* THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ M.A.C.M.A.No. 136 of 2011

% 04.07.2023

Between:

Vellagada Durgaprasadarao,

S/o.Kondalarao, Hindu, Aged 47 years,

Sound Engineer, Telaga by caste,

R/o.Gunuper Ward No.10, Orissa State. ... Appellant

And

1. B.Chiranjeevulu,

S/o.Dandasi, Aged about not known,

Owner of the Trucker bearing No.AP 30 T 3587,

Chinabahapalli Village, Mandasa Mandal.

2. New India Assurance Company Limited,

Represented by its Divisional Manager,

Opposite to Surya Mahal, G.T.Road,

Srikakulam. ... Respondents

DATE OF JUDGMENT PRONOUNCED : 04.07.2023

SUBMITTED FOR APPROVAL :

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local Newspapers

may be allowed to see the judgment? Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters / Journals? Yes/No

3. Whether His Lordship wish to

see the fair copy of the Judgment? Yes/No

DUPPALA VENKATA RAMANA, J

2

* THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMAN A

+ M.A.C.M.A.No.136 of 2011

% 04.07.2023

Between:

Vellagada Durgaprasadarao,

S/o.Kondalarao, Hindu, Aged 47 years,

Sound Engineer, Telaga by caste,

R/o.Gunuper Ward No.10, Orissa State. ... Appellant

And

1. B.Chiranjeevulu,

S/o.Dandasi, Aged about not known,

Owner of the Trucker bearing No.AP 30 T 3587,

Chinabahapalli Village, Mandasa Mandal.

2. New India Assurance Company Limited,

Represented by its Divisional Manager,

Opposite to Surya Mahal, G.T.Road,

Srikakulam. ... Respondents

! Counsel for Appellant : Sri Aravala Ramarao

^ Counsel for 2

nd Respondent : Sri Naresh Byrapaneni

< Gist:

> Head Note:

? Cases referred:

1. 2014(2) SCC 735

2. (2002) 6 SCC 455

3. (2011) 13 SCC 236

4. (1965) 1 All ER 563

5. (2013) 8 SCC 389

6. (2022) 8 SCC 489

7. (2011) ACJ 1 (SC)

8. (2012) 8 SCC 604

9. 2009 ACJ 1298 (SC)

10. (2003) 2 SCC 274

11. 2019 ACJ 559 (SC)

This Court made the following:

3

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

M.A.C.M.A.No.136 of 2011

JUDGMENT:

This appeal has been preferred under Section 173 of Motor

Vehicles Act, 1988 (for short “the Act”) by the

appellant/claimant challenging the judgment and award dated

02.06.2006 delivered by the Motor Accidents Claims Tribunal-

cum-II Additional District Judge(Fast Track Court), Srikakulam

(for short “the Tribunal”) in M.V.O.P.No.228 of 2002 granting

compensation of Rs.32,000/- along with interest @ 7.5% per

annum from the date of petition till realization to the

appellant/claimant on account of the injuries sustained by him

in a road traffic accident, against both the respondents jointly

and severally.

2. For the sake of convenience, the parties are referred to as

they are arrayed before the Tribunal.

3. The brief facts, necessary for adjudication of the case, are

that a 43 years old – V.Durga Prasadarao (petitioner) was a

Sound and Radio Engineer and was drawing salary of

Rs.3,000/- per month at the time of the accident. On

27.01.2000 at 3.00 p.m., the petitioner along with Sasibhushan

Patnaik was proceeding on his motorcycle towards their village

4

and when they reached Haripuram Junction at 4.30 p.m., the

Trucker bearing No.AP 30-T-3587 driven by its driver came in an

opposite direction in a rash and negligent manner and dashed

the motorcycle due to which the petitioner, who is the rider of

the motorcycle had fallen and received crush injury to the ankle

and all over the body. He was shifted to the Government

Hospital, Palasa, for treatment. The matter was reported to the

Police alleging that the alleged accident took place as a result of

the rash and negligent driving of the said Trucker. Based on the

statement given by the petitioner/injured, Mandasa Police

registered a case in Crime No.10 of 2000 for the offence under

Sections 337 and 338 IPC. After investigation of the case, charge

sheet was submitted against the accused -driver (Ch.Venkata

Rao) for having committed the offence punishable under

Sections 337 and 338 IPC.

(ii) The petitioner/injured filed an application claiming

compensation of a sum of Rs.2,50,000/- before the Tribunal on

account of the injuries sustained by him in the said accident.

(iii) The 1

st respondent filed a written statement

contending inter alia that the averments of the petition are false.

It is further averred that the claims made under various heads

are all imaginary figures to gain wrongfully and in fact, the

5

driver of the offending vehicle was having valid driving licence

and the accident took place only due to the rash and negligent

driving of the motorcycle by its rider (petitioner). It is further

averred that the alleged accident took place in a busy locality

and there was no chance to drive the offending vehicle at a high

speed. It is further averred that the said Trucker was insured

with the 2

nd respondent and this respondent is not liable to pay

the compensation.

