HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No.3031 OF 2012
Date: 29-04-2014
Between:
S. Satya Jaya. - - - Appellant.
And G. Harsha Vardhan Reddy and another. - - - Respondents.
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. 3031 OF 2012
JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
The petitioner - claimant in O.P. No.1877 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 20.04.2012, 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.1877 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.15,00,000/- for the injuries sustained by her in road accident that occurred on 02.06.2009, at about 09.00 p.m., while the petitioner was crossing the road from left side to go to her apartments, Maruthi Alto Car bearing No.AP 22 M 2929, being driven by its driver in a rash and negligent manner dashed the petitioner, as a result of which, the petitioner fell down and sustained fracture to her spinal card (D-12), fracture of left leg foot and blunt injuries to her shoulder, waist and all over the body. Immediately, she was shifted to Ayush Hospital, and from there to Sru Fracture and Plastic Surgery Clinic, and later to Rakshith Orthopedics. Thus, the accident occurred only due to rash and negligent act of the driver of Car bearing No.AP 22 M 2929.
4. The accident was reported to Kukatpally Police Station, Cyberabad District, and the same was registered as a Case in Crime No.698 of 2009, for the offence punishable under Section 337 of I.P.C. against the driver of offending Car.
5. At the time of accident, the petitioner was hale and healthy and working as Associate Manager in Satyam Computers, Hyderabad, earning an amount of Rs.42,500/- p.m. After the accident, the petitioner was completely bed ridden and lost her job and she became disabled and as such she was not in a position to do any work. Thus, she lost her future earning capacity from the date of accident on account of permanent disability. Hence, the claim.
6. The first respondent is the owner cum insured and second respondent is the insurer of the Car bearing No.AP 22 M 2929. As the accident occurred due to rash and negligent driving of the driver of Car bearing No.AP 22 M 2929, both the respondents, being the owner and insurer of the vehicle, are jointly and severally liable to pay the compensation of Rs.15,00,000/-.
7. The first respondent remained ex-parte.
8. 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 22 M 2929, but occurred due to sudden crossing of road by the petitioner, thereby, no negligence is attributable to the driver. The first respondent insured the Car with the second respondent and the liability under the policy was subsisting as on the date of accident. However, the liability is subject to certain limitations and compliance of Section 64VB of Insurance Act, 1938. 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.
9. It is further contended that the driver of Car was not holding valid and affective driving license, at the time of accident and the first respondent willfully handed over the Car to the driver who did not possess valid and affective driving license, 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. Finally it is contended that the interest claimed by the petitioner is excessive and prayed to dismiss the petition.
10. 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 22 M 2929; the second issue is regarding quantum of compensation and the third issue is a general issue.
11. During the course of trial, on behalf of the injured petitioner, PWs.1 to 3 were examined and Exs.A-1 to A-14 were marked; on behalf of second respondent, none were examined, but got marked Ex.B-1, copy of insurance policy.
12. Upon hearing argument of both the counsel and considering the oral and documentary evidence available on record, the Tribunal awarded total compensation of Rs.3,00,000/-, 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.
13. 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 assess the compensation payable under the head of permanent disability, though the permanent disability was substantiated by examining PW.2, the doctor who treated the injured petitioner and loss of income by examining PW.3, the employer, and thus committed an error, and finally prayed to allow the Appeal awarding total compensation of Rs.15,00,000/-, as claimed by the petitioner.
14. During course of argument, learned counsel for the petitioner – appellant, reiterated the same contentions which the petitioner – appellant raised in the grounds of appeal and prayed to allow the Appeal awarding total compensation of Rs.15,00,000/-.
15. Per contra, 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.
16. 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 reduces her future earning capacity? If so, is she entitled to claim compensation, at what rate?
17. 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 bearing No.AP 22 M 2929. Against the said finding, no Appeal or Cross-objection 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 22 M 2929, 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.
18. 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.
