Thankamma v. Sri M. Suresh Kumar

HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2584 of 2002 and M.A.C.M.A. No.830 of 2006 COMMON JUDGMENT: Both the appeals are directed against the award in O.P.No.261 of 2000, on the file of the Motor Accidents Claims Tribunal-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, dated 26.03.2002.

The claimant working as Nursing Superintendent in CDR Hospital, Hyderabad, was going by walk near Arya Samaj on the left side of the road on 25.10.1999 at about 6.00 p.m., when scooter No.AP 9G 9391, owned by the first respondent and insured with the second respondent to the claim, driven rashly and negligently in high speed, knocked her down from behind. The claimant sustained a fracture of right leg and other injuries and was treated as inpatient in CDR Hospital, Hyderabad from

25.10.1999 to 09.11.1999. She underwent a surgery with insertion of steel plates in the right leg and had incurred much expense. She was unable to walk and attend to her duties due to the permanent disability and hence, she sought for a compensation of Rs.1,50,000/-.

The owner of the scooter remained ex parte before the Tribunal, while the insurer alleged the negligence to be on the part of the claimant herself and put the claimant to strict proof of all her allegations. The non-joinder of scooter driver was stated to be fatal and the insurer desired the claim to be negatived.

The Tribunal framed issues about the cause for the accident and the entitlement of the claimant for compensation. P.Ws.1 and 2 were examined and Exs.A-1 to A-13 and B-1 were marked during the course of enquiry.

The Tribunal rendered the impugned award accepting the evidence of the injured P.W.1 corroborated by Ex.A-1-First Information Report and Ex.A-2-Charge Sheet. The Tribunal concluded that in the absence of any contrary evidence, the accident must be held to be due to the rash and negligent driving of the scooter driver. The Tribunal then referred to the injuries suffered and their consequences and Ex.A-3-Medico Legal Record showing fracture of both bones of right leg and Ex.A-7-Discharge Summary showing her undergoing a surgery while being treated as inpatient. The evidence of P.W.2, the Professor of Orthopaedics, was also noted as stating about 20% permanent disability and the Tribunal opined that permanent restriction of movements of right leg coupled with limp was probablised. Her age was taken as 56 years as shown in Ex.A-1-First Information Report given by her to the Police and her salary was taken as Rs.4,500/- as shown by the Salary Certificate-Ex.A-12. The Tribunal considered the loss of earning power to be of the same percentage as the disability and applying a multiplier of 4.27, arrived at a sum of Rs.46,000/- as the compensation awardable under that head. The Tribunal also awarded Rs.15,000/- towards pain and suffering, Rs.37,000/- towards medical expenses under Ex.A-9-Detailed Bill issued by CDR Hospital, Hyderabad, purchase of medicines, etc., and Rs.5,000/- towards extra nourishment, transport, attendant charges, etc. For the period of her leave, she was granted Rs.11,250/- for 75 days and total compensation of Rs.1,14,250/- was directed to be paid jointly and severally by both the respondents in view of Ex.B-1-Insurance Policy in force. The compensation was directed to carry interest at 9% per annum from the date of the petition till the date of realization and proportionate costs.

The claimant was aggrieved by the Tribunal not granting the entire compensation as claimed and contended in C.M.A.No.2584 of 2002 that the disability was, in fact, 100% with reference to her avocation as the claimant was forced to resign her job subsequently due to her permanent disability. The entire compensation with interest at 12% per annum should have been awarded.

The insurer also challenged the award in M.A.C.M.A.No.830 of 2006 claiming that the alleged disability did not affect the claimant monetarily or otherwise and her salary had, in fact, been increased from Rs.4,500/- to Rs.6,000/- after the accident. The sums granted by the Tribunal were based on presumptions and assumptions and no sum was deducted towards personal expenditure. The compensation awarded was without any oral or documentary evidence and the doctor, P.W.2, never treated the claimant. The claimant would have retired from service within few months and cannot claim to have suffered any adverse consequences and 50% discount given to the employees of the hospital in medical expenses was also suppressed. Hence, the second respondent/insurer desired the impugned award to be reversed. M.A.C.M.A.No.830 of 2006 was dismissed for default as per the order of this Court, dated 21.09.2005, against the second respondent therein.

Sri Kota Subba Rao, learned counsel for the appellant/claimant and Sri G.S. Prakash Rao, learned standing counsel for the second respondent/insurer are heard.