(iv) The 2

nd respondent/Insurance Company filed a

written statement denying all the allegations made in the

petition. It is contended inter alia that the driver of the 1

st

respondent was not having valid driving licence to drive the

offending vehicle. Hence, this respondent is not at all liable to

pay the compensation. It is further averred that the petitioner

and the 1

st respondent have to prove that the offending vehicle,

which involved in the accident, was covered by a valid insurance

policy by the date of the accident, otherwise, this respondent is

not liable to pay any compensation. Even if the policy is

established, this respondent is not liable to pay the

compensation unless it is proved that Section 64 VB of the

Insurance Act, 1939 and Rules 58/59 of the Insurance Rules,

1939 are complied with. The petitioner has to prove that he was

6

aged about 43 years and was working as a Sound Engineer

under self-employment and was getting Rs.3,000/- per month

etc. It is further averred that the compensation claimed by the

petitioner is excessive and prayed to dismiss the petition.

(v) In view of the pleadings of the parties, the Tribunal

framed the following issues:

(1) Whether the petitioner received injuries in the motor

accident that took place on 27.01.2000 at Ratti road

junction, Haripuram on NH-5 road, Mandasa Mandal

in which the Trucker bearing No.AP 30 T 3587 owned

by the 1

st respondent was involved?

(2) Whether the accident in question occurred only due to

the rash and negligent driving of the Trucker bearing

No.AP 30 T 3587 by its driver?

(3) Whether the petitioner is entitled for compensation?, if

so, to what amount and from which of the

respondents?

(4) To what relief?

(vi) In order to establish his claim, at the time of

enquiry, P.Ws.1 to 3 were got examined and Exs.A.1 to A.13 and

Ex.X.1 were got marked on behalf of the petitioner/claimant. No

oral evidence was adduced and no documents were marked on

behalf of the 1

st & 2

nd respondents.

(vii) On appreciation of the evidence of P.Ws.1 to 3 and

placing reliance on Exs.A.1 to A.13 i.e., Certified copies of FIR,

7

charge sheet, MVI report, Wound Certificate, Disability

Certificate, Medical Bills etc., the learned Tribunal was of the

view that the alleged accident occurred due to the collision

between two vehicles and the amount of compensation ought to

have been reduced by 50% payable to the claimant and passed

an award granting compensation of Rs.32,000/- with interest @

7.5% per annum and costs against the 1

st and 2

nd respondents

from the date of the claim till realization.

(viii) The breakup details of the compensation awarded by

the Tribunal, are tabulated hereunder:

S.No. Heads of compensation Amount of compensation

awarded in Rs.

1 Medical Expenses 15,000/-

2 Pain & Suffering 10,000/-

3 Loss of earnings 9,000/-

4 Incidental expenses 5,000/-

5 Permanent Disability 25,000/-

Total 64,000 /-

(ix) Since the accident occurred due to head-on collision

of two vehicles (motorcycle and Trucker), the amount of

compensation was reduced by 50% out of Rs.64,000/- payable

to the claimant. Accordingly, the Tribunal passed an award

granting compensation of Rs.32,000/- as stated supra.

(x) Aggrieved by, and dissatisfied with the said award

passed by the learned Tribunal, the petitioner/claimant

8

preferred the present appeal seeking enhancement of

compensation.

4. Learned counsel for the petitioner/claimant would submit

that, considering the evidence on record, the Tribunal ought to

have awarded higher compensation. Further, he would submit

that the claimant has preferred the instant appeal on the ground

that the findings recorded by the Tribunal are not sustainable in

the eye of law and the same suffer from an error apparent on the

face of the record. He would further submit that the finding of

the learned Tribunal in the matter of contributory negligence is

erroneous and the same is liable to be set aside. He would

further submit that, in the absence of any evidence to show that

the wrongful act on the part of the petitioner contributed either

to the accident or to the nature of the injuries sustained, he

could not have been held guilty of contributory negligence.

Hence, the reduction of 50% towards contributory negligence, is

clearly unjustified and the same has to be set aside. He would

further submit that the petitioner would have got more

compensation than the awarded amount and the amount of

compensation awarded by the Tribunal is not justified and called

for interference of this Court.

9

5. Learned Standing Counsel for the 2

nd respondent/New

India Assurance Company would submit that the Tribunal has

rightly assumed the income of the injured and calculated the

compensation amount accordingly and therefore, no interference

is required by this Court. He further argued that, since it was

head-on collision, the learned Tribunal reduced the amount upto

to 50% from the compensation. Further, he would submit that

the driver of the offending vehicle was not negligent in driving

the same. Even if it is held that the driver of the offending

vehicle drove the same rash and negligently, then it is a fit case

of contributory negligence as it was a head-on collision between

the motorcycle and the Trucker. Therefore, the learned Tribunal

has found the percentage of negligence as 50% and accordingly,

evaluated the compensation amount. He, therefore, prayed to

dismiss the appeal.

6. In the light of the above rival arguments, the points for

consideration in this appeal are:

1. Whether a finding of contributory negligence is to be

arrived at, by appreciating the evidence on record,

regarding the aspect whether the claimant or the

driver of the Trucker failed to take reasonable care

and caused the accident?

