THE HONOURABLE Dr. JUSTICE G. RADHA RANI
M.A.C.M.A.NO.2449 OF 2013
JUDGMENT:
This appeal is filed by the claimant aggrieved by the judgment dated 28.06.2013 in O.P.No.543 of 2004 on the file of the Motor Accidents Claims Tribunal (VIII Additional District Judge), Nizamabad seeking enhancement of compensation from Rs.76,000/- to Rs.3.00 lakhs as claimed by her.
2. The case of the claimant in brief was that on 02.01.2004 at about 01:00 PM, while she was going on a scooter bearing No.AP-25-G-8920 as a pillion rider carrying a baby of 18 days old, driven by one Kottangu Satish and proceeding to Dr.Subhash Hospital in Nizamabad and at about 01:00 PM, when reached near Lalitha Servicing Station, Hyderabad Road, Nizamabad, a Cello Car bearing No.AP-05-Q-2799 driven by its driver in a rash and negligent manner in high- speed came from their behind and stopped the car in-front of the scooter and the driver of the car without taking proper care, opened the driver side door, due to which, the scooter hit the driver side door and the rider and pillion rider fell down on the ground and sustained injuries. They were treated at District Head Quarters Hospital, Nizamabad. Traffic Police, Nizamabad registered a case in Crime No.4 of 2004 under Section 338 of IPC. The claimant sustained fracture of right knee 2 Dr.GRR, J macma_2449_2013 (tibia upper end), fracture of left knee (fibula shaft), fracture of right side of chest 4th and 5th ribs, injuries on head, chest, hands and on other parts of the body. The claimant sustained permanent disability. She was unable to walk, unable to attend to her regular work, became dependant on others. Prior to the accident, the claimant was working as a beedi roller and was also doing vegetable business and was earning more than Rs.10,000/- per month. Due to the accident, all her earnings were affected, the life of the petitioner - claimant became gloomy and dark. Hence, claimed compensation of Rs.3.00 lakhs from the respondents 1 and 2, the owner and insurer of the Cello Car bearing No.AP-5-Q-2799.
3. The respondent No.1 remained ex-parte.
4. The respondent No.2 filed counter and called for strict proof of the petition averments.
5. Basing on the pleadings of both the parties, the Tribunal framed the following issues:
i) Whether the accident occurred due to rash and negligent driving of Cello Car bearing No.AP-05-Q-2799 by its driver?
ii) Whether the petitioner is entitled for compensation, if so, to what amount and against which of the respondents?
iii) To what relief?
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6. The claimant examined herself as PW.1 and got examined the Civil Assistant Surgeon at Government Head Quarters Hospital, Nizamabad as PW.2 and got marked Exs.A1 to A7 on her behalf.
7. No oral or documentary evidence was adduced by the respondent No.2
8. On considering the evidence of PW.1 and Exs.A1 and A2, the certified copies of the FIR and the charge-sheet, the Tribunal observed that the accident occurred due to the rash and negligent act of the driver of Cello car bearing No.AP-05-Q-2799. No rebuttal evidence was adduced by the respondent No.2. As such, the Tribunal decided issue No.1 in favour of the claimant, that she sustained injuries due to the rash and negligent act of the driver of the Cello Car bearing No.AP-05-Q-2799.
9. No appeal was filed by the Insurance Company challenging the said observation of the Tribunal.
10. This appeal is filed by the claimant for enhancement of compensation. Hence, the observation on issue No.1 requires no interference by this Court.
11. With regard to Issue No.2, considering the evidence of PW.2, as the claimant sustained three (03) fracture injuries, an amount of Rs.20,000/- for each fracture injury, in total Rs.60,000/- was awarded by the Tribunal towards pain and 4 Dr.GRR, J macma_2449_2013 suffering. In the absence of any evidence with regard to the proof of income of the claimant, the Tribunal considered the income of the claimant as Rs.3,000/- per month, estimated the loss of income for a period of three (03) months and awarded an amount of Rs.9,000/-. The Tribunal awarded an amount of Rs.6,000/- towards extra nourishment and Rs.1,000/- towards transportation. In total, Rs.76,000/- was awarded as compensation by the Tribunal to the claimant with interest @ 7.5 % per annum from the date of petition till the date of deposit and the respondents 1 and 2 were jointly and severally held liable to pay the compensation to the claimant.