No party had challenged the conclusion of the Tribunal about the responsibility of the scooter driver for the accident and the ownership of the scooter with the first respondent to the claim and its subsisting insurance with the second respondent to the claim are not disputed. The joint and several responsibility of both the respondents to the claim to justly and adequately compensate the claimant for the injuries suffered during the accident and their consequences, therefore, is not in dispute.

What is in question in both the appeals is only the quantum of just and adequate compensation.

The occupation of the claimant by the time of the accident as a Nursing Superintendent in CDR Hospital, Hyderabad is admitted and the quantum of her salary at Rs.4,500/- per month as certified in Ex.A-12-Salary Certificate is not contradicted. While the subsequent increase in her salary was not taken into account by the Tribunal, the age of the claimant was considered as 56 years as mentioned in the claimant’s own report to the Police under Ex.A-1-First Information Report. The different components of the compensation awarded contained compensation towards loss of salary for 75 days. It was based on Ex.A-13-Leave Certificate for a period of 75 days. Similarly, the reimbursement of medical expenses to a tune of Rs.37,000/- was based on Ex.A-9-Detailed Bill as well as other bills in respect of the purchase of medicines, etc. The compensation of Rs.5,000/- awarded towards attendant charges, transport, extra nourishment, damage to clothing, etc., is not on the high side. Considering the nature of the injuries, the period of treatment as inpatient, the surgery undergone, the age of the claimant and the time she would have taken to be restored to her normal life, the compensation for pain and suffering at Rs.15,000/- for fracture of two bones of the right leg is, in fact, lesser than what is ordinarily granted in a petition under Section 166 of the Motor Vehicles Act, 1988, and not substantially more than what is fixed even by the Second Schedule to the Motor Vehicles Act, 1988.

What remains to be considered is only the compensation granted on account of loss of earning capacity which also encompass the compensation for the permanent partial disability suffered by the claimant due to the restricted movements of the right leg coupled with the limp left forever for the balance of her life. The Tribunal did not specify any compensation towards the suffering of the permanent partial disability and appeared to have taken the compensation styled as towards loss of earning capacity to be covering the same also. If so, the Tribunal concluding 20% disability in respect of the right leg as 20% disability in the earning capacity also need not be considered as excessive. On the admitted quantum of salary she was earning by the time of the accident and not taking into account the subsequent increase in her salary in another capacity, the Tribunal assessed the loss of earning capacity to be Rs.10,800/- per annum with which there cannot be any interference. The multiplier applied as per BHAGWAN DAS VS. MOHD. ARIF[1] was 4.27, but for the age of 56 years, the latest pronouncement of the Apex Court in SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER[2] prescribes the multiplier of 9 and if such a multiplier were to be applied, the compensation awardable under that head would come to Rs.97,200/- leaving a balance of Rs.51,200/- to be granted to the claimant. However, as the claimant confined the claim before the Tribunal and this Court also to only Rs.1,50,000/- and only claimed the balance of Rs.36,000/- in C.M.A.No.2584 of 2002, the same sum can be awarded. The enhanced compensation can be restricted to carry an interest of 6% per annum only in view of the length of time for respondents have to pay such interest, while proportionate costs should, of course, be paid. Thus, while on merits, the compensation needs to be enhanced and not reduced, one more aspect to be noted is that the original record sent by the Tribunal does not disclose the insurer to have obtained any permission under Section 170 of the Motor Vehicles Act, 1988, and if so, the maintainability of C.M.A.No.830 of 2006 itself is doubtful.

In any view, the appeals have to be ordered on the above lines modifying the impugned award.

Therefore, M.A.C.M.A.No.830 of 2006 is dismissed without costs and C.M.A.No.2584 of 2002 is allowed without costs and the award, dated 26.03.2002, in O.P.No.261 of 2000, on the file of the Motor Accidents Claims Tribunal-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, is modified by awarding a further compensation of Rs.35,750/- with interest thereon at 6% per annum from the date of the petition till the date of realization and proportionate costs in addition to the compensation already awarded by the impugned award and O.P.No.261 of 2000 is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 17th March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2584 of 2002 and M.A.C.M.A. No.830 of 2006 Date: 17th March, 2011 KL [1] 1987 ACJ 1052 [2] 2009 ACJ 1298