THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.3920 OF 2011
JUDGMENT:
Aggrieved by the award and decree dated 11.08.2006 passed in O.P.No.1166 of 2003 by the Additional Metropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Red Hills, Nampally, Hyderabad (for short 'the court below') the appellant/petitioner preferred the present appeal seeking enhancement of compensation.
2. For convenience, the parties hereinafter will be referred to as they are arrayed before the Court below.
3. Brief facts of the case are that on 26.07.2002, the petitioner and his son B.Narsing Rao were going on his Scooter from Shamshabad to their village Tondipalli and when they reached near Madhuranagar on N.H.No.7 road, one Jeep bearing No.ABB 5207 was driven by its driver in a rash and negligent manner and dashed against the Scooter, as a result of which, the petitioner and his son fell on the road, and the petitioner sustained a fracture on his right leg 2 RRN,J M.A.C.M.A.No.3920 of 2011 above the knee and three fractures on his right knee and below the knee and his right leg, which was fractured, was broken into pieces in the said accident. The Police Shamshabad registered a case in Cr.No.210 of 2002 for the offence punishable under Section 337 IPC against the Jeep driver. After the accident, he was immediately shifted to CDR Hospital, and he underwent treatment as an inpatient in the said Hospital for a long time. Therefore, the petitioner filed the claim petition seeking compensation of Rs.6,00,000/-.
4. Before the court below, the 1st respondent remained ex-parte. The 2nd respondent filed a counter denying the allegations made in the claim petition. The 3rd respondent filed a counter denying the allegations made in the claim petition.
5. On behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A1 to A5 and Exs.X-1 and X-2 were marked. On behalf of the respondents, RW.1 was examined and Exs.B1 and B2 were marked.
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6. After considering the oral and documentary evidence available on record, the Court below has awarded compensation of Rs.3,68,756/- with interest @ 7.5% per annum from the date of petition till the date of realisation to be paid by respondent Nos.1 and 2 jointly and severally. The claim against the 3rd respondent was dismissed. Challenging the said award, the petitioner has filed the present appeal seeking enhancement.
7. Heard both sides and perused the record.
8. Learned counsel appearing for the petitioner contended that the Court below erred in not granting compensation in toto as per the evidence of PW.2. The Court below ought to have awarded just compensation under various heads as claimed by the petitioner and therefore, the amount awarded by the Court below is very meager and unjustifiable.
9. Per contra, learned counsel appearing for the respondents contended that the court below, based on the evidence, after considering the nature of injuries sustained 4 RRN,J M.A.C.M.A.No.3920 of 2011 by the petitioner, has rightly awarded compensation and the same needs no interference by this Court.
10. The finding of the Court below with regard to the manner in which the accident took place has become final, as the respondents do not challenge the same.
11. Insofar as the quantum of compensation is concerned, PW.1 deposed that he spent Rs.5,00,000/- towards medical expenses. In support of his contention, he has produced Ex.A5-Medical bills with medical reports and prescriptions. As can be seen from Ex.A5-Medical record, the medical reports of PW.1, along with some prescriptions, are produced along with the final bill issued by CDR Hospital. The said final bill was issued for the period 25.07.2002 to 07.10.2002. It is pertinent to note here that it is evident from the testimony of the Doctor, who was examined as PW.2, that the petitioner herein underwent medical treatment in CDR Hospital as an inpatient. Ex.X1 discharge summary also clinchingly proves the same. Ex.A5 prescriptions, investigation reports accompanied by final bill issued by the C.D.R. Hospital, where the petitioner 5 RRN,J M.A.C.M.A.No.3920 of 2011 underwent treatment, can safely be believed. Further, it is pertinent to note here that the respondents did not dispute the genuineness of Ex.A5. Therefore, the court below awarded an amount of Rs.2,67,756/- towards medical expenses and the same needs no interference by this Court. The Court below granted an amount of Rs.1,000/- towards extra nourishment, which is very meager, and this Court is inclined to award an amount of Rs.5,000/-.
12. As per Ex.A4-Medico Legal Record, the petitioner has sustained the following injuries :-
1) 10 x 8" Gr. IV compound fracture with deep muscle vessels/tissue bones fibre fibula exposed due to the road accident.
2) Fracture of G.2 lower end of the femur with fragment protruding out. P.W.2 is the doctor who treated P.W.1 and he categorically deposed in his evidence that he was the consultant in CDR hospital during the year 2002 to 2004 in the Orthopaedic department and he is D.N.B. Orthopaedic. He further deposed that the petitioner was admitted in CDR hospital on 26.02.2002 and that he sustained the following injuries:
1. Grade III compound commuted segmental fracture of both the bones of the right leg.
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2. Grade III compound fracture of right femur."