12. Aggrieved by the said award and decree, the claimant preferred this appeal contending that the Tribunal appreciated all the issues, but failed to come to a proper conclusion in awarding the quantum of compensation. The appellant - claimant incurred an expenditure of more than Rs.2.00 lakhs for medicines and other incidental charges and would need further amount for treatment in future. No amount was awarded towards permanent disability. The amount granted was very meager and prayed to allow the appeal.
13. Heard the learned counsel for the appellant. There was no representation for the respondents.
14. On a perusal of the evidence of PW.2, he was not the doctor who treated the claimant at the Government Head Quarters Hospital, Nizamabad. He stated that as 5 Dr.GRR, J macma_2449_2013 per the instructions of the Medical Superintendent, he came to identify the hand- writing and signature of Dr. R.Sudheer, who had examined the claimant.
15. He stated that as per the records on 02.01.2004, Dr.Sudheer received a requisition from SHO, Traffic, Nizamabad and examined the claimant and found the following injuries:
a) Swelling and deformity over right knee fracture (tibia upper end).
b) Swelling and deformity over left knee fracture fibula (shaft).
c) Fracture of right side chest 4th and 5th ribs.
16. He stated that the claimant was treated as out-patient as she refused admission. Ex.A4, wound certificate was issued by Dr.R.Sudheer. Thus, this witness had not stated about any permanent disability sustained by the claimant. The claimant had not filed any disability certificate issued by the Medical Board nor examined any doctor to speak about it. In the absence of any oral or documentary evidence in the said regard, the Tribunal had rightly not awarded any amount under this head.
17. Though, the claimant stated that she incurred an expenditure of more than Rs.2.00 lakhs for medicines and others incidental charges and would need further amount for future treatment, no medical bills or prescriptions were filed by her to 6 Dr.GRR, J macma_2449_2013 support her contention. The evidence of PW.2 was silent about any future treatment required by the claimant. The claimant was only treated as an out- patient and was not even admitted in the Government Head Quarters Hospital, Nizamabad. If she had taken treatment at any private hospital, she would need to mention the name of the hospital where she had taken treatment and ought to have examined the doctor who treated her and would need to file the medical bills and prescriptions. In the absence of any evidence adduced by her, the Tribunal had rightly awarded no amount for medical expenses incurred by her or required in future.
18. Considering the evidence of PW.2, the Tribunal rightly awarded an amount Rs.60,000/- for three (03) fracture injuries sustained by the claimant. This Court does not find any necessity to interfere with the award of the Tribunal on this count.
19. However, as the Tribunal considered the income of the claimant as Rs.3,000/- per month only, considering the judgment of the Hon'ble Apex Court in C.Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance Company Limited 1 , wherein the income of a labourer was also considered as between Rs.100/- to Rs.150/- per day i.e., Rs.4,500/- per month, this Court considers it reasonable to accept the same as the income of the claimant also. 1 (2011) 13 SCC 236 7 Dr.GRR, J macma_2449_2013 Hence, the loss of income for a period of three months due to the injuries sustained by the claimant can be assessed as Rs.4,500/- x 3 = Rs.13,500/- instead of Rs.9,000/- awarded by the Tribunal.
20. An amount of Rs.6,000/- towards extra nourishment and Rs.1,000/- towards transportation awarded by the Tribunal, needs no interference.
21. In the result, the appeal is allowed in part enhancing the compensation from Rs.76,000 to Rs.80,500/- with interest @ 7.5 % per annum and the respondent No.2 - Insurance Company is directed to deposit the said amount within a period one month from the date of receipt of a copy of this order after deducting the amount if any already deposited and the appellant - claimant is permitted to withdraw the same.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J 24th March, 2023 nsk.