1. The present appeal is filed by the appellant/claimant against the Judgment and Decree dated 05.10.2009 in O.P.No.2677/2006 (hereinafter referred to as ‘the impugned judgment’) passed by the learned VII Additional Metropolitan Sessions Judge - cum – XXI Additional Chief Judge, Hyderabad (hereinafter referred to as ‘the learned Tribunal’), seeking enhancement of compensation awarded by the learned Tribunal for the injuries sustained by him.

2. For the sake of convenience, the parties hereinafter are referred as they were arrayed before the Tribunal.

BRIEF FACTS:

3. The brief facts of the case as borne out from record are that the appellant/claimant filed claim petition under Section 166 of the Motor Vehicle Act seeking compensation of Rs.5,00,000/- for the injuries sustained by him in the road traffic accident that occurred on 27.04.2006. As per the averments of the claim petition, on 27.04.2006 while the claimant along with his two brothers were going on bicycle to Abdullah Shah Mosque near Bela for learning Arabic language, he was asked to get down due to heavy traffic, as such, the claimant reached Ashoka Pillar at Bela colony by walk. In the meanwhile, an Auto Trolley bearing registration No. AP 29 T 7572 (hereinafter referred to as ‘the offending vehicle’) came from his behind in rash and negligent manner and dashed the claimant. Due to the said impact, the claimant fell on the road and back wheel of the offending vehicle rammed over the right hand, which was fractured.

4. A case in Crime No.61/2006 was registered for the offence under Section 337 of the IPC by Police, Moghalpura. The claimant was shifted to Medwin Hospital and thereafter to NIMS hospital for better treatment. The claimant was aged 11 years studying 5th standard in DaZling High School, Moghalpura, Hyderabad. The claimant pleaded that since the accident occurred due to rash and negligent driving of the offending vehicle, the respondent Nos.1 and 2 being the insured and insurer of the offending vehicle, are jointly and severally liable to pay compensation of Rs.5,00,000/-.

5. The respondent No.1 was set exparte and whereas the respondent No.2 filed counter denying the averments of the claim petition including manner of the accident, age, injuries sustained by the claimant and finally prayed to dismiss the claim petition.

EVIDENCE BEFORE THE LEARNED TRIBUNAL:

6. Based on the rival contentions, the learned Tribunal has framed three issues. During the course of trial, PWs 1 to 6 were examined and got marked Exs.A1 to A12 on behalf of the claimant. On behalf of respondent No.2, no oral or documentary evidence was adduced.

FINDINGS OF THE LEARNED TRIBUNAL:

7. The learned Tribunal after considering the rival contentions, awarded compensation of Rs.2,55,840.50 paise. Aggrieved thereby the claimant preferred the present Appeal seeking enhancement of compensation. During the pendency of the appeal, the claimant filed I.A.No.1/2019 seeking amendment of claim from Rs.5,00,000/- to Rs.10,00,000/- and the said interlocutory application was allowed on 01.08.2023.

8. Heard Sri Kasireddy Jagathpal Reddy, learned counsel for the appellant and Sri A. Ramakrishna Reddy, learned Standing Counsel appearing for respondent No.2 and perused the entire record including the grounds of Appeal.

POINT FOR DETERMINATION:

9. Now the only point for determination is:

               “Whether the appellant/claimant made out any valid and sustainable grounds for enhancement of compensation awarded by the learned Tribunal and consequent interference with the impugned award?”

ANALYSIS:

10. Admittedly, the neither of the respondents have preferred any appeal challenging the impugned order. There is no dispute with regard to the manner of the accident, as the learned Tribunal, while placing reliance upon oral evidence of PWs 1 and 6 and documentary evidence under Exs.A1 to A5, answered issue No.1 holding that the accident was due to the rash and negligent driving of the driver of the offending vehicle.

11. The learned counsel for the claimants primarily contended that the learned Tribunal ought to have considered the physical disability at 50% and loss of income at 100% because the claimant is unable to write due to the injuries sustained by him.

