HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No.3034 OF 2012
Date: 29-04-2014
This Court made the following :
HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No. 3034 OF 2012
JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
The injured-claimant in O.P. No.1162 of 2010, on the file of Motor Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad, preferred this Appeal against the order and decretal order dated 05.06.2012, dissatisfied with the quantum of compensation awarded by the Tribunal.
2. The appellant herein was the injured petitioner - claimant and the respondents herein were the respondents before the Tribunal, in O.P. No.1162 of 2010. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. The petitioner filed claim petition before the Tribunal, under Section 166 of the Motor Vehicles Act, 1988 (For short, ‘the Act’), claiming compensation of Rs.25,00,000/- for the injuries sustained by her in a road accident that occurred on 24.08.2009, at about 08.30 p.m., while the petitioner was proceeding on the motorcycle as a pillion rider, along with her father-in-law, from her workplace to her residence, and when reached near Cine Planet, a Car bearing No.AP 9 BR 6126 driven by its driver in rash and negligent manner dashed against the motorcycle, from its backside, as a result of which, the petitioner and her father-in-law fell down and the petitioner sustained fracture injuries to right femur, fracture of pelvic, head injury and blunt injuries all over her body. Thus, the accident occurred only due to rash and negligent act of the driver of Car bearing No.AP 9 BR 6126. Thereafter, the accident was reported to Petbasheerabad Police Station and the same was registered as a Case in Crime No.240 of 2009, for the offence punishable under Section 337 of I.P.C. against the driver of offending Car.
4. At the time of accident, the petitioner was hale and healthy and working as Communication Officer in GVK Emergency Management and Research Institute (For short, ‘EMRI’) and earning an amount of Rs.10,000/- p.m. After the accident, the petitioner underwent treatment for the injuries received by her, in the Hospital, for sufficiently long time, incurred heavy medical expenditure and on account of the injuries, she lost her job. Thus, she lost her future earning capacity. Hence, the claim.
5. The first respondent is the owner cum insured and second respondent is the insurer of the Car bearing No.AP 9 BR 6126. As the accident occurred due to rash and negligent driving of the driver of Car bearing No.AP 9 BR 6126, both the respondents, being the owner and insurer of the vehicle, are jointly and severally liable to pay the compensation of Rs.25,00,000/-.
6. The first respondent remained ex-parte.
7. The second respondent filed counter denying material allegations made in the petition inter-alia contending that the accident not occurred due to rash and negligent act of the driver of Car bearing No.AP 9 BR 6126 and it occurred only due to negligent riding of the rider of motorcycle. The petitioner sustained only minor injuries, did not create any disability much less permanent disability, and called upon the petitioner to prove the age, income and the amount spent for her treatment and that on account of the injuries, her future earning capacity was reduced etc.,
8. It is further contended that the driver of Car bearing No.AP 9 BR 6126 was not holding valid and affective driving license, at the time of accident; consequently, it amounts to violation of terms and conditions of the policy and thereby the second respondent – Insurance Company is not liable to pay any compensation. The compensation claimed by the petitioner is excessive, abnormal and unjust and finally prayed to dismiss the petition.
9. Basing on the above pleadings, the Tribunal framed three issues. The first issue is relating to occurrence of the accident due to rash and negligent driving of the driver of Car bearing No.AP 9 BR 6126; the second issue is regarding quantum of compensation and the third issue is a general issue.
10. During the course of trial, on behalf of the injured petitioner, PWs.1 to 4 were examined and Exs.A-1 to A-16 and Exs.X-1 and X-2 were marked; on behalf of second respondent, none were examined but got marked Ex.B-1, copy of insurance policy.
11. Upon hearing argument of both the counsel and considering the oral and documentary evidence available on record, the Tribunal awarded total compensation of Rs.4,62,491/- together with interest at the rate of 6% p.a. from the date of petition till the date of realization holding both the respondents jointly and severally liable to pay the compensation.
