Partly allowed

A.Sudershan Rao v. Sreenivas Agarwal

Telangana HC16 Nov 2012CMA/2456/2003

Case brief

AI extract

What is this about?

In this motor accident compensation appeal, the court enhanced the awarded amount from Rs. 2,27,370 to Rs. 3,37,390. The judgment fixed a functional disability at 30%, calculated loss of future income based on 1998-99 tax returns, and added compensation for pain, suffering, and minor injuries.

What did the court decide?

Compensation enhanced to Rs.3,37,390/- with 6% interest; respondents 1 and 2 jointly and severally liable.

A.Sudershan Rao Vs Sreenivas Agarwal — Contract and Commercial Disputes | Telangana HC (2012)

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HON’BLE SRI JUSTICE K.G.SHANKAR Civil Miscellaneous Appeal No.2456 of 2003

Date: 16-11-2012

Between

A.Sudershan Rao

… Appellant/ Petitioner

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and

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M/s Agarwal Stationeries and Binders, Rep. by Sreenivas Agarwal, Hyderabad; and 3 others

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… Respondents/ Respondents

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HON’BLE SRI JUSTICE K.G.SHANKAR Civil Miscellaneous Appeal No.2456 of 2003

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Judgment:

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Compensation at Rs.2,27,370/- together with interest at 9% per annum was awarded by the learned Additional Special Judge for SPE & ACB Cases cum

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V Additional Chief Judge, City Civil Court, Hyderabad, when the sole claimant sought for compensation at Rs.4,00,000/- for the injuries sustained by him in a vehicular accident. Compensation at Rs.1,40,400/- and at Rs.86,970/- totalling Rs.2,27,370/- was awarded by the trial Court under the heads of compensation towards loss

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of future income with 30% disability and actual medical expenditure respectively. Claiming that the compensation is liable to be awarded at Rs.4,00,000/-, this appeal was preferred by the claimant.

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2. On 08-3-1999, the claimant (P.W.1) was proceeding from Hyderabad to Siddipet in the Maruthi Van owned by the 3^rd respondent bearing registration No.AP 12B 7860. Mohammed Amjad (P.W.2) was driving the Maruthi Van. At about 4.30 p.m., at the outskirts of Doddeda village on Rajiv Gandhi Rahadari, a Matador Van bearing registration No.ABT 4373 approached from the opposite direction. The 1^st respondent is the owner of the Matador Van. The 2^nd respondent was the insurer thereof. Statedly the driver of the Matador Van drove the Van in a rash and negligent manner and hit the Maruthi Van. The claimant sustained injuries to his right hand and his head in the accident. He was initially treated at the Osmania General Hospital, Hyderabad. He later underwent treatment at Premier Hospital, Hyderabad, and still later he underwent treatment at Sai Vani Hospital, Hyderabad. The claimant contended that he suffered partial permanent disability and claimed compensation at Rs.4,00,000/-.

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3. The 1^st respondent-owner of the Matador Van remained ex parte. The 2^nd respondent-insurer of the

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Van contended that the driver of the Van did not hold valid and effective driving licence, that the vehicle was not roadworthy at the time of the accident, that the

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1^st respondent thus violated the terms and conditions of the policy and that the 2^nd respondent consequently was not liable to answer the claim. The respondents 3 and 4 claimed that the accident was due to the rash and negligent driving of the driver of the Matador Van, who was in a drunken condition and that there was no liability on the part of the Maruthi Van, its driver, owner and insurer.

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4. The claimant examined himself as P.W.1. He also examined the driver of the Maruthi Van as P.W.2. Ex.A-1 is the First Information Report lodged by P.W.2. P.Ws.1 and 2 claimed that the accident was due to the rash and negligent driving of the driver of the Matador Van. The trial Court accepted the same and held that the accident was due to the rash and negligent driving of the driver of the Matador Van and that the respondents 1 and 2 alone were jointly and severally liable to answer the claim. There is no cross appeal either by the

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1^st respondent or by the 2^nd respondent. I therefore am bound by the finding in the award that the accident was due to the rash and negligent driving of the driver of the offending Matador Van. Indeed, there is no scope for a different view in the light of the evidence of P.Ws.1 and 2 supported by Exs.A-1 and A-2. I consequently

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conclude and agree with the view of the trial Court that the accident was due to the rash and negligent driving of the driver of the offending Matador Van owned by the 1^st respondent and insured with the 2^nd respondent.

