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2023 DIGILAW 331 (AP)

Kakarparthi Nagamani v. Yadala Murali Krishna

2023-02-07

T.MALLIKARJUNA RAO

body2023
JUDGMENT : T. MALLIKARJUNA RAO, J. 1. Aggrieved by the order and decree dated 24.09.2011 in M.V.O.P. No. 272 of 2009 passed by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, at Rajahmundry (for short “the tribunal”) whereby the tribunal awarded compensation of Rs. 1,73,921/- with interest at 7.5% from the date of petition till realization against respondents 1 to 3 jointly and severally, the claimant has preferred the present appeal seeking enhancement of compensation. 2. For convenience, the parties herein will be referred to as per their rankings in the M.V.O.P. 3. The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, for compensation of Rs. 6,00,000/- on account of the injuries sustained by him in a motor vehicle accident that occurred on 04.12.2005. 4. The claimant's case is that on 04.12.2005 at about 11 a.m. when she and her husband were proceeding on their motorcycle, reached near Agarwal Tyres shop in Tanuku road in Tadepalligudem town, the 1st respondent being the driver of the lorry bearing No. AIL 966 (hereinafter referred to as ‘the offending vehicle’) drove the same in a rash and negligent manner at high speed and dashed the petitioner’s motorcycle from back side due to which she fell on the road and the lorry tyres ran over the right hand of the claimant and sustained injuries. A lorry bearing No. AP-01-V-1899 parked on the road. Respondents 4 and 5 are its driver and owner and the 6th respondent is its insurer and they are added by abundant caution. Immediately, she was taken to the Government Hospital, Tadepalligudem, and later taken to Dr. Raja Rao Memorial Hospital, Nidadavolu, and took treatment as an inpatient for two months. 5. Respondents 1, 2, 4 and 5 have remained ex-parte. 6. Respondent No. 3 filed counter denying the material allegations, inter-alia contended that the accident occurred due to the contributory negligence in parking of lorry bearing No. AP-01-V-1899. The 1st respondent was not having valid and effective driving license, and the 2nd respondent handed over possession of the vehicle to the 1st respondent, knowing fully well that the 1st respondent did not possess a valid and effective driving license, allowed him to drive the vehicle, therefore, contravening the provisions of the M.V. Act and commit a breach of the terms of the policy. 7. 7. Respondent No. 6 filed its counter denying the material allegations contending that there was no rash or negligent act on the part of the 4th respondent and the accident occurred only due to the negligent driving of the 1st respondent. 8. Based on the pleadings, the tribunal framed relevant issues. To substantiate the claim, during the trial, on behalf of claimants, PWs. 1 to 3 were examined and got marked Exs.A.1 to A.9. On behalf of the 3rd respondent, RW-1 was examined and got marked Ex.B.1 copy of policy. 9. After evaluating the evidence on record, the tribunal held that the accident occurred due to the rash and negligent driving of the lorry bearing No. AIL 966 and the claimant sustained injuries in the accident. The tribunal also has given a finding that the respondents 1 to 3 failed to establish the rash and negligence attributed to the driver of the lorry bearing No. AP-01-V-1899 parked on the right side of the road at the time of accident and while answering issue No. 2, granted compensation of Rs. 1,73,921/-. 10. I have heard the learned counsel representing both parties. 11. In the grounds of appeal, learned counsel for the appellant/claimant contended that the tribunal ought to have awarded just and reasonable compensation as she suffered 40% disability to her right hand, she is unable to attend the work; the tribunal failed to see that the claimant was doing tailoring work and she lost her total ability and the tribunal ought to have taken the disability at 40% as prescribed by the medical board, instead of 20% the tribunal ought to have assessed the earnings at Rs. 5,000/- per month instead of Rs. 3,000/- per month and failed to award the amounts claimed towards medical expenses and the amount awarded is very low. 12. Per contra, learned counsel appearing for the third respondent has supported the findings and observations of the tribunal. 13. Upon hearing the argument of both the learned counsel and having perused the record, the point arise for consideration is, whether the quantum of compensation awarded by the tribunal is just and reasonable or it needs enhancement? POINT: (a) The respondents have not disputed the findings given by the tribunal regarding the rash and negligent driving of the offending vehicle and also the quantum of compensation amount awarded by the tribunal. POINT: (a) The respondents have not disputed the findings given by the tribunal regarding the rash and negligent driving of the offending vehicle and also the quantum of compensation amount awarded by the tribunal. The claimant’s case is that she sustained injuries in the accident and for which she sustained disability. According to the evidence of PW-1, she sustained two simple injuries and one grievous injury. To prove the injuries sustained by her, she also relied on Ex.A.2, wound certificate, and also examined PW-2, D.V. Krishna Rao and PW-3, B. Venugopal, a Member of the District Medical Board in West Godavari District. She also relied on Ex.A.5, Bunch of medical bills for Rs. 41,927/-. In the claim petition, it