The claimant became a disabled person due to amputation of both legs upto the level of knee due to the injuries sustained in the accident, and thereby he suffered 100% partial permanent disability. He lost his earning capacity, as he cannot do mason work and therefore, he is entitled to a compensation towards loss of future earnings on account of permanent disability.

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE EIGHTEENTH DAY OF JANUARY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2147 OF 2017

Between:

1. BIKYAM C VENKATESWARLU @ VENKATESWARLU, GUNTUR DIST

s/o Mannaiah, aged about 39 years, Mason Mastry,

R/o 5th lane, Nallacheruvu, Guntur town,

Guntur district.

...PETITIONER(S)

AND:

1. POTLURI VIJAYA KUMAR, KHAMMAM DIST & TWO OTHERS s/o

Venkata Ramaiah Owner of Tipper bearing No.AP-20-TA-7524, C/o

Vijaya Lakshrni Transports, Near Mandal Office, VM Banzara, Khammam

Post and district.

2. The Oriental Insurance Company Limited Rep. by its Divisional Manager,

D.No.11-4-79, It floor, Siddartha Womens College, Road, F.B.No.782,

M.G.Road, Labbipet, Vijayawada, Krishna district.

3. Shaik Bade Babu s/o Hussain, Aged about 44 years, Driver of Vehicle,

R/o Thippanapalli village, Chandrugonda mandal

Khammam district.

...RESPONDENTS

Counsel for the Petitioner(s): G V S MEHAR KUMAR

Counsel for the Respondents: V DURGA

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

M.A.C.M.A.No.2147 OF 2017

Between:

Bikyam China Venkateswarlu @ Venkateswarlu,

S/o.Mannaiah, Aged 39 years, Mason Mastry,

R/o.5th Lane, Nallacheruvu, Guntur Town,

Guntur District.

 ….Appellant/ Claim Petitioner

 Versus

1. Potluri Vijnaya Kumar, S/o.Venkata Ramaiah,

 Owner of Tipper No. AP 20 TA 7524,

 C/o.Vijaya Lakshmi Transports,

 Near Mandal Office, V.M.Banzara,

 Khammam Post and District.

2. The Oriental Insurance Company Limited,

 Rep. By its Divisional Manager,

 R/o.D.No.11-4-79, 1st floor,

 Siddartha Womens College Road,

 F.B.No.782, M.G.Road, Labbipet,

 Vijayawada, Krishna District.

3. Shaik Bade Babu, S/o.Hussain,

 Aged 44 years, Driver of Tipper,

 R/o.Thippanapalli Vilage,

 Chandrugonda Mandal,

 Khammam District.

….Respondents/Respondents

DATE OF JUDGMENT PRONOUNCED : 18.01.2023

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SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy 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

 ____________________________

 B.V.L.N.CHAKRAVARTHI, J

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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ M.A.C.M.A.No.2147 OF 2017

% 18.01.2023

# Between:

Bikyam China Venkateswarlu @ Venkateswarlu,

S/o.Mannaiah, Aged 39 years, Mason Mastry,

R/o.5th Lane, Nallacheruvu, Guntur Town,

Guntur District.

 ….Appellant/ Claim Petitioner

 Versus

1. Potluri Vijnaya Kumar, S/o.Venkata Ramaiah,

 Owner of Tipper No. AP 20 TA 7524,

 C/o.Vijaya Lakshmi Transports,

 Near Mandal Office, V.M.Banzara,

 Khammam Post and District.

2. The Oriental Insurance Company Limited,

 Rep. By its Divisional Manager,

 R/o.D.No.11-4-79, 1st floor,

 Siddartha Womens College Road,

 F.B.No.782, M.G.Road, Labbipet,

 Vijayawada, Krishna District.

3. Shaik Bade Babu, S/o.Hussain,

 Aged 44 years, Driver of Tipper,

 R/o.Thippanapalli Vilage,

 Chandrugonda Mandal,

 Khammam District.

 ….Respondents/Respondents.

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! Counsel for the Appellant : Sri G.V.S.Mehar Kumar

^ Counsel for the

 2nd Respondent : Smt.G.Durga

< Gist:

> Head Note:

? Cases referred:

1. 2009 ACJ 1298

2. 2022 Livelaw (SC) 734

3. 2019 ACJ 1849 (SC)

This Court made the following:

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2147 OF 2017

JUDGMENT:

 This appeal is preferred by the Appellant/claimant,

challenging the award dated 04.04.2017 passed in

M.V.O.P.No.360/2013 on the file of Motor Accidents Claims Tribunalcum-I Addl.District Judge, Guntur, (for short ‘the Tribunal’), wherein

the Tribunal while partly allowing the petition, awarded a

compensation of Rs.9,43,000/- with interest @ 6% p.a. from the date

of petition, till the date of realisation, for the injuries sustained by him

in a motor vehicle accident.

