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Judgment
B.V.L.N. Chakravarthi, J
This appeal is filed by the claimant challenging the order and decree dated 13.12.2010 passed in M.V.O.P.No.863/2007 on the file of Motor Accidents Claims Tribunal-cum-Addl.District Judge, Vizianagaram.
For the sake of convenience, the parties are arrayed as parties before the learned Tribunal.
The claim petition was filed by the petitioner U/s.166 of Motor Vehicles Act 1988, claiming a sum of Rs.1,50,000/- towards compensation for personal injuries sustained by him in a motor accident happened on 29.01.2007 at about 02.00 p.m. near Tunivalasa village, Padmanabham Mandal, Visakhapatnam District, Andhra Pradesh State; Subsequently, the claim amount was amended to Rs.4,00,000/- as per order dated 06.01.2010 in I.A.1657/2009.
The case of the claimant is that he was aged 30 years, earning Rs.100/- per day as tailor; on 29.01.2007 he boarded an auto at Reddipalli village to go to Tunivalasa village; Auto reached a place near Santhi Nikethan School, Reddipalli village at about 02.00 p.m; RTC Bus bearing No.AP 10Z 438 came in opposite direction, in a rash and negligent manner, dashed the auto; as a result, the claimant fell down from the auto and sustained fracture of left thigh bone; he was shifted to District Head Quarters Hospital, Vizianagaram, for treatment; On account of the fracture, the claimant suffered pain and mental agony; spent huge amount towards medical treatment, medicines, transport and extra nourishment; police registered case against the driver of the APSRTC Bus as case in Cr.No.8/2007 of Padmanabham Police Station and investigated the case; and laid police report (charge sheet) for the offence punishable U/s.337 and 338 of Indian Penal Code against the driver of the APSRTC Bus; Hence, the claim petition seeking a sum of Rs.4,00,000/- towards compensation for personal injuries sustained in the motor accident.
The 1st respondent/ driver of the bus remained exparte before the learned Tribunal.
The 3rd respondent/APSRTC filed counter, adopted by the 2nd respondent/Depot Manager, Vizianagaram Depot, contending that the accident was occurred due to rash and negligence of the auto driver; not due to negligence of the driver of the APSRTC Bus; claimant did not suffer any disability on account of the injury sustained in the accident.
On the strength of the pleadings of both parties, the learned Tribunal framed the following issues:
Whether the accident occurred due to rash and negligent driving of the 1st respondent?
Whether the petitioner is entitled for compensation? If so, at what quantum of amount he is entitled?
To what relief?
The learned Tribunal basing on the evidence of claimant, who examined himself as P.W-1, the documents filed by the claimant, and evidence of the driver of the bus, who was examined as R.W-1, found that the accident was occurred due to rash and negligence of the driver of APSRTC Bus. This finding is not challenged by the APSRTC. Hence, there is no necessity to go into the details of the said issue.
The learned counsel for the appellant/claimant would submit that the claimant incurred a sum of Rs.30,000/- towards medicines, transport charges and extra nourishment, and he also suffered loss of earnings during the period of treatment and suffered loss of future income due to permanent disability suffered by him on account of the injuries sustained in the accident, but the learned Tribunal did not award just compensation.
The learned Standing Counsel for APSRTC would submit that in the circumstances of the case, the compensation awarded by the learned Tribunal is just and it does not require any modification or interference by this Court.
In the light of the above contentions raised in the appeal, the points that would arise for consideration in the appeal are as under:
Whether the order and decree passed by the learned Tribunal warrants interference of this Court?
To what relief?
POINT No.1:
The learned Tribunal considering the evidence of the claimant (P.W-1), the doctor (P.W-2) and Ex.A-6 disability certificate, Ex.A-2 copy of wound certificate and Ex.A-5 X-ray, Ex.A-7 and A-8 discharge summary, held that the claimant suffered one grievous injury, and the discharge summaries would show that he underwent treatment at K.G.Hospital, Visakhapatnam and on scrutiny of the evidence, and movements of the claimant, who was physically present before the Court, it appears that the claimant is suffering from shortening of left lower limb and he is unable to sit in cross legged position; the learned Tribunal on consideration of the evidence of P.W-2 regarding physical disability, opined that the physical disability of the claimant can be assessed as 25% instead of 50%.
The learned counsel for the appellant would submit that the learned Tribunal did not give any reasons for reducing the percentage of the partial permanent disability suffered by the claimant, and erroneously awarded lesser compensation for loss of future earnings on account of permanent disability.
The evidence of P.W-2 would disclose that he was working as Civil Assistant Surgeon at K.G.Hospital, Visakhapatnam, at the material point in time i.e., at the time of accident in the case. P.W-2 evidence would establish that the claimant was admitted in K.G.Hospital, Visakhapatnam and he was treated for supra condylar fracture of left femur compound in nature, and that the fracture was treated with external fixator, and he was admitted in hospital on 29.01.2007 and treated as in-patient till 02.05.2007; later on 03.12.2007 x-ray was taken and again after six weeks, patient attended on 21.01.2008 for removal of external fixator, and P.O.P. cost was applied and patient was advised to come after two months; and patient accordingly attended on 31.03.2008, P.O.P. cast was removed and later, x-ray was taken to femur, and it revealed that the fracture is united in mal position and deformity at knee join; and on examination, found gross deformity of the knee, because of with puckered scar on the outside of thigh and knee joint, and there is a discharging sinus on the inside of the lower part of thigh, and the knee joint is fixed in about 15 degrees fixation and there is no movement in any direction. There is a gross shortening of the left lower limb, and therefore, the patient is unable to squat on the ground and unable to sit in cross-legged position. Depending on the said findings, doctor assessed the disability as partial and permanent in nature at 50%, and accordingly, issued Ex.A-6 disability certificate.