12. Dissatisfied with the quantum of compensation awarded by the Tribunal, the injured petitioner preferred this Appeal under Section 173 of the Motor vehicles Act, on various grounds. The main contentions raised in the grounds of appeal are that the amount awarded by the Tribunal is too low and the Tribunal did not consider the impact of the injuries on her employment, which reduced her earning capacity to the maximum extent and lost her job. The Tribunal also ignored the disability percentage fixed by PW.2, though the functional disability was assessed at 40%, the loss of earning capacity is 80%. If that is taken into consideration, the injured petitioner is entitled to total compensation claimed by her, but the Tribunal did not consider the percentage of disability spoken by PW.2. The Tribunal also failed to consider the medical bills for Rs.90,662/-, but awarded only Rs.70,000/- though it is supported by material, without assigning any reason for disbelieving the bills for Rs.20,662/-. Therefore, the approach of the Tribunal is erroneous and finally prayed to award total compensation of Rs.25,00,000/-, which is inclusive of the amount already awarded.
13. During course of argument, learned counsel for the petitioner – appellant, while reiterating the grounds urged in the petition, drawn the attention of this Court to various bills produced by the petitioner towards medical expenses, and further the Tribunal did not consider the salary certificate and evidence of PW.4, who was examined to prove the salary of the petitioner as on the date of accident. If those aspects are considered along with the medical evidence of PW.2, more particularly, regarding permanent disability, which reduces the future earning capacity of the petitioner, the Tribunal would have awarded total compensation of Rs.25,00,000/- under various heads, but committed an error and prayed to award total compensation of Rs.25,00,000/-.
14. Whereas, the learned counsel for the respondents herein argued totally in support of the findings recorded by the Tribunal and prayed to dismiss the Appeal confirming the impugned order and decretal order.
15. Considering rival contentions and perusing the material available on record, the point that arises for consideration in this Appeal is:
Whether the petitioner is suffering from permanent disablement which reduced her future earning capacity?
If so, is she entitled to claim compensation, at what rate?
16. POINT: There is no dispute regarding occurrence of accident. The Tribunal held that the accident occurred due to rash and negligent act of the driver of Car. Against the said finding, no appeal is preferred, therefore we need not touch the finding recorded by the Tribunal regarding occurrence of accident, due to rash and negligent act of the driver of Car bearing No.AP 9 BR 6126, and at the same time, the Tribunal found that the liability under the policy was subsisting as on the date of accident and this finding also needs no interference by this Court, at this stage, since no Appeal is filed disputing the liability of the second respondent – Insurance Company.
17. The only question to be decided by this Court is the quantum of compensation, since the petitioner preferred this Appeal, dissatisfied with the quantum of compensation.
18. To award compensation in the personal injury claims, it is the duty of the petitioner to establish that she sustained injuries which resulted in permanent disablement, reducing future earning capacity that means functional disability. In the instant case on hand, the petitioner herself is the injured – claimant and sustained injuries while traveling on motorcycle as a pillion rider. She herself was examined as PW.1, to prove that she sustained injuries in the road accident which created permanent disability reducing her future earning capacity. In her examination-in-chief, she testified that she sustained injuries due to fall on the ground while traveling on a motorcycle as a pillion rider, due to hit of Car bearing No.AP 9 BR 6126, from its behind and sustained the following injuries :
1. Fracture of right Femur.
2. Fracture of right knee.
3. Fracture of Pelvis.
4. Fracture of Pubic Ram Superior.
5. Fracture of Pubic Ram inferior.
6. Head injury.
7. Blunt injuries all over the body.
19. She also further testified that she was shifted to Balaji Hospital at Petbasheerabad, Secunderabad, where she was treated as inpatient from 24.08.2009 to 05.09.2009, underwent an operation on 27.08.2009 and she underwent further treatment thereafter. To prove the injuries sustained by her, she produced Ex.A-3, medico legal case register issued by Balaji Hospital, Secunderabad, wherein the following injuries were mentioned in the table :
