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2022 DIGILAW 461 (TS)

Zahura Begum v. V. Venkata Ramana

2022-07-18

G.ANUPAMA CHAKRAVARTHY

body2022
JUDGMENT : This appeal is filed by the claimant being aggrieved by the order and decree dated 28.02.2012 in M.V.O.P.No.583 of 2016 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, for the injuries sustained by her. The O.P. was filed claiming compensation of Rs.6,00,000/- together with interest and costs. 2. For the sake of convenience, the parties are referred to as arrayed in the O.P. 3. On 12.01.2016 at about 3.30 p.m., the claimant, as an occupant of Swift car, proceeded from Hyderabad to Gurmithkal and when the car reached Bichalgate, the driver of the Lorry bearing No.AP-21-TW-5212, drove the lorry in rash and negligent manner and hit the swift car, due to which, the claimant sustained grievous injuries and she was shifted to Olive hospital for treatment. 4. Heard both sides and perused the record. 5. The only grievance of the appellant/claimant in this appeal is that the Tribunal has granted less compensation. There is no dispute as to the manner of accident. Therefore, in this appeal, the appreciation will be only with respect to the oral and documentary evidence as to the quantum of compensation granted by the Tribunal. 6. The Tribunal, on examining the oral and documentary evidence on record, partly allowed the O.P., awarding a total compensation of Rs.2,00,400/- along with costs and interest @ 9% per annum from the date of petition till the date of realization. 7. The learned Counsel for the appellant/Claimant contended that the Tribunal ought to have applied the multiplier and future prospects while granting compensation and also ought to have calculated 40% of disability as per Ex.A-8, for the injuries sustained by the appellant. 8. The Tribunal, after considering the oral and documentary evidence on record, has granted compensation to the claimant under the following heads: 1. Loss of past earnings Rs.15,000/- 2. For transportation Rs.5,000/- 3. Extra nourishment Rs.10,000/- 4. Damages to clothes Rs.2,000/- 5. Medical expenses Rs.1,58,400/- 6. Pain and suffering Rs.10,000/- TOTAL Rs.2,00,400/- 9. On perusal of the evidence on record, it is evident that the tribunal has not applied any multiplier while calculating the loss of income of the injured/claimant. The monthly income of the claimant was notionally taken as Rs.5,000/- per month by the Tribunal in view of the decision of Arun Kumar Agarwal v. National Insurance Co. On perusal of the evidence on record, it is evident that the tribunal has not applied any multiplier while calculating the loss of income of the injured/claimant. The monthly income of the claimant was notionally taken as Rs.5,000/- per month by the Tribunal in view of the decision of Arun Kumar Agarwal v. National Insurance Co. Ltd., 2010 ACJ 2161 (SC), considering PW-1 as a house wife, as there was no documentary evidence to consider PW-1 as Tailor, so as to take her income as Rs.10,000/- per month. The oral evidence of PW-3 and the documentary evidence in Ex.A-4/the discharge summary disclose that PW-1 suffered segmented fracture to left femur and fracture to shaft right femur. Ex.A-8 is the disability certificate issued by Dr.N.Ravindra Kumar, Professor of Orthopaedics, Osmania General Hospital, Hyderabad, wherein, the percentage of disability of the claimant was assessed to be 40%. 10. The learned counsel for the appellant relied on the judgment of erstwhile High Court of Andhra Pradesh in Syed Saleem and others v. Abdul Shukur & another, 2007 (1) ALT 648 , wherein, their Lordships have held that there is no requirement to prove disability by examining the Doctor who treated the victim and to obtain such certificate from the very same Doctor. In the present case, PW-2 is the Doctor who treated the claimant and issued Ex.A-8/disability certificate. The cross-examination of PW-2 clearly disclose that the claimant approached him on 24.08.2017. He verified the previous medical records and issued disability certificate i.e. Ex.A-8, assessing the disability to be 40%. In the cross-examination, it is specifically admitted by him that a Medical Board was constituted by the Government at Osmania General Hospital and Ex.A-8 was issued by him in his personal capacity. 