Telangana High Court
B Srihari, Hyd vs B. Vijaysen Reddy, Hyd And Another on 28 June, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.2571 OF 2017
JUDGMENT:
Heard Sri T.Vishwarupa Chary, learned counsel for appellant/petitioner and Sri A.Ramakrishna Reddy, learned counsel for the respondent no.2-insurance company.
2. The present appeal has been filed by the appellant-claimant dissatisfied with the award passed by the Motor Accidents Claims Tribunal-cum-the Court of the Chief Judge, City Civil Courts, Hyderabad (for short, 'Tribunal') in M.V.O.P.No.1244 of 2012, dated 13.07.2017 and thereby seeking for enhancement of compensation.
3. Appellant herein is the petitioner, respondent no.1 herein is respondent no.1-owner of crime vehicle and respondent No.2 herein is the respondent no.2-insurance company before the Tribunal. For convenience, the parties have been referred to as arrayed before the Tribunal.
4. The brief factual matrix of the present appeal is as under.
LNA,J MACMA No.2571 of 2017 2 4.1. On 13.08.2011, at about 2.00 p.m., while the petitioner along with his wife and son proceeding from Malakpet to Saidabad Colony on a motorcycle and when they reached near APAU Colony, Kalyan Nagar, one TATA ACE trolley bearing registration No.AP-29- TA-7405 (hereinafter referred to as crime vehicle) came in rash and negligent manner in high speed and dashed their motor cycle, due to which, they fell down and sustained serious injuries; that the petitioner sustained fracture of right knee joint, grievous injury to left elbow, right ankle and right elbow and other serious injuries all over the body. Immediately, petitioner was shifted to Sri Venkateshwara Hospital, Karmanghat, Hyderabad and admitted as an inpatient.
4.2. The Police, Malakpet Police Station registered a case in Crime No.306 of 2011 U/s.337 of IPC against the driver of the crime vehicle.
4.3. The petitioner contended that he is doing business and earning Rs.2,40,000/- per annum; that he spent more than Rs.60,000/- towards his treatment; that due to the injuries sustained by him in the accident, he has suffered permanent disability and unable to perform his duties.
LNA,J MACMA No.2571 of 2017 3 4.4. The petitioner contended that the accident occurred due to rash and negligent driving by the respondent No.1, who was driver- cum-owner of the crime vehicle and the crime vehicle was insured with the respondent No.2-insurance company, he sought compensation of Rs.10,00,000/- from them for the injuries sustained by him.
5. The respondent No.1 remained ex parte. The respondent No.2-insurance company filed counter denying the narration of the petitioner with respect to the manner of occurrence of accident, the age, income and avocation of the petitioner. The respondent No.2 further contended that the driver of the crime vehicle was not having valid driving licence and contravened the provisions of Motor Vehicles Act as well as M.V.Rules and finally, prayed to dismiss the claim petition.
6. Basing on the above pleadings, the Tribunal has framed the following issues:
1) Whether the pleaded accident had occurred resulting in injuries to the petitioner, B.Srihari due to rash and negligent driving of the motor vehicle (TATA ACE Trolley bearing registration No.AP-29-TA- 7405) by its driver ?
LNA,J MACMA No.2571 of 2017 4
2) Whether the petitioner is entitled to any compensation and if so, at what quantum and what is the liability of the respondents?
3) To what relief?
7. In order to substantiate the case, on behalf of the appellant- injured, P.Ws.1 and 2 were examined and Exs.A1 to A11 were marked. On behalf of the respondent no.2, RW.1 was examined and Ex.B1, Exs.C1 to C5 were marked.
8. The Tribunal, on due consideration of the material and evidence placed on record, came to conclusion that the accident took place due to the rash and negligent driving of the driver of crime vehicle and awarded a sum of Rs.1,66,064/- towards compensation to the petitioner payable by the respondent Nos.1 to and 2 jointly and severally with costs and interest @ 9% p.a. from the date of the petition till the date of realization.
9. During the course of hearing of the appeal, learned counsel for appellant/petitioner submitted that the Tribunal ought to have granted the compensation as prayed for in view of grievous injuries sustained by the petitioner. He further submitted that on account of 25% of permanent disability sustained by the petitioner, petitioner became unfit for his work and thereby he is put to 100% LNA,J MACMA No.2571 of 2017 5 loss of earning capacity, however, the Tribunal has not properly considered the disability sustained by the petitioner and erroneously assessed the disability at 25% only. He submitted that Tribunal erred in not accepting functional disability @ 100% as per the evidence and also not awarding any amount towards fracture injures, future medical expenses, loss of amenities, future prospects, extra nourishment and transportation. He further submitted that the Tribunal erred in awarding meager amounts towards pain and suffering and finally, prayed for enhancement of compensation.