19. 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 she was crossing road to go to her apartment. She herself was examined as PW.1, to prove that she sustained injuries in the road accident which created partial permanent functional disability reducing her future earning capacity. In her examination-in-chief at Para 2, specifically testified that she sustained injuries due to fall on the ground, due to hit of Car bearing No.AP 22 M 2929, while crossing the road, which are as follows :
1. Fracture of spine 12D.
2. Fracture of left leg foot.
3. Blunt injury to shoulder.
4. Injury to waist.
5. Head injury.
6. Head injury.
7. Blunt injuries all over the body.
20. Her evidence is supported by Ex.A-3, medico legal record, Ex.A-4 discharge summary, Ex.A-5 prescriptions issued by Dr. B. Valya, Orthopaedic Surgeon. In the entire cross-examination, learned counsel for the respondents could elicit that the petitioner sustained bleeding injuries like abrasions and fracture of spinal card and that the doctor advised her to wear Lumbo Sacral Corset to support her spine, followed by a suggestion that she sustained only minor injuries and they were completely healed, got denial of it. In the Cross-examination of PW.1, nothing was elicited to disprove the injuries sustained by her. However, the fact elicited in the cross-examination itself shows that the petitioner sustained a fracture to spinal card and other injuries like abrasions, in support of which she produced Ex.A-3, medico legal record dated 24.06.2009 and A-4, discharge summary. At best, these documents show that the petitioner sustained grievous injury on the front of wedge compression, fracture of D12 vertebra, linear fracture, head of V M.T. femer. Ex.A-5 is the prescriptions issued by Rakshitha Orthopaedics, dated 10.06.2009 and x-ray disclosed fracture of D12 wedge compression and also found local tenderness and spine was found uniting. As per the observations made in second page of Ex.A-5 prescription dated 25.07.2009 and on 28.08.2009, the doctor suggested the petitioner to undergo physiotherapy. Ex.A-6 is the disability certificate issued by Dr. B. Valya, Department of Orthoapedics, Gandhi Hospital, Secunderabad assessing the disability at 15 to 20%, partial permanent functional disability. The petitioner also examined PW.2, Dr. B. Valya, who issued Ex.A-6 disability certificate assessing the disability percentage between 15 to 20%, which is partial permanent in nature and due to the said injury, she cannot travel long distances and cannot bend and cannot lift weights and she has to avoid prolonged sittings. Further PW.2, advised the petitioner to wear Lumbo sacral corset and that on account of the disability, the earning capacity of the petitioner was reduced to 15 to 20%. In the cross-examination of PW.2 nothing was elicited to disprove the percentage of disability suffered by the petitioner. Therefore, the disability percentage assessed by PW.2 is supported by sufficient reasoning and it is partial permanent in nature, which reduces the future earning capacity of the petitioner. The word permanent disability is 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 the word ‘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 capacity of the petitioner to engage herself in any gainful activity in future can be said to be a permanent disablement.
23. 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. Here, the petitioner sustained several fractures as evidenced by documentary evidence on record, supported by the medical evidence of PW.2, and the consistent evidence on record is that petitioner cannot travel long distances, cannot bend, cannot lift weights and cannot sit continuously for long time. When the petitioner is not in a position to bend and sit for long time, it is difficult for her to discharge her duties affectively as Assistant Manager in Satyam Computers. Hence, the Tribunal rightly concluded that the petitioner is suffering from permanent disablement.