2. Whether the compensation awarded by the Tribunal

is just and reasonable in the facts and circumstances

of the case, or requires enhancement?

10

POINT No.1:

7. Considered the submissions of the learned counsels,

perused and assessed the entire evidence on record including

the exhibited documents. A perusal of the impugned award

would show that the Tribunal has framed the Issue No.2 as to

whether the accident in question occurred only due to rash and

negligent driving of the Trucker bearing No.AP 30 T 3587, by its

driver, to which, the Tribunal after considering the oral evidence

coupled with the documents, gave a finding on Issue No.2 at

Page No.4 of the judgment that as it was a case of head-on

collision of two vehicles, the amount of compensation has been

reduced by 50% payable to the claimant.

8. On perusal of the judgment, this Court is of the view that

the Tribunal committed an error in reduction of 50% towards

contributory negligence which is clearly unjustified, as there was

no evidence on record to show that the wrongful act on the part

of the injured contributed either to the accident or to the nature

of the injuries sustained by him. The petitioner/injured could

not have been held guilty of contributory negligence in cases

where the Police attributes the negligence against the driver of

one vehicle involved, unless there is any other independent

evidence adduced is available to prov e the contributory

11

negligence. The charge sheet was submitted by the Police under

Ex.A.2, after the investigation, holding that the driver of the

Trucker committed the offence.

9. The Hon‟ble Apex Court in Syed Sadiq & Others Vs.

Divisional Manager, United India Insurance Company

Limited,

1 at Para No.29 held as follows:

“29. On the matter of extent of contribution to the accident,

it is held by the Tribunal that the appellant claimants

herein should have taken utmost care while moving on the

highway. Looking at the spot of the accident, the Tribunal

concluded that the appellant claimants were moving on the

middle of the road which led to the accident. Therefore, the

Tribunal concluded that though the tractor has been

charge-sheeted under Sections 279 and 338 IPC, but given

the facts and circumstances of the case, the appellant

claimants also contributed to the accident to the extent of

25%. The High Court without assigning any reason

concurred with the findings of the Tribunal with respect to

contributory negligence. We find it pertinent to observe that

both the Tribunal and the High Court erred in holding the

appellant claimants in these appeals liable for contributory

negligence. The Tribunal arrived at the above conclusion

only on the basis of the fact that the accident took place in

the middle of the road in the absence of any evidence to

prove the same. Therefore, we are inclined to hold that the

contribution of the appellant claimants in the accident is not

proved by the respondents by producing evidence and

therefore, the finding of the Tribunal regarding contributory

1

2014 (2) SCC 735

12

negligence, which has been upheld by the High Court, is

set aside.”

10. In another decision in Pramodkumar Rasikbhai Jhaveri

Vs. Karmasey Kauvargi Tak and Others

2, the Hon‟ble Apex

Court at Para No.11 held as follows:

“11. It is important to note that the respondents did not

contend before the Tribunal that there was contributory

negligence on the part of the appellant, the driver of the car.

There was not even an allegation in the written statement

filed by the respondents that the car driver was negligent

and the accident occurred as a result of partial negligence

of the car driver. …………………….. In this factual situation,

the High Court was not justified in holding that there was

contributory negligence on the part of the

appellant….………… .”

11. In view of the principles laid down by the Hon‟ble Apex

Court, so far as the contributory negligence on the part of the

appellant/claimant is concerned, since the criminal case was

registered against the driver of the offending vehicle and he did

not turn up to explain in what circumstances the accident

occurred, a perusal of the evidence adduced by the

appellant/claimant reveals that the witnesses examined by the

appellant/claimant corroborated the fact in respect of the

accident. The offending vehicle driven by its driver

2

(2002) 6 SCC 455

13

Ch.Venkatarao was not disputed by the 1

st respondent/owner of

the offending vehicle. Respondent No.2/Insurance Company did

not examine any witnesses to rebut the evidence of t he

claimant/injured and the documents relating to the criminal

case pending against the driver of the offending vehicle and also

Ex.A.2/Certified copy of the charge sheet.

12. After going through the said charge sheet, it is apparent

that the investigating agency has found that the driver of the

Trucker bearing No.AP 30 T 3587 drove the same in a rash and

negligent manner and dashed against the motorcycle of the

petitioner/injured due to which he sustained injuries. The

Tribunal had arrived at a conclusion that it was head-on

collision. Unless there is any evidence to show that the head-on

collision was due to the contributory negligence of the

appellant/claimant or he was driving on the wrong side of the

road or did anything wrong, it cannot be held that the accident

occurred due to the contributory negligence of the

appellant/claimant. In a case of head-on collision, the finding

has to be recorded to the effect that the drivers of both the

vehicles have to be held responsible to have contributed equally

to the accident. In the present case, as stated above, there is no

spot map (rough sketch) to establish head-on collision of the

14

Trucker and the motorcycle. The accident took place in a broad

day light at 4.30 p.m. No independent witnesses have been

examined by the Insurance Company to establish the plea of the

contributory negligence. Merely because that there was a head-

on collision, it cannot be presumed that the drivers of both the

vehicles were equally responsible for the accident. Therefore, this

Court is of the view that the learned Tribunal was not justified in

holding that the appellant/claimant is liable for the said

accident. The finding of the contributory negligence shall stand

set aside.