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

parties in the M.V.O.P.

3. As seen from the record, originally the petitioner filed an

application U/s.140 and 166 of the Motor Vehicles Act, 1988 (for

brevity “the Act”) claiming a compensation of Rs.15,00,000/- on

account of the injuries and disability sustained by the petitioner in a

motor vehicle accident that occurred on 15.03.2013.

4. The facts show that on 15.03.2013 at about 07.30 p.m. while the

claimant was waiting to board a vehicle at Kistaram Centre on State

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High Way, B.T.Road, at that time, one Tipper bearing No.AP 20 TA

7524 coming from Sathupalli towards Khammam driver by the 3rd

respondent in a rash and negligent manner with high speed without

blowing horn and without following the traffic rules, hit the petitioner,

as a result, the petitioner sustained fractures to his both legs and

other injuries all over the body and the injured was shifted to

Government General Hospital, Guntur, where his both legs were

amputated upto knee. The accident was reported to Sathupalli P.S.

and the same was registered as a case in Cr.No.89/2013 for the

offence punishable U/s.338 of Indian Penal Code against the driver of

the said tipper. The petitioner was aged about 35 years, hale and

healthy and he used to work as a mason mastry earning Rs.450/- per

day. Due to the accident, the petitioner received severe fracture

injuries and became a disabled person, in addition to mental agony

and suffering besides losing his earning capacity.

5. Before the Tribunal, the 2nd respondent/Insurance Company,

filed a written statement, while traversing the material averments with

regard to the manner of accident, rash and negligence on the part of

the driver of the crime vehicle, nature of injuries, medical expenditure,

avocation and monthly earnings of the injured, alleged permanent

disability, and liability to pay compensation, and contended that the

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said vehicle is not involved in the accident and that there is no

negligence on the part of driver of the tipper, and that the 1st

respondent handed over the said vehicle to the driver, who was not

having an effective driving license, as such, the 1st respondent violated

the policy conditions. Hence, the 2nd respondent is not liable to pay

any compensation to the petitioner. The alleged amputation was not

due to the injuries sustained in the accident and only due to nonobtaining of proper medical care and treatment and as such, the

respondent is not liable to pay compensation for the said injuries.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident occurred due to the rash and negligent

driving of the driver of the tipper bearing No.AP 20 TA 7524 and

caused injuries to Bikyam China Venkateswarlu @

Venkateswarlu?

2. Whether the petitioner is entitled for a compensation? If so, to

what amount and from whom?

3. To what relief?

7. To substantiate his claim, the petitioner examined P.Ws-1 to 3

and got marked Exs.A-1 to A-5 and Ex.X-1. On behalf of the 2nd

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respondent/Insurance Company, no oral or documentary evidence was

adduced.

8. The Tribunal, taking into consideration the evidence of P.Ws-1 to

3, coupled with Exs.A-1 to A-5 and Ex.X-1 held that the accident took

place due to the rash and negligent driving of the tipper driver, and

further taking into consideration the evidence of P.Ws-1 to 3

corroborated by Exs.A-1 to A-5 and Ex.X-1, awarded a compensation

of Rs.9,43,000/- with interest @ 6% p.a. from the date of petition, till

the date of realisation.

9. This is an appeal filed by the claimant contending that the

Tribunal erred in fixing the income of the claimant at Rs.150/- per day

without considering the fact that he was working as mason and

earning Rs.450/-per day at the time of accident, and thereby the

Tribunal failed to award just compensation under the head loss of

future earnings on account of permanent disability.

10. In the light of above contention, the points that would arise for

consideration in this appeal are as under:

1. Whether the Tribunal failed to award just compensation to the

claimant?

2. To what relief?

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11. POINT No.1:

 The contention of the appellant is that he is working as a mason

in Guntur City of Andhra Pradesh and earning Rs.450/- per day at the

time of accident; on 15.03.2013 at about 07.30 p.m. he was waiting for

on the State Highway, B.T.Road, to board a vehicle to go to home; a

Tipper bearing No.AP 20 TE 7524 was coming from Sattupalli side

going towards Khammam; the 3rd respondent is the driver, and he

drove the tipper in a rash and negligent manner and as a result,

dashed the petitioner; he sustained injuries to both legs and shifted to

Government General Hospital, Guntur; the both legs of the claimant

were amputated upto the level of knee; police registered a case against

the 3rd respondent for the offence punishable U/s.338 of Indian Penal

Code.

12. The claimant became a disabled person due to amputation of

both legs upto the level of knee due to the injuries sustained in the

accident, and thereby he suffered 100% partial permanent disability.