11. In the aforesaid judgment in Syed Saleem’s case (2 supra), while referring to the judgment in Charan Singh v. G. Vittal Reddy, 2003 (1) An.W.R. 741 (DB), the learned Single Judge held as under; “14. …..I am fortified in my view by the Division Bench judgment of this Court in Charan Singh's case. The relevant portion of Para 9 of the judgment reads thus: “….As it is, Workmen's Compensation Act is a beneficial legislation enacted for protecting the interests of Workmen who are the victims of accidents during the course of their employment and, therefore, clear-cut method has been stipulated in the Act itself. The relevant portion of Para 9 of the judgment reads thus: “….As it is, Workmen's Compensation Act is a beneficial legislation enacted for protecting the interests of Workmen who are the victims of accidents during the course of their employment and, therefore, clear-cut method has been stipulated in the Act itself. In case of scheduled injuries, even in the absence of any medical evidence, the compensation will automatically follow as per the schedule to the said Act. But, the difficulty conies only in the case of non-scheduled injury in respect of which, assessment has to be made by the qualified medical practitioner as contemplated under the Act. From this, it cannot be concluded that the qualified medical practitioner should be only the medical practitioner who has treated the workmen concerned. If that is to be accepted, it leads to several anomalies. The doctor who treated the workmen may not be available for various reasons and the workmen cannot be expected to stay at a particular station forever. Further, the permanent disability cannot be assessed immediately on the next day of the sustaining the injuries. In order to assess the permanent disability, naturally, wounds have to be healed so as to make assessment of the permanent disability in relation to loss of earning capacity. The learned Single Judge has recorded finding in his order that the doctor who treated the workmen ought to have been examined and the certificate issued by the doctor after lapse of time ought not to have been relied on. But under the provisions of the Act and the rules made thereunder, there is no such requirement to prove the disability by examining the very same doctor who treated the workmen and to obtain such certificate from the very same doctor.” 15. Though the above case arise under the Workmen's Compensation Act, the ratio laid down by the Division Bench can be made applicable to the instant case which arise under the Motor Vehicles Act, since under the Motor Vehicles Act and he rules made thereunder, there is no requirement to prove the disability by examining the very same doctor who treated the victim and to obtain such certificate from the very same doctor. The ratio can also be adopted since both the Act are beneficial legislations.”” Therefore, this Court is of the considered view that the appellant is entitled for enhanced compensation. 12. The ratio can also be adopted since both the Act are beneficial legislations.”” Therefore, this Court is of the considered view that the appellant is entitled for enhanced compensation. 12. The income of the claimant herein can be taken as Rs.5,000/- per month and the annual income would come to Rs.60,000/-(Rs.5,000 X 12). If the disability of 40% is taken into consideration, it would come to Rs.36,000/- (Rs.60,000 – Rs.24,000). The age of the injured was 49 years, for which, the multiplier applicable is ‘13’ as per the judgment of Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . Therefore, an amount of Rs.4,68,000/- (Rs.36,000 X 13) can be awarded towards loss of income. If future prospects of 15% is taken, it would come to Rs.70,200/- (Rs.4,68,000 X 15/100). 13. Thus, the claimant is entitled to the compensation under different heads as under: 1. Pain and suffering Rs.10,000/- 2. Towards transportation Rs.5,000/- 3. Extra-nourishment Rs.10,000/- 4. Loss of past earnings Rs.15,000/- 5. Medical expenses Rs.1,58,400/- 6. Future prospects Rs.70,200/- 7. Loss of earnings Rs.4,68,000/- TOTAL Rs.7,36,600/- 14. Thus, the claimant/appellant is entitled to an amount of Rs.7,36,600/- towards compensation, payable by respondent Nos.1 to 3 jointly and severally within two months from the date of receipt of this order and the appellant is permitted to withdraw the entire amount as the accident occurred in the year 2016. The appellant/claimant shall pay deficit Court fee on the enhanced compensation, since the claim is for Rs.6,00,000/-. If the deficit court fee is not paid as per Rule 475 of M.V.Rules before the Tribunal, the claimant is not entitled for execution of Award in respect of enhanced compensation. 15. Appeal is accordingly allowed. Pending miscellaneous applications, if any, shall stand closed.