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2022 DIGILAW 224 (TS)

K. Venkata Ramana v. M. A. Samad

2022-03-15

G.SRI DEVI

body2022
JUDGMENT : This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 04.06.2008 passed in O.P.No.1574 of 2008 on the file of the Special Judge for Economic Offences-cum-VIII Additional Metropolitan Sessions Judge-cum-XXII Additional Chief Judge, City Criminal Courts, Hyderabad (for short, the Tribunal). 2. The brief facts of the case are that on 30.06.2006 the appellant and his friend were proceeding on Hero Honda motor cycle bearing No.AP 9 AZ 0432 and while returning to Mehdipatnam, one Lorry bearing No.MH 25 B 7062 driven by its driver in a rash and negligent manner at high speed and hit the motor cycle. As a result of which, the appellant fell down and lorry ran over on the right leg of the appellant. Immediately, the appellant was shifted to Yasoda Hospital and from there he was shifted to Osmania General Hospital, Hyderabad, where his right leg was amputated above the knee. Basing on a complaint, a case in Crime No.239 of 2006 has been registered against the driver of the Lorry. It is also stated that due to amputation of right leg above the knee, the appellant cannot move, sit and squat and he became 100% disabled person and he lost his income. Since the accident occurred due to the rash and negligent driving of the driver of the Lorry, the appellant filed the above O.P. against the respondents 1 and 2, who are the owner and insurer of the said Lorry, claiming compensation of Rs.5,00,000/- for the disability sustained by him. 3. Before the Tribunal, the 1st respondent filed counter put the appellant to prove the manner of the accident, injuries sustained by him and the nature of treatment and the medical expenses incurred by him. It is also stated that there is no negligence on the part of the driver of the Lorry. It is further stated that the lorry was insured with the 2nd respondent and the policy was in force as on the date of accident. 4. The 2nd respondent filed counter denying the averments of the claim petition including the age, income and avocation of the appellant and also denied the nature of injuries sustained and nature of treatment undergone by the appellant. It is also stated that the amount claimed is excessive and prayed to dismiss the claim petition. 5. 4. The 2nd respondent filed counter denying the averments of the claim petition including the age, income and avocation of the appellant and also denied the nature of injuries sustained and nature of treatment undergone by the appellant. It is also stated that the amount claimed is excessive and prayed to dismiss the claim petition. 5. Basing on the above pleadings, the following issues are framed before the Tribunal:- 1) Whether the accident in question took place on 30.06.2006 due to rash and negligent driving of Lorry bearing No. MH 25 B 7062? 2) Whether the petitioner is entitled to claim compensation for the injuries sustained by him in the said accident? If so, to what amount and from whom? 3) To what relief? 6. During trial, on behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A1 to A8 were marked. On behalf of the respondents, no oral evidence was adduced but Ex.B1-copy of policy was marked. 7. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the Lorry and awarded total compensation of Rs.1,58,264/- with interest @ 6% per annum. Dissatisfied with the quantum of compensation, the appellant filed the present appeal, seeking enhancement of the same. 8. Heard both sides and perused the record. 9. The finding of the Tribunal with regard to the manner in which the accident took place has become final since the same was not challenged by either of the respondents. 10. In order to award compensation in case of personal injuries, the Apex Court in Raj Kumar Vs. Ajay Kumar and another, MACD 2011 (SC) 33 held as under: “5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) – involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability -item (ii)(b).” 11. In the light of the principles laid down in the aforementioned case, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for the loss of earning, inability to lead a normal life and enjoy amenities, which would have been enjoyed but for disability caused due to the accident. 12. In order to establish his case, the appellant examined himself as PW.1 and the Doctor, who treated him, as P.W.2. A perusal of Ex.A6, Disability Certificate, would show that the appellant has sustained disability at 50% as his right leg was amputated above the knee. 12. In order to establish his case, the appellant examined himself as PW.1 and the Doctor, who treated him, as P.W.2. A perusal of Ex.A6, Disability Certificate, would show that the appellant has sustained disability at 50% as his right leg was amputated above the knee. Thus, the functional disability sustained by the appellant is fixed at 50%, as stated by the doctor, which is supported by the disability certificate. In view of nature of disability sustained, the appellant is entitled to loss of earnings due to disability. 13. The contention of the learned Standing Counsel for the Insurance Company is that no document has been filed to prove the income of the appellant as such the Tribunal has rightly taken the notional income at R.15,000/- per annum. In Latha Wadhwa vs. State of Bihar, (2001) 8 SCC 197 the Apex Court held that even there is no proof of income and earnings, it can be reasonably estimated minimum at Rs.3,000/- per month for any non-earning member. Therefore, this Court is inclined to take the income of the appellant at Rs.3,000/- per month. Taking the income of the appellant at Rs.36,000/- per annum, the loss of earnings sustained by the appellant with the disability at 50% would be Rs.18,000/- per annum. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 , the suitable multiplier to be adopted for calculating the loss of earnings would be ‘18’. Therefore, the loss of earnings on account of his 50% disability would be Rs.18,000/-x 18 = Rs.3,24,000/-. Admittedly, the appellant had taken treatment in various hospitals as inpatient and he also filed medical bills i.e., Ex.A4 for Rs.8,264/- therefore, he is also entitled to Rs.8,264/-towards medical expenses as awarded by the Tribunal and also entitled to Rs.20,000/- towards attendant charges, extra nourishment and transportation instead of Rs.5,000/- as awarded by the Tribunal. Since the right leg of the appellant was amputated above the knee, he must have put to lot of mental agony, pain and suffering, hence the appellant is entitled to Rs.50,000/- towards pain and suffering instead of Rs.25,000/- as awarded by the Tribunal. 14. Since the right leg of the appellant was amputated above the knee, he must have put to lot of mental agony, pain and suffering, hence the appellant is entitled to Rs.50,000/- towards pain and suffering instead of Rs.25,000/- as awarded by the Tribunal. 14. So far as loss of amenities and loss of expectation of life is concerned in Kavita v. Deepak and others, (2012) 9 SCC 604 the Apex Court held that victims of accident, who are disabled either permanently or temporarily, adequate compensation should be awarded not only for the physical injury and treatment but also for the loss of earning and inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount awarded for pain, suffering, loss of enjoyment of life and medical expenses. 15. In the instant case, since the appellant has sustained 50% of the disability because of the amputation of his right leg, this Court deems it fit to award a sum of Rs.50,000/- towards loss of amenities and loss of expectation of life. Thus, in all the appellant is entitled to a sum of Rs.3,52,264/- as compensation. 16. Accordingly, the appeal is allowed in part by enhancing the compensation from Rs.1,58,264/- to Rs.3,52,264/-. The enhanced amount will carry interest at 7.5% p.a. from the date of order passed by the Tribunal i.e., 04.06.2008 till the date of realization, payable by respondents 1 and 2 jointly and severally. There shall be no order as to costs. 17. Miscellaneous petitions, if any, pending shall stand closed.