13. In view of the principles laid down by Hon‟ble Apex Court

in the above judgments, the findings of the learned Tribunal are

found to be contrary to the settled principles of law in respect of

the contributory negligence of the appellant/injured. Therefore,

in the case on hand, the Tribunal went wrong in fixin g the

contributory negligence, in the absence of any evidence to show

that the wrongful act on the part of the appellant/claimant

contributed either to the accident or to the nature of the injuries

sustained, the appellant/claimant could not have been held

guilty of contributory negligence. Therefore, the reduction of 50%

towards contributory negligence is clearly unjustified without

support of any convincing and cogent evidence that too

15

overlooking the Police charge sheet under Ex.A.2. In view of the

matter, the finding entered into by the Tribunal fixing 50%

contributory negligence against the appellant/petitioner is illegal

and the same is accordingly set aside.

POINT No.2:

14. The next question is the quantum of compensation to

which the appellant/claimant is entitled to. Before considering

the said aspect, it is necessary to set out legal position as

emerging from the various judgments of the Hon‟ble Supreme

Court of India.

15. The Tribunal observed that the offending vehicle was

covered with the insurance policy and it was in force at the time

of the accident, which is evident from Ex.A.3/Motor Vehicle

Inspector‟s Report. The description of the vehicles incurred in

the accident was shown in Column No.5 of Ex.A.3/MVI Report.

At Column No.15 - the date of expiry of the insurance, name and

address of the Insurance Company, it was mentioned that the

Insurance Company‟s cover note No.25917 (comp) of the New

India Assurance Company Limited from 20.03.1999 to

19.03.2000 and in Column No.17 the particulars of the driver‟s

licence was mentioned as DL No.2540/98/SKL/V/L:

21.08.2001, LA/SKL. Though the policy of the vehicle was not

16

produced by either of the parties, it is evident from Ex.A.3/MVI

Report that the insurance policy was in existence as on the date

of the accident and the driver of the offending vehicle was

possessing valid driving licence till 21.08.2001.

16. The Tribunal, while assessing the compensation payable to

the claimant, has not taken into consideration of his monthly

earnings, though he pleaded in the claim petition that he was

working as a Sound and Radio Engineer and earning Rs.3,000/-

per month and he lost his income due to the injuries sustained

by him and he was affected with the permanent disability. In

support of his contention, he has not produced any

documentary proof to show that he was a Sound and Radio

Engineer and was earning Rs.3,000/- per month. In the absence

of any material evidence, this Court is of the view that the

appellant/injured can be treated as a skilled labourer and his

monthly income as on the date of the accident has to be taken

into consideration, as per the decision of the Hon‟ble Apex Court

in Ramachandrappa Vs. Manager, Royal Sundaram

Alliance Insurance Company Limited ,

3 wherein, at Para

Nos.13 & 15, it was held as follows:

3

(2011) 13 SCC 236

17

“13. In the instant case, it is not in dispute that the

appellant was aged about 35 years and was working as a

Coolie and was earning Rs.4500/- per month at the time of

accident. This claim is reduced by the Tribunal to a sum of

Rs.3000/- only on the assumption that wages of the

labourer during the relevant period viz., in the year 2004,

was Rs.100/- per day. This assumption in our view has no

basis. Before the Tribunal, though Insurance Company

was served, it did not choose to appear before the Court

nor did it repudiated the claim of the claimant. Therefore,

there was no reason for the Tribunal to have reduced the

claim of the claimant and determined the monthly earning

a sum of Rs.3000/- per month. Secondly, the appellant

was working as a Coolie and therefore, we cannot expect

him to produce any documentary evidence to substantiate

his claim. In the absence of any other evidence contrary to

the claim made by the claimant, in our view, in the facts of

the present case, the Tribunal should have accepted the

claim of the claimant.

14…………….

15. In the present case, appellant was working as a Coolie

and in and around the date of the accident, the wage of the

labourer was between Rs.100/- to Rs.150/- per day or

Rs.4500/- per month. In our view, the claim was honest

and bonafide and, therefore, there was no reason for the

Tribunal to have reduced the monthly earning o f the

appellant from Rs.4500/- to Rs.3000/- per month. We,

therefore, accept his statement that his monthly earning

was Rs.4500/”.

17. In the instant case, it is crystal clear that the accident

occurred in the year 2000. The wages of a labourer was between

Rs.100/- to Rs.150/- per day or Rs.3,000/- to Rs.4,500/- per

18

month. Therefore, following the parameters laid down by the

Hon‟ble Apex Court in Ramachandrappa’s case (supra), this

Court is of the considered opinion that the appellant/claimant,

who claimed himself to be a Sound and Radio Engineer, can be

treated as a skilled labourer. But, in the absence of material

evidence to that effect, the claimant‟s notional income can be

safely fixed @ Rs.3,000/- per month. In the above judgment,

since the accident occurred in the year 2004, the Hon‟ble Apex

Court has fixed the notional income at Rs.4,500/- per month.

