MACMA/2637/2007 of Sri D. Narsimulu , Narsimha Vs Sri L. Sudhakar Reddy on 30 December 2010

JUDGMENT:

This appeal under Section 173 of the Motor Vehicles Act, 1988(for short ‘the Act’) is directed against the order dated 25.04.2007 inO.P No. 1428 of 2004 on the file of the II Additional MetropolitanSessions Judge-cum-XVI Additional Chief Judge, 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. He pleaded that on 18.08.2003, atabout 22.30 hours, while he was sleeping in his hut at underconstruction building near Jamalikunta, Samatha Colony huts,Hyderabad, lorry bearing No.AP-28T-8238 came with a load of sandfor unloading and the driver of the lorry took reverse with high speed ina rash and negligent manner and ran over upon the two legs of theappellant. As a result of the same, the appellant sustained fracture ofleft leg and deglazing injury. Immediately after the accident, he wasshifted to Osmania General Hospital for treatment. Thus, the accidentoccurred due to rash and negligent driving of the driver of the offendingvehicle. Due to the said accident, he became permanently disabledand is not able to attend to his regular work and duties and thus,claimed compensation of Rs.1,00,000/-.

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

On the strength of the rival pleadings, the learned Judge framednecessary issues as to whether the accident took place on 18.08.2003at about 23.30 hours due to rash and negligent driving of lorry bearingNo.AP-28T-8238, by its driver and whether the appellant is entitled toclaim compensation from the respondents. If so, to what amount andfrom whom and to what relief he is entitled to.

On behalf of the appellant, PWs 1 and 2 were examined andExs.A-1 to A-3 were marked, Ex.B-1 Insurance Policy was marked onbehalf of the respondent – Insurance Company and Ex.X1 was markedby the Court.

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.46,000/- 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 awarded only Rs. 46,000/- as compensation asagainst the claim of Rs.1,00,000/- to the appellant which is on lowerside and, therefore, the same needs to be enhanced. He furthercontended that though the doctor who was examined as PW2 deposedthat the appellant sustained 40% to 50% disability,the learned Judgehas taken the disability of the appellant at 15% only.

The learned counsel for the respondent – Insurance Companycontends that the compensation awarded by the learned Judge is quitereasonable and needs no interference.

There is no dispute with regard to rash and negligent driving bythe driver of the offending vehicle. Regarding the earnings of the injured, the learned Judge has granted only Rs.15,000/- per annum asper the second schedule of the Act treating the appellant as nonearning person and also awarded Rs.4000/- towards loss of incomewhile he was undergoing treatment in the hospital and treating thedisability of the appellant at 15%, the learned judge grantedRs.18,000/- towards total loss of future earnings which in myconsidered view is very meagre. 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 thecompensation 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.”

In view of the above, I feel that an amount of Rs.2,000/- permonth towards loss of earnings would meet the ends of justice.

Insofar as disability is concerned, it is claimed by the appellantthat he was working as watchman and earning Rs.3,000/- per month. The appellant is aged about 55 years at the time of accident andsustained compound fracture of both bones of left leg and fracture oftibia of right leg and that he is not able to perform his regular work. As per the evidence of the doctor who was examined as PW2, theappellant has suffered disability at 40% to 50% as he receivedfractures of both bones of legs and could not perform his avocation. But, there is no disability certificate in proof of the same. Therefore, inmy considered view, the disability of the appellant can be taken at 25%under the peculiar circumstances of the case.

Thus, the appellant is entitled to a sum of Rs.2,000/- per monthtowards loss of earnings which comes to Rs.24,000/- per annum, out ofwhich 25% should be taken for the purpose of determining thecompensation towards loss of disability and thereby, it comes toRs.6,000/- per annum. Since the age of the appellant was 55 years atthe time of accident, the appropriate multiplier for the said age group,as per the decision of the apex Court in Sarla Verma v. DelhiTransport Corporation[[2]]is 11. Then, the compensation towards25% disability comes to Rs.6,000x11=Rs.66,000. The amount ofRs.20,000/- awarded by the learned judge towards pain and sufferingis maintained. Therefore, in all, the compensation comes toRs.86,000/. Thus the compensation awarded by learned judge isenhanced from Rs. 46,000/- to Rs. 86,000/- and the enhanced amountshall carry interest at 7% per annum from the date of petition tillrealisation.

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

GHULAM MOHAMMED, J

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

Dated: 30.12.2010