IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.2590 of 2007 Dated:08-12-2011 Between: The National Insurance Company Limited. ….Appellant. And K.Yadagiri and another. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.2590 of 2007 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal at the instance of the Insurance Company is directed against the award passed in O.P.No.176 of 2005 by the Chairman, Motor Accidents Claims Tribunal – cum – V Additional Metropolitan Sessions Judge, Hyderabad on 20.03.2007. The respondent No.1 herein has filed the application under Section 166 of M.V.Act claiming compensation of Rs.25,00,000/- for the injuries sustained by him in a motor vehicle accident, which occurred on 10.12.2003. According to the petitioner on the date of accident he was returning to his work shop after purchasing Automobile spare parts and when he reached near Swapna Wine Shop, one Ambassador Car bearing No.AP 9V 3905 came and dashed against the petitioner, as a result of which, he fell down and sustained grievous head injury. He was shifted to Care hospital, Nampally, where he was treated as inpatient up to 05.01.2004, later he was shifted to Usha Mohan Hospital, where he was treated as inpatient from 05.01.2004 to 25.02.2004 and incurred an expenditure of Rs.3,00,000/- towards treatment. The petitioner is working as scooter mechanic in M/S Bala Bheemasena Autowork, Manikonda Village, and earning Rs.3,000/- per month. Because of the injuries and disability, he is not in a position to do any work and lost his income. The owner and insurance company have filed counters denying the averments made in the petition and put the petitioner to strict proof of all the averments made in the petition. They also pleaded that there is no negligence on the part of the driver of the Car. The insurance company has denied the coverage of the vehicle by their company and also pleaded that the compensation claimed by the petitioner is highly excessive. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the petitioner K.Yadagiri, aged 16 years, sustained injuries in a motor accident, which occurred on 10.12.2003 at 9.00 P.M. due to the rash and negligent driving of the driver of the car bearing No.AP 9V 3905? (2) Whether the petitioner is entitled for compensation. If so to what amount and from whom? (3) To what relief? During the course of enquiry, P.Ws.1 and 4 were examined on behalf of the claimant and Exs.A.1 to A.14 and Exs.X.1 and X.2 were marked. No oral evidence was adduced on behalf of the respondents, but Ex.B.1 was marked on behalf of the 2nd respondent. Taking into consideration of the said oral and documentary evidence, the Tribunal has held issue No.1 in favour of the petitioner holding that the accident was occurred due to rash and negligent driving of the driver of the car bearing No.AP 9V 3905. The appellant has not questioning the said finding on issue No.1. With regard to quantum of compensation, the Tribunal has taken into consideration the monthly income of the petitioner as Rs.2,500/- per month and he suffered 100% disability and by applying multiplier ‘16’, awarded an amount of Rs.4,80,000/- towards loss of future income. Apart from that, the Tribunal awarded Rs.70,000/- towards pain and suffering, Rs.2,38,523/- towards medical expenses, Rs.20,000/- towards incidental expenditure, Rs.1,00,000/- towards loss of future amenities in life, Rs.4,00,000/- towards future medical expenditure and Rs.1,00,000/- towards attendant charges, in total awarded Rs.14,09,000/-. The standing counsel for insurance company has pleaded that the Tribunal erred in taking into consideration of the monthly income of the petitioner as Rs.2,500/- even though there is no documentary evidence produced by the petitioner. He further pleaded that the Tribunal without any evidence awarded an amount of Rs.70,000/- towards pain and suffering, Rs.1,00,000/- towards loss of future amenities, Rs.4,00,000/- towards future medical expenses and Rs.1,00,000/- towards attendant charges. He further pleaded that the interest awarded by the Tribunal is excessive and prayed for setting aside the award of the Tribunal. The petitioner sustained grievous head injury, defuse Axonal injury, fracture of right clavicle, injury to neck, injury to chest and other multiple injuries all over the body. He was immediately shifted to Care hospital, Nampally, where he was treated as inpatient for 26 days and on 05.01.2004 his condition became serious, he was shifted to Usha Mohan Hospital, Hyderguda, where he was treated as inpatient for 51 days i.e. up to 25.02.2004, but the injuries were not healed in spite of treatment and the petitioner became totally disabled and he is suffering from severe head aches, vomitings, giddiness and lost his memory power. In support of the evidence of the petitioner, Neuro Surgeon, who treated him in Usha Mohan Hospital, was examined as