Whereas, in the instant case, since the accident occurred in the

year 2000, the notional income of the appellant/injured can

safely be fixed at Rs.3,000/- per month, which is just and

reasonable. There is no reason for the Tribunal for not

considering the monthly income of the injured, while

determining the compensation.

18. It is a well settled principle that while determining the

compensation payable to petitioner/claimant in the claim filed

under the Motor Vehicles Act, 1988, this Court referred to the

judgment of the Court of Appeal in Ward Vs. James

4 Halsbury‟s

Laws of England, 4

th Edition, Volume 12 (Page 446) wherein, it

was held as follows:

4

(1965) 1 All ER 563

19

“When compensation is to be awarded for pain and

suffering and loss of amenity of life, the special

circumstances of the claimant have to be taken into

account including his age, the unusual deprivation he

has suffered, the effect thereof on his future life. The

amount of compensation for non-pecuniary loss is not

easy to determine but the award must reflect that

different circumstances have been taken into

consideration”.

19. Further, it is relevant to refer to the judgment of the

Hon‟ble Apex Court in Rekha Jain Vs. National Insurance Co.

Ltd.,

5 wherein, at Para No.40, it was held as follows:

“40. It is well settled principle that in granting

compensation for personal injury, injured has to be

compensated (1) for pain and suffering (2) for loss of

amenities, (3) shortened expectation of life, if any, (4)

loss of earnings or loss of earning capacity or in some

cases for both, and (5) medical treatment and other

special damages”.

20. It is relevant to refer to the judgment of the Hon‟ble Apex

Court in Abhimanyu Pratap Singh Vs. Namita Sekhon and

another

6 wherein, at Para Nos.11, 12 and 13 it was held as

follows:

11. In Philipps v. London & South Western Railway

Co. [Philipps v. London & South Western Railway Co. ,

5

(2013) 8 SCC 389

6

(2022) 8 SCC 489

20

(1879) LR 5 QBD 78 (CA)] , it was held that by making a

payment of compensation for the damages, the court cannot

put back again the claimant into his original position. On

the date of determination of the compensation, he is being

compensated but he cannot sue again, therefore, the

compensation must be full and final while determining the

same.

12. In Mediana, In re [Mediana, In re, 1900 AC 113

(HL)] , it is said that the determination for an amount of

compensation to the damages is an extreme task. What

may be adequate amount for a wrongful act and can it be

compensated by money, particularly towards pain and

suffering. By an arithmetical calculation, it cannot be

decided what may be the exact amount of money which

would represent the pain and suffering to a person, but as

per recognised principles, damages must be paid.

13. In H. West & Son Ltd. v. Shephard [H. West & Son

Ltd. v. Shephard, 1964 AC 326 : (1963) 2 WLR 1359 (HL)] ,

it was held that payment of compensation in terms of

money may be awarded so that something tangible may be

procured to replace something else of the like nature which

has been destroyed or lost. But money cannot renew a

physical frame that has been battered and shattered,

however the courts must consider to award sums, which

may be reasonable. Simultaneously, uniformity in the

general method of approach is also required. Thereby,

possible comparable injuries can be compensated by

comparable awards……….”

21. If the above judgments are read together, the issue of

adequacy and grant of just and reasonable amount of

compensation requires consideration is what should be the basis

21

for determination and what may be reason for awarding such

compensation. Applying the uniform methodology for

determination of compensation, comparable to the injuries,

thereby a person, can lead his life though his physical frame

cannot be reversed. In the present case of nature, the learned

Tribunal awarded compensation contrary to the Hon‟ble Apex

Court‟s judgments, which is not just and reasonable.

22. In the instant case, the injured sustained 40% disability as

per Ex.A.13/Disability Certificate dated 28.01.2006 issued by

P.W.3-Dr.B.Udaya Kumar, Associate Professor of Orthopedics,

K.G.Hospital, Visakhapatnam, and who treated the injured,

deposed that on 28.01.2006 he has examined the

appellant/claimant and found that he sustained compound

dislocation of right ankle and he estimated the disability at 40%

and the disability is permanent in nature. He further deposed

that he treated the patient from 04.02.2000 to 04.03.2000 at

St.Joseph Hospital, Visakhapatnam. He was treated by external

fixation on 17.02.2000. Subsequently, skin grafting was done

on 26.02.2000. Ex.X.1 is the case sheet and Ex.A.4 is the

Wound Certificate. The appellant/injured produced

Ex.A.4/Wound Certificate issued by Dr.Jagannadham, Civil

Assistant Surgeon, Palasa, who treated the injured. On perusal

22

of Ex.A.4/Wound Certificate, it is noted the following injuries. 1.

Fracture Dislocation of Tibia and Fibula from the ankle joint

open crush injury. 2. Lacerated injury 3 cm over right parietal

region. He opined that Injury No.1 is grievous and Injury No.2 is

simple in nature.

