THE HON'BLE SRI JUSTICE PULLA KARTHIK
M.A.C.M.A. No.2125 of 2007
JUDGMENT:
This Appeal is filed by the appellant-claimant, aggrieved by the dismissal order, dated 25.07.2007, passed in OP No.350 of 2005, on the file of Motor Accidents Claims Tribunal-Cum-I Additional District Judge, at Mahabubnagar (for short "the Tribunal").
2. The case of the appellant is that on 14.04.2005, the appellant along with one Balaswamy, was proceeding from Wanaparthy to Maddigatla on their scooter. At about 7:00 pm, when they reached near Polytechnic College at Wanaparthy in front of Kumar Tractor Mechanic shop, the offending jeep bearing No. AP-22-B-0709 came in the opposite direction in a rash and negligent manner and dashed their scooter. As a result, the appellant and the pillion rider of the scooter sustained grievous injuries and the scooter was also got damaged. It is pleaded that prior to the accident the appellant was hale and healthy and was earning Rs.5,000/- per month by doing agriculture. It is further pleaded that due to this 2 PK,J MACMA No.2125 of 2007 accident, he had suffered a lot and he had undergone two operations in Osmania General Hospital, Hyderabad and he had already spent Rs.50,000/- for medicines, further he has to undergo third operation. It is further pleaded that due to this accident, he had sustained permanent disability and loss of income of Rs.20,000/-.
3. The 1st respondent remained ex parte before the Tribunal.
4. The 2nd respondent-Insurance company filed its counter before the Tribunal denying the allegations made in the petition that the offending vehicle was driven in a rash and negligent manner, the appellant was hale and healthy and disputed the age and earnings of Rs.5,000/- per month as an agriculturist. It is disputed that the driver of the offending vehicle had valid and effective driving licence to drive the jeep. The 2nd respondent does not admit that the offending jeep was responsible for the accident.
5. Basing on the above pleadings, the following issues were framed for trial by the Tribunal:
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PK,J MACMA No.2125 of 2007 i. Whether the accident occurred on 14-04-2005, at 7.00 pm near Polytechnic college, in front of Kumar Tractor Mechanic shop, Wanaparthy, due to rash and negligent driving of offending jeep bearing No. AP-22- B-0709 by its driver and whether it resulted in causing injuries to the appellant?
ii. Whether the petitioner is entitled for compensation? If so, to what amount, and from whom?
iii. To what relief?
6. On behalf of the appellant, Pws.1 to 3 are examined and got marked Exs.A-1 to A-12 documents. For respondent No.2, Rw-1 is examined but, no documents are marked.
7. Heard both sides and perused the material on record.
8. The learned counsel for the appellant contends that the Tribunal committed error in holding that the offending jeep was not responsible for the accident and the Tribunal ought not to have discarded Exs.A-1 and A-2 i.e., F.I.R and charge sheet. It is further contended that the Tribunal ought to have appreciated that evidence of Pw-1, who is the eye witness and hence, his evidence cannot be over ruled. It is further contended that the Tribunal had adopted too technical approach in insisting that the investigating officer should have been examined. It is further contended that the Tribunal 4 PK,J MACMA No.2125 of 2007 ought to have appreciated that if the driver of the jeep was not examined by the respondent, the Court should take adverse inference. In support of his contentions, learned counsel for the appellant mainly relied upon the following decisions of the Hon'ble Apex Court:-
i) Janabai Wd/O Dinkarrao Ghorpade v. ICICI Lambord Insurance Company Ltd 1
ii) Sunitha and others v. Rahasthan State Road Transport Corporation. 2
iii) Anita Sharma v. The New India Assurance Co.Ltd. 3
iv) Bimla Devi v. Himachal Road Transport Corporation 4
9. In Janabai's case (1 supra), the Apex Court at para No.10 held as under::
"...We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Sec. 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of appellant No. 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been 1 LAWS(SC)-2022-8-38 2 LAWS(SC)-2019-2-61 3 2021-0-ACJ-17 4 LAWS(SC)-2009-4-137 5 PK,J MACMA No.2125 of 2007 led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable..."
In Bimla Devi's case (4 supra), the Apex Court at para Nos.15 and 16 held as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties".
"16. The judgment of the High Court to a great extent is based on conjectures and surmises. While holding that the police might have implicated the respondents, no reason has been assigned in support thereof. No material brought on record has been referred to for the said purpose".
In Anita Sharma's case (3 supra), the Apex Court at para Nos.22 and 23 held as under:-
"22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principle of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be 6 PK,J MACMA No.2125 of 2007 only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013) 10 SCC 646 wherein this Court reiterated that:
"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi vs. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189: (2010) 1 SCC (Cri) 1101])" (emphasis supplied)"
"23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum- driver) had not been examined a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner- cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck driver's carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof".
10. Per contra, learned counsel for the respondents contends that the Tribunal had rightly dismissed the petition of the 7 PK,J MACMA No.2125 of 2007 appellant on the basis of the evidence and the material available on record and that the appellant had failed to establish the involvement of the offending vehicle. It is further contended that there is no error in the order of the Tribunal. Hence, he prayed to dismiss the appeal.
11. This court has taken note of the submissions made by the respective Counsel.
12. A perusal of the judgment of the Tribunal discloses that basing on the evidence of Pws.1 to 3 and Exs.A.1 to A.12 documents, the Tribunal assessed the income, disability sustained by the appellant at 20% and came to the conclusion that aggregate compensation payable to him would be at Rs.51,000/- under all the heads. But, in view of the finding arrived at by the Tribunal on issue No.1 dismissed the petition.