1. Fracture of right femur.
2. Fracture to pelvis.
3. Laceration right grock.
4. X-ray right femer.
5. X-ray pelvis.
20. Ex.A-4 is the discharge summary. Even according to the contents of Ex.A-4, she suffered fracture of x-ray right thigh, x-ray of pelvis, right grock were taken and found the following injuries sustained to right thigh, laceration over right grock with bleeding, abrasion over right knee and right foot and finally found that the fracture of right femer was detected. Thus, the petitioner sustained injuries including fracture injuries which are grievous in nature. In addition to that, the petitioner produced the x-ray films marked as Ex.A- 14, 12 in number, but no report accompanied with those x-ray films. However, in the cross-examination several suggestions were put to PW.1 disputing the documents produced by her contending that she is not suffering from any disability, much less permanent disability which reduces her earning capacity and got denial of it. The petitioner also examined PW.2, Dr. V.K.V. Prasad, Orthopedic Surgeon in Gandhi Hospital, Secunderabad practicing at Sai Specialty Clinic, Secunderabad. According to him, he examined the petitioner and x-
rays were taken and issued Ex.A-7, disability certificate assessing the functional disability at 40% and the loss of earning capacity is 80% due to mal united fracture of both pubic rami on the right side with stiffness of right hip and knee joint and she cannot sit, squat, stand or walk normally, and cannot carry weights. In the cross-examination of PW.2, he admitted that he treated the injured petitioner, immediately after the accident, but basing on the medical record and clinical examination of the injured petitioner, he assessed the disability. Ex.A- 7 is the disability certificate issued by him. As seen from Ex.A-7, the functional disability of the injured petitioner is 40% only, which is permanent partial in nature and he assessed the loss of earning capacity at 80%, but the witness was not cross-examined with regard to variation between the functional disability and loss of earnings due to fractures sustained by her in the road accident. In the absence of eliciting anything about difference between the functional disability and loss of earnings due to permanent disability, this Court must undertake an exercise to decide whether the disability spoken by PW.2 reduces her future earning capacity. Before deciding the controversy between the functional disability and disability which reduces her future earning capacity due to permanent disability as spoken by PW.2, we must necessarily advert to the definition of permanent disability as defined under Section 142 of the Motor Vehicles Act, which is as follows :
“142. Permanent disablement:- for the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint ; or
(c) permanent disfiguration of the head or face.”
[1]
21. In Raj Kumar Vs. Ajay Kumar and another , the Hon’ble Apex Court elaborately discussed about the duties of the Presiding Officer of the Tribunal and principles of assessment of compensation for personal injuries and defined the word permanent disability in Para 6, which as follows:
“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. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.”
22. From a reading of the definition of permanent disablement in the decision cited supra, it is clear that the disability which reduces the future earning capacity of an injured person can be said to be a permanent disablement. In other words, reduction of capacity of the petitioner to engage herself in any gainful activity in future can be said to be permanent disablement. Here, the petitioner sustained several fractures as evidenced by documentary evidence on record, supported by the medical evidence of PWs.2 and 3, and consistent evidence on record is that petitioner cannot sit and squat, stand and walk for a long time due to mal union of pelvic bone and developing stiffness of right hip, stiffness to femer and right side knee. When the petitioner is not in a position to sit and squat for a long time due to mal union of pelvic bone, it is difficult for her to discharge her duties affectively as Communication Officer in EMRI. Hence, the Tribunal rightly concluded that the petitioner is suffering from permanent disablement.
23. One of the main grounds urged by the petitioner – appellant in the grounds of appeal is that total disablement is 80% but not 40% and the compensation is to be assessed only basing on 80% disability that is reducing capacity to earn in future on account of permanent disability, but in the absence of any relation between two types of disablement i.e., functional disability and the disability which reduces the future earning capacity, it is difficult to accept the medical evidence of PW.2 with regard to the disability which reduces 80% earning capacity cannot be accepted for the reason the Doctor was unable to assess the disability and distinguish the functional disability and the disability which reduces the earning capacity. In fact, both are one and the same; therefore, the functional disability fixed at the rate of 40% alone shall be taken for assessment of compensation, for the injuries sustained by the petitioner. Therefore, we are of the considered opinion that the disability sustained by the petitioner which reduces her earning capacity or the capacity to engage herself in any gainful activity in future is only 40%. To claim compensation under the head of loss of future earning capacity, it is the duty of the appellant to establish that she was permanently disabled within the definition of Section 142 of the Motor Vehicles Act or within the definition of permanent disablement, as laid down by the Apex Court in the decision cited supra.
