MACMA/2408/2011 of Nagavath Shivaram Vs M.Kumar on 30 December 2011

COMMON JUDGMENT:

Both these appeals arise out of the award in O.P.No.152 of 2004on the file of the Motor Accidents Claims Tribunal-cum-II AdditionalDistrict Judge, Karimnagar. A claim for compensation ofRs.15,00,000/-.

2. The averments in the petition go show that on 09.08.2001 whenthe petitioner was going on TVS Suzuki motorcycle at Godavarikhanithe auto bearing No.AP 15 V 3240 came in opposite direction anddashed against the motorcycle of the petitioner, as a result of which,the petitioner received multiple injuries and treated in hospital andsuffered disability. He claims to have spent money for treatment. The1[st] respondent is driver, the 2[nd] respondent is owner and the 3[rd]respondent is Insurance Company. Both the respondents Nos.1 and 2remained ex parte and the 3[rd] respondent filed a counter putting thepetitioner to strict proof of the rashness and negligence on the part ofthe driver of the vehicle, nature of injuries received by him and also theexpenditure incurred by him. The lower Tribunal after considering theevidence on record came to the conclusion that the incident was dueto the head on collusion between the TVS motorcycle and the autoand fixed 50% of liability each on the drivers of the vehicles and afterassessing the compensation at Rs.10,82,000/-, directed the 3[rd]respondent to pay a sum of Rs.5,41,000/-. Aggrieved by the saidaward, the Insurance Company has filed the C.M.A.No.3479 OF 2004,whereas the petitioner being not satisfied with the quantum ofcompensation filed M.A.C.M.A.No.2408 of 2011.

3. The point that arises for consideration is whether the quantum of compensation granted by the lower Tribunal is legal and sustainable?

4. POINT:

The learned counsel for the Insurance Company stronglycontended that the Tribunal has considered 100% loss of earningcapacity of the petitioner, considered the salary and applied themultiplier ‘16’, which is not proper. According to him, it was not a casewhere the petitioner, who was the driver of the vehicle, lost his job andconsequently, the determination of the disability totally is not proper. On the other hand, it is the contention of the learned counsel for thepetitioner that the Tribunal has not assessed the evidence. It was alsosubmitted by him that subsequently after sometime, the petitioner hasbeen removed from the service.

5. The factum of the petitioner being removed from the service aftersometime is not in dispute. Evidently, he was a driver, aged about ‘35’years and in such circumstances, the determination of thecompensation on the basis of loss of earning capacity cannot bedenied. The lower Tribunal has also taken into consideration thenature of the injuries received by the petitioner and also the nature ofthe expenditure and came to the conclusion that a sum of Rs.50,000/-is to be awarded towards pain and suffering and also has taken intoconsideration that the treatment was at the RTC hospital only andgranted a sum of Rs.40,000/- towards loss of future amenities and alsogranted loss of future earnings. The Tribunal having assessed the lossof total earning capacity in a right manner granted an incidentalcompensation. When once the total loss of earning capacity isdetermined, then it includes all the claims towards the injuries,disability etc.

6. Therefore, in view of the above circumstances, I feel the awardpassed by the Tribunal in determining the claim of compensationcannot be said to be erroneous and it is just and reasonable.

Therefore, I do not find any merits in both the appeals. However, theTribunal has granted interest at 9% per annum and taking intoconsideration the amount of compensation granted and the lawprevailing, I feel the ends of justice would meet if the interest is grantedat 7.5% per annum.

7. Accordingly, the appeals are allowed in part. The award of theTribunal below is modified, while confirming the quantum ofcompensation, the interest is reduced to 7.5% per annum. Each partyshall bear their own costs.

Date:30.12.2011INL

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JUSTICE N.R.L. NAGESWARA RAO