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5. The controversy is regarding the quantum of compensation. The claimant who preferred this appeal sought for compensation at Rs.4,00,000/- on the basis of the available evidence. The claimant is a florist. It is his case that he has been running a flower shop under the name and style of Golden Flower Stall, at Osmangunj, Hyderabad. Added to it, he is a tax assessee. Exs.A-8 to A-12 are the Income Tax Returns of the claimant for the years 1998-99 till 2001-02. As the accident occurred during March, 1999, the Income Tax Returns for 1998-99 under Ex.A-8 is the appropriate Income Tax Returns.

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6. The income shown in Exs.A-8 to A-12 under the head of business income are Rs.47,800/-, Rs.29,996/-, Rs.32,810/-, Rs.37,780/- and Rs.28,640/- respectively. It may be noticed that the business income after the accident dwindled from year to year. Certainly this is a factor to show that the accident has a telling effect upon the income of the claimant.

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7. However, the main question is as to what shall be taken as income of the claimant. Sri P.Bhanu Prakash, learned Standing Counsel for the 2^nd respondent-insurer,

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contended that the income under Ex.A-12 at Rs.28,640/shall be computed to be the income of the claimant.

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I do not agree with this view. Ex.A-12 relates to the income for the year 2001-02 whereas Ex.A-8 is the income of 1998-99 which is for the relevant period. Consequently, the income of the claimant shall be accepted as shown in Ex.A-8. While Ex.A-8 disclosed the income as Rs.47,800/- towards business income, the trial Court determined the income at Rs.36,000/- and proceeded with the calculation. Sri Mohammed Shakeel Ahmed Ansari, learned counsel for the claimant, contended that the income of the claimant ought to have been worked out at Rs.47,800/- in view of Ex.A-8. I wholly agree with this contention of the learned counsel for the claimant.

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8. The claimant also suggested that he was an agriculturist and that he suffered loss on account of the injuries sustained by him. Exs.A-8 to A-12 show not only business income but also agricultural income. There is increase of agricultural income from the relevant period as shown in Ex.A-8 at Rs.1,32,000/- to Rs.1,60,800/- for the assessment year 2002-03. Thus, there is no loss in the agricultural income. The claimant failed in showing that he suffered loss of income from the agricultural activity. In view of this situation, no further amount deserves to be added to Rs.47,800/- towards the income of the claimant.

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9. The birthday of the claimant was shown as 08-12-1953 in Ex.A-8. The accident occurred on 08-3-1999. The claimant consequently was 46 years old at the time of the accident. When the claimant was 46 years old, it would be appropriate to apply multiplier ‘13’. The trial Court indeed applied multiplier 13 in effecting calculation in this case.

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10. Regarding the partial permanent disability, the claimant examined P.W.3. P.W.3 is an Orthopaedic Surgeon in the Osmania General Hospital, Hyderabad, where the claimant underwent initial treatment. That apart, P.W.3 issued Ex.A-13 disability certificate opining that the claimant suffered 50% disability. Inter alia, the learned Standing Counsel for the

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2^nd respondent-insurer contended that the evidence of P.W.3 regarding the disability of the claimant does not deserve to be accepted where P.W.3 was not the doctor who treated the claimant throughout the period of ailment of the claimant. In fact, the claimant underwent treatment at 3 hospitals. I am afraid that it is not necessary for the claimant to examine all the 3 doctors from the 3 hospitals to prove the rate of disability that the claimant suffered. In

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V.Ramesh v. N.Raja Reddy^[1] , this Court held that the opinion of a doctor who examined the injured, regarding the rate of disability can be accepted without insisting that the opinion must be by the doctor who treated the injured.

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At any rate, P.W.3 treated the claimant at the outset. The evidence of P.W.3 therefore deserves to be accepted.

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11. P.W.3 deposed that the claimant suffered 50% disability holding that the claimant suffered serious disability of his right hand and that the claimant is no more able to write, eat or perform his normal routine activities with his right hand and that the claimant would not be able to lift objects with his right hand. In that background, P.W.3 certified the disability at 50%.