13. The Court below granted an amount of Rs.50,000/- towards injuries and pain and suffering, which is very meager. As the petitioner sustained the above said injuries, this Court is inclined to grant an amount of Rs.1,00,000/- towards injuries and pain and suffering.
14. With regard to the disability, P.W.2-doctor, who treated P.W.1, categorically deposed in his cross- examination, that the knee joint of P.W.1 is shortened. He further deposed that P.W.1 has to walk with the help of some support and that he sustained a disability of 50%, which is permanent in nature. He further deposed that because of the said disability, P.W.1 cannot sit and squat. P.W.2 also categorically deposed that he has subsequently examined P.W.1 physically on 06.10.2005 with reference to Ex.X.2-X-Ray films. So, P.W.2, who has actually treated P.W.1 and operated on him, is the best person to speak as to whether P.W.1 has sustained any physical disability or not. In fact, P.W.2 is the only competent person to assess his disability. Subsequently, P.W.2 also examined P.W.1 to assess his disability, after referring to the latest X-Ray films 7 RRN,J M.A.C.M.A.No.3920 of 2011 and based on the said examination, he deposed that the petitioner has sustained 50% of his physical disability as he could not walk properly without any support and that he could not sit and squat, and further deposed that there is shortening in his knee joint. Therefore, the evidence of P.W.2 can safely be believed in proof of the said disability sustained by the petitioner. Considering the above evidence, the court below granted an amount of Rs.50,000/- towards physical disability, which is very meagre. In the present case, the petitioner has not produced any disability certificate, but in view of the nature of injuries sustained by the petitioner, as stated supra, this Court is inclined to award a sum of Rs.1,00,000/- towards physical disability.
15. With regard to loss of earning power, the petitioner did not produce any evidence to prove that he is owning agricultural lands and earning Rs.1 lakh per annum on it. He has admitted in his cross-examination that he did not produce any documents to show that there are agricultural lands in his name and that he also did not produce any document to show that he is earning Rs. 1 8 RRN,J M.A.C.M.A.No.3920 of 2011 lakh per annum. Therefore, in the absence of any such evidence, and more particularly in the absence of any evidence to prove that he has sustained functional disability or that he could not attend to his agricultural work, the court below held that the petitioner is not entitled to any compensation towards loss of earning power and did not grant any amount. But, this Court is inclined to grant an amount of Rs.50,000/- towards loss of earnings in view of the above said injuries suffered by the petitioner.
16. Insofar as the disability is concerned, learned counsel appearing for the petitioner relied upon the judgment of the Hon'ble Apex Court in JAKIR HUSSEIN Vs. SABIR AND OTHERS 1, wherein the Hon'ble Apex Court held as follows :-
15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move 1 2015 (3) ALD 115 (SC) 9 RRN,J M.A.C.M.A.No.3920 of 2011 his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days.
....... However, it is important to consider the relevant fact namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. In the case of Raj Kumar v. Ajay Kumar (supra), this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again."
17. In the present case, there is no 100% disability, and the petitioner is not at all a driver and moreover, the petitioner is working as an Agriculturist. Therefore, the above said judgment is not applicable to the case on hand.
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18. Insofar as the liability of the 3rd respondent is concerned, this Court is of the considered view that the court below has rightly dismissed the claim against the 3rd respondent and the same needs no interference by this Court.
19. The court below has rightly awarded the rate of interest at 7.5% per annum, and the same needs no interference by this Court.
20. As seen from the cause title, the case against respondent No.1 was dismissed for default on 15.11.2011. The dismissal against respondent No.1/owner is of no consequence for the determination of a just, fair and reasonable quantum of compensation against the Insurance Company in view of the judgment of this Court in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma. 2
21. In the result, the M.A.C.M.A is partly allowed. The compensation amount awarded by the court below is enhanced from Rs.3,68,756/- to Rs.5,22,756/- (Rupees 2 2001(1) ALT 495 DB 11 RRN,J M.A.C.M.A.No.3920 of 2011 five lakh twenty two thousand seven hundred and fifty six only) with interest @ 7.5 % p.a. from the date of petition till the date of realisation. Respondent Nos.1 and 2 are directed to deposit the said amount with costs and interest after giving due credit to the amount already deposited, if any, within a period of two months 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, miscellaneous petitions, if any pending, shall stand closed.
______________________________________ NAMAVARAPU RAJESHWAR RAO, J 10 .11.2023 Prv