THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No. 1510 of 2015
JUDGMENT:
This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 03.06.2015 made in M.V.O.P.No.805 of 2013, on the file of the Motor Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court at Hyderabad (for short "the Tribunal).
2. Brief facts of the case are that the appellant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.20,00,000/- for the injuries sustained by him in a road accident that occurred on 14.02.2013. It is stated that on the fateful day, while the appellant was proceeding on his bike bearing No.AP 15 AR 9137 CBZ from Chandrampeta to Sircilla, one DCM Van bearing No.AP 11 U 8609, owned by respondent No.1 and insured with respondent No.2, being driven by its driver in a rash and negligent manner at high speed, lost control over the vehicle and dashed the petitioner. As a result, the petitioner fell down on the road and sustained crush injury over right forearm with neuro vascular injury, lower 2 MGP, J Macma_1510_2015 brachial plexus injury and both bones fractured apart from multiple injuries all over the body. Immediately after the accident, the petitioner was admitted at Government Hospital, Sircilla and later he was shifted to Yashoda Hospital, Hyderabad, where he underwent major operation and was on bed rest for a prolonged period. The appellant spent Rs.4,50,000/- for his treatment. It is further stated that prior to the accident, the appellant was working as School Correspondent and earning Rs.10,000/- per month, but due to the injuries, he is unable to do any work and lost his earning capacity. Therefore, the appellant laid a claim against the respondents.
3. While the 1st respondent remained ex parte, the 2nd respondent filed counter denying all the allegations made in the claim-petition. It is further contended that the compensation claimed is excessive and prayed to dismiss the claim-petition.
4. Based on the above pleadings, the Tribunal framed the following issues:
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1) Whether the accident occurred on 14.02.2013 due to the rash and negligent driving of the driver of the DCM Van bearing No.AP 11 U 8609 causing injuries to the petitioner?
2) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3) To what relief?
5. After considering the oral and documentary evidence available on record, the Tribunal dismissed the claim- petition on the ground that there was a delay of two days in lodging the F.I.R. and as such the appellant has miserably failed to prove the prima facie case against the alleged driver of respondent No.1 to fix the liability. Aggrieved by the said judgment, the claimant filed the present appeal.
6. Heard both sides and perused the record.
7. Learned counsel for the appellant has submitted that the appellant was admitted in Yashoda Hospital, Hyderabad, which has been proved by the appellant by marking Exs.A3 and A4, M.L.C., and the discharge 4 MGP, J Macma_1510_2015 summary issued by Yashoda Hospital, Hyderabad. It is further submitted that as the appellant was undergoing treatment, his father was attending on him at the hospital and therefore, no complaint was lodged by either the appellant or his relatives, immediately after the accident. It is further submitted that after conducting investigation only, the Investigating Officer has filed charge sheet, Ex.A2, against the driver of the offending vehicle. It is further submitted that the Tribunal has dismissed the O.P. only on mere assumptions and presumptions and therefore, prayed to allow the appeal.
8. Learned Standing Counsel for the insurance company has submitted that the Tribunal has rightly dismissed the O.P., as there was a delay in lodging the F.I.R. and therefore, prayed to dismiss the appeal.
9. Having regard to the rival contentions made by both the counsel, the point that arises for consideration in this appeal is whether the appellant has proved the involvement of the DCM Van bearing No.AP 11 U 8609 in the accident 5 MGP, J Macma_1510_2015 and, if so, what is the just and reasonable compensation to which the appellant is entitled to?