13. A further perusal of the documents available on record discloses that as the FIR was issued against un-identified jeep driver and in view of the said material discrepancy, the Tribunal suspected the involvement of the jeep. According to Pw-1, who was de facto-complainant, 8 PK,J MACMA No.2125 of 2007 categorically stated in Ex.A-1 FIR that one jeep came in a rash and negligent manner in the opposite direction and dashed their scooter and that he would be able to identify the jeep driver. Pw.2 also gave evidence that the offending vehicle came in opposite direction and dashed.
13. In the light of the above, this Court holds that the Tribunal had not justified in negativing the claim of the appellant and dismissing the petition.
14. Coming to the claim of the appellant, in the cross-examination, Pw-1 denied that the scene of offence is narrow and that the accident was occurred due to his negligence though the jeep was going slowly, that itself sufficient to say that the accident was occurred and the jeep was involved in the accident.
15. According to Pw-1, soon after the accident, himself was shifted to the Area Hospital, Wanaparthy and was examined at 7.15 pm by the doctors there and as per Ex.A-3 C.C. of wound certificate, the appellant had sustained fracture of middle 2/3rd both bones of right leg and also laceration on the right 9 PK,J MACMA No.2125 of 2007 foreleg. These injuries were found to be grievous in nature and on the next day i.e., 14.04.2005, the appellant was admitted in Osmania Hospital and was discharged on 05.07.2005. Ex.A-4 discharge ticket reveals that operations have been done to correct the fractures. According to Pw-3 Dr. Y.Thimmareddy who was Assistant Professor in Orthopedic, Osmania General Hospital, Hyderabad, the appellant was brought to hospital on 14.04.2005 at 11.55 pm and he examined him clinically and diagnosed that the appellant had Grade-III 'B' compound fracture of both bones of right leg. According to Pw-3, operation was performed on 16.04.2005 with 'V' nailing of right tibia. He deposed that the appellant was later developed infection on 20.08.2005 and on 08.06.2005, minor surgeries were done. Skin grafting was also done in consultation with Surgeon and he was discharged on 05.07.2005. Pw-3 further deposed that on 27.06.2007, he examined the appellant clinically and found him having stiffening of ankle and mild stephenson of knee. The right knee was shortened by one inch and discharging sinuses. Leg was deformity though fracture was united inside to 'V' nail. 10
PK,J MACMA No.2125 of 2007 Pw-3 stated that with these discrepancies in his right leg, he cannot perform normal agriculture activity and he needs one or more surgeries for removing rod nail and also controlling infection. Pw-3 finally opined that the disability of appellant would be only 30% and that he would need a sum of Rs.50,000/- for future treatment. The Tribunal came to conclusion on the basis of evidence of Pw-3, and hold that the appellant had sustained at least 20% disability, which is partial in nature, because there is possibility of recovering from it in future.
16. According to Pw-1, he is an agriculturist and having the agricultural lands. Exs.A-11 and A-12 pattadar passbooks and pahani corroborate the said aspect. Hence, as per the decision of Apex Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. 5, the income of the appellant can be taken at Rs.4,500/- per month towards loss of income and loss of disability. Admittedly, he was in hospital from 04.04.2005 to 05.07.2005. Hence, this Court is of the view that the appellant requires to take bed rest at least for 5 (2011) 13 SCC 236 11 PK,J MACMA No.2125 of 2007 two months in view of the injuries sustained by him. Hence, this Court is inclined to award Rs.22,500/- towards loss of income for five months @ Rs.4,500/- per month.
17. According to Pw-1 and as per medical record, his age was 33 years as on the date of accident. Therefore, as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation 6, the appropriate multiplier is "16". As the Tribunal held that the appellant had sustained disability at 20% basing on Ex.A-6 disability certificate. Thus, the future loss of income due to 20% disability comes to Rs.1,72,800/- (Rs.4,500/- x 12 x 16 x 20/100).
18. As per the evidence available on record, since the appellant sustained grievous injuries and needs further treatment, the amount awarded by the Tribunal towards extra nourishment requires to be enhanced from Rs.3,000/- to Rs.10,000/-. The amount awarded by the Tribunal towards transportation charges also enhanced from Rs.3,000/- to Rs.5,000/-. Further, this Court is inclined to grant an 6 2009 ACJ 1298 (SC) 12 PK,J MACMA No.2125 of 2007 amount of Rs.4,000/- towards medical expenses. The calculation would be as under:
1. Extra nourishment Rs. 10,000/-
2. Transportation Rs. 5,000/-
3. Medical expenses Rs. 4,000/-
4. Compensation towards Disability Rs.1,72,800/-
Total Rs.1,91,800/-
19. Accordingly, the appeal is allowed. The appellant is entitled for compensation of Rs.1,91,800/- (Rupees one lakh ninety one thousand eight hundred only), subject to payment of deficit Court fee on the enhanced amount. The compensation amount shall carry interest at the rate of 7.5% p.a. from the date of petition till the date of deposit against the respondents jointly and severally. No order as to costs.
Pending miscellaneous petitions, if any, in this appeal shall stand closed.
____________________________ JUSTICE PULLA KARTHIK 01.09.2023 plp 13 PK,J MACMA No.2125 of 2007 THE HON'BLE SRI JUSTICE PULLA KARTHIK M.A.C.MA. No.2125 of 2007 Date: 01-09-2023 Plp