12. In the instant case, the claimant alleged to have sustained crush injury to his right hand. To establish the injuries sustained by the claimant, PWs 3 and 5 were examined. PW3, who is the doctor from NIMS hospital, had treated the claimant at the time of accident. PW5, who is the Professor of Orthopedics at Osmania General Hospital, had issued disability certificate under Ex.A12 estimating the disability at 45% due to Ischaemic contractures of right forearm hand (upper limb) with weakness and stiffness of right elbow joint. PW5 further deposed that the claimant cannot write with right hand. The learned Tribunal categorically observed in the impugned judgment that when the claimant was examined as PW6, it was noticed that the claimant’s right hand was completely crushed and was of no use to him as he could not lift any weight or could not writ with his right hand. Thus, it is evident from the record that while considering the evidence of PWs 3 and 5 along with Ex.A12 and other medical evidence, the learned Tribunal rightly assessed the disability at 45% and the functional disability at 45%.

13. The learned counsel for the claimant contended that the learned Tribunal ought to have considered the monthly income at Rs.3,000/- per month. However, the learned counsel for the claimant placed reliance upon the decision in Kajal v. Jagdish Chand and others ((2020) 4 Supreme Court Cases 413_, wherein the income of a minor injured girl was considered at Rs.4,846/- per month, which is the salary of a skilled worker.

14. Even in the instant case, the claimant is a minor boy aged about 11 years by the date of accident. Hence, the decision in Kajal’s case (supra) is squarely applicable to the facts of the present case and accordingly, the monthly income of the injured can be assessed at Rs.4,846/-. Apart from that the claimant being aged below 40 years, is entitled for future prospects at 40% in view of the decision in National Insurance Company Limited v. Pranay Sethi and others (2017 ACJ 2700). Hence, monthly income of the claimant comes to Rs.6,784/-. Thus, the claimant is entitled to Rs. 5,49,504/- (Rs.6,784/- (monthly income with future prospects) x 12 (months) x 15 (multiplier) x 45% (disability)) towards loss of earnings towards permanent disability.

15. The learned Tribunal ought to have awarded at least Rs.50,000/- towards loss of amenities. However, as per the calculation memo filed by the learned counsel for the claimant, an amount of Rs.1,00,000/- is claimed towards loss of amenities.

16. There is absolutely no doubt that the claimant is not in a position to use his right hand due to the crush injury, and thereby he is not in a position to write with his right hand. The claimant was a student as on the date of the accident and the crush injury suffered by the claimant will certainly have an impact on his career. Thus, this Court is inclined to award Rs.1,00,000/- towards loss of amenities.

17. The learned counsel for the claimant contended that the learned Tribunal failed to award a sum of Rs.2,27,000/- as estimated by NIMS authorities for future surgery.

18. It is pertinent to note that the claimant has not placed any material to establish that he requires Rs.2,27,000/- towards future surgery expenses. However, as per the calculation memo filed by the learned counsel for the claimant, an amount of Rs.60,000/- was claimed for future surgery expenses. In this regard reliance was placed on Ex.A9, which is nothing but estimation certificate for Rs.60,000/- issued by the Director of NIMS, wherein the claimant obtained treatment for his injuries. But the learned Tribunal erred in not considering the same on the ground that the evidence of PW3 is silent on the said aspect. It is evident from the evidence of PW3 that the claimant was operated by a team of doctors on 01.05.2006 and a debridement and micro surgery was done for reconstruction of right forearm and hand. He further deposed that the muscles and nerves were also repaired by using nerve and tendon graft. Once, the claimant placed on record an authenticated document issued by Director of NIMS for Rs.60,000/-, the learned Tribunal by considering the nature of treatment obtained by the claimant ought to have awarded the amount covered under Ex.A9 rather than discarding the same merely because the evidence of PW3 is silent on the said aspect. Hence, the claimant is awarded Rs.60,000/- towards future surgery expenses.