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 35 years by the date of accident and the relevant multiplier applicable to the age group of 31 to 35 years is ‘16’ as per the guidelines laid down by the Apex Court in Sarla Verma (Smt.) and
[2]
others Vs. Delhi Transport Corporation and another . According to the petitioner’s contention she was working as Associate Manager in Satyam Computers, Hyderabad and earning an mount of Rs.42,500/- p.m. in support of which, she produced Exs.A-8 to A-12 and also examined PW.3, concerned employer in Satyam Computers, who testified about the income of the injured petitioner and according to him, her last drawn salary was Rs.5,09,760/- p.a. In the cross- examination of PW.3, learned counsel for the respondents could elicit nothing and on the other hand, he admitted that Ex.A-8 discloses that the last drawn salary by the petitioner and he was not the person who issued Ex.A-8. As per Ex.A-8, the petitioner was drawing an amount of Rs.4,58,784/- fixed salary and Rs.50,976/- p.m. under variable salary. She also filed Income-tax returns marked as Ex.A-9, which is Form-16 and according to the Income-tax return for the financial year 01.04.2005 to 31.03.2006 i.e., for the assessment year 2006-07, she paid total tax of Rs.16,204/-, but her income was not disclosed properly. Ex.A-11 is the Income-tax return filed for the assessment year 2006-07, as per which her total income was Rs.2,70,014/- and tax paid was Rs.9,856/-. Ex.A-12 is the acknowledgment received from Income Tax Department, which discloses her gross total income was Rs.2,00,451/- for the assessment year 2009 - 10. Thus, the income tax return at best shows the income range of the petitioner at Rs.2,00,451/-
p.a. However, Ex.A-8 salary certificate discloses a different amount towards salary. There is a possibility of creating any such document for claiming enhanced compensation. However, the income-tax returns filed for the assessment year 2006 - 07 discloses the annual income of petitioner as Rs.2,70,014/- and after deduction of income tax of Rs.9,856/- the net income of petitioner comes to Rs.2,60,158/-. Similarly, as per Ex.A-12, acknowledgment received from the Income- tax department, for the assessment year 2009 - 10 discloses the annual income of petitioner as Rs.2,00,451/- and after deduction of income tax of Rs.8,291/-, the net income of petitioner comes to Rs.1,92,160/-. Thus, the net average income of the petitioner for the above two assessment years comes to Rs.2,26,159/-.
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
[5]
others Vs. Rajbir Singh and others , 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.2,26,159/- as the injured petitioner is less than 40 years; thereby his total loss of earning shall be taken as Rs.3,39,239/- and the same is rounded off to Rs.3,39,240/- and 15% of which, it comes to Rs.50,886/-. The injured petitioner was aged 35 years by the date of accident and the Tribunal without applying any multiplier, erroneously awarded an amount of Rs.3,00,000/- under various heads, for different considerations, without assigning any reason for disbelieving the percentage of disability assessed by PW.2, Dr. B. Valya, who issued Ex.A-6, disability certificate. This approach of the Tribunal is erroneous for the reason that the untold pain and ill-consequences of injury to D12 vertebra and spinal card will have its own complications in future, and certainly that would reduce the future earning capacity of the petitioner - appellant. Thus, the Tribunal, without taking into consideration the ill-consequences of injury to D12 vertebra and spinal card, awarded lesser amount of compensation. In view of the principles laid down by the Apex Court Sarla Verma (2nd supra), relevant multiplier applicable to the age group of injured is ‘16’ and if the annual loss of income i.e., Rs.50,886/- is multiplied with the multiplier ‘16’, the amount of compensation to be awarded to the petitioner - injured under the head of loss of earnings and future prospects would come to Rs.8,14,176/-. Thus, the compensation to be awarded to the petitioner - injured under the head of loss of earnings and future prospects would come to Rs.8,14,176/- due to her partial permanent disability. 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., the Tribunal rightly awarded an amount of Rs.15,000/- towards transportation expenses, damages to clothing and attendant charges and an amount of Rs.40,000/- towards pain and suffering, which needs no interference by this Court. Thus, in all, the injured - petitioner is entitled to an amount of Rs.8,69,176/-.
In the result, the Civil Miscellaneous Appeal is allowed, in part, enhancing the compensation awarded by the Tribunal from Rs.3,00,000/- to Rs.8,69,176/-. Accordingly, both the respondents are directed to deposit the entire compensation amount within a period of two (2) months from the date of receipt of a copy of this Order. On such deposit, the appellant – petitioner is entitled to withdraw the entire amount, excluding the amount, if any, withdrawn earlier, without furnishing any security. 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. 3031 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