* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.6 of 2010
%16.06.2014
Between:
Mohd. Khaleel. Appellant AND M/s. ARC India Ltd and another. ….
Respondents ! Counsel for Appellant : Sri P. Ramakrishna Reddy ^ Counsel for Respondent No.2 : Sri Ravi Shankar Jandhyala < Gist:
> Head Note:
? Cases referred:
1) 2012 ACJ 583 (SC)
2) 2013 AAC 2415 (SC) HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.6 of 2010
JUDGMENT:
Aggrieved by the Award dated 05.10.2009 in O.P.No.1053 of 2006 passed by the Chairman, MACT-cum-XXII Additional Chief Judge, City Criminal Court, Hyderabad (for short “the Tribunal), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on the intervening night of 24/25.12.2005 at about 3 AM, he along with another person viz., Mohd. Zakeer Khan was going in a DCM Van bearing No.AP 10V 1892 as drivers on duty. The claimant after driving the said vehicle for some time handed over to Mohd Zakeer Khan. When the van was proceeding towards Hyderabad and when it reached near the Hotels on Adda road at Jaggayyapet, the driver of the van drove the same with high speed and in a rash and negligent manner and dashed the tractor bearing No.AP 20T 1418 from back side. Due to sudden impact both the vehicles turned turtle and the claimant sustained fracture of right tibia middle 3rd, besides other injuries all over the body. Immediately he was admitted in Government Hospital, Jaggayyapet and from there he was shifted to Princess Durru Shehvar Children’s hospital, Purani Haveli, Hyderabad where he took treatment from 26.12.2005 to 09.01.2006 and spent considerable amount. It is averred that the accident was occurred due to the rash and negligent driving by the driver of the offending DCM van. On these pleas, the claimant filed OP No.1053 of 2006 against respondents 1 and 2, who are the owner and insurer of the offending vehicle and claimed Rs.5,00,000/- as compensation under different heads mentioned in the OP.
b) Respondent No.1 remained ex parte.
c) Respondent No.2/Insurance Company opposed the claim denying the material averments in the claim petition and urged to put the claimant in strict proof of the same. R2 contended that the driver of the DCM van had no valid and effective driving license at the time of accident and so, it is not liable to pay any compensation. Finally, it contended that the claim is highly excessive and exorbitant and prayed for dismissal of the OP.
d) During trial, PWs.1 to 3 were examined and Exs.A1 to A16 were marked on behalf of the claimant. Policy copy filed by 2nd respondent was marked as Ex.B.1.
e) Award reveals, issue No.1 is concerned, the Tribunal basing on the evidence of PW1 coupled with Ex.A1—FIR and Ex.A3—charge sheet, has held that the accident was occurred due to the rash and negligent driving by the driver of the offending DCM van.
f) Under issue No.2 which relates to quantum of compensation, the Tribunal awarded Rs.2,81,000/- with proportionate costs and interest at 7% p.a from the date of OP till the date of realization under different heads as below:
Pain and suffering Rs.
30,000/-
Medical expenditure Rs.1,21,725/-
Incidental expenditure Rs. 10,000/-
Loss of income during treatment period (Rs.4,000/- x 8) Rs. 32,000/- Loss of future amenities of life Rs. 10,000/-
Loss of future income Rs. 76,800/-
Total Rs.2,80,525/-
(rounded of to Rs.2,81,000/-) Hence, the appeal by claimant challenging the adequacy of compensation.
3) Heard arguments of Sri P.Rama Krishna Reddy, learned counsel for appellant/claimant and Sri Ravi Shankar Jandhyala, learned counsel for R2/ Insurance Company. Notice sent to the 1st respondent was returned unserved.
4 a) Challenging the quantum of compensation, learned counsel for appellant firstly argued that the Tribunal committed grave error in accepting the disability of claimant at 10% only inspite of clear and cogent evidence of PW.2 to the effect that claimant suffered 50% partial and permanent disability. He argued that prior to accident, the claimant was a driver of goods vehicle and due to his disability, he was terminated from service as deposed by PW.3. Therefore, his functional disability ought to have been accepted as 100% and compensation must have been assessed accordingly. However, the Tribunal accepted his functional disability as 10% which was grossly low and thereby his compensation for loss of earning power was drastically reduced. He argued that a Tribunal shall fix the functional disability basing on the nature of the work a victim of the accident used to attend prior to the accident and the adverse impact the disability had on his work ability and then fix compensation. On this aspect, he relied upon the decision
[1]
reported in Mohan Soni vs. Ram Avtar Tomar and others , and submitted that unfortunately the Tribunal failed to follow the above principle in fixing the percentage of functional disability.
b) Secondly, he argued that in assessing the compensation for loss of future income due to disability, the Tribunal committed an error in fixing the income of the claimant notionally @ Rs.4,000/- p.m. He argued that PW.3—the employer of claimant deposed that the claimant used to work under him and he was paying Rs.8,000/- p.m and after accident, he terminated his services. Having regard to this evidence, the Tribunal must have accepted the monthly income of the claimant as Rs.8,000/-
.
c ) Thirdly, learned counsel argued that a person who suffered disability will be entitled to compensation not only for his physical disability but also for the loss of earning power due to functional disability. On this point, he relied upon the decision of Hon’ble Apex Court reported in S. Manickam vs. Metropolitan
[2]
Transport Corp. Ltd. In this case, the Tribunal has not granted any compensation for physical disability. Hence, compensation may be awarded in that regard.