23. A perusal of the evidence of P.W.3 coupled with

Ex.A.4/Wound Certificate and Ex.A.13/Disability Certificate,

shows that the injured sustained 40% disability .

Ex.A.13/disability certificate was issued by P.W.3 but not by the

Medical Board. Mere non-issuance of Disability Certificate by the

Medical Board, Ex.A.13 cannot be discarded and it can be taken

into consideration. So far as the income of the appellant/injured

is concerned, the learned Tribunal committed an error while

evaluating the future earnings without taking into consideration

of his notional income at Rs.3,000/- per month. Therefore, the

award passed by the Tribunal needs to be modified under the

head of loss of earning capacity by following the judgment of the

Hon‟ble Apex Court in Raj Kumar Vs. Ajay Kumar

7.

24. However, it may be appropriate to mention here, while

laying down the legal position with regard to awarding

compensation under the Motor Vehicles Act, the case of Kavita

7

2011 ACJ 1 (SC)

23

Vs. Deepak and Others

8 wherein, the Hon‟ble Apex Court relied

on the judgment in the case of Raj Kumar (supra), to award

compensation. At this juncture, it is relevant to refer to Raj

Kumar’s case (supra) wherein, at Para Nos.4, 5 & 9, it was held

as follows:

“4. The provision of the Motor Vehicles Act, 1988 (`Act' for

short) makes it clear that the award must be just, which

means that compensation should, to the extent possible,

fully and adequately restore the claimant to the position

prior to the accident. The object of awarding damages is to

make good the loss suffered as a result of wrong done as

far as money can do so, in a fair, reasonable and equitable

manner. The court or tribunal shall have to assess the

damages objectively and exclude from consideration any

speculation or fancy, though some conjecture with

reference to the nature of disability and its consequences,

is inevitable. A person is not only to be compensated for

the physical injury, but also for the loss which he suffered

as a result of such injury. This means that he is to be

compensated for his inability to lead a full life, his inability

to enjoy those normal amenities which he would have

enjoyed but for the injuries, and his inability to earn as

much as he used to earn or could have earned. (See

C.K.Subramonia Iyer Vs. T.Kunhikuttan Nair – AIR 1970

SC 376, R.D.Hattangadi Vs. Pest Control (India) Ltd. –

1995 (1) SCC 551 and Baker Vs. Willoughby – 1970 AC

467)

5. The heads under which the compensation need to be

awarded in personal injury cases as under:

Pecuniary Damages (Special Damages)

(i) Expenses relating to treatment, hospitalization,

medicines, transportation, nourishing food, and

miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured

would have made had he not been injured,

comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent

disability.

(iii) Future medical expenses.

8

(2012) 8 SCC 604

24

Non-pecuniary damages (General damages):

(iv) Damages for pain, suffering and trauma as a

consequence of the injuries.

(v) Loss of amenities (and / or loss of prospects of

marriage)

(vi) Loss of expectation of life (shortening of normal

longevity)

In routine personal injury cases, compensation will

be awarded only under heads (i), (ii) (a) and (iv). It is

only in serious cases of injury, where there is specific

medical evidence corroborating the evidence of the

claimant, that compensation will be granted under

any of the heads (ii)(b), (iii), (v) and (vi) relating to loss

of future earnings on account of permanent

disability, future medical expenses, loss of amenities

(and/or loss of prospects of marriage) and loss of

expectation of life. Assessment of pecuniary

damages under item (i) and item (ii)(a) do not pose

much difficulty as they involve reimbursement of

actual and are easily ascertainable from the

evidence. Award under the head of future medical

expenses – item (iii) – depends upon specific medical

evidence regarding need for further treatment and

cost thereof. Assessment of non-pecuniary damages

– items (iv), (v) and (vi) – involves determination of

lump sum amounts with reference to circumstances

such as age, nature of injury/deprivation/disability

suffered by the claimant and the effect thereof on the

future life of the claimant. Decision of this Court and

High Courts contain necessary guidelines for award

under these heads, if necessary. What usually

poses some difficulty is the assessment of the loss of

future earnings on account of permanent disability –

item (ii)(a). We are concerned with that assessment

in this case. Assessment of future loss of earnings

due to permanent disability.

6. ……….

7. ….…….

8. ….……

9. Therefore, the Tribunal has to first decide whether

there is any permanent disability and if so the extent

of such permanent disability. This means that the

tribunal should consider and decide with reference to

the evidence: (i) whether the disablement is

permanent or temporary; (ii) if the disablement is

permanent, whether it is permanent total

disablement or permanent partial disablement, (iii) if

the disablement percentage is expressed with

25

reference to any specific limb, then the effect of such

disablement of the limb on the functioning of the

entire body, that is the permanent disability suffered

by the person. If the Tribunal concludes that there is

no permanent disability then there is no question of

proceeding further and determining the loss of future

earning capacity. But if the Tribunal concludes that

there is permanent disability then it will proceed to

ascertain its extent. After the Tribunal ascertains the

actual extent of permanent disability of the claimant

based on the medical evidence, it has to determine

whether such permanent disability has affected or

will affect his earning capacity.”

