CIVIL APPEAL 469 of 2006 on 28 December 2001

JUDGMENT:

HON’BLE SRI JUSTICE M. VENKATA RAMANA

M.A.C.M.A.No.469 OF 2006

This appeal is directed against the decree and award of Motor Accidents Claims Tribunal – cum – the Court of learned VI Additional District Judge, (FTC) Krishna at Machilipatnam, in M.V.O.P.No.86 of 2002, dated 27.10.2005.

2. The claimant is the appellant. The third respondent is the insurer and whereas, respondents 1 and 2 are the driver and the owner of the offending lorry AAQ 5499.

3. The appellant laid the claim before the tribunal for a compensation of Rs.2,00,000/-. His case was that on 28.12.2001 at about 11.00 p.m. at Ambedkar center, Vissannapet, when he and his brother were waiting for a bus, the offending lorry driven in a rash and negligent manner, dashed against him causing serious injuries. He claimed that he spent Rs.70,000/- for medical treatment and suffered loss of income since he was earning Rs.4,000/- per month as a trader. Thus stating that the respondents 1 to 3 are jointly and severally liable, he requested to award the amount of compensation, as sought.

4. Respondents 1 and 2 remained ex parte and whereas the third respondent alone contested the claim in the Tribunal. The objection of the third respondent was that the petitioner himself had contributed for the alleged accident and that the alleged offending vehicle was never driven in a rash and negligent manner. It also denied the claim being unnecessary excessive.

5. On the pleadings, the Tribunal settled the following issues:

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“1. Whether the accident was occurred due to rash and negligent driving of the lorry bearing No.AAQ-5499 by its driver/R1? driver/R1?

2. Whether the petitioner is entitled to any compensation if so, to what amount from which of the respondents?

3. To what relief?”

6. Basing on the evidence of the appellant and the doctor, who treated him, who were examined as P.Ws.1 and 2 respectively and considering the effect of Ex.A1 to Ex.A10 as well as Ex.X1, the Tribunal awarded a compensation of Rs.50,000/- in all, by the judgment under appeal.

7. Sri Yuva Siva Swamy, advocate representing Sri G.Narasimha Rao, learned counsel for the appellant contended that the Tribunal did not appreciate the material on record in proper perspective and when it is held that the accident occurred on account of rash and negligent driving of the offending lorry, holding all the three respondents being liable jointly and severally restricting the claim, is not proper. Thus elaborating on the material available, learned counsel requested to enhance the compensation.

8. None represented the third respondent when the matter was heard on 10.02.2020 and this day also. Therefore, this matter is being disposed off on the material available, after hearing for the appellant.

9. Now, the point for determination is: - “Whether the appellant is entitled for enhanced compensation than what is awarded by the Tribunal?”

10. The Tribunal considering the evidence of the appellant as P.W.1, relying on Ex.A1 copy of FIR and Ex.A8 copy of charge sheet relating to connected criminal case registered by the police of Vissannapet Police MVR,J

Station and such material being sufficient, held that the accident did occur on account of rash and negligent driving of the lorry AAQ 5499. It further held that the appellant suffered injuries in that accident, holding primarily the first respondent, who was driving the lorry at the time of the accident, responsible. Vicarious liability of second respondent, who was then owner of this lorry was also settled, while holding that in view of the contract of insurance under Ex.A10 policy between respondents 2 and 3, the insurer is liable to satisfy the claim of the appellant.

11. These findings stand confirmed in as much as no appeal has been preferred by any of the respondents against the award, in respect thereof.

12. The nature of injuries suffered by him and expenses he had incurred apart from the trauma he faced on account of this accident stand for prime consideration, on which the appellant is requesting enhancement of compensation.

13. Nature of injuries suffered by the appellant in this accident should be considered in this context. Ex.A2 is the copy of wound certificate referring to nature of injuries suffered by the appellant. There is evidence of P.W.2 Dr.J.Ajay Kumar, who treated the appellant when he was admitted in Charithasri Hospital, Vijayawada on 29.12.2001. Therefore, evidence of P.W.2 has to be given not only importance but also credence. He deposed with reference to Ex.X1 case sheet.