10. POINT: It is the case of the appellant that on 14.02.2013 while he was proceedings on his motorcycle from Chandrampeta to Sircilla, one DCM Van bearing No. AP 11 U 8609 came in opposite direction in a rash and negligent manner at high speed and dashed him, due to which, he fell down and sustained fracture injuries. Immediately after the accident, the appellant was shifted to Government Hospital, Sircilla by 108 ambulance for first aid and thereafter he was shifted to Yashoda Hospital, Hyderabad, where he took treatment from 15.02.2013 to 22.02.2013. Undoubtedly, there was delay of two days in lodging the first information report. Based on a complaint lodged by one Nakka Ravichander, the Police, Sircilla, registered a case in Crime No.63 of 2013 and after completion of investigation, the police filed Ex.A2-charge sheet, which was taken cognizance as C.C.No.229 of 2013 on the file of the Judicial Magistrate of First Class, Sircilla and the accused admitted his guilt and the learned 6 MGP, J Macma_1510_2015 Magistrate convicted and sentenced him to pay a fine of Rs.1,000/-. The contents of Ex.A3-M.L.C. record show that the appellant was admitted in Yashoda Hospital, Hyderabad on 15.02.2013 vide M.L.C.No.147788/13. Having regard to these facts, it can be safely concluded that the DCM Van bearing No.AP 11 U 8609 was the vehicle which caused accident to the appellant.
11. It is true that there is delay in lodging the first information statement. But, the delay itself will not take away the right of the appellant if there is an acceptable explanation for such delay. As already noted above, since the police did not register the case, the brother-in-law of the appellant lodged private complaint, which was referred by the Court to the police. Under these circumstances, the delay can be condoned. In this regard, it is relevant to refer the decision of the Apex Court rendered in Ravi v. Badrinarayan and others1, wherein it is held as hereunder:-
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AIR 2011 SC 1226 7 MGP, J Macma_1510_2015 "The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."
12. It is also to be noted that in a claim for compensation under Section 166 of Motor Vehicles Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by the Hon'ble Supreme Court in the decision rendered in Bimla Devi Vs. 8 MGP, J Macma_1510_2015 Himachal Road Transport Corporation2. After completion of investigation, the investigating officer has filed charge sheet against the driver of the offending DCM Van concluding that the accident occurred only due to his negligence. In view of above reasons, the tribunal ought to have held that the appellant sustained injuries due to the rash and negligent driving of the driver of the DCM Van bearing No.AP 11 U 8609. Hence, this Court concludes that the accident occurred only due to the rash and negligent driving of the driver of the DCM Van bearing No.AP 11 U 8609.
13. Since this Court has decided that it is the offending vehicle that has caused the accident, since the accident pertains to 2013, instead of remanding the matter to the tribunal for determining the quantum of compensation, this Court is inclined to determine the compensation based on the evidence adduced before the Tribunal. As per Ex.A3-M.L.C. record, the appellant has sustained crush injury right forearm with neuro vascular injury lower 2 AIR 2009 SC 2819 9 MGP, J Macma_1510_2015 brachial plexus injury both bone fracture. As per Ex.A4- discharge summary issued by Yashoda Hospital, Hyderabad, the appellant was admitted in the hospital on 15.02.2013 and was discharged on 27.03.2013. The discharge summary also discloses that the appellant has sustained communited fracture mid shaft of radius fixed with external fixator, fracture of mid shaft of ulna fixed with nail and soft tissue irregularity noted along anterolateral aspect of forearm. Further, the appellant has undergone surgery and debridement, exploration of neurovascular structures ligation of contusion radial artery ends and fasciotomy, ORIF with rush nail for ulna right and external fixator for radius right was done on 15.02.2013. Ex.A4 further discloses that on 16.02.2013 the appellant underwent another surgery of free flap microvascular ALT flap cover + SSG; re-exploration + venous anastamosis. Furthermore, as seen from Ex.A5, discharge summary, the appellant again admitted in Yashoda Hospital, Hyderabad on 17.04.2013 and was discharged on 21.04.2013 and during that period, external fixator removal - ORIF Radius and Ulna with plate and 10 MGP, J Macma_1510_2015 screw - bone grafting, flap elevation