25. In the present case, the Tribunal committed an error in

not applying the multiplier in view of the principles laid down in

Sarla Verma Vs. Delhi Transport Corporation

9, wherein, it was

held at Para-21, as under:

“21. We therefore hold that the multiplier to be used

should be as mentioned in column (4) of the Table above

(prepared by applying Susamma Thomas, Trilok Chandra

and Charlie), which starts with an operative multiplier of

18 (for the age groups of 15 to 20 and 21 to 25 years),

reduced by one unit for every five years, that is M-17 for

26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40

years, M-14 for 41 to 45 years, and M-13 for 46 to 50

years, then reduced by two units for every five years, that

is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for

61 to 65 years and M-5 for 66 to 70 years.”

26. The Claims Tribunal committed an illegality in awarding a

meager amount of compensation payable to the claimant

without following the decisions rendered by the Hon‟ble Apex

Court stated supra.

9

2009 ACJ 1298 (SC)

26

27. The Tribunal erred in awa rding compensation under

various conventional heads. As per the decision in Raj Kumar

case (supra), loss of future earnings and the loss of earning

capacity have to be assessed on the basis of the evidence. The

claimant, was a skilled labour by the date of the accident. As per

the judgment in Ramachandrappa’s case (supra), in my view, the

claim was honest and bona fide. Therefore, the notional income

of the appellant/injured is fixed @ Rs.3,000/- per month as

stated supra, at the time of the accident. The Tribunal has failed

to consider the appropriate income of the claimant and did not

award just and reasonable compensation under different heads.

As such, it would be appropriate to consider the quantum by

taking a sum of Rs.3,000/- per month as the income of the

injured at the time of the accident.

28. The Disability Certificate issued by P.W.3(Doctor) under

Ex.A.13 shows 40% disability. But, it was not issued by the

Medical Board. There may be variation of 10% not exceeding

above. Therefore, it should be taken into consideration of the

disability of the appellant at 30%. In view of the suggestion put

to P.W.3 by the counsel for the Insurance Company that the

appellant/injured cannot move without assistance, but with the

help of stick he can walk. Therefore, considering the evidence of

27

P.W.3 and Ex.A.13/disability certificate, taking 30% disability of

the appellant would be just and reasonable. Thus, the

calculation of compensation towards loss of future earnings, as

per the judgment of the Hon‟ble Supreme Court of India in Raj

Kumar’s case will be as follows:

a) Annual income before the accident …. Rs.36,000/-

b) Loss of future earnings per annum

(30% of the prior annual income) …. Rs. 10,800/-

c) Multiplier applicable with reference

to age (appellant‟s age was 43 years

at the time of the accident) …. 14

d) Loss of future earnings (10,800 x 14) ….Rs.1,51,200/-

29. Therefore, the appellant/claimant is entitled to an amount

of Rs.1,51,200/- towards loss of future earnings.

30. The Tribunal awarded an amount of Rs.15,000/- towards

medical expenses. The Tribunal has committed an error while

awarding compensation under Medical Expenses actually which

was spent by the claimant. He produced medical bills under

Exs.A.6 and A.8 showing that he spent an amount of

Rs.63,167/-. The appellant/claimant, who was skilled labour is

not supposed to be that much of meticulous so as to maintain

the bills for any future use. The claimant has remained in the

hospital on two occasions for a total period of more than one

28

month and he must have incurred more expenses. Therefore, the

claimant has been awarded Rs.1,50,000/ - towards medical

expenses as he sustained crush injury and skin grafting was

done by the Doctor while operating the right ankle. Therefore,

the appellant is entitled to an amount of Rs.1,50,000/- against

Rs.15,000/-. The compensation under the head of medical

expenses is enhanced from Rs.15,000/- to Rs.1,50,000/-.

31. The Tribunal ought to have awarded compensation

towards loss of amenities as the person who is suffering

permanent disability at 30% cannot lead a normal life. P.W.3

(Doctor), who treated him, stated that the patient could not walk

freely without the help of a stick. The compensation is only the

means to grant some support for the loss he suffered with which

he is expected to live for the rest of his life. By making a

payment of compensation for damages, the Court cannot be put

back again the claimant into his original position. On the date

of determination of compensation, he is being compensated but

he cannot sue again. Therefore, this Court is of the view that

Rs.1,00,000/- has to be awarded towards the loss of amenities

of life.

32. Further, the Tribunal has not awarded any amount

towards loss of earnings for the period of treatment. The

29

accident occurred on 27.01.2000. He underwent treatment as

inpatient for one month i.e., from 04.02.2000 to 04.03.2000 and

normally the patient was advised two months bed rest because

skin grafting was done to the crush injury. Altogether, for three

months, he lost his earnings. By taking into consideration the

evidence, the loss of earnings for three months (90 days) as

stated above, would come to Rs. 9,000/- (Rs.3,000 x 3 =

Rs.9,000/-). As such, the petitioner/claimant is entitled to an

amount of Rs.9,000/- under the head of „loss of earnings‟.