14. The injuries suffered by the appellant were on lateral aspect of left knee, with bleeding calf muscles exposed with contamination and a crush injury of left third toe. These injuries are found to be grievous in nature. The appellant was treated in the above hospital as an inpatient from 29.12.2001 to 28.01.2002, which fact is deposed by P.W.2. His evidence further reflects that the appellant had two surgeries.

15. The claim of the petitioner in respect of medical expenses is not only based on the evidence of P.W.2, Ex.X1, but also on Ex.A6 and Ex.A7 receipts and medical bills.

16. The Tribunal considered that the medical bills produced by the petitioner are for Rs.43,730/-. But it rejected them on the ground that they are all credit bills and that the petitioner had not paid any amount to the hospital for his treatment. Thus observing, the Tribunal awarded Rs.20,000/- towards medical expenses.

17. The evidence of P.W.2, it appears, pointed out that the appellant had spent Rs.40,000/- for medicines and whereas he also spent Rs.33,000/- towards surgery expenses, bed charges, dressing charges, consulting charges etc. In the light of such evidence, the Tribunal could not have ignored the same. It is also in the evidence of P.W.2 that the appellant had used the medicines as disclosed in medical bills(Ex.A7). The appellant underwent skin grafting twice to his left knee. For such purpose, the Tribunal awarded Rs.10,000/-.

18. When there is acceptable evidence of P.W.2 in this respect and the fact remained that the appellant had such treatment for the injuries suffered by him, his claim could not have been rejected by the Tribunal arbitrarily and without any basis. The amount so spent by the appellant appears to be the actual expenses incurred by him. Therefore, there is justification to award Rs.73,000/- (Rs.40,000/- basing on medical bills + Rs.33,000/- towards hospital charges) in all towards medical expenses as well as skin grafting apart from Rs.30,000/-(Rs.20,000/- towards medical expenses + Rs.10,000/- towards skin grafting).

19. Having regard to nature of the injuries and their effect on the person of the appellant, due allowance should be made by way of compensation. They are grievous injuries. The Tribunal awarded Rs.15,000/- + Rs.5,000/- towards both the injuries, referred to above.

20. The very fact of admitted situation of skin grafting indicates that the injury No.1 suffered by the appellant did have considerable effect on his person. In such circumstances, awarding Rs.15,000/- is apparently on low side. Similarly, in respect of the injury to third toe, awarding Rs.5,000/- is also too low. Apart from nature of these two injuries, the pain and suffering the appellant has to endure in future and possible effect of discomfort they cause to the appellant, should also be borne in mind. These are permissible claims for compensation under the head ‘general damages’. Therefore, having regard to effect of these two injuries, if Rs.50,000/- in all is awarded, it shall be just and appropriate.

21. Thus, finding that there is justification in the request of the appellant for enhanced compensation in the proved facts and circumstances of the case, the observations of the Tribunal confining compensation to be awarded to Rs.50,000/- are not correct. Basing on the material on record, the compensation to be awarded to the appellant now stands at Rs.1,23,300/-. But, there is no material to justify his claim for Rs.2,00,000/-. Accordingly, the award has to be modified while holding that rate of interest at 7.5% per annum granted is just and appropriate.

22. Thus, this point is answered.

23. In the result, this appeal is allowed in part. Accordingly, the award of the Tribunal is modified granting a compensation of Rs.1,23,300/- with proportionate costs and with future interest thereon at 7.5% per annum from the date of presentation of the petition till realisation, against respondents 1 to 3 jointly and severally. Rest of the claim of the appellant is dismissed. Time for deposit is two (02) months. If compensation MVR,J

awarded by the Tribunal, as directed by the award dated 27.10.2002, is already deposited by the third respondent – insurer, due credit shall be given to it including in respect of costs and interest whatever deposited already, out of the amount payable as per the order in this appeal. On such deposit, the appellant is permitted to withdraw the entire amount without furnishing any security. Advocate’s fee in this appeal is Rs.10,000/-. All pending petitions, stand closed.

Dt:14.02.2020 Rns

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M. VENKATA RAMANA, J

Rns

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

M.A.C.M.A.No.469 OF 2006

Date:14.02.2020

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