24. For assessment of compensation in injury claims, besides percentage of disability, the age of the injured petitioner, earning capacity are also relevant. In the instant case on hand, the petitioner was aged around 22 years by the date of accident and the relevant multiplier applicable to the age group of 21 to 25 years is ‘18’ as per the guidelines laid down by the Apex Court in Sarla Verma (Smt.) and
[2]
others Vs. Delhi Transport Corporation and another . Whereas the income is concerned, according to the allegations made in the petition, the petitioner was earning Rs.10,000/- p.m. To substantiate her salary, she produced Ex.A-10, salary certificate, Ex.A-12, bank statement and examined PW.4 the concerned employee to prove earning of the injured petitioner as on the date of accident. According to the petitioner, she was earning Rs.10,000/- p.m., but whereas the evidence of PW.4 discloses that she was receiving gross salary of Rs.7,952/- and net salary of Rs.7,414/- p.m. Thus, the salary mentioned in the claim petition and spoken by PW.1 in her evidence is ex-facie false. Ex.A-10 is the certificate issued by EMRI. Therefore, her income is only Rs.7,952/- p.m., thereby her annual income would be Rs.95,424/-.
25. The main contention of the learned counsel for the appellant - injured is that the Tribunal did not take into consideration the future prospects. No doubt, future prospects have to be taken into account for assessment of compensation in view of the judgment of the Apex Court in Govind Yadav Vs. New India Insurance Company
[3]
Limited , wherein it was held that the Motor Accident Claims Tribunals and Courts must adopt proactive approach and ensure that claim petitions are disposed of with required urgency and compensation should be invariably include pecuniary and non- pecuniary damages and all the Tribunals and Courts must follow the principles laid down by the Apex Court in Arvind Kumar Mishra Vs. New India Assurance Company Limited[4] and Raj Kumar (1st supra) while determining compensation and further drawn the attention of this Court to a judgment of the Apex Court reported in Rajesh and others Vs. Rajbir Singh and others
[5]
, where the Apex Court held that future prospects even in case of self employed has to be taken into consideration while assessing compensation. In Rajesh and others (5th supra), the Apex Court held as follows at Para No.11:
“11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.”
26. If the principle laid down in the decision cited supra is applied to the present facts of the case, the future earning, particularly in the instant case would be 50% of Rs.95,424/-; thereby his total future earning shall be taken as Rs.1,43,136/- and 40% of which comes to Rs.57,254/-. The injured petitioner was aged 22 years by the date of accident and the Tribunal erroneously applied the multiplier 17, as specified in Second column in the Table in Second schedule of Motor Vehicles Act and wrongly assessed compensation at Rs.3,02,491/-/- without taking into consideration the compensation to be awarded under the head of future prospects. But, in view of the principles laid down by the Apex Court Sarla Verma (Smt) and others Vs. Delhi
[6]
Transport Corporation and another , relevant multiplier applicable to the age group of injured is ‘18’ and if the annual income i.e., Rs.57,254/- is multiplied with the multiplier ‘18’, the amount of compensation to be awarded to the petitioner-injured under the head of loss of earning comes to Rs.10,30,572/-. Thus, the compensation to be awarded to the petitioner - injured under the head of loss of earnings and future prospects would come to Rs.10,30,572/-. Thus, the injured petitioner is entitled to an amount of Rs.10,30,572/- under the head of loss of earnings and future earning capacity due to permanent and partial disablement. The petitioner also claimed different amount under the head of special damages i.e., transport to hospital treatment and medical expenses damages to clothing and extra nourishment etc., However, the Tribunal rightly awarded an amount of Rs.30,000/- towards transportation expenses, damages to clothing and attendant charges but granted lesser amount of Rs.70,000/- towards medical expenses and extra nourishment, though there are medical bills for Rs.90,000/- and hence, the same is enhanced to Rs.90,000/-. Thus, in all the injured - petitioner is entitled to an amount of Rs.11,50,572/-.
In the result, the Civil Miscellaneous Appeal is allowed, in part, enhancing the compensation awarded by the Tribunal from Rs.4,62,491/- to Rs.11,50,572/-. However, the rate of interest awarded by the Tribunal remains unaltered.
In consequence, Miscellaneous Petitions, if any, pending in this Appeal shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J Date: 29-04-2014.
Dsh HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No. 3034 OF 2012
(Judgment of the Division Bench delivered by Hon’ble Sri Justice M. Satyanarayana Murthy)
Date. 29-04-2014
DSH
[1] 2011 ACJ 1
[2] (2009) 6 SCC 121
[3] (2011) 10 SCC 683
[4] (2010) 10 SCC 254
[5] 2013 ACJ 1403
[6] (2009) 6 SCC 121