THE HONOURABLE JUSTICE M.G. PRIYADARSINI
M.A.C.M.A.No.1194 of 2014
JUDGMENT:
This appeal is filed by the claimant against the award dated 08.09.2006 made in M.V.O.P.No.543 of 2003 on the file of the Special Sessions Judge for Trial of Cases under Scheduled Castes & Scheduled Tribes (POA) Act-cum-VII Additional District and Sessions Judge, Mahabubnagar (for short, 'the Tribunal').
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. The claimant filed the O.P. under Section 166 of the Motor Vehicles Act claiming compensation of Rs.2.00 lakhs for the injuries suffered by him in the motor vehicle accident that took place on 23.09.2002. According to the claimant, on 23.09.2002 at about 09.00 a.m., while he along with his friends, was returning to Mahabubnagar on splendour bike bearing No.AP- 22-E-7975 after attending personal work at Nagarkurnool, and when they reached Velgonda bus stage on PWD Road, at about 08.15 p.m., one tractor bearing No.AP-22-T-5422 with trolley No.AP-22T-5423 came in rash and negligent manner with high speed and dashed the bike from opposite direction. As a result, he received grievous injuries, became unconscious.
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Immediately, he was initially treated at Government Hospital, Mahabubnagar and later at Osmania General Hospital, Hyderabad, for intensive care. According to the claimant, he was studying intermediate 2nd year and earning Rs.2,000/- per month by doing private job. Due to the said injury, he suffered amputation of right leg, fracture to right clavical injury on the hand, injuries on both legs and lost his income and lost one precious academic year. Thus, he laid the claim for Rs.2,00,000/- for the injury sustained by him against the respondents 1 and 2 jointly and severally, who are owner and insurer of the crime vehicle.
4. While the respondent No.1 remained ex parte, respondent No.2 filed counter stating that crime vehicle is not at all involved in the accident and the claimant had not submitted any record to show his age and earning capacity. It is further contended that the compensation claimed by the petitioner is excessive and therefore, prays to dismiss the petition.
5. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident occurred on 23.09.2002 at about 08.15 p.m., within the limits of Bijinepally P.S. near Velgonda village bus stage on PWD road was due to rash and negligent driving of the tractor bearing No.AP 22 T 5422 by its driver and whether it is resulted in causing injuries to the petitioner?
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2. Whether the petitioner is entitled for any compensation? If so, to what amount, and from whom?
3. To what relief?
6. In order to prove the claim, PWs.1 & 2 were examined and Exs.A1 to A10 were marked on behalf of the claimant. On behalf of respondent No.2, RW.1 was examined and Ex.B1 was marked.
7. Considering the oral and documentary evidence available on record, the Tribunal has dismissed the O.P. on the ground that the claimant failed to prove the involvement of the tractor in the alleged accident.
8. Heard the learned counsel for the appellant-claimant and the learned Standing Counsel for the respondent No.2- Insurance. Perused the material available on record.
9. The learned Counsel for the claimant has contended that the tribunal failed to appreciate the evidence brought on record in proper perspective. It is contended that the Police after due investigation into the Crime No.84 of 2002, laid the charge sheet, Ex.A3, against the driver of the offending tractor, which prima facie establishes that the appellant sustained injuries in the accident due to the rash and negligent driving of the offending tractor.
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10. On the other hand, the learned Standing Counsel appearing on behalf of Respondent No.2-Insurance Company sought to sustain the impugned award of the Tribunal contending that considering the oral and documentary evidence on record, the learned Tribunal has rightly dismissed the O.P. and the same needs no interference by this Court.
11. There is no dispute that the accident took place on 23.09.2002 at about 2100 hours. As seen from Ex.A.1, FIR, one Janardhan Goud, lodged complaint with the Police on 23.09.2002 at 2140 hours stating that one unknown tractor hit the Splendor Bike bearing No. AP 22E 7975 and that three persons received injuries. Subsequently, Police after concluding investigation into the crime, laid the Charge Sheet as in Ex.A.3 before the concerned Magistrate to the effect that the driver of the offending tractor caused the accident. Admittedly, the accident took place at 2100 hours and there is every possibility for the eyewitness i.e., Janardhan Goud, for not noticing number of the vehicle. However, in his report, he has categorically mentioned that some unknown tractor hit the motorcycle. Thus, it is clear that the 'unknown vehicle' is the tractor.