and tissue debridement was done. P.W.2, the consultant plastic surgeon, who treated the appellant in Yashoda Hospital, deposed that there will be a permanent neurological disability because of crush injury. P.W.4, physiotherapist, deposed that the appellant came to his clinic for physiotherapy management for the condition of right brachial plexus injury with severe communited fracture of both bones of right fore arm and he charged Rs.500/- per visit and in total the appellant had paid Rs.1,05,000/- to him for the physiotherapy treatment. P.W.4 further deposed that the appellant requires continuous physiotherapy management. P.W.5, consultant plastic and reconstructive micro surgeon in Ganga Medical Centre and Hospital, Coimbatore, deposed that the appellant had major crush injury with global brachial plexus palsy with both bones of right forearm, for which, he had undergone surgery in Yashoda Hospital, Hyderabad and at the time of his deposition, the appellant is under his supervision for the treatment of brachial plexus palsy. He further deposed that the appellant had no moment or sensation in his right 11 MGP, J Macma_1510_2015 upper limb below the shoulder and on 12.06.2013, he underwent major micro surgical reconstructive in the form of exploration and nerve grafting. P.W.5 further deposed that he too was of the opinion that the appellant had sustained 70% permanent disability as mentioned in Ex.A4, as there is no moment or sensation in his upper limb. P.W.7, Orthopedic Surgeon in Area Hospital, Malakpet, Hyderabad, deposed that he examined the appellant both clinically and radiologically and he issued Ex.A14, disability certificate by assessing disability at 70% as the appellant cannot perform anything with his right hand.
14. Considering the evidence of the doctors, who treated the appellant and the discharge summaries issued by Yashoda Hospital, Hyderabad and Ex.A4, disability certificate, issued by the Government Orthopedic Surgeon, this Court is inclined to accept that the appellant had sustained disability at 70%. In view of the nature of disability sustained, the appellant is entitled to loss of earnings due to disability.
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15. The contention of the learned Standing Counsel for the Insurance Company is that no document has been filed to prove the income of the appellant though he claimed that he was a School Correspondent and earning Rs.10,000/- per month. In Latha Wadhwa vs. State of Bihar3 the Apex Court held that even there is no proof of income and earnings, it can be reasonably estimated. Considering the age and avocation of the appellant, this Court is inclined to fix the income of the appellant at Rs.5,000/- per month. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation4, the suitable multiplier to be adopted for calculating the loss of earnings would be '17' as the appellant was aged about 27 years at the time of accident. Therefore, the loss of earnings on account of his 70% disability works out to Rs.5,000/- x 12 x 17 x 70/100 = Rs.7,14,000/-.
16. As regards the medical expenses, as per Exs.A8 to A13, which were supported by P.Ws.3 and 6, the appellant has spent an amount of Rs.8,99,471.00 towards hospital 3 (2001) 8 SCC 197 4 2009 ACJ 1298 13 MGP, J Macma_1510_2015 charges and medical expenses. Therefore, this Court inclined to award an amount of Rs.8,99,000/- towards medical expenses. Apart from the above, this Court inclined to award an amount of Rs.25,000/- towards transportation, extra nourishment and attendant charges and Rs.50,000/- under the head of pain and suffering. Thus, in all the appellant is entitled to Rs.16,88,000/-.
17. In the result, the appeal is allowed in part by setting aside the order and decree, dated 03.06.2015 passed in M.V.O.P.No.805 of 2013 on the file of the Motor Accident Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad. The appellant/ claimant is awarded compensation of Rs.16,88,000/- with interest @ 7.5% per annum from the date of petition till the date of realisation. Both the respondents are jointly and severally liable to pay the said compensation amount and they are directed to deposit the said amount within two months from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw 50% of the amount without furnishing any security and the remaining 50% 14 MGP, J Macma_1510_2015 shall be kept in F.D.R. in any Nationalised Bank for a period of one year. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI 01.02.2023 Tsr 15 MGP, J Macma_1510_2015 THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A. No. 1510 of 2015 DATE: 01-02-2023