CMA/1977/2003 of Md. Ziauddin Qurishi Vs Md. Mahmood on 30 December 2010

J U D G M E N T:

This is an appeal, under Section 173 of the Motor Vehicles Act,1988 (for short, ‘the Act’) by the appellant-claimant, seekingenhancement of the compensation, aggrieved by what has beenawarded by the Motor Vehicle Accidents Claims Tribunal-cum-IIIAdditional Chief Judge, City Civil Court at Hyderabad in O.P.No. 565of 2000, on 07.11.2002.

The facts, in brief, are as follows.

The claimant filed the above said O.P. under Section 166 of theAct, claiming compensation of Rs.3,50,000/- for the injuries sustainedby him in the accident that took place on 18.01.2000, at about 12.30p.m. at Pile Circle, Vikarabad. He stated that at that time, he wasproceeding as a pillion rider over a scooter bearing No. AHA 1129,then a lorry bearing No. ABT 2798 belonging to the 1[st] respondent,insured with the 2[nd] respondent, was driven in a rash and negligentmanner and hit the scooter, due to which, he fell down and receivedfractures and other injuries. According to him, he was earningRs.8,010/- per month by the date of the accident and due to theaccident, he could not attend to his duties resulting in loss of earnings,in addition to incurring much expenditure towards treatment.

Before the Tribunal, Respondent No. 1 remained ex parte.

In the counter-affidavit filed by the 2[nd] respondent insurer of thelorry, it has been averred that the accident occurred due to thenegligence of the rider of the scooter and that the compensationclaimed is excessive and exorbitant.

Based on the pleadings of the parties, the Tribunal framed thefollowing issues for trial.

(1) Whether the petitioner sustained injuries in the motor vehicle accident on 18.01.2000 due to rash and negligentdriving of 1[st] respondent’s lorry by its driver?

(2) Whether the petitioners are entitled for compensation? If soto what amount and from whom?to what amount and from whom?

(3) To what relief?

During trial, the appellant himself was examined as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and marked Exs.A1 toA16. P.W.2 has marked Exs.X1 and X2 during the course of hisevidence. The 2[nd] respondent has marked Ex.B1 with the consent ofthe appellant.

The Tribunal, based on Ex.A1, a copy of the First InformationReport, wherein rash and negligent driving was attributed to the driverof the offending vehicle, held that the accident occurred due to therash and negligent driving of the lorry, which finding does not warrantany interference now.

In so far as issue Nos.2 and 3 are concerned, the Tribunal hasgranted compensation of Rs. 94,000/- under all counts. To prove thefactum of disability suffered and to establish his income, the appellantexamined P.Ws.3 and 2 respectively. P.W.3, who is a doctor, deposedthat the appellant suffered 40% disability and he accordingly, issuedEx.A15 disability certificate. P.W.2, who was the Administrative Officerof T.B. Sanatorium, Anathagiri of Vikarabad, was examined to provethe income of the injured. The 2[nd] respondent insurance company hasnot elicited contrary thereto from the cross-examination of P.Ws.1 to 3. Therefore, I am of the opinion that the disability of the injured has to betaken as 40% and his income as Rs.8,000/- per month. Then, the lossof earning capacity is Rs.3,200/- per month (40% x Rs.8,000/- permonth). It comes to Rs.38,400/- annually. The appropriate multiplier,according to the age of the injured, is “11”. Therefore, thecompensation to be awarded to the injured comes to Rs.38,400/- x 11= Rs.4,22,400/-. But however, the appellant claimed the compensationat Rs.3,50,000/-. Hence, he is entitled to Rs.3,50,000/- only. The enhanced amount shall carry interest at 7% per annum from the date ofpetition till the date of realization.

With the above modification, the Appeal is allowed. No order as to costs.

__________________________

GHULAM MOHAMMED, J.

30[th] December 2010

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