* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.3116 of 2009
%02.06.2014
Between:
S. Siddeswar Rao (died) his L.R S.Yashoda. ....
Appellant AND Mohd. Zakaria and another ….
Respondents ! Counsel for Appellant : Sri P. Ramakrishna Reddy ^ Counsel for Respondent No.2 : Sri T.P.N. Reddy < Gist:
> Head Note:
? Cases referred:
1) 2011 ACJ 2436 (SC)
2) 2013 ACJ 2733 (SC)
3) (2009) 6 Supreme Court Cases 121
4) 2006 (4) ALD 130 (DB)
5) 1988 ACJ 354 (AP)
6) 1995 ACJ 872 (AP) THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A.No.3116 of 2009
JUDGMENT:
Aggrieved by the Award dated 04.12.2001 in OP No.1667 of 1996 passed by the Chairman, II Member Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad (for short “the Tribunal”), the claimant preferred the instant MACMA.
2) The factual matrix of the case is thus:
a) Initially the injured namely S. Siddeswar Rao filed OP No.1667 of 1996 pleading that on 09.12.1996 at about 7:00am, while he was going by walk from Lalbazar Bus stop towards Yapral near Lalbazar chowrastha, one private bus bearing No. AP 9 T 7698 dashed him and thereby he sustained fracture of both legs above knee, fracture of pelvic bones, injuries on legs below knee, injuries on back and chest. It is pleaded that prior to accident, he used to work as marble cutter and used to earn Rs.3,000/- p.m and after accident he lost his earnings. On these pleas, he filed OP No.1667 of 1996 against respondents 1 and 2, who are the owner and insurer of the offending bus and claimed Rs.2,00,000/- as compensation under different heads mentioned in OP.
b) During pendency of the OP, the claimant succumbed to injuries on 24.10.2000 and his mother was brought on record as his LR vide IA No.4/2001 dated 23.01.2001. Claim was enhanced from Rs.2,00,000/- to Rs.6,00,000/-.
c) Respondent No.1 remained ex parte.
d) Second respondent/Insurance Company filed counter and additional counter and opposed the claim denying all the material averments in the petition.
e) During trial, PWs.1 to 3 were examined and Exs.A1 to A8 and Exs.X.1 and X.2 were marked on behalf of claimant. Policy copy filed by 2nd respondent was marked as Ex.B.1.
f) A perusal of the award shows that considering the oral evidence of P.W.2—eye witness coupled with Ex.A1-FIR and Ex.A2-charge sheet, the Tribunal held that the accident was occurred due to the rash and negligent driving by driver of the offending bus.
g) Coming to the quantum of compensation, the Tribunal granted total compensation of Rs.2,07,829/- @ 12% p.a from the date of OP till the date of realization under different heads as below:
Loss of estate/loss of life Rs.1,70,000/-
Transportation to Hospitals Rs. 5,000/- Medical treatment and Medical expenses Rs. 27,829/- Cremation and obsequies Rs.
5,000/-
Total Rs.2,07,829/-
Hence, the appeal by the claimant.
3) Heard arguments of Sri P. Ramakrishna Reddy, learned counsel for appellant/claimant and Sri V.Srinivasa Rao, learned counsel for 2nd respondent/Insurance Company. Though R.1 represented by his counsel Sri T.P.N. Reddy, but no arguments were adduced.
4 a) Criticizing the compensation as low and unjust, learned counsel for appellant firstly argued that the Tribunal while computing the compensation for loss of earnings erred in taking the notional income of the deceased as Rs.15,000/- p.a inspite of the fact that the deceased was a skilled labourer i.e, a marble stone cutter and earning Rs.150/- per day. Learned counsel cited the following decisions and argued that the Apex Court fixed the monthly income of one skilled labour at Rs.5,000/- p.m and one coolie at Rs.4,500/- p.m.
1) Ramachandrappa vs. Manager, Royal Sundaram
[1]
Alliance Insurance Co. Ltd.
2) Sanobanu Nazirbhai Mirza and others vs. Ahmedabad
[2]
Municipal Transport Service Learned counsel further argued that the Tribunal erred in taking ‘17’ as multiplier but the appropriate multiplier for the age of deceased is ‘18’ as laid down in the case of Sarla Verma vs.
