CMA/4732/2004 of B.Kranti Vs M.S. Auto Finance ltd. on 31 December 2014

J U D G M E N T:

This appeal is filed by the appellant/petitioner under Section173 of the Motor Vehicles Act, 1988 (for short ‘the Act’), aggrievedby the award, dated 26.07.2002, passed by the Chairman, MotorVehicle Accident Claims Tribunal-cum- V Additional Chief Judge, City Civil Court, Hyderabed, inO.P.No.1854 of 2000, awarding compensation of Rs.39,000/-.

2. The appellant/petitioner filed the above O.P under Section 166of the Act, claiming compensation of Rs.1,00,000/- on account ofthe injuries received by him in a motor vehicle accident, thatoccurred on 13.07.2000.

3. For the sake of convenience, the parties hereinafter will bereferred to as they are arrayed in the Original Petition.

4. The brief averments made in the petition are that on13.07.2000 at about 5:00 p.m, when the petitioner and his friendwere proceeding on a Hero Honda motorcycle bearingNo.AP.9AT.8965 from Madhapur to Banjara Hills, on the way nearRoad No.3, A.P.S.E.B. Office, an Ambassador Car of the firstrespondent bearing No.AP.10.T.9735, being driven by its driver athigh speed in a rash and negligent manner, came from behind andhit the Hero Honda Motorcycle. Due to the said accident, both ofthem fell down and received grievous injuries. The petitioner wasshifted to Medwin Hospital, Nampally and treated there. He spentRs.5,000/- towards medical expenses. In the accident, hesustained fracture to right leg, knee and ankle and still, he is unableto attend his duties. By the time of accident, he was studying firstyear B.Tech Course and injuries affected his studies. Hence, heprayed the Court to grant compensation, against both the respondents.

5. Before the Tribunal, the first respondent remained ex parte.

6. The brief averments made in the counter filed by the secondrespondent are as follows:

The second respondent put the petitioner to prove themanner of accident, age and income of the petitioner and furtherstated that the accident if any taken place, is due to rash andnegligent driving of the rider of the Hero Honda Motor Cycle, but notthe driver of the Car. The respondent also contended that thepetition is bad for non-joinder of owner and insurer of themotorcycle and finally prayed the Court to dismiss the petition.

7. Basing on the pleadings, the Tribunal framed three issues andto substantiate the claim, the petitioner got examined PWs.1 & 2and got marked Exs.A1 to A13 on his behalf. On behalf of thecontesting respondent, no oral or documentary evidence adduced.

8. After considering the oral and documentary evidence, theTribunal awarded compensation of Rs.39,000/- along with interestat 9% p.a to the petitioner against both the respondents.

9. Being not satisfied with the compensation awarded by theTribunal, the petitioner preferred the present appeal.

10. The learned counsel appearing for the appellant/ petitionerargued that the Tribunal awarded meagre compensation to thepetitioner, though petitioner sustained fracture to his right leg, kneeand ankle, and took treatment in Medwin Hospital, Nampally, byspending huge amounts; that the Tribunal has not considered theevidence of PW.2, who categorically stated that the petitionersustained 20% disability and not awarded compensation towardsthe disability. The learned counsel also argued that the Tribunal failed to award compensation under the head of pain and sufferingsand awarded meagre compensation for transportation, extranourishment and attendant charges and therefore, prayed the Courtto enhance the compensation.

11. Though, notice was served on respondent No.1, noneappeared to argue on its behalf.

12. On the other hand, the learned counsel for respondent No.2argued that the compensation awarded by the Tribunal is just andreasonable and the finding of the Tribunal needs no interference;that the appellant has not filed any documentary evidence i.e.,disability certificate to show that the petitioner is suffering with 20%disability; that the doctor who treated the petitioner has not statedthat basing on the X-ray reports, he came to the conclusion aboutthe disability; that the Tribunal rightly considered the evidence andhas awarded just and reasonable compensation to the petitionerand prayed the Court to dismiss the appeal.

13. Having regard to the submissions made by the learnedcounsel appearing for both parties, the points which are to bedecided in this appeal are as follows:

1. Whether the appellant/petitioner is entitled forenhancement of compensation as prayed for?enhancement of compensation as prayed for?2.Whether the compensation granted by theTribunal is just and reasonable or not?Tribunal is just and reasonable or not?

14. POINTS 1 & 2: The petitioner examined himself as PW.1and stated about the manner of accident and Tribunal afterconsidering the oral and documentary evidence held that theaccident was taken place due to rash and negligent driving of thedriver of the Ambassador car bearing No.AP.10.T.9735. The saidfinding of the Tribunal needs no interference, as the insuranceCompany has not produced any evidence and not preferred anyappeal regarding the manner of accident.

15. The main contention of the appellant is that the Tribunal hasnot awarded any compensation under the head of pain andsufferings and under the head of permanent disability as thepetitioner suffered 20% disability. A perusal of the evidence ofPW.2 doctor, working in Medwin Hospital as Orthopaedic surgeon,clearly shows that on 13.07.2000 the petitioner was admitted inMedwin Hospital with fracture of right ankle and abrasion of rightelbow, and he applied Plaster of Paris to the fracture anddischarged him on 14.07.2000. According to PW.2, the movementof the left ankle of the petitioner was restricted due to the injuries,which resulted to the disability of 20%. In the cross-examination,PW.2 admitted that he treated the petitioner in the hospital for oneday and no operation was conducted on him. A perusal of therecord shows that the doctor PW.2 has not taken any X-rays of thepetitioner’s ankle, while assessing the disability and likewise, nodisability certificate was filed to show that the petitioner wassuffering with 20% disability. The petitioner also not filed anyevidence to show that due to the injury, he lost one academic year. Though PW.2 stated that on his clinical examination that heassessed the disability as 20%, it cannot be accepted. Further,after considering the nature of injuries, the Tribunal awardedRs.30,000/- towards compensation for the injuries and Rs.6,600/-towards medical expenses. It is nodoubt, the learned counsel forthe second respondent-Insurance Company rightly concluded to thefact that the Tribunal has not awarded any compensation towardspain and sufferings.

16. A perusal of the record shows that the petitioner nodoubt,suffered grievous injury and took treatment in Medwin Hospital anddue to the said injury, the petitioner suffered inconvenience andpain and sufferings. Therefore, I am of the view that an amount of Rs.10,000/- shall be awarded towards pain and sufferings. Anamount of Rs.5,000/- is awarded under the head of attendantcharges, transportation, and extra nourishment. Thus, an amountof Rs.51,600/- (rounded to Rs.52,000/-) is awarded to the petitioner.

17. Therefore, in view of the above discussion, the appeal ispartly allowed enhancing the compensation awarded by the Tribunalto the appellant/petitioner from Rs.39,000/- to Rs.52,000/-. Noorder as to costs.

18. Miscellaneous Petitions, if any, pending in this appeal shallstand closed.

Date: .12.2014 sr

_____________

ANIS, J