He lost his earning capacity, as he cannot do mason work and

therefore, he is entitled to a compensation towards loss of future

earnings on account of permanent disability.

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13. The claimant contended that as mason he was earning Rs.450/-

per day, and therefore, he is entitled to compensation accordingly.

But, the Tribunal considered his income only at Rs.150/- per day,

which is very low and meagre.

14. The learned counsel for the appellant submitted that the

claimant was working as mason in urban area i.e., Guntur City which

is one of the biggest cities in Andhra Pradesh State, and the Tribunal

did not consider this fact while fixing the income of the claimant, and

he relied upon the judgment of the High Court of Madras in the case of

Saritha and others Vs. Siva and another in C.M.A.No.3567 of 2019

contending that the evidence in the case on hand shows that the

deceased was working as a mason in Guntur urban area at the time of

the accident in the year 2013, and therefore, fixing his income at

Rs.150/- per day by the Tribunal is not proper and correct, and

submitted that the Tribunal has to consider the place of work also,

while fixing the income of the claimant.

15. The evidence of claimant would show that he was a resident of

5th lane, Nallacheruvu, Guntur, and he was working as a mason at the

time of accident. In the written statement filed by the

respondent/Insurance Company, there is no specific denial of this fact.

In the cross-examination of P.W-1 also, it was not denied. Therefore, it

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would establish that the claimant is a resident of Guntur, and was

working as a mason in Guntur at the time of accident. Guntur city is

an urban area, and one of the developed cities in the State of Andhra

Pradesh.

16. The contention of the claimant is that he was earning Rs.450/-

per day as mason at the time of accident. The accident occurred in the

year 2013. The Tribunal in its order while fixing the income of the

claimant at Rs.150/- per day, held that “hence, considering the age of

petitioner as 30 years and also disability at 100%, and basing on the

ground realities, a person who is aged about 30 years, who was hale

and healthy can easily earn a sum of Rs.150/- per day. Hence, the

income of the petitioner for a month would come to a sum of Rs.4,500/-.”

The Tribunal did not consider anything about the place of work,

nature of work and demand of the work etc., while fixing the income of

the claimant.

17. The High Court of Madras in the case of Saritha and others Vs.

Siva and another in C.M.A.No.3567 of 2019 at para 16 held as

follows:

“Therefore, it may not be possible on some occasions to follow the

particular judgment delivered by the High Courts or the Supreme

Court. Judgments may be outdated or delivered some years back

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or the facts and circumstances in that particular judgment may

not be much applicable to the facts and circumstances of the case

on hand. Therefore, the Courts are bound to consider the

judgments with reference to the facts and circumstances as well

as the prevailing situation. Mechanical approach in application of

judgments are also not proper. Thus, for grant of compensation

under the Motor Vehicles Act, 1988, a particular amount fixed in a

particular case need not be passed in a routine manner. Once the

facts and circumstances are different, then the yardstick to be

adopted also to be different.”

18. In the light of above facts and circumstances, the Tribunal erred

in fixing the income of the claimant at Rs.150/- per day, ignoring his

place of work, nature of work and the demand per his work in the year

2013. If those factors are taken into consideration, the income of the

claimant would be minimum at Rs.250/- per day, considering the fact

that the claimant was working as a mason in Guntur City at the time

of accident.

19. The claimant has examined the doctor, who treated him as

P.W-2. His evidence would establish that the claimant suffered the

following injuries:

 1. Crush injury right leg segmental fracture fibula.

 2. Crush injury left leg with fracture calcaneum.

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20. P.W-2 evidence further established that amputation was done for

both lower limbs, and patient suffered permanent partial disability of

100%. He further deposed that patient cannot do hard labour, and he

can walk only with artificial limbs. In the cross-examination, he

deposed that he can do only work in sitting posture. Therefore, P.W-2

evidence would establish that the claimant cannot do hard labour

work like work of mason, which requires standing for considerable

period in a day.

21. The claimant also examined a Member of District Medical Board,

Guntur, as P.W-3. He deposed about Ex.A-5 disability certificate

issued by the Board. P.W-3 evidence would establish that he is one of

the Member of the Board, which issued Ex.A-5 and as per the opinion

of the Board, the claimant suffered permanent disability of 100% due

to the amputation of both legs, and claimant can do work only in

sitting posture. Therefore, the evidence of P.W-3 corroborates the

evidence of claimant and P.W-2 that claimant suffered 100%

permanent disability on account of which, he cannot do mason work,

which he was doing prior to the date of accident. Therefore, the

evidence on record established that the claimant suffered loss of future

earnings on account of permanent disability. Hence, he is entitled to

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compensation towards loss of future earnings on account of

permanent disability.