Therefore, the evidence of P.W-2 would establish that on account of the grievous injury sustained by P.W-1 in the motor accident, gross shortening of left lower limb formed, and it is partial permanent disability in nature at 50%. The functional disability on account of that physical disability is claimant unable to squat on the ground and unable to sit in a cross-legged position.
It is the case of the claimant that he is aged 35 years and working as tailor and earning Rs.100/- per day, and due to disability, he could not attend tailoring work effectively, as attending prior to the date of accident.
The learned Tribunal without any discussion on above medical aspects deposed by P.W-2 regarding partial permanent disability 50% suffered by the claimant, reduced and fixed it on its own at 25%. The opinion of the learned Tribunal is without any exercise or reasons. It is against the guidelines laid down by the Hon’ble Apex Court in Raj Kumar Vs. Ajay Kumar and another 2011 (1) SCC 343.
The functional disability on account of partial permanent deposed by P.W-1 as well as P.W-2 basing on partial permanent disability at 50% suffered by the claimant, on account of the grievous injury sustained in the motor accident, will preventing the claimant either from squatting and sitting in cross-legged position, and further, the evidence of doctor would disclose that on account of the injury and surgery, there is gross shortening of left lower limb. Hence, it would affect the efficiency and work of a tailor, who will use his limbs to run the sewing machine while sitting for considerable period in a day. Therefore, the partial permanent disability suffered by the clamant will reduce his working hours and affect his earning capacity. In these circumstances, this Court is of the considered opinion that the functional disability can be considered as 50%. Therefore, he shall be awarded compensation for the loss of earnings during the period of treatment as well as loss of future earnings, on account of permanent disability.
The evidence of P.W-1 would show that he was earning Rs.100/-per day as tailor, at the time of the accident. It can be accepted as reasonable amount, in the facts and circumstances of the case. Therefore, his monthly income will be Rs.3,000/-, and annual income is Rs.3,000 x 12 = Rs.36,000/-. The claimant was aged 35 years. In view of the judgment of Hon’ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others 2009 ACJ 1298, the multiplier applicable to the age group of ‘31 to 35 years’ is ‘16’. Hence, the amount entitled by the claimant towards loss of future earnings on account of partial permanent disability suffered in the motor accident is Rs.36,000 x 16/50% = Rs.2,88,000/-.
The evidence of claimant and doctor would disclose that the claimant took treatment nearly for 15 months i.e., from the date of accident on 29.01.2007 till 31.03.2008. Hence, the claimant is entitled to loss of income during the period of treatment for 15 months @ Rs.3,000/- per month. It is Rs.3,000 x 15 = Rs.45,000/-.
The learned Tribunal awarded Rs.7,500/- towards transportation charges, attendant charges and extra nourishment. Rs.10,000/- only towards pain and suffering, which is on the lower side and requires reconsideration. In that view of the matter, considering the nature of injury, and treatment taken by the claimant, this Court is of the opinion that it shall be enhanced to Rs.50,000/-Therefore, in all, the claimant is entitled to Rs.2,88,000 + 45,000 + 50,000 = Rs.3,83,000/-, instead of Rs.1,33,000/- awarded by the learned Tribunal.
The claimant is entitled to interest on the compensation amount as per section 171 of M.V.Act, 1988. The learned Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of realisation. Considering the date of accident, prevailing rate of interest, and in view of the Apex Court judgement in National Insurance Company Limited Vs. Mannat Johal 2019 ACJ 1849 (SC) this Court do not find any ground to interfere with the rate of interest awarded by the Tribunal at
5% p.a., from the date of petition, till the date of deposit.
In the light of foregoing discussion, the appeal filed by the claimant be allowed partly, by modifying the order and decree passed by the learned Tribunal. Accordingly, the point is answered.
POINT No.2:
In the light of finding on point No.1, the appeal is liable to be allowed partly, by modifying the judgment and decree dated 13.12.2010 passed in M.V.O.P.No.863/2007 on the file of Motor Accidents Claims Tribunal-cum-Addl.District Judge,Vizianagaram.
In the result, the appeal is partly allowed, modifying the order and decree dated 13.12.2010 passed in M.V.O.P.No.863/2007 on the file of Motor Accidents Claims Tribunal-cum-Addl.District Judge,Vizianagaram, holding that the claimant is entitled to an amount of Rs.3,83,000/- (Rupees Three Lakhs and Eighty Three Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, towards just compensation for personal injuries. The respondents No.1 to 3 are jointly and severally liable to pay compensation amount to the claimant. There shall be no order as to costs.
The respondents No.2 and 3/APSRTC are directed to deposit the compensation amount of Rs.3,83,000/- (Rupees Three Lakhs and Eighty Three Thousand only), along with accrued interest thereon, firstly, within eight (08) weeks from the date of judgment. In the event of the respondents No.2 and 3/APSRTC already deposited some amount, the said amount be excluded, and the balance amount shall be deposited within eight (08) weeks from the date of judgment.
On such deposit, the appellant/claimant is permitted to withdraw the compensation amount of Rs.3,83,000/- (Rupees Three Lakhs and Eighty Three Thousand only) along with accrued interest thereon.
As a sequel, miscellaneous applications pending, if any, shall stand closed.