[3]
Delhi Transport Corporation b ) Secondly, learned counsel argued that though the deceased suffered four years and moved around different hospitals and incurred heavy medical expenditure, the Tribunal granted only a paltry sum of Rs.27,829/-. In fact his mother incurred medical expenditure of Rs.2,50,000/-by selling her properties and so compensation needs to be enhanced under this head.
c ) Thirdly, he argued that the Tribunal granted only Rs.5,000/- towards transportation charges in-spite of the fact that the deceased was carried to different hospitals for treatment by engaging vehicles.
d) Fourthly, learned counsel would argue that the Tribunal failed to grant any compensation towards extra nourishment and attendant charges.
e) Fifthly, he argued that the deceased confined to bed for about four years before his death and experienced lot of pain and suffering and hence the claimant being his L.R deserves compensation for pain and suffering of the deceased. In this regard, he relied upon the decision reported in N.R. Patel & Co.,
[4]
Secunderabad and others vs. T. Aparna and others .
f) Sixthly, learned counsel argued that the Tribunal granted very meager amount towards funeral expenses.
Thus he prayed to allow the appeal by enhancing the compensation.
5) Per contra, while supporting the award on one hand, learned counsel for R.2/Insurnace Company criticized it on some other aspects.
a) Firstly, he argued that the Tribunal as a whole treated the case as a death case and awarded compensation for loss of dependency which is untenable. He argued that the deceased died about four years after the accident and his death has no nexus with the injuries he suffered in the accident and therefore, the Tribunal ought to have granted compensation treating the case as an injury case only.
b) Secondly, learned counsel argued that the Tribunal rightly took the income of the deceased as Rs.15,000/- p.a because there was no reliable evidence that he was a skilled labourer and earning Rs.150/- per day.
c) Thirdly, he argued that if Sarla Verma’s case (3 supra) is followed for selection of multiplier, 50% of earnings of the deceased have to be deducted towards his personal expenditure, since he was a bachelor.
d ) Fourthly, he argued that Tribunal rightly granted Rs.27,829/- towards medical expenditure and there is no need to revise the same as there is no evidence of his mother incurring heavy expenditure.
e ) Fifthly, he argued that the claimant is not entitled to compensation for pain and suffering since the deceased is no more.
Thus as a whole, learned counsel argued 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 the private bus
bearing No. AP 9 T 7698 and causing accident to the deceased are all admitted facts. It may be noted that the Tribunal basing on the evidence on record has given two crucial findings i.e, the accident was occurred due to the fault of the bus driver and secondly that the deceased after prolonged illness due to injuries suffered in the lower part of his body died after four years and that the claimant has successfully proved and established the nexus between the death of deceased and his injuries. The respondents have not challenged the aforesaid findings by preferring an appeal and hence these findings have assumed finality. Therefore, the only core point left in this appeal for decision is whether the compensation awarded is just and reasonable or not.
8) In the above context, the first argument of the appellant is that the Tribunal while computing the loss of earnings has erred in taking his notional income as Rs.15,000/- p.a instead of Rs.150/- per day. The observation of the Tribunal is that PW1 did not produce any documentary proof regarding his avocation and earnings. On this observation, the Tribunal basing on Second Schedule of the Motor Vehicles Act, fixed his earnings at Rs.15,000/- p.a. In the cited decision in Ramachandrappa’s case (1 supra), while carping the Tribunal’s reducing the earnings of the injured to Rs.3,000/- p.m against his claim of Rs.4,500/- p.m inspite of no contest put by insurance company, Hon’ble Apex Court observed thus:
“In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time.”
So the observation of Apex Court is that in arriving at the earnings of the concerned injured or deceased, the Tribunal/ Court shall take ground realities and determine the possible income by making some guess work. In the instant case, basing on the above observation, the income of the deceased has to be determined now. The Tribunal was under the impression that there was no evidence at all regarding the avocation and earnings of the deceased. However a perusal of Ex.A.1—FIR would show that the deceased himself has given report to police from Gandhi Hospital wherein he stated that he was working as marble cutting machine operator since one year prior to the accident in a marble shop at Kharkana. Since the statement was given by him within short time after the accident, the facts therein relating to his avocation can be accepted. Thus, it is clear that the deceased was a skilled labourer working as marble cutting machine operator. He being a skilled labourer, his earnings can be taken as Rs.75/- per day. The annual income of the deceased which will serve the purpose as multiplicand comes to Rs.27,000/- (Rs.75 x 30 x 12). From this, 50% is deducted towards his personal expenditure following the principle laid down in Sarla Verma’s case (3 supra), since the deceased was a bachelor. The deceased was aged about 22 years and for his age, ‘18’ is provided as multiplier in Sarla Verma’s case (3 supra). So multiplying his net annual contribution with ‘18’, we will arrive at Rs.2,43,000/- (Rs.13,500/- x 18). The said amount is awarded as compensation for loss of earnings to the claimant. It may be noted that the R.2 argued that the case has to be treated as an injury case but not as death case, in which event, compensation for the loss of earning power will not arise. This argument cannot be countenanced because it was already observed that the Tribunal gave a finding that the deceased died due to the injuries suffered by him after prolonged illness and treatment and this finding was not challenged by the respondents.
