CMA/3705/2003 of Sri Potnuri Satya Rao Vs Sri B. Venkata Rao 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 injured seeking enhancement of thecompensation awarded by the II Additional District Judge,Visakhapatnam in M.O.P.No. 135 of 1999, on 07.03.2003.

The facts, in brief, are as follows.

The appellant filed the above said O.P. under Section 166 ofthe Act, claiming compensation of Rs.2,00,000/- for the injuries said tohave been sustained by him in a motor vehicle accident. According tohim, he was working as a driver and while discharging his duties assuch, on 17.06.1997, at about 08.30 a.m., he started from Damuku andwhen reached Araku Village, a lorry bearing Registration No. APT2139 which was coming in opposite direction, in a rash and negligentmanner, dashed against the petitioner’s lorry bearing Registration No.AIQ 5868, as a result, the front portion of the petitioner’s lorry damaged and the petitioner’s right leg and left hand were fracturedapart from grievous injuries all over his body. He pleads that he wasearning Rs.6,000/- per month at the time of accident and he spentRs.70,000/- towards his treatment.

Before the Tribunal, Respondents 1 and 3 remained ex parte.

In the counter-affidavits filed before the Tribunal, Respondents2 and 4 denied their liability to pay the compensation. They furthercontended that the compensation claimed by the appellant is on higherside.

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

(1) Whether the accident has taken place that resulted in causing the injuries to the petitioner due to the rash andnegligent driving of the lorry AP 31 T2139 by its driver?causing the injuries to the petitioner due to the rash andnegligent driving of the lorry AP 31 T2139 by its driver?(2)Whether the respondents are liable to pay the compensation and if so, to what quantum and by whichrespondent?(3)To what relief?

During trial, the claimant examined himself as P.W.1 andexamined the Orthopaedic Surgeon, K.G. Hospital, Visakhapatnam asP.W.2 and got marked Exs.A1 to A12. On behalf of the contestingrespondents, R.W.1 was examined and Exs.B1 to B3 were marked.

The Tribunal, on issue No.1, held that the driver of theoffending lorry bearing Registration No. AP 31 T 2139 alone isresponsible for the accident. On issue No.2, the Tribunal took theincome of the injured at Rs.2,000/- per month and his age as 32 years. It applied the relevant multiplier as ‘17’ and since the disability of theinjured was assessed at 10%, it worked out the loss of dependencyper annum at Rs.2,000 x 12 x 10% = 2,400/- and when it wasmultiplied with multiplier ‘17’, the compensation towards loss ofearning capacity was worked out Rs. 2,400 x 17 = Rs.40,800/-. Though the petitioner claimed that he spent Rs.70,000/- towardsmedicines, he filed a bill for Rs.30,500/-, but the doctor who issued thesame was not examined. However, considering the facts, the Tribunalawarded Rs.5,000/- towards medicines and extra nourishment, in totalRs.45,800/- towards compensation from Respondents 1 and 2, whoare owner and insurer of the lorry bearing No. AP 31 T 2139, withinterest at 9% per annum from 03.01.2003 till the date of realizationand with proportionate costs.

Learned counsel for the appellant contends that the Tribunalerred in assessing the monthly income at Rs.2,000/-. He furthercontends that though he produced the medical bill for a sum ofRs.30,500/-, the Tribunal has not taken the same into consideration.

Heard the learned Standing Counsel for the contestingrespondents.

Now the only point that arises for consideration in this appeal iswhether the appellant is entitled to enhancement of the compensation at all or not?

Arguments

The appellant, in support of his case, examined himself asP.W.1 and also examined P.W.2, Orthopaedic Surgeon, K.G. Hospital,Visakhapatnam. The Tribunal, after considering the evidence ofP.Ws.1 and 2 and Ex.A3 wound certificate and Ex.A10 disabilitycertificate, though P.W.2 certified that the injured suffered 20%disability, has taken the disability at 10% only. The learned counselfor the appellant contends that the Tribunal erred in taking thedisability at 10%. Therefore, in view of the fracture sustained by theappellant, and in view of the judgment reported in National Insurance Co. Ltd., Chennai vs. Adepu Raghunesh[[1]],wherein it has beenheld that the initial burden to prove the nature of injuries and theirseverity is on the claimant and that the Insurance company is notunder obligation to prove that the claimant has not suffered injuries asalleged by him, I am of the opinion that the ends of justice would bemet if the disability of the injured claimant is taken at 15%. As the ageof the claimant was 32 years at the time of accident, the appropriatemultiplier for the said age group, as per the decision of the Apex Courtin Sarala Verma v. Delhi Transport Corporation[[2]],is ‘16’. Then, thecompensation comes to Rs. 2,000/- p.m. x 12 months x 15% = 3600 X16 = 57,600/-. In addition to it, a sum of Rs.20,000/-towards pain andsuffering and Rs.5,000/-towards medical expenses is also awarded. Intotal, a sum of Rs. 82,600/- is awarded to the claimant. Thus, thecompensation is enhanced from Rs.45,800/- to Rs.82,600/-. Theaward of the Tribunal in all other aspects shall remain unaltered. Theenhanced compensation amount shall carry interest @ 7% per annumfrom the date of the petition till realization.

With the above modification, the Civil Miscellaneous Appeal isallowed in part. No order as to costs.

__________________________

30[th] December 2010

ksld

[1]2010 (3) ALD 487[2](2009) 6 SCC 121