MACMA/19/2005 of Allampalli Peddiraju Vs Narayana Pradhan on 31 December 2014

JUDGMENT:

Dissatisfied with the grant of Rs.30,000/- ascompensation by the award dated 09.08.2004 in M.V.O.P.No.768 of 2001 on the file of the First Additional DistrictJudge (Motor Accidents Claims Tribunal) East GodavariDistrict, Rajahmundry, whereby and whereunder asagainst the claim for Rs.1,00,000/- laid under Section 166of the Motor Vehicles Act, 1988 read with Rule 455 of theA.P. Motor Vehicle Rules, 1989, the instant appeal ispreferred.

2. For the sake of convenience, the parties arehereinafter referred to as arrayed in the O.P. before theTribunal.

3. The facts in brief are that on 23-03-2001 at about3.00 pm, the petitioner along with his step mother was proceeding to Vemagiri on Kinetic Honda motor cycle andwhen they reached near Vemagiri Bridge centre, a lorrybearing Registration No.OR 15 A 9311 driven by the 1[st]respondent in rash and negligent manner dashed themotor cycle coming in opposite direction, due to whichthey fell down and received grievous injuries. He claimsthat he was taken to Dr.G.Aravindam’s hospital for treatment and he was treated as inpatient for 1 ½ monthand he sustained injury to his head. On account of thesaid injury, he is unable to cope-up with the normalactivities and, therefore, sought Rs.1,00,000/- againstrespondents 1 to 3 i.e., driver, owner of lorry andInsurance Company.

5. Respondents 1 and 2 remained ex parte in theO.P. before the Tribunal.

6. 3[rd] Respondent—Insurer of the lorry, filed itscounter contesting the claim requiring the claimant toprove the allegations mentioned in the petition.

7. The Tribunal framed three (3) issues in thedirection of fixing responsibility for the accident. Duringenquiry, the petitioner examined himself as PW.1 besidesexamining Dr.G.Aravindam as PW.2 and marked Exs.A-1to A-4 and Ex.C1 to C3 as to his entitlement forcompensation. On behalf of the respondents, no oral ordocumentary evidence was let in.

8. The Tribunal, on appraisal of evidence on record,particularly, basing on Ex.A1 and Ex.A2 which are Xeroxcopies of FIR and charge sheet respectively, held thatonly due to rash and negligent driving of lorry driver, theaccident has occurred and held issue No.1 in favour ofthe claimant. On issue No.2, basing on the evidence of PWs.1 & 2 and disbelieving Ex.C-1, the disabilitycertificate issued by PW.2 showing 25% disability as itruns contrary to the description of injuries mentioned inEx.A3 by PW.2, granted Rs.10,000/- towards grievousinjuries, Rs.10,000/- for four simple injuries, Rs.5,000/-towards pain and suffering, Rs.5,000/- for medicines, and,thus, awarded a total sum of Rs.30,000/- with 9% interestthereon.

9. It is that order which is challenged in the instantappeal on the ground that the Tribunal has granted ameagre sum which is not just and adequate when kept inview, the injuries sustained by the petitioner andsufferance he has undergone. It is agitated in thegrounds of appeal that the Tribunal did not properlyappreciate the evidence of PW.2 and documentaryevidence through Ex.C-1 to C-3. The evidence of PW.2remained unchallenged and un-rebutted and, therefore,sought to grant the balance amount.

10. Heard Sri Ch.Dhanamjaya, learned counsel forthe claimant (appellant). The appeal against R-1—driverof the vehicle dismissed by the order dated 04.01.2012but it makes no difference since he remained ex partebefore the Tribunal. Though the 2[nd] respondent owner ofthe vehicle was served with notice, none appears for him. No representation on behalf of the 3[rd] respondent.

Therefore, proceeded to decide the appeal on merits.

11. Learned counsel for the appellant submits thatdespite the petitioner sustaining grievous injuries and 25%disability as per Ex.C1 issued by PW.2, who has alsoasserted as to the said disability sustained by PW.1, theTribunal did not properly appreciate the evidence of PW.2as well as Ex.C1 and, therefore, sought to enhance thecompensation.

12. The short point that arises for consideration iswhether the petitioner is entitled to enhancement ofcompensation as per Ex.A3, which is wound certificateshowing that the petitioner sustained one grievous injuryand four simple injuries, which are as follows:

1) Tenderness, swelling on right wrist present

2) An abrasion over left wrist ½” X ½” in size

3) An abrasion over right kneecap of 1” X 1” insizesize

4) An abrasion over left knee cap of 1” X 1” insizesize

5) A laceration over the right temple region of 1cm X 1 cm in size.cm X 1 cm in size.

13. The Tribunal rightly discarded Ex.C1 disabilitycertificate issued by PW.2 mentioning the disability of 25%as there is no elaboration by PW.2 arriving at 25%disability. This apart PW.2, who is a private medical practitioner ought to have advised the petitioner toapproach the Board constituted at the District HeadQuarters Hospital. Therefore, the finding recorded by theTribunal in rejecting Ex.C1 does not suffer from anyperversity. However, concerning the amounts grantedunder various heads, the Tribunal has grantedRs.10,000/- towards grievous injury and Rs.10,000/-towards simple injuries certainly on lower side.

So far as the amount of Rs.10,000/- granted towardsgrievous injury is concerned the same cannot bedisturbed. However, Rs.10,000/- granted towards simpleinjuries is enhanced to Rs.12,000/- and the amount ofRs.5,000/- granted by the Tribunal towards pain andsuffering is enhanced by granting Rs.10,000/- additionallykeeping in view, the tenderness, swelling on right wristsince it must have caused great inconvenience to thepetitioner for quipte some time. The amount of Rs.5,000/-granted towards medicines is not disturbed. Thus, theclaimant is entitled to Rs.42,000/- as against Rs.30,000/-granted by the Tribunal.

13. Thus, the claimant is entitled to a totalcompensation of Rs.42,000/- (Rupees forty two thousand only) asagainst Rs.30,000/-, awarded by the Tribunal, and thesame is accordingly awarded. Concerning rate of interest,the Tribunal granted interest at 9% per annum on Rs.30,000/-. In view of the decision of the Apex Court in Rajesh and others v.Rajbir Singh and others[[1]],interest at 7.5% per annum is granted on the total sum ofRs.42,000/-. The petitioner is permitted to withdraw theentire amount.

14. Accordingly, the Appeal is allowed in partmodifying the impugned award passed by the Tribunal, byenhancing the compensation as stated supra. There shallbe no order as to costs.

15. As a sequel thereto, MiscellaneousApplications, if any, pending in this appeal stand disposedof.

___________________________

A. SHANKAR NARAYANA, J

31[st] December, 2014.

Knl

HONOURABLE SRI JUSTICE A. SHANKARNARAYANA

M.A.C.M.A. No.19 of 2005

Date:31.12.2014

knl

[1]2013 ACJ 1403 = 2013(4) ALT 35