D.Narsimlu @ Narsimha v. L.Sudhakar Reddy & Ors.

THE HON'BLE SRI JUSTICE GHULAM MOHAMMED MACMA No. 2637 OF 2007 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 in O.P No. 1428 of 2004 on the file of the II Additional Metropolitan Sessions Judge-cum-XVI Additional Chief Judge, Hyderabad. The claimant is the appellant herein who filed O.P before the Tribunal claiming compensation of Rs.1,00,000/- for the injuries sustained by him in an accident. He pleaded that on 18.08.2003, at about 22.30 hours, while he was sleeping in his hut at under construction building near Jamalikunta, Samatha Colony huts, Hyderabad, lorry bearing No.AP-28T-8238 came with a load of sand for unloading and the driver of the lorry took reverse with high speed in a rash and negligent manner and ran over upon the two legs of the appellant. As a result of the same, the appellant sustained fracture of left leg and deglazing injury. Immediately after the accident, he was shifted to Osmania General Hospital for treatment. Thus, the accident occurred due to rash and negligent driving of the driver of the offending vehicle. Due to the said accident, he became permanently disabled and 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 framed necessary issues as to whether the accident took place on 18.08.2003 at about 23.30 hours due to rash and negligent driving of lorry bearing No.AP-28T-8238, by its driver and whether the appellant is entitled to claim compensation from the respondents. If so, to what amount and from whom and to what relief he is entitled to. On behalf of the appellant, PWs 1 and 2 were examined and Exs.A-1 to A-3 were marked, Ex.B-1 Insurance Policy was marked on behalf of the respondent – Insurance Company and Ex.X1 was marked by the Court. On a consideration of the oral and documentary evidence available on record, the Tribunal answered the first and second issues in favour of the appellant and as regards the third issue, an amount of Rs.46,000/- was awarded towards compensation. Being dissatisfied with the amount of compensation granted by the learned Judge, the present appeal is filed by the appellant. The learned counsel for the appellant contended that the learned Judge has awarded only Rs. 46,000/- as compensation as against the claim of Rs.1,00,000/- to the appellant which is on lower side and, therefore, the same needs to be enhanced. He further contended that though the doctor who was examined as PW2 deposed that the appellant sustained 40% to 50% disability, the learned Judge has taken the disability of the appellant at 15% only. The learned counsel for the respondent – Insurance Company contends that the compensation awarded by the learned Judge is quite reasonable and needs no interference. There is no dispute with regard to rash and negligent driving by the driver of the offending vehicle. Regarding the earnings of the injured, the learned Judge has granted only Rs.15,000/- per annum as per the second schedule of the Act treating the appellant as non earning person and also awarded Rs.4000/- towards loss of income while he was undergoing treatment in the hospital and treating the disability of the appellant at 15%, the learned judge granted Rs.18,000/- towards total loss of future earnings which in my considered view is very meagre. The Supreme Court in Hardeo Kaur vs. Rajasthan State Transport Corporation[1] held determination of compensation in respect of injury cases must be liberal. The relevant portion of the same reads as under: “the determination of compensation in respect of the amount of liberal and injury cases must be compensation so awarded should not be niggardly and at the same not a wind fall as a profit making venture through the Learned Judges or Courts. When the compensation is awarded by the Courts and Learned Judges even the tort feasor should feel that he is atoned for the sin committed by him in committing the accident robbing the precious life of a human being and injuring the innocent person for no fault of his and the guidelines from such precedents is only to emphasise that if there are two precedents dealing with the same question of assessing the compensation, the one which has adopted a liberal approach should be preferred than the one which has adopted the conservative approach.” In view of the above, I feel that an amount of Rs.2,000/- per month towards loss of earnings would meet the ends of justice. Insofar as disability is concerned, it is claimed by the appellant that he was working as watchman and earning Rs.3,000/- per month. The appellant is aged about 55 years at the time of accident and sustained compound fracture of both bones of left leg and fracture of tibia 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, the appellant has suffered disability at 40% to 50% as he received fractures of both bones of legs and could not perform his avocation. But, there is no disability certificate in proof of the same. Therefore, in my 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 month towards loss of earnings which comes to Rs.24,000/- per annum, out of which 25% should be taken for the purpose of determining the compensation towards loss of disability and thereby, it comes to Rs.6,000/- per annum. Since the age of the appellant was 55 years at the time of accident, the appropriate multiplier for the said age group, as per the decision of the apex Court in Sarla Verma v. Delhi Transport Corporation[2] is 11. Then, the compensation towards 25% disability comes to Rs.6,000x11=Rs.66,000. The amount of Rs.20,000/- awarded by the learned judge towards pain and suffering is maintained. Therefore, in all, the compensation comes to Rs.86,000/. Thus the compensation awarded by learned judge is enhanced from Rs. 46,000/- to Rs. 86,000/- and the enhanced amount shall carry interest at 7% per annum from the date of petition till realisation. With the above modification, the civil miscellaneous appeal is allowed in part. There shall be no order as to costs.

30.12.2010 GHULAM MOHAMMED, J THE HON'BLE SRI JUSTICE GHULAM MOHAMMED MACMA No. 2637 OF 2007 Dated: 30.12.2010 [1] AIR 1992 SC 1261 [2] 2009 (6) SCALE 129