33. Apart from that, the amount under another conventional

head i.e., Attendant Charges needs to be awarded to the injured,

as the Tribunal has not awarded any amount towards attendant

charges. Since the injured was hospitalized for one month and

he has to take bed rest for two months. As such, the attendant

may also loss his earnings for the said period of treatment and

bed rest of the injured. Therefore, the petitioner/claimant is

entitled to an amount of Rs.9,000/- (Rs.3,000 x 3) towards

attendant charges. Hence, an amount of Rs.9,000/- towards

attendant charges deserves to be granted to the claimant.

34. The Tribunal has not awarded any amount towards extra

nourishment and transportation. This Court is of the view that

30

Rs.25,000/- is sufficient for transportation and extra

nourishment.

35. In the instant case, the Tribunal has awarded

compensation of Rs.10,000/- towards pain and suffering. It

needs to be enhanced to Rs.1,00,000 /- as the injured was

operated for dislocation of his right ankle and skin grafting was

done, definitely he would have suffered a lot. The sufferance of

injured cannot be compensated in terms of money. Therefore,

the compensation under the head of pain and suffering is

enhanced from Rs.10,000/- to Rs.1,00,000/-.

36. In Sarla Verma’s case (supra) the Hon‟ble Apex Court,

while elaborating the concept of „just compensation‟ observed as

under:

“Just compensation is adequate compensation which is

fair and equitable, on the facts and circumstances of the

case, to make good the loss suffered as a result of the

wrong, as far as money can do so, by applying the well

settled principles relating to award of compensation. It is

not intended to be a bonanza, largesse or source of

profit.”

37. On an overall re-appreciation of the pleadings, material on

record and the law laid down by the Hon‟ble Supreme Court in

the afore-cited decisions, I am of the definite opinion that the

appellant/claimant is entitled to enhancement of compensation

31

as modified and recalculated above and given in the table below

for easy reference.

S.No Name of the Head Enhanced/Reduced by

this Court in Rs.

1 Loss of future

earnings

1,51,200/-

2 Medical Expenses &

Cost of Medicines

1,50,000/-

3 Loss of amenities 1,00,000/-

4 Loss of earnings

during the period of

treatment & rest

9,000/-

5 Attendant Charges 9,000/-

6 Transportation &

Extra Nourishment

25,000/-

7 Pain & Suffering 1,00,000/-

Total 5,44,200/-

(-) Compensation awarded

By the Tribunal

32,000/-

Enhanced amount 5,12,200/-

38. As per the decision of the Hon‟ble Supreme Court of India

in the case of Nagappa Vs. Gurudayal Singh and

others

10, under the provisions of the Motor Vehicles Act, 1988,

there is no restriction that compensation could be awarded only

up to the amount claimed by the claimant. In an appropriate

case where from the evidence brought on record, if Tribunal

/Court considers that claimant is entitled to get more

compensation than claimed, the Tribunal may pass such award.

There is no embargo to award compensation more than that

10

(2003) 2 SCC 274

32

claimed by the claimant. Rather it is obligatory for the Tribunal

and Court to award “just compensation”, even if it is in the

excess of the amount claimed. The Tribunals are expected to

make an award by determining the amount of compensation

which should appear to be just and proper. In the present case,

the compensation as awarded by the Claims Tribunal, against

the background of the facts and circumstances of the case, is

not just and reasonable and the claimant is entitled to more

compensation though he might not have claimed the same at the

time of filing of the claim petition.

39. Therefore, in view of the foregoing discussion, this Court is

of the opinion that the award passed by the Tribunal warrants

interference and thereby enhanced the compensation from

Rs.32,000/- to Rs.5,44,200/-.

40. Resultantly, the appeal is allowed with costs and the

compensation amount is enhanced from Rs. 32,000/- to

Rs.5,44,200/- along with interest @ 7.5% per annum from the

date of filing of the claim petition till the date of realization,

against the Respondents 1 and 2 jointly and severally.

(ii) Respondents 1 and 2 are directed to deposit the

compensation amount within two mo nths from the date of this

33

judgment, failing which execution can be taken out against

them.

(iii) The appellant/claimant is directed to pay the

requisite Court-fee in respect of the enhanced amount awarded

over and above the compensation claimed (As per the judgment

of Hon‟ble Apex Court in Ramla Vs. National Insurance

Company Limited

11).

(iv) On such deposit, the claimant is permitted to

withdraw the entire amount with accrued interest and costs, by

filing a proper application before the Tribunal.

(v) The impugned award of the learned Tribunal stands

modified to the aforesaid extent and in the terms and directions

as above.

(vi) The record be sent back to the Tribunal within three

weeks from this day.

(vii) As a sequel, interlocutory applications pending for

consideration, if any, shall stand closed.

JUSTICE DUPPALA VENKATA RAMANA

04.07.2023

Dinesh

Mjl/*

L.R.Copy to be marked

11

2019 ACJ 559 (SC)

34

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

M.A.C.M.A.No.136 OF 2011

04.07.2023

Dinesh

Mjl/*

L.R.Copy to be marked