10. Learned counsel for appellant/petitioner placed reliance on the following decisions in support of his contention.
i) Rajesh & others vs. Ragbirsingh and others 1;
ii) Sanjay Batham vs. Munnalal Parhar and others 2;
iii)Subbulaxmi vs. Tamil Nadu State Transport Corporation 3;
iv) Govind Yadav vs New India Insurance Co.Ltd., 4;
v) Rekhajain vs. Naional Insurance Co. Ltd., 5 1 2013 ACJ 1403 2 2012 (2) ALD 153 (SC) 3 Civil Appeal No.7750 of 2012 of Apex Court 4 (2011) 10 SCC 683 5 (2013) 8 SCC 389 LNA,J MACMA No.2571 of 2017 6
11. The learned counsel for the respondent no.2-insurance company submitted that the Tribunal had rightly awarded the compensation towards injuries sustained by the petitioner and the grounds raised by the petitioner are untenable and no case is made out warranting interference by this Court with the impugned award passed by the Tribunal and prayed for dismissal of the appeal.
Consideration:
12. With regard to the main contention raised by learned counsel for petitioner that Tribunal failed to award compensation amount on account of 25% permanent disability suffered by the petitioner and thereby petitioner put to 100% loss of earning capacity; the Tribunal had considered the evidence of P.W.2- Dr.Narsing Rao and the material placed on record. According to him, as per the previous medical record, the petitioner suffered 25% disability and to that effect, he issued Ex.A8-Disability Certificate; that petitioner is suffering from stiffness of the right knee joint, difficulty in climbing the staircase. However, in the cross-examination, P.W.2 admitted that he has not treated the petitioner and he is not a member of Medical Board.
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13. Per contra, the learned counsel for respondent no.2, before the Tribunal, has relied upon the decisions in Rajesh Kumar v. Yudhvir Singh and another 6 and Sannal Bhaskar Reddy vs. M.Sreenivasulu and another 7, wherein it was held that medical certificate is not admissible in evidence if the Doctor has not been examined and that the disability certificate issued by a doctor, who did not treat the injured, has no evidential value.
14. Perusal of the impugned award would show that the Tribunal on considering the oral evidence, material on record and the legal position, has rightly rejected the disability assessed by P.W.2. Therefore, this Court is of the considered opinion that the petitioner failed to make out any case that petitioner sustained 25% of permanent disability and needs no interference by this Court on this aspect.
15. Insofar as the other contention of the petitioner that Tribunal has not awarded the amount towards grievous injuries is concerned, the Tribunal awarded an amount of Rs.30,000/- towards injuries. On perusal of record, petitioner sustained 6 2008 ACJ 2131 7 2010 ACJ 1122 LNA,J MACMA No.2571 of 2017 8 fracture of tibia spine right knee joint, which is grievous in nature, one grievous injury to left elbow and two simple abrasions on the back of the chest as per Ex.A3-MLC record. Considering the injuries sustained by the petitioner, this Court is of the considered view that an amount of Rs.25,000/- each towards fracture and grievous injuries and Rs.15,000/- each to simple injuries, totaling to Rs.80,000/-, which is just and proper and the same needs to be modified to the above extent.
16. The other contentions raised by the learned counsel for petitioner with regard to awarding of compensation on other counts, needs no interference by this Court since the Tribunal had rightly assessed and awarded the amount on each count.
17. The facts in the citations relied upon by the learned counsel for appellant/petitioner are not relevant to the facts of the present appeal since the petitioner failed to establish and prove that he suffered 25% permanent disability on account of injuries received by him in the accident with cogent and reliable evidence and therefore, same do not come to the aid of the appellant/petitioner.
LNA,J MACMA No.2571 of 2017 9 Conclusion:
18. In view of the above discussion, the compensation amount is recalculated as under:
Sl.No. Head Compensation awarded
1 Injuries Rs.80,000/-
2 Medical expenses Rs.16,064/-
3 Loss of earnings Rs.60,000/-
4 Pain and suffering Rs.25,000/-
5 Loss of amenities Rs.25,000/-
6 Transportation Rs.10,000/-
Total compensation to be Rs.2,16,064/-
paid:
19. In the result, Appeal is partly allowed and the impugned award passed by the Tribunal insofar as compensation amount is concerned, is modified enhancing the compensation amount from Rs.1,66,064/- to Rs.2,16,064/-, which shall carry interest at the rate awarded by the Tribunal, from the date of the claim petition till the date of realization. The respondents 1 and 2 herein are directed to deposit the above compensation amount within a period of six weeks from the date of receipt of copy of this order. On such LNA,J MACMA No.2571 of 2017 10 deposit, the appellant is entitled to withdraw the entire compensation amount. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 28.06.2024 kkm