P.W.3. According to him, the petitioner was admitted in the hospital on 05.01.2004 and he was treated up to 25.02.2004. The petitioner was unconscious at the time of admission, he was brought with history of fits and vomitings. Earlier he was admitted in the Care hospital for the head injury and multiple injuries to neck, chest abdomen and right shoulder (fracture of right collar bone). He was treated conservatively with antibiotics, anti-convulsants, cerebral activators, H2 blockers, multi vitamins and I.V.Fluids. He was given physiotherapy. At the time of discharge the patient was conscious. Ex.X.1 is the case sheet of Usha Mohan Hospital. Ex.X.2 is the case sheet of Care Hospital. He also stated that the petitioner requires life long treatment and there is no chance of recovery of the petitioner. Due to the injuries sustained by the petitioner, he is totally disabled and is not in a position to perform daily activities. Ex.A.14 original disability cum further treatment requirement certificate shows that the petitioner is 100% disabled. According to P.W.1, he was working as a mechanic M/S Bala Bheemasena Autoworks, but he has not produced any evidence in that regard. As the petitioner could not establish about his working as Mechanic in Autoworks shop, the Tribunal has considered him as a labour and taken the income as Rs.2,500/- per month on an average. The Tribunal has rightly taken the income of the petitioner as Rs.2,500/- per month by treating him as a labour and as he sustained 100% disability, he suffered total loss of earnings. The Tribunal has taken into consideration the age of the petitioner as 16 and applied multiplier ‘16’ and awarded Rs.4,80,000/- towards loss of future income of the petitioner. If the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)” is applied to the case of the petitioner, the multiplier will be ‘18’. Since the petitioner has not filed any appeal, the compensation cannot be enhanced, as such the compensation of Rs.4,80,000/- awarded under the loss of future income is hereby confirmed. The appellant’s counsel further pleaded the amounts awarded under other heads towards pain and suffering, incidental expense, loss of future amenities in life, future medical expense and attendant charges are highly excessive. With regard to pain and suffering, the Tribunal awarded Rs.70,000/-. Admittedly, the petitioner undergone treatment as inpatient in Care hospital, Nampally for ‘26’ days and in Usha Mohan Hospital, Hyderguda for 51 days. In spite of the treatment, his injuries were not healed up. Therefore, the Tribunal has rightly taken into consideration the Trauma that has suffered during the period of treatment for the injuries sustained by him, rightly awarded Rs.70,000/- towards pain and suffering. The Tribunal awarded Rs.2,38,523/- towards medical expenses by taking into consideration of the medical bills Exs.A.6 toA.10. Therefore, the said amount awarded towards medical expenses, is justified. The Tribunal has awarded Rs.20,000/- towards incidental expenses, as the petitioner has been visiting hospital for follow-up treatment for more than one year. As per the evidence of P.W.3, the petitioner has to undergo future treatment and Physiotherapy, for which he has to go to the hospital, as such the said amount of Rs.20,000/- towards incidental expenses (transport expenses) is justified. The petitioner is permanently disabled and he lost his future amenities in life, as such the Tribunal has rightly awarded Rs.1,00,000/- under the said head. The Tribunal has awarded Rs.4,00,000/- towards future medical expenses and Rs.1,00,000/- towards attendant charges, for which there is no material available on record. As per the evidence of P.W.3, the petitioner has to undergo physiotherapy and further treatment throughout his life, but there is no material on record to show that the petitioner requires Rs.4,00,000/- towards future medical expenses. Therefore, the petitioner can be awarded only Rs.2,00,000/- towards future medical expenses. With regard to attendant charges, no material was placed before the Tribunal by the petitioner that he has engaged the attendant to attend his day to day necessities and incurred expenditure of Rs.1,00,000/-. In the absence of any evidence with regard to attendant charges, the petitioner is not entitled for any amount towards attendant charges. The total compensation to which the petitioner is entitled is only Rs.11,08,523/-. The Tribunal has awarded 7% interest on the compensation, but as per Smt.Sarla Verma’s case (referred supra), the interest to which the petitioner entitled is only 6% on the total compensation amount. In the result, the appeal is partly allowed reducing the compensation to Rs.11,08,523 from 14,09,000/- with interest at 6% P.A. from the date of filing of the petition till the date of realization. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:08-12-2011 Ksp