1. The M.A.C.M.A.No.87 of 2020 has been filed by the respondent No.2/insurer disputing the compensation amount granted in the decree and award dated 30.10.2019 in O.P.No. 2947 of 2013 on the file of the Motor Accidents Claims Tribunal-cum-XIV Additional Chief Judge (FTC), City Civil Courts, Hyderabad.
2. Pending appeal the claim petitioner filed Cross Objections No.53 of 2023 seeking enhancement of compensation awarded.
3. We have heard Mr. C.Mohan Prakash, learned counsel for the cross objector/petitioner and Mr. T. Mahender Rao, learned counsel for the appellant/respondent No.2.
4. The case of the respondent No.1/petitioner (hereinafter the petitioner) in brief is that, on 16.02.2013 at about 6 a.m. at Nagaram cross roads, Chowtuppal while he was proceeding on cycle, a lorry bearing registration No.AP-24X4447 driven in rash and negligent manner came from behind and while overtaking another lorry dashed the cycle and caused severe injuries all over his body. Further pleaded that he had undergone a prolonged treatment, incurred huge medical expense and the injuries resulted in his occupational disability. Hence prayed for granting Rs.30 lakhs as compensation. The tribunal after enquiry concluded the liability of the insured and insurer/respondents 1 and 2 jointly and severally and awarded Rs.37,99,741/- with interest at 9% per annum from the date of the petition till realization.
5. The appellant/respondent No.2/insurer (hereinafter ‘the insurer’) in appeal has disputed the amounts awarded under the heads of loss of earnings during the period of treatment, as the General Manager of the employer/PW-6 has not stated about non payment of salary during the period of treatment. Even otherwise the bank statement is showing that the salary of the petitioner has been credited. The inpatient final bill is showing the payment of Rs.3,35,000/- but Rs.1,80,000/- was paid by Good Health Plan Limited as per the discharge summary/Ex.A-
7. The advance payment bills/Ex.A-16 were included in the bills of Exs:A-14 and A-17, but entire amount has been awarded by disregarding this aspect. The tribunal had erred in considering the permanent disability at 50% in loss of future earnings.
6. The petitioner in cross objections submitted that, the tribunal has to consider awarding just compensation even without cross objections. Further the petitioner had lost his employment, hence the disability should have taken at 100% and the possible expenses on pecuniary and non pecuniary front, prayed for enhancement of the compensation.
7. The rival claims are considered and the materials on record are perused.
8. The testimony of PW-1 and the entries in FIR/Ex.A-1, charge sheet/Ex.A-5, panchanama/Ex.A-3, rough sketch/Ex.A-2, discharge summaries/Exs:A-6 and 7, medical bills/Exs:A-14 to A-16 are establishing the fact of accident and injuries suffered by the petitioner and the treatment undergone. The tribunal having regard to the evidence of PW-1 and the charge sheet filed by the police concluded the rash and negligent driving on the part of the driver of the lorry in causing the accident and recorded the disability of the insured/respondent No.1 and the appellant/insurer liable for payment of compensation. These aspects are not contested by the insurer in the appeal.
9. The Doctor/PW-3 deposed that the petitioner suffered left nasal bleed, eye bleed, right pupil was disabiliated, right fronto temporo parietal convexity, sub dural hematomy and bleeding in bilateral sylvio fissures, bilateral frontal right temporary parietal lobe SAH noticed in bilateral temporary lobes, right uncalnerniation found with circular headman and brain swelling and the patient was on ventilator. Further the patient suffered paralysis of both upper and lower limbs and that he was discharged with an advice of medicine, physiotherapy, and wheel chair mobilization.
10. Another Doctor/PW-4 also deposed that the petitioner suffered severe head injury and was discharged on 03.07.2013 with fraclheostomy and hamiblegia with inability to walk or eat food and he was readmitted and undergone physiotherapy and feeding ejumston to hmynove his mentisitional status with regular nursing care, physiotherapy feeding with rigours antibiotic patient general condition. Finally the patient was discharged on 03.07.2013 and by then he was asked to walk, stand, climb stairs but he had physiological and cognitive issues.
11. Another Doctor/PW-5 who is member of the Medical Board issued disability certificate/Ex.A-9, deposed that the petitioner was suffering with left hemiplegic post traumatic issues and they have issued disability certificate that the patient suffered 50% of disability.
12. The General Manger of the employer/PW-6 deposed that the petitioner was terminated from service on 01.12.2014 due to his mental conditions.
13. A careful reading of the above evidence is indicating that the injury suffered by the petitioner in the accident had resulted in physiological and mental/cognitive disabilities. It is well settled and fortified by the Hon’ble Supreme Court in Raj Kumar v. Ajay Kumar – 2011 ACJ 1 SC that in assessment of compensation the physical disability affecting the income earning capacity and thereby loss of income has to be taken into account.
14. The doctors/PWs.3 to 5 had consistently stated about the effect of injuries on the physical and mental disabilities of the petitioner. On the top of it, the employer/PW-6 had categorically stated about the termination of employment of the petitioner due to his physical and mental incapacities. Further, the photographs of the petitioner are indicating that even today is confined to bed. A holistic reading of this material is leading to conclusion that the injuries have totally affected the income earning capabilities of the petitioner. In another view, although the PW-6 deposed that the petitioner was terminated in 2014, it is not the case that the petitioner had joined his employment before the accident or continued services after the accident and the termination was not on the ground of to the disabilities caused from the injuries suffered in the accident. In such position as the material on record are proving that the petitioner is completely bed ridden, we are of the opinion that the injuries suffered in the accident caused 100% disability of earning capacity.
