MACMA/611/2005 of P. Raju Singh Vs J. Sathyanarayana Reddy on 30 December 2010

JUDGMENT:

This appeal under Section 173 of the Motor Vehicles Act, 1988is directed against the order dated 29-03-2004 in O.P No. 1145 of1999 on the file of the Additional Special Judge for SPE and ACBCases-cum-V Additional Chief Judge, City Civil Court, Hyderabad.

The claimant is the appellant herein who filed O.P before theTribunal claiming compensation of Rs.1,00,000/- for the injuriessustained by him in an accident, that occurred on 31.07.1999 at about10.30 P.M., while he was proceeding along with his friend on hisscooter bearing No. AP 98 9242 from his company to his residenceand when they reached Lakshmikala Theatre, Moosapet, lorry bearingNo. AP 12 T 4856 came in opposite direction driven by its driver withhigh speed and dashed against the scooter of the appellant by theimpact of which both of them fell down and he received grievousinjuries. According to appellant he received a compound fracture ofright ulna, fracture to right hand, injuries on stomach, on neck and onall over the body and sustained permanent disability, due to theinjuries.

The first respondent remained ex parte before the Court below. The second respondent – Insurance Company filed the counterdenying all the material allegations.

On the strength of the rival pleadings, the learned Judge framednecessary issues as to whether the appellant received injuries in theaccident on account of the rash and negligent driving of the lorrybearing No. AP 12 T 4856 by its driver and whether the appellant is entitled for compensation, if so, to what amount and from whom and towhat relief he is entitled to.

On behalf of the appellant, PWs 1 and 2 were examined and Exs.A-1 to A-8 were marked and Ex.B-1 certified copy of the InsurancePolicy was marked on behalf of the respondent – Insurance Company.

On a consideration of the oral and documentary evidenceavailable on record, the Tribunal answered the first and second issuesin favour of the appellant and as regards the third issue, an amount ofRs.33,000/- was awarded towards compensation. Being dissatisfiedwith the amount of compensation granted by the learned Judge, thepresent appeal is filed by the appellant.

The learned counsel for the appellant contended that thelearned Judge has disbelieved the version of the appellant that he wasearning Rs.3,000/- per month and granted only Rs.1,500/- under thehead loss of earnings holding that he is entitled to Rs.1,500/- onlysince he was in the hospital for more than 20 days. He furthercontended that though the doctor who was examined as PW 2deposed that the appellant sustained 40% disability and issued Ex.A-8disability certificate, the learned Judge has taken the disability at 20%only.

The learned counsel for the respondent – Insurance Companycontended that the compensation awarded by the learned Judge isquite reasonable and needs no interference.

There is no dispute with regard to rash and negligent driving bythe driver of the crime vehicle. The Supreme Court in Hardeo Kaur vs. Rajasthan State Transport Corporation[[1]]held that thedetermination of compensation in respect of injury cases must beliberal. The relevant portion of the same reads as under:

“the determination of compensation in respect ofinjury cases must be liberal and the amount ofcompensation so awarded should not be niggardly andat the same not a wind fall as a profit making venturethrough the Learned Judges or Courts. When the

compensation is awarded by the Courts and LearnedJudges even the tort feasor should feel that he is atonedfor the sin committed by him in committing the accidentrobbing the precious life of a human being and injuringthe innocent person for no fault of his and the guidelinesfrom such precedents is only to emphasise that if thereare two precedents dealing with the same question ofassessing the compensation, the one which has adopteda liberal approach should be preferred than the onewhich has adopted the conservative approach.”

The claimant is aged about 23 years at the time of accidentand was working in a private company. Though no Salary Certificatewas marked, the factum of employment is not disputed. Henceconsidering the circumstance an amount of Rs.3,000/- per month canbe notionally fixed as earnings of the appellant.

Insofar as disability is concerned, it is claimed by the appellantthat he sustained compound fracture to right ulna with loss of skin andsoft tissue, and lost muscle in right fore arm, which resulted in grossrestriction of flexion of right wrist, loss of supination, mild wasting righthand and partial loss of sensation of right hand and gross loss of handgrip. After the accident, he was admitted in the hospital on 01.08.1999and discharged on 24.08.1999. In support of his claim, he examinedPW2-doctor who issued disability certificate Ex.A-8. The learnedJudge observed that the percentage of disability assessed by PW2 isexcessive and has taken the disability of the appellant at 20%, whichin my view can be taken at 30% having regard to the peculiarcircumstances of the case.

Thus, the appellant is entitled to a sum of Rs.3,000/- per monthtowards loss of earnings, which comes to Rs.36,000/- per annum, outof which 30% should be taken for the purpose of determining thecompensation towards loss of disability and thereby, it comes toRs.10,800/- per annum. Since the age of the appellant was23yearsat the time of accident, the appropriate multiplier for the said agegroup, as per the decision of the apex Court in Sarla Verma v. Delhi Transport Corporation[[2]]is 18. Then, the compensation towards30% disability comes to Rs.10,800 X 18=Rs.1,94,400/-. In addition, asum of Rs.15,000/- is granted towards pain and suffering andRs.10,000/- towards medical expenses. Therefore, in all, thecompensation comes to Rs.2,19,400/-. Since the appellant hasclaimed Rs.1,00,000/ as compensation his claim is restricted toRs.1,00,000/-. Thus, the compensation awarded by learned Judge isenhanced from Rs.33,000/- to Rs.1,00,000/-. The enhanced amountshall carry interest at 7% per annum from the date of petition tillrealisation.

With the above modification, the civil miscellaneous appeal isallowed. There shall be no order as to costs.

30.12.2010lvl

GHULAM MOHAMMED, J

[1]AIR 1992 SC 1261[2]2009 (6) SCALE 129

Dated: 30-12-2010