Partly allowed

Mohd Ilyas Khan v. Syed Khaleelulla Khadry

Telangana HC1 Nov 2013MACMA/398/2005

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by an injured lorry cleaner seeking enhancement of compensation awarded by the Motor Accidents Claims Tribunal. The Court enhanced the award from Rs. 55,000 to Rs. 1,10,000 based on a 10% disability assessment and adjusted the interest rate from 9% to 7.5% per annum.

What did the court decide?

Compensation enhanced from Rs. 55,000 to Rs. 1,10,000; interest rate reduced from 9% to 7.5% per annum.

Mohd Ilyas Khan Vs Syed Khaleelulla Khadry — Motor Accident Claims | Telangana HC (2013)

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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.398 OF 2005

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Dated 1 st November, 2013

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Between :

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Mohd.Ilyas Khan

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… Appellant a n d

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Syed Khaleelulla Khadry & another

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… Respondents

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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO

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M.A.C.M.A. No.398 OF 2005

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JUDGMENT:

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The appellant-injured preferred this appeal being aggrieved over the order dated 04.11.2004 passed by the Chairman, Motor Accidents Claims Tribunal–cum–District Judge, Nizamabad, (for short, ‘Tribunal’) in O.P.No.1040 of 1998 awarding compensation of Rs.55,000/(Rupees Fifty Five Thousand only) with proportionate costs and interest @ 9% per annum as against the claim of Rs.2,00,000/-, for enhancement of compensation as prayed for in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

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2. Heard Sri P.Radhive Reddy, learned counsel for the appellant. None appeared for the respondents.

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3. The contentions in the grounds of appeal in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in arriving a wrong conclusion on the quantum of compensation and awarded a very meager amount instead of awarding as claimed and prayed for from nature of the injuries proved sustained, pain and sufferance there from,

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treatment undergone and amount incurred for the same and hence to allow the appeal by enhancing and awarding full compensation as prayed for.

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4. Now the points that arise for consideration in appeal are:

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1) Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?

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2) To what result? POINT-1:

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5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that on 20.06.1998 when the claimant, who was the cleaner of the crime lorry bearing No.AP-25/T-3861, was discharging his duties while proceeding towards Nizamabad, due to negligent driving of the driver of the lorry, appellant-claimant sustained fracture injuries to his right leg foot, crush injuries to three fingers, injuries to left leg, right hand, hand and other parts of the body.

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6. While dealing with the claim petition filed by the claimantinjured, by taking into consideration Ex.A.2 wound certificate the Tribunal awarded Rs.40,000/- towards disability suffered by the claimant, Rs.10,000/- towards pain and suffering and Rs.5,000/towards medical expenses and in all awarded Rs.55,000/-. Aggrieved over the quantum of compensation, the claimant-injured filed this appeal.

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7. Before coming to decide, what is just compensation in the factual matrix of the case, It is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated

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by Lord Morris. In Ward v. James^[1] , it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in

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comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly^[2] remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleave r^[3] observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest Control

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(India) Private Limited^[4] at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and

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affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.

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8. From the above legal position coming to the facts of the case on hand, as per Ex.A.2 wound certificate, the claimant-appellantinjured, who was a lorry cleaner of 20 years age, sustained grievous crush injury to the second and fourth toes of right foot phalangeal area and also associated with fracture of the second and fourth foot phalangeal and as per P.W.2 with reference to Ex.C.1-disability certificate there is a disability of 45% from amputation of the second and fourth toes to the joint.

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A perusal of item 43 of schedule-I of Workmen Compensation Act shows that in case of two toes of one foot excluding great toe through metatarso-phalangeal joint, the permanent disability be taken only at 5% and though P.W.2 deposed about nature of fracture said to have been sustained by PW.1 there is no basis to believe on the credibility of the evidence of P.W.2 in view of the fact that Ex.A.2 wound certificate shows only crush injuries with fracture of second and fourth toes of right foot and there is no other injury sustained by P.W.1 as per Ex.A.2.

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9. Having regard to the above, from the avocation of the claimant-appellant as lorry cleaner with driving license, it can be said that it is a disability to him in future also and thus from the facts, the permanent disability suffered by the claimant can be assessed to a maximum of 10%, which impairs on his future work as a driver having possessed with license, and thereby the disability is taken at 10%.

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10. Now coming to quantum of compensation, as on the date of

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accident, the earnings of the injured are considered at Rs.3,000/- with 50% increase towards future prospects, which comes to Rs.4500/- per month and 10% thereon would come to Rs.450/- per month and per annum it would be Rs.5400/-. On application of appropriate multiplier ‘18’ for the corresponding age of the injured, it comes to Rs.97,200/-. It would be just to award Rs.5,000/- towards medical expenses, Rs.5000/- towards pain and suffering, Rs.3000/- towards transportation charges and attendant charges during the period of treatment and in all the compensation to which the injured entitled comes to Rs.1,10,200/and the same is being rounded off to Rs.1,10,000/-. In so far as rate of interest at 9% per annum awarded by the Tribunal concerned, from the settled proposition of law including from the expressions of the Apex Court in TN Transport Corporation vs Raja Priya^[5] , Sarla Verma vs Delhi Transport Corporation^[6] and the latest expression in 7 ] Rajesh vs Rajbir Singh^[ , interest awarded by the Tribunal at 9% p.a. is excessive and is reduced to 7½% per annum. Accordingly, Point-1 for consideration is answered. POINT-2:

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11) In the result, the appeal is allowed in part by enhancing the compensation amount from Rs.55,000/- to Rs.1,10,000/- and reducing the rate of interest from 9% per annum to 7½% per annum. The respondents shall deposit the remaining compensation amount within a period of one month from today failing which the claimant can execute and recover. On such deposit, execution and recovery, the claimant is at liberty to withdraw the same. There shall be no order as to costs.

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Dr.B.SIVA SANKARA RĀO, J

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1^st November, 2013.

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sur

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[1] 1965(1) A11. E.R-563

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[2] 1963(2) All.E.R-432

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[3] 1969(1)A11.E.R –555

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[4] 1995 ACJ 366(SC)

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[5] (2005) 6 SCC 236

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[6] 2009 ACJ 1298

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[7] 2013 ACJ 1403=(4)ALT-35(SC)

Mohd Ilyas Khan v. Syed Khaleelulla Khadry

Case brief

What is this about?

What did the court decide?

Mohd Ilyas Khan v. Syed Khaleelulla Khadry

Case brief

What is this about?

What did the court decide?

What the court decided

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