15. By the evidence of PW-1 it is clear that the petitioner worked as Shift Officer-cum-Monitoring Officer in production line in Srini Pharmaceutical Company, Choutuppal was earning Rs.25,000/- per month and was also earning Rs.5,000/- as additional income. The PW-6 confirmed the occupation stated by the PW-1 and placed details of the salary statement of the petitioner/Ex.X-1 wherein the monthly salary was shown as Rs.24,490/-. The additional income if any being variable pay and also in absence of any other material in proof consistency in this pay and rebuttal by the appellant/respondent No.2, the monthly income of the petitioner at relevant time can be taken at Rs.24,490/-. The Hon’ble Apex Court in Pappu Deo Yadav v. V. Naresh Kumar and others 2020 SCC Online SC 752 held that the future prospects in life and career shall also be taken into consideration even in the cases of compensation for physical disabilities as enunciated in the authority of National Insurance Company Ltd. vs. Pranay Sethi and others (2017) 16 SCC 860. In this legal position, considering the age and permanent nature of the employment 50% of the income if added towards future prospects, the annual income of the petitioner would be Rs.4,40,820/-. If this sum is multiplied with the relevant multiplier applicable to the age of the petitioner i.e. 15, the total would be of Rs.66,12,300/-. The petitioner is entitled for this amount for loss of earning capacity due to the physical disability.
16. In regard to medical expenditure, the PW-1 in her evidence stated that in the accident her husband suffered head injury and he was taken to Government Hospital, from there to Yashoda Hospital, Malakpet where the incurred medical expenditure of Rs.5,43,049/-. Out of it, the Good Health Plan Limited paid Rs.1,80,000/- and the remaining amount was paid by them. Thereafter the petitioner was shifted to Surya Hospital, Visakhapatnam where they spent an amount of Rs.3 lakhs towards treatment. Likewise, the petitioner had received treatment in Icon Krishi Hospital, Visakhapatnam by incurring Rs.500/- per day from 03.04.2013 to 03.07.2013 excluding the other expenses. They also incurred transportation charges/ambulance charges. The evidence of PWs.3 to 5 is inconsonance with the PW-1’s evidence.
17. The petitioner placed medical bills in Exs:A-14 to A-16. The entries in medical bills/Ex.A-8 and the evidence of the PW-2 are showing that the total bill amount of Yashoda Hospital, Malakpet was of Rs.5,43,049/- and the insurance company had credited Rs.1,80,000/-. The remaining amount of Rs.3,35,000/- was paid by the petitioner and Rs.28,049/- was discounted. As the payment of Rs.3,35,000/- is clear, the petitioner is entitled for that amount. However, the corresponding inpatient deposit receipts filed by Yashoda Hospital in Ex.A-16 to the extent of Rs.2,39,370/- shall be disregarded.
18. However, in the bills of Ex.A-16, receipts issued by Surya Hospital to the extent of Rs.65,000/-, cash receipt issued by Radha Krishna Liver & Gastro Centre and advance receipt for Rs.5,000/- issued by Krishi Trust Hospital deserves reimbursement and accordingly an amount of Rs.80,000/- is granted against the bills in Ex.A-16. In addition, as the bills in Ex.A-14 are reflecting expenditure of pharmacy, Rs.1,05,731/- is also allowed. Thus, in all Rs.5,20,731/- is awarded under the head medical expenditure. Further taking into consideration the transport bill/Ex.A-17 recoupment of Rs.33,000/- is accepted.
19. As the loss of earnings due to disability at 100% is considered from the date of accident/petition, assessment of loss of income during the period of treatment and amenities is inessential. In the circumstance the amounts granted by the tribunal under these head are discounted.
20. In regard to non pecuniary damages, awarding Rs.5,00,000/- towards pain and suffering is found reasonable. In addition having regard to the physical condition, length of treatment, the necessity of an attendant in the physical condition of the petitioner, we are inclined to grant an amount of Rs.2,00,000/- under this head.
21. Further the rate of interest granted by the tribunal is inconformity with the bank rate and recent authorities of the Hon’ble Apex Court, hence the rate of interest granted at 9% per annum has been confirmed.
22. Therefore, the petitioner is eligible for compensation as under:
|
DESCRIPTION |
AMOUNT (Rs.) |
|
Loss of earning capacity due to disability |
66,12,300.00 |
|
Medical expenditure |
5,20,731.00 |
|
Pain and suffering |
5,00,000.00 |
|
Attendant charges |
2,00,000.00 |
|
Transportation charges |
33,000.00 |
|
TOTAL |
78,66,031.00 |
23. For the aforesaid, the petitioner is entitled for Rs.78,66,031/- (Rupees seventy eight lakhs sixty six thousand and thirty one only) with interest at 9% per annum from the date of petition till date of realization with costs. The respondent No.2/insurer is directed to deposit the differential amount within four weeks from the date of receipt of a copy of this judgment. On such deposit, the petitioner is permitted to withdraw the entire amount.
24. Accordingly, the Award dated 30.10.2019 in O.P.No. 2947 of 2013 on the file of the Motor Accidents Claims Tribunal-cum-XIV Additional Chief Judge (FTC), City Civil Courts, Hyderabad stands modified.
25. In the result, the M.A.C.M.A.No.87 of 2020 filed by the respondent No.2/insurer is partly allowed and the Cross Objections No.53 of 2023 filed by the cross objector/claim petitioner is allowed.
As a sequel, miscellaneous petitions pending if any, stands closed.