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12. As rightly contended by the learned Standing Counsel for the 2^nd respondent-insurer, it is not the medical disability but the functional disability, which shall determine the rate of disability in a petition under Section 166 of the Motor Vehicles Act, 1988. Where the claimant is a florist, the disability referred to above deserves to be reduced. The trial Court determined the rate of disability at 30%. I see no reason to disagree with the view of the trial Court in the determination of the rate of disability. Accordingly, the rate of disability of the claimant is determined at 30%. If the annual income of the claimant is Rs.47,800/- and the multiplier applicable is 13, multiplication of Rs.47,800/with 13 would give Rs.6,21,400/-. As the disability is 30% thereof, reducing the same to 30% would be Rs.1,86,420/-. The trial Court awarded compensation at Rs.1,40,400/-. Where the income of the claimant is calculated at Rs.47,800/-, the

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claimant is entitled to compensation at Rs.1,86,420/towards partial permanent disability.

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13. Regarding medical expenses, the medical bills under Exs.A-4 and A-5 is Rs.86,970/-. The claimant is entitled to the same as awarded by the trial Court.

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14. Unfortunately, the trial Court awarded compensation under these two heads only and did not award compensation under any other head.

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The claimant sustained compound fracture of both the bones of the right forearm. He also sustained compound fracture of the humerus. For the compound fracture of the humerus, the claimant deserves to be awarded compensation at Rs.25,000/towards pain and sufferance. For compound fracture of both the bones of the right forearm, Rs.30,000/- deserves to be awarded as compensation towards pain and sufferance. P.W.3 also referred to two other injuries, which are simple in nature. The claimant is entitled to Rs.3,000/- for each of the two simple injuries and at Rs.6,000/- in all. Consequently, the claimant is entitled to compensation at Rs.61,000/towards pain and sufferance. Where the claimant was 46 years old at the time of the accident, I deem it appropriate to award compensation at Rs.2,000/- towards extra nourishment. Where the injuries are only to the upper extremities, compensation at Rs.1,000/- deserves to be awarded towards transport charges.

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15. The learned counsel for the claimant, however, contended that while the claim was made before the trial Court on 29-9-1999, it was disposed of on 27-02-2003. Nearly 42 months elapsed between the date of the filing of the case and the disposal of the same. The claimant sought for compensation at Rs.47,800/- per annum for 42 months towards loss of income. I am afraid that such a contention cannot be countenanced. There is no evidence that the claimant stopped conducting his business. On the other hand, Exs.A-8 to A-12 show that the claimant continued in his business. Consequently, the claimant is not entitled to any amount towards loss of income on account of his inability to go to work.

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The claimant accordingly is entitled to compensation at:

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(a) Compensation towards partial permanent disability	… Rs.1,86,420/-
(b) Compensation towards medical expenses	… 86,970/-
(c) Compensation towards pain and sufferance	… 61,000/-
(d) Compensation towards extra nourishment	… 2,000/-
(e) Compensation towards transport charges Total …	… 1,000/- ------------------ Rs.3,37,390/- ------------------

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16. As the accident was in 1999 and the claim itself

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was made in 1999, the claimant shall be entitled to interest at 6% per annum only from the date of the petition till deposit.

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17. Accordingly, the appeal is allowed in part enhancing compensation to Rs.3,37,390/- (Rupees three lakhs, thirty seven thousand, three hundred and ninety only) together with interest at 6% per annum from the date of the petition till deposit. The respondents 1 and 2 alone are jointly and severally liable to satisfy the claim. The claim is not maintainable against the respondents 3 and 4. The respondents 1 and 2 shall deposit the awarded amount within one month from today.

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18. Taking the medical expenses into consideration, after deposit, the claimant shall be entitled to withdraw Rs.1,00,000/- (Rupees one lakh only) at the first instance. The balance shall lie in Fixed Deposit.

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The claimant shall be entitled to withdraw the balance in instalments at Rs.75,000/- (Rupees seventy five thousand only) once in two years. As the last instalment, the claimant shall be entitled to withdraw the balance together with accrued interest. In case of any urgency for withdrawal, the claimant may approach the trial Court in which event, the trial Court shall determine such a question. The appeal is accordingly allowed in part without costs.

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__________________ K.G.SHANKAR, J.

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16^th November, 2012. Ak

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HON’BLE SRI JUSTICE K.G.SHANKAR

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Civil Miscellaneous Appeal No.2456 of 2003 (Judgment)

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th 16 November, 2012. (Ak)

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[1] 1997 (4) ALT 753

A.Sudershan Rao v. Sreenivas Agarwal

Case brief

What is this about?

What did the court decide?

A.Sudershan Rao v. Sreenivas Agarwal

Case brief

What is this about?

What did the court decide?

What the court decided

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