be ascertained considering the functional disability.” 14. In the light of the above expressions of the Hon’ble Supreme Court as well as the Division Bench, the submissions made by the learned counsel for the appellant/claimant merit consideration. 15. Though it is contended by the learned counsel for the 3rd respondent-Insurance Company that the appellant/claimant is negligent and sustained injuries in the accident and therefore, he is not entitled for compensation, the said contention deserves no consideration in the absence of any appeal preferred by the Insurance Company. 15. Though it is contended by the learned counsel for the 3rd respondent-Insurance Company that the appellant/claimant is negligent and sustained injuries in the accident and therefore, he is not entitled for compensation, the said contention deserves no consideration in the absence of any appeal preferred by the Insurance Company. Further, though it is contended by the learned counsel that the amount awarded is reasonable, this Court is not inclined to accept the same, in the light of the conclusions arrived at supra. 16. Accordingly, the compensation payable to the claimant is arrived at as follows: Monthly income of the claimant @ Rs.2,000/- + 40% of the monthly income towards future prospects Rs.2,800/- The applicable multiplier as per Sarla Varma’s case for the age group of 18 years is “18” Total loss of earnings (Rs.2,800/- x 16 x 12 and functional disability @ 100%) Rs.6,04,800/- Medical expenses Rs.25,000/- Pain and suffering Rs.50,000/- Travelling and extra nourishment Rs.10,000/- Loss of marriage prospects Rs.50,000/- Total compensation payable Rs.7,39,800/- 17. Though the claimant claimed Rs.3,00,000/- towards compensation, as per the judgment of the Hon’ble Supreme Court in Ramla Vs. National Insurance Company Limited, reported in 2019 (2) SCC 192 , just and reasonable compensation can be awarded. However, the claimant shall pay the requisite Court fee in respect of the amount awarded over and above the compensation claimed. 18. Accordingly, the M.A.C.M.A. is allowed enhancing the compensation from Rs.1,99,000/- to Rs.7,39,800/- together with interest @ 7.5% p.a. from the date of filing of the petition till the date of realization. The 3rd respondent-Insurance Company shall deposit the enhanced compensation amount along with interest, within a period of eight (8) weeks from the date of receipt of a copy of this order. On such deposit, the appellant/claimant is entitled to withdraw the entire compensation amount. No order as to costs. 19. Consequently, miscellaneous petitions, if any, pending in the appeal shall stand closed.