1 RRN,J
MACMA No.2375 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2375 of 2014
JUDGMENT:
This M.A.C.M.A is filed by the appellant/claimant challenging the order and decree dated 10.02.2014 passed in O.P.No.215 of 2008 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge, Bodhan.
2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. The brief facts of the case are as follows:
The petitioner filed a claim petition claiming compensation of Rs.3,00,000/- on the account of injuries sustained by him in a motor vehicle accident stating that on 19.02.2006, he and others were travelling in an Auto bearing No.AP25-U-7683 from Chinna Devda Village to Bichkunda. When the said auto reached in front of Junior College, Bichkunda, at about 10.00 am, the driver of auto drove it in a rash and negligent manner with high speed and dashed against a TVS motorcycle, which was coming in opposite direction. As a result, the petitioner fell down and sustained a compound 2 RRN,J MACMA No.2375 of 2014 fracture to both bones of the right leg, fracture to the supine pubic ram, fracture to the condoyle tibia left, injuries on the shoulder, head, hands backside neck ribs and other parts of the body. Immediately, he was shifted to Government Hospital, Banswada, and later shifted to Government Hospital, Nizamabad from there, he was shifted to Seshank Hospital, Nizamabad and underwent surgery to his both legs and incurred an amount of Rs.1,50,000/- towards medical expenses. Hence the claim petition.
4. Before the Tribunal, respondent No.1 remained ex parte. Respondent No.2 filed a counter denying all the allegations in the petition. He further submitted as per the charge sheet, the said accident occurred due to negligence of both drivers i.e., driver of the crime auto and rider of TVS motorcycle and the owner and insurance company of the TVS motorcycle are necessary parties and the petitioner did not implead them. On such ground only, respondent No.2 is not liable to pay any compensation and the same is liable to be dismissed.
5. Based on the above pleadings, the Tribunal framed the following issues:
3 RRN,J
MACMA No.2375 of 2014
i) Whether the accident occurred due to the rash and negligent driving of driver of Auto bearing No.AP-25U-7683?
ii) Whether the petitioner is entitled to compensation and if so, to what amount?
iii) Whether the respondents are liable to pay compensation?
iv) To what relief?
6. On behalf of the petitioner, P.Ws.1 and 2 were examined and got marked Exs.A1 to A.9 and Ex.C.1. No oral evidence was adduced on behalf of respondents and only marked Ex.B1/copy of Policy.
7. On appreciation of the evidence on record, the Tribunal answered issue No.1 observing that there was contributory negligence on the part of both vehicles and negligence was fixed @ 80% on the part of the driver of the Auto and 20% on the rider of the TVS Moped. Accordingly, the Tribunal allowed the O.P. in part by awarding compensation of Rs.69,900/- in total under different heads, but the petitioner was entitled to Rs.55,920/- keeping in view of 80% negligence on the part of the driver of the Auto. Aggrieved by the same, the present appeal is filed by the petitioner.
8. Heard both sides and perused the record.
4 RRN,J
MACMA No.2375 of 2014
9. Learned Counsel appearing for the petitioner mainly urged that the Tribunal erred in fixing 20% liability on the part of the rider of the TVS Moped where no negligence on his part was proved and the 2nd respondent did not adduce any contrary evidence and the Tribunal ought to have considered 100% negligence on the part of the driver of the Auto. He further contended that the Tribunal failed to award just compensation by not considering the proper income of the petitioner in view of Ex.A8/Pahani. He also contended that the compensation under other heads was meagre, thus praying to allow the appeal by enhancing the compensation.
10. Opposing the same, learned Counsel appearing for the 2nd respondent/Insurance Company had contended that the Tribunal was justified in fixing 20% liability on the part of the rider of the TVS Moped in contributing negligence in causing the accident and also learned Counsel for the respondent No.2 said that the Tribunal ought to have considered the monthly income of the petitioner at Rs.4,500/- only. Further contended that the compensation under other heads is adequate and no interference is required in the impugned order. Accordingly, prayed to dismiss the appeal.
5 RRN,J
MACMA No.2375 of 2014
11. We would first deal with the issue raised by the learned Counsel for the petitioner with regard to the negligence and ratio of it. It is seen from the record that the Tribunal found fault both on the part of the driver of the Auto and the rider of the TVS Moped, considering Ex.A2/Charge Sheet. Other than the oral evidence of the petitioner that the negligence was only on the part of the driver of the Auto, no material is placed to supersede the version of the investigation as in the Charge Sheet. Though the petitioner claimed that the 2nd respondent did not elicit anything in his cross-examination, the petitioner could not prove that the rider of the TVS Moped did not contribute negligence. As such, the Tribunal was justified in fixing 20% liability on the part of the rider of the TVS Moped in contributing negligence in causing the accident. Thus, the petitioner would be entitled to only 80% of the awarded compensation.
12. With respect to the other grounds questioning the quantum, the petitioner claimed that the was earning Rs.10,000/- per month by doing agriculture and in support of the same, he filed Ex.A8/Pahani. The Tribunal considered Rs.3,000/- per month on guess work. This Court is inclined to 6 RRN,J MACMA No.2375 of 2014 take into consideration the monthly income of the petitioner @ Rs.5,000/- as the land existing for the petitioner to cultivate under Ex.A8/Pahani is Ac.8.17 Gts. The Tribunal awarded compensation under various heads, some of which are justified and some of which are not. The Tribunal failed to award compensation for the injuries sustained by the petitioner viz. (03) grievous injuries and (01) simple injury and the Tribunal also failed to consider future medical expenses despite the doctor deposed that the petitioner would incur at least Rs.25,000/- for the same, and this Court is inclined to award compensation under those heads.
13. The petitioner was awarded compensation under various heads and the same is interfered with in the following manner:
HEAD AMOUNT AWARDED BY AMOUNT AWARDED BY THE TRIBUNAL THIS COURT PAIN AND SUFFERING RS.30,000/- RS.30,000/- LOSS OF INCOME (2 RS.6,000/- RS.10,000/-
Months) (03) GREVIOUS INJURIES NIL RS.60,000/- (20,000 each) SIMPLE INJURIES NIL RS.10,000/-
MEDICAL RS.28,900/- RS.30,000/-
BILLS/EXPENSES
TRANSPORTAION RS.2,000/- RS. 5,000
EXTRA NOURISHMENT RS.3,000/- RS.10,000/-
FUTURE MEDICAL NIL RS.25,000/-
EXPENSES
TOTAL RS.69,900/- (But entitled to Rs.1,80,000/- (But entitled
only Rs.55,920/- in view of to only Rs.1,44,000/- in
80% negligence of the driver view of 80% negligence of
of the Auto) the driver of the Auto)
7 RRN,J
MACMA No.2375 of 2014
14. In the result, the M.A.C.M.A is allowed in part and the compensation amount awarded by the Tribunal is enhanced from Rs.69,900/- to Rs.1,80,000/-. However, in view of the negligence of the driver of the Auto at 80%, the petitioner is entitled to Rs.1,44,000/- (Rupees One Lakh and Forty Four Thousand only) with interest @ 7.5 % p.a. from the date of petition till the date of realization. The respondents are directed to deposit the said amount with costs and interest after deducting the amount, if any, deposited earlier, within one month from the date of receipt of a copy of this judgment. On such deposit, the petitioner is permitted to withdraw the same. There shall be no order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in this appeal, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 25th day of April, 2023.
BDR/PNS
8 RRN,J
MACMA No.2375 of 2014