19. The learned Tribunal while considering the oral evidence of PW2, who is the Financial Controller in NIMS Hospital and PW4, who is the billing executive of Medwin Hospital apart from documentary evidence under Ex.A8, rightly awarded Rs.49,289/- and Rs.48,301.50 paise. Hence, this Court is not inclined to interfere with the findings arrived by the learned Tribunal so far as hospital and medical expenses are concerned.

20. It is further contended by the learned counsel for the claimant that the learned Tribunal awarded meager sum of Rs.2,000/- and Rs.5,000/- towards transportation expenses and extra nourishment expenses respectively. Further, it was contended that the learned Tribunal failed to award any amount under the head ‘attendant charges’ more particularly when the claimant’s right hand become defunct.

21. Admittedly, the learned Tribunal failed to award any amount under the head of ‘attendant charges’. Thus, by considering the nature of injuries and the treatment undergone by the claimant and since the claimant’s right hand got completely damaged, certainly there is a necessity of engaging an attendant to assist the claimant to attend to his day to day activities. Therefore, this Court is inclined to award Rs.10,000/- towards attendant charges. Further, the amounts awarded by the learned Tribunal under transportation expenses and extra nourishment are appearing to be on lesser side. Since the claimant sustained grievous crush injury to his right hand at his tender age, the claimant requires vitamin supplements and good nutritious food to recover quickly. Further, the claimant had to visit several hospitals and laboratories for his treatment. It is the specific contention of the learned counsel for the claimant that the claimant used to take regular follow up treatment and after the accident he was shifted to Durrushawar, Aditya Hospital and from there to Medwin Hospital and to NIMS. Thus, this Court deems it appropriate to award Rs.20,000/- towards transportation expenses and extra nourishment

22. The learned Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering, as against the claim of Rs.1,00,000/- made by the claimant under the said head in the calculation memo. The claimant was a minor boy aged 11 years at the time of the accident. In the accident, his right hand was crushed, resulting in severe injuries. Having regard to the nature and gravity of the injuries sustained by the claimant, coupled with his tender age, this Court is of the considered view that the compensation awarded by the learned Tribunal under the head of pain and suffering is inadequate. Accordingly, the compensation under the said head is enhanced from Rs.50,000/- to Rs.1,00,000/-.

23. Now coming to the rate of interest awarded by the learned Tribunal, the learned counsel for the claimant contended that the learned Tribunal erred in awarding rate of interest on the compensation at 6% per annum instead of 12% per annum. However, it is pertinent to note that this Court has been consistently awarding rate of interest in MACT cases at 7.5% per annum. Hence, this Court is inclined to enhance the rate of interest on the compensation from Rs.6% to 7.5% per annum.

24. In view of the foregoing discussion in the above paragraphs, this Court is of the considered opinion that the appellant/claimant is entitled for the compensation under various heads, as follows:



CONCLUSION:

25. In view of the aforesaid discussion, this Court is of the considered opinion that despite claimant suffering grievous crush injury to his right hand, the learned Tribunal erred in awarding meager compensation by assessing the income of the claimant on lesser side and also erred in awarding less rate of interest on the compensation amount. Hence, the impugned judgment is liable to be modified to the extent of above observations and accordingly the claimant is entitled for more compensation than the compensation awarded by the learned Tribunal.

RESULT AND DIRECTIONS:

26. In the result:

               a) M.A.C.M.A.No.3823 of 2011 is allowed in part by modifying Judgment and Decree dated 05.10.2009 in O.P.No.2677/2006 passed by the learned VII Additional Metropolitan Sessions Judge - cum – XXI Additional Chief Judge, Hyderabad to the extent of enhancing the compensation from Rs.2,55,840.50 paise to Rs.9,37,094.50 paise, which shall carry interest at 7.5% per annum.

               b) The respondents are jointly and severally liable to pay the compensation amount within two (02) months from the date of receipt of a copy of this Judgment.

               c) Since the claimant, who was minor at the time of the accident, attained his age of majority as of now, he is entitled to receive the entire compensation amount with accrued interest without furnishing any security, however, subject to deposit of deficit court fee.

               d) There shall be no order as to costs.

               e) Miscellaneous petitions, if any, pending shall stand closed.