22. When coming to the quantum of compensation for loss of future

earnings, this Court opined supra that his income at the time of

accident on established facts would be minimum at Rs.250/- per day.

Therefore, his monthly income comes to Rs.250 x 30 = Rs.7,500/- per

month, and his annual income would be Rs.7,500 x 12 = Rs.90,000/-.

23. The contention of the claimant that he was aged 30 years at the

time of accident. The contention of the respondent/Insurance

Company is that, he did not adduce any evidenced to prove the age.

Ex.A-5 disability certificate shows the age of the claimant as 32 years,

which was issued in the year 2013. Ex.A-4 wound certificate would

show his age as 30 years. Therefore, his age can be considered as 30

years at the time of accident. Hence, multiplier ‘17’ be applied as per

judgment of the Hon’ble Apex Court in the case of Sarla Verma and

others Vs. Delhi Road Transport Corporation and another1.

24. The amount of compensation entitled by the claimant under the

head loss of future earnings on account of permanent disability would

be Rs.90,000 x 17 = Rs.15,30,000/-.

1

 2009 ACJ 1298

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25. The appellant made a claim for Rs.10,000/- for pain and

suffering. The Tribunal awarded Rs.10,000/- towards pain and

suffering. The appellant claimed a sum of Rs.5,000/- towards

transport and other expenses. The Tribunal awarded Rs.5,000/-

towards transportation charges and other expenses. The appellant

claimed a sum of Rs.10,000/- towards loss of expectation of life. The

Tribunal awarded a sum of Rs.10,000/- towards loss of expectation of

life. Therefore, the total amount of compensation entitled by the

appellant under all the above heads would come to Rs.15,55,000/-.

The appellant made claim for Rs.15,00,000/- only.

26. The Hon’ble Apex Court in the case of Mona Baghel and others

Vs. Sajjan Singh Yadaav and others2, held that in the matter of

compensation, the amount actually due and payable is to be awarded

despite the claimants having sought for a lesser amount and the claim

petition being valued at a lesser value. The law is well settled that in

the matter of compensation, the amount actually due and payable is to

be awarded despite the claimants having sought for a lesser amount

and the claim petition being valued at a lesser value. Therefore,

though the claimants sought for a lesser amount, and the claim

petition being valued at lesser value for Rs.15,00,000/-, the amount

2

 2022 LiveLaw (SC) 734

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actually due and payable is to be awarded is Rs.15,55,000/-. In that

view of the matter, the award passed by the Tribunal is liable to be

modified.

27. In view of the above judgment of the Hon’ble Apex Court

case, the Court shall award just compensation, even if it exceeds the

amount claimed by the claimant, subject to payment of court fee. In

that view of the matter, this Court is of the considered opinion that the

appellant is entitled to Rs.15,55,000/- towards just compensation.

28. The claimant is entitled to interest on the above said amount

reasonable as per section 174 of M.V.Act. This Court is of the opinion

that interest can be awarded @ 7.5% p.a. on the compensation

amount, from the date of petition, till the date of deposit, in view of the

judgment of the Hon’ble Apex Court in the case of National Insurance

Company Limited Vs. Mannat Johal3. Accordingly, this point is

answered.

29. POINT No.2: To what relief?

 In the light of the finding on point No.1, the order passed by the

Tribunal has to be modified.

3

 2019 ACJ 1849 (SC)

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30. In the result, the appeal is allowed, modifying the award dated

04.04.2017 passed in M.V.O.P.No.360/2013 on the file of Motor

Accidents Claims Tribunal-cum-I Addl. District Judge, Guntur. It is

held that the claimant is entitled to a compensation of Rs.15,55,000/-

(Rupees Fifteen Lakhs and Fifty Five Thousand only) with interest @

7.5% p.a. from the date of petition, till the date of deposit, instead of

Rs.9,43,000/- (Rupees Nine Lakhs and Forty Three Thousand only).

The respondents 1 to 3 are jointly and severally liable to pay the

compensation amount. The 2nd respondent/Insurance Company is

directed to deposit the entire compensation amount of Rs.15,55,000/-

(Rupees Fifteen Lakhs and Fifty Five Thousand only) along with the

accrued interest thereon, within one month from the date of judgment.

In the event of the 2nd respondent/Insurance Company already

deposited some amount, the said amount has to be excluded, and the

balance amount shall be deposited within one month from the date of

judgment.

31. On such deposit, the appellant/claimant is permitted to

withdraw the said compensation amount with accrued interest

thereon. The appellant/claimant is directed to pay the required court

fee before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989,

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within one month from the date of receipt of certified copy of judgment.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________

B.V.L.N.CHAKRAVARTHI, J

18.01.2023

psk

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2147 OF 2017

NOTE: Mark L.R.Copy

psk

18th January, 2023

psk

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