9) Secondly, it is argued that meager compensation was awarded for medical expenditure. I find some force in this argument. Though except Exs.A.6 and A.7—medical bills totalling Rs.27,829/-, the claimant has not produced any other medical bills, still the deceased was treated in different hospitals for a prolonged period of about 3 ½ years. It is true that the treatment in Government Hospitals is free of cost but treatment i n Jagadamba Hospital will not be free of cost. Taking the totality of circumstances, in my view, the medical expenditure can be suitably enhanced. Accordingly, the medical expenditure is enhanced from Rs.27,829/- to Rs.50,000/-. On the same footing, the transportation charges also increased from Rs.5,000/- to Rs.10,000/-.
10) The Tribunal has not granted any compensation for extra nourishment and attendant charges. Having regard to the fact that the deceased underwent prolonged treatment, claimant is awarded Rs.15,000/- towards extra nourishment and attendant charges.
1 1 ) The next claim of the appellant is that the deceased experienced lot of pain and suffering during his four years confinement to the bed after accident and therefore, he deserves compensation and as he is no more, the claimant being his L.R is entitled to compensation but the Tribunal rejected the said claim on an erroneous appreciation of law. It may be noted that pain and suffering can be classified into two categories: i) pain and suffering experienced by the deceased due to injuries during his lifetime and ii) pain and suffering experienced by the LRs/dependents due to the death of deceased in a motor vehicle accident. While drawing the subtle distinction between the two categories, a learned Judge of this Court Sri M. Jagannadha Rao observed in Y. Varalakshmi and
[5]
others vs. M. Nageswara Rao and others thus:
“This award for the pain and suffering of the deceased cannot be confused with the wrong award for the pain and suffering of the 'dependants'. In fact, the Supreme Court, i n N.Sivammal v. Managing Director, Pandian Roadways Corporation, (AIR 1985 SC 106) while deleting the sum of Rs.5,000/- awarded by the High Court towards the mental agony of the 'dependants', did not reduce the total award by the said sum, but maintained the same total figure, by awarding Rs.5,000/- towards the pain and suffering of the deceased.”
a) Relying on the above decision another learned Judge of this Court in Irla Nagaiah and another vs. Rajkamal Transport
[6]
and another awarded compensation for the pain and suffering of the deceased but declined to grant compensation for the mental suffering of his LRs. It may be noted that in Sarla Verma’s case (3 supra) also it was observed by the Apex Court that “no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased”. In N.R.Patel’s case (4 supra) also a Division Bench of this Court awarded compensation for the pain and suffering of the deceased.
b) So it is clear that the dependents/LRs of a deceased will be entitled to compensation for pain and suffering of the deceased but not theirs. A perusal of the Para 21 of the award passed by the Tribunal would show that the counsel for claimant pleaded compensation of Rs.50,000/- for the pain and suffering underwent by the deceased during the period of his treatment and relied upon Irla Nagaiah’s case (6 supra). However it appears, the Tribunal mistook the plea for the pain and suffering of the deceased as pain and suffering of the claimant and held that the claimant does not deserve the same. Hence the said finding cannot be approved. The facts would show that the deceased was bedridden for a longtime and experienced pain and suffering. Considering it, for his pain and suffering, the claimant is awarded Rs.20,000/-.
12) Finally, it is argued that compensation awarded for funeral expenses is a meager one. Considering the truth in it, compensation is enhanced to Rs.10,000/-. Thus the total compensation payable to the claimant under different heads can be detailed as below:
Loss of estate Rs.2,43,000/-
Transportation charges Rs. 10,000/-
Medical expenditure Rs. 50,000/-
Funeral expenses Rs. 10,000/- Extra nourishment and attendant charges Rs. 15,000/- Pain and suffering Rs.
20,000/-
Total Rs.3,48,000/-
So the compensation is enhanced by Rs.1,40,171/- (Rs.3,48,000/- minus Rs.2,07,829/-).
13) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.1,40,171/- with proportionate costs. The enhanced compensation amount shall carry interest at 7.5% p.a from the date of O.P till the date of realization.
b) The respondents are directed to deposit the enhanced 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: 02.06.2014
Note: L.R. Copy has to be marked.
(b/o)
scs
[1] 2011 ACJ 2436 (SC)
[2] 2013 ACJ 2733 (SC)
[3] (2009) 6 Supreme Court Cases 121
[4] 2006 (4) ALD 130 (DB)
[5] 1988 ACJ 354 (AP)
[6] 1995 ACJ 872 (AP)