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12. It is 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. Himachal Road Transport Corporation1. After the investigation, the investigating officer has filed charge sheet against the rider of the offending tractor concluding that the accident occurred only due to his negligence involving the offending tractor. In view of above reasons, the tribunal should have held that the appellant sustained injuries due to the rash and negligent driving of the offending tractor bearing No.AP 22T 5422 by its driver. Hence, this Court, based on Exs.A.1 and A.3, concludes that the accident occurred only due to the rash and negligent driving of the driver of the offending tractor bearing No. AP 22T 5422.
13. Since this Court has decided that it is the offending tractor that has caused the accident, now this Court is inclined to determine the compensation based on the evidence adduced before the Tribunal. Admittedly, at the time of accident, the claimant was aged about 20 years, pursuing Intermediate II- Year and earning Rs.2,000/- by doing private job. A perusal of Ex.A2, wound certificate, discloses that the claimant had 1 AIR 2009 SC 2819 MGP, J 6 Macma_1194_2014 suffered amputation of right leg, fracture to right clavical injury on the hand, injuries on the both legs, other injuries all over the body. For the treatment of the said injuries, according to the claimant, he had spent Rs.1,00,000/-. However, no medical bills to that effect were produced before the Court. In fact, according to him, he had taken treatment at Government Hospital, Mahabubnagar and Osmania General Hospital, Hyderabad, where the treatment is at free of cost. However, considering the nature of injuries and the amputation of leg, this Court is inclined to award a sum of Rs.50,000/- towards pain and suffering; Rs.50,000/- towards injuries; Rs.40,000/- towards medicines and follow up treatment and Rs.40,000/- towards transportation, attendant charges and extra nourishment. Furthermore, as the right leg of the claimant was amputated, certainly he must have incurred some amount for purchase of artificial leg. Therefore, towards cost of artificial leg, this Court is inclined to award a sum of Rs.1,00,000/-. Furthermore, so far as loss of amenities and loss of expectation of life is concerned in Kavita v. Deepak and others2 the Apex Court held that in respect of victims of accident, who are disabled either permanently or temporarily, adequate compensation should be awarded not only for the physical injury and treatment but also for the loss of earning and 2 (2012) 9 SCC 604 MGP, J 7 Macma_1194_2014 inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount awarded for pain, suffering, loss of enjoyment of life and medical expenses. Relying upon the decision of Nizam's Institute of Medical Sciences v. Prasanth S.Dhananka3, the Apex Court also held that "assuming the claimant's life expectancy to be 55 years, we deem it appropriate to award a sum of Rs.3,00,000/- under the head of loss of amenities and loss of expectation of life".
In the instant case, since the claimant has lost his right leg at the tender age of 20 years, this Court deems it fit to award a sum of Rs.1,00,000/- towards loss of amenities and loss of expectation of life. Thus, in all, the claimant is entitled for the compensation of Rs.3,80,000/- which shall be paid by the respondent Nos. 1 & 2 jointly and severally with interest at 7.5% per annum.
14. In the result, the M.A.C.M.A. is allowed setting aside the impugned order of the tribunal. The claimant is granted compensation of Rs.3,80,000/- which shall carry interest at 7.5% p.a. from the date of petition till the date of realization, 3 (2009) 6 SCC 1 MGP, J 8 Macma_1194_2014 payable by respondent Nos. 1 and 2 jointly and severally. Time to deposit the amount is one month from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the amount without furnishing any security. The claimant shall pay the deficit court fee on the enhanced compensation. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI 03.03.2023 Gms/tsr MGP, J 9 Macma_1194_2014 THE HONOURABLE JUSTICE M.G. PRIYADARSINI M.A.C.M.A.No.1194 of 2014 03.03.2023 Gms/tsr