He thus prayed to allow the appeal and enhance the compensation suitably.
5 a) Per contra, while supporting the award, learned counsel for R.2/ Insurance Company firstly argued that the Tribunal having regard to the physical disability and its associated problems like claimant’s inability to sit or squat normally and their effect on his avocation i.e, driving job, has rightly arrived his functional disability at 10% and computed compensation and there is no lapse on the part of the Tribunal in this regard to warrant interference. He further argued that in the context of fixing the monthly earnings of the claimant also, the Tribunal was right inasmuch as PW.3 though made an oral assertion that he was paying Rs.8,000/- as salary to claimant but failed to produce the records maintained by him to prove this aspect and hence the Tribunal going by the nature of claimant’s avocation, fixed his monthly earnings at Rs.4,000/-. He thus vehemently argued that in the matter of either fixing the percentage of functional disability or calculation of compensation for loss of future earnings, the Tribunal has not committed any error as harped by the appellant and so there is no need to review the award.
b ) Secondly, he argued that the Tribunal granted compensation for both physical disability as well as functional disability which is evident from the fact that it awarded Rs.10,000/- for loss of amenities caused due to physical disability and also awarded compensation for loss of future income due to functional disability. Hence the appellant cannot ventilate any grievance.
He thus prayed to dismiss the appeal.
6) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs any enhancement?”
7) POINT: The accident, involvement of DCM Van bearing No.AP 10 V 1892 and tractor bearing No.AP 20 T 1418 and injuries to the claimant are all admitted facts and not challenged in this appeal. Hence the vital issue for discussion in the appeal is with regard to the adequacy of compensation.
8) The main grievance of the appellant is that the Tribunal committed grave error in fixing the functional disability of the claimant at 10%, though PW.2 deposed his physical disability at 50%. In this context, I perused the evidence of PW.2. He was not the Doctor who treated the claimant but PW.2 is a qualified Orthopedic Surgeon who clinically examined the claimant and certified his disability. PW.2 deposed that the claimant suffered open fracture of right tibia and fibula with laceratory wound over the posterior aspect of the right heel for which he was operated i n Duru Shehvar Hospital. PW.2 further deposed that on examination of the claimant, he noticed malunion of right tibia and fibula with shortening of the right lower limb by two inches and stiffness of the right knee and right ankle with a range of movements from 0 to 90 degrees and 0 to 5 degrees at ankle joint. PW.2 stated that due to above problem, the claimant cannot sit or squat normally and he was limping and as a driver he cannot drive the vehicle. He certified that the claimant suffered 50% partial and permanent disability. He denied the suggestion that the claimant has not suffered any disability. So the evidence of PW.2 is clear on the aspect that the claimant is not fit for driving due to his permanent disability. Then PW.3 who does transport business deposed that the claimant used to work under him as a driver since two years prior to the accident and after accident he removed him from service as he was not fit for driving. Probably, basing on the evidence of PWs.2 and 3, it is claimed on behalf of appellant that his functional disability should be taken as 100% as now he is unfit for driving. In Mohan Soni’s case (1 supra) cited by the appellant, the Hon’ble Apex Court held that disability has to be judged with reference to the nature of the work being performed by the injured. It held thus:
" The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one’s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.”
Now judging the claimant’s case in the light of above observation, it may be true that the claimant may not be able to drive the vehicles due to his disability but that is not the end of the road for him as he has not suffered any amputation of his limb to be unfit for doing any sort of work. The evidence of PW.2 is also not that the claimant is unfit for doing any work. Therefore, the claimant is not totally debarred from attending some gainful work to earn income. Viewing in that context and taking his present problems, his functional disability can only be fixed at 20% .
9) Sofaras income of the claimant is concerned, though PW.3 proclaimed that he used to pay Rs.8,000/- as salary and maintain records for the salaries paid to his employees, he did not produce the records in proof of his statement. Hence, the Tribunal rightly rejected his evidence and fixed the monthly earnings of the claimant notionally at Rs.4,000/-. So compensation for loss of future income works out at Rs.1,53,600/- (Rs.4000/- x 12 x 16 x 20%).
1 0 ) Then the next grievance of the appellant is that the Tribunal has not awarded compensation for physical disability. I am afraid this argument is incorrect. As rightly submitted by the learned counsel for R.2, the Tribunal awarded Rs.10,000/- for loss of future amenities due to physical disability. Hence, the Tribunal cannot be found fault in this regard.
11) Thus at the outset, the total compensation payable to the claimant under different heads can be stated as below:
Pain and suffering Rs.
30,000/-
Medical expenditure Rs.1,21,725/-
Incidental expenditure Rs. 10,000/-
Loss of income during treatment period (Rs.4,000/- x 8) Rs. 32,000/-
Loss of future amenities of life Rs. 10,000/-
Loss of future income Rs. 1,53,600/-
Total Rs.
3,57,325/-
So the compensation is enhanced by Rs.76,800/- (Rs.3,57,325/- minus Rs.2,80,525/-)
12) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.76,800/- with proportionate costs. The enhanced compensation amount shall carry interest at 7% p.a from the date of O.P till the date of realization.
b) The respondents are directed to deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out against them.
c) No order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 16.06.2014
Note: L.R. Copy to be marked: YES/NO
Murthy / scs
[1] 2012 ACJ 583 (SC)
[2] 2013 AAC 2415 (SC)