is stated that she was aged 30 years old, but in the wound certificate, her age is shown as 39 years. As there is a variation of age as mentioned in the claim petition and the wound certificate, the tribunal has taken into consideration the age of the claimant, as 39 years old as shown in the wound certificate. Considering the age of the claimant, the claimant applied the multiplier “15” as per the guidelines of the Apex Court in Sarala Verma vs. Delhi Transport Corporation, 2009 ACJ 1298 . It is the case of the claimant that she is a tailor by profession and earns Rs. 5,000/- per month; however, she did not produce any documentary evidence in support of her contention. The tribunal has treated the petitioner as a housewife for the purpose of assessing the compensation, observing that even an unskilled labourer earns a minimum income of Rs. 3,000/- per month. The evidence of PW-1, coupled with PWs. 2 and 3, shows that the claimant sustained a fracture to the forehand and underwent plastic surgery. After considering the evidence on record, the tribunal observed that the disability will reduce the earning capacity of the claimant, preventing her from engaging in any activity; thereby, the tribunal assessed the disability at 20% of the whole body. The said finding given by the tribunal, coupled with the medical evidence produced by the claimant, this court views that the percentage of the disability warrants no interference. However, as far as the future prospectus is concerned, the tribunal did not assess the future prospectus. (b) In Raj Kumar vs. Ajay Kumar, 2011 ACJ 1 the Apex Court held that: “6. However, as far as the future prospectus is concerned, the tribunal did not assess the future prospectus. (b) In Raj Kumar vs. Ajay Kumar, 2011 ACJ 1 the Apex Court held that: “6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. 7......... 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 10......... 11......... 12......... 13. We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal, on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. (c) The Division Bench of the Karnataka High Court in a case between Gopalappa vs. Kanduluru Sankara Reddy and Another, 2022 ACJ 1427 held that “In view of the decision of the Apex Court in the case of Pappu Deo Yadav vs. Naresh Kumar, 2020 ACJ 2695 (SC), the claimant is entitled for addition of 40% of the assessed income towards future prospects.” (d) Following the principle laid down by the Apex Court and the Division Bench of the Karnataka High Court, this Court deems it appropriate to consider the future prospects at 40%, and as such, the annual earnings, including the future prospectus, would arrive at Rs. 50,400 (36,000+14,400), and thereby, this Court computed the compensation at Rs. 1,51,200/- (50,400 x 15x 20%) under the head disability. Hence, this court is inclined to enhance the compensation of Rs. 43,200/- in addition to the compensation of Rs. 1,08,000/- awarded by the tribunal under the head disability, and thereby, the claimant is entitled to compensation Rs. 1,51,200/- under the head disability. (e) The tribunal awarded an amount of Rs. 14,000/- towards two simple injuries and one grievous injury sustained by the claimant. This court views that an additional amount Rs. 6,000/- to be awarded for the grievous injury and thereby the claimant is entitled to the compensation Rs. 20,000/- under the head pain and suffering for the injuries. (f) The tribunal awarded an amount of Rs. 41,921.70 paise towards medical expenses and Rs. 10,000/- towards future medical expenses and the said amount awarded by the tribunal are confirmed by rounding off to Rs. 51,921/-. (g) As seen from the order of the tribunal, it has not awarded any amount towards transportation charges and attendant charges. Considering the nature of injuries sustained by the claimant, an amount of Rs. 5,000/- is to be awarded towards transportation and attendant charges. 51,921/-. (g) As seen from the order of the tribunal, it has not awarded any amount towards transportation charges and attendant charges. Considering the nature of injuries sustained by the claimant, an amount of Rs. 5,000/- is to be awarded towards transportation and attendant charges. (h) The tribunal has not awarded any amount towards loss of earnings. Because of the nature of the injuries sustained, the claimant is expected to rest for at least three months without working. Hence, this court is inclined to award an amount of Rs. 9,000/- under the head loss of earnings and Rs. 5,000/- towards extra nourishment. (i) In all, the claimant is entitled to the compensation as detailed hereunder: towards loss of earnings Rs. 9,000/- towards extra nourishment Rs. 5,000/- towards transportation and attendant charges towards medical expenses Rs. 5,000/- future medical expenses Rs. 51,921/- towards pain and suffering for the injuries Rs. 20,000/- under the head disability Rs. 1,51,200/- Total Rs. 2,42,121/- 14. In the result, the appeal is partly allowed without costs, enhancing the compensation from an amount of Rs. 1,73,921/- to an amount of Rs. 2,42,121/- (Rupees two lakhs, forty two thousand, one hundred and twenty one only) with interest at 7.5% per annum as awarded by the tribunal against the respondents 1 to 3. Respondents are directed to deposit the enhanced compensation amount within two months from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same on filing appropriate application before the tribunal. 15. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.