Telangana High Court
Abdul Raheem vs Appani Rajeshwar on 28 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.87 of 2019
JUDGMENT:
Dissatisfied with the quantum of compensation awarded in the order and decree, dated 05.06.2018 passed in M.V.O.P.No.427 of 2012 on the file of the Additional Motor Accidents Claims Tribunal-cum-I Additional District and Sessions Judge at Adilabad (for short "the Tribunal"), the appellant/claimant preferred the present appeal seeking enhancement of the compensation.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the Tribunal.
3. Brief facts of the case are that the petitioner filed a claim petition claiming compensation of Rs.2,00,000/- (subsequently enhanced to Rs.5,00,000/- as per orders dated 05.10.2016 in I.A.No.342 of 2016) on account of the injuries sustained by him in a motor vehicle accident that occurred on 06.11.2011. According to the petitioner, on 06.11.2011, he along with his wife and son were proceeding on a motorcycle bearing No.AP-15-AK-1026 from Yellagadapa village to MGP,J 2 MACMA_87_2019 Khanapur, near Gosampalli Village at about 1600 hours, the driver of a Tractor bearing temporary registration No.AP-01- H-1620 and AP-01-TMR-2489 came from opposite direction in high speed and dashed to the motorcycle of the petitioner, as a result of which, he received fracture of both bones of right leg and fracture of right radius lower end forearm multiple injuries. He was immediately shifted to Khanapur hospital and after first aid, he went to Prashanthi hospital, Nizamabad, where, he undergone operation and discharged on 18.11.2011 with an advice to take up follow up treatment and he spent an amount of Rs.1,00,000/-. The Police, Khanapur registered a case in Crime No.132 of 2011 under Section 338 of IPC against the driver of tractor and took up the investigation and filed charge sheet. According to the petitioner, he was hale and healthy at the time of accident and was earning an amount of Rs.6,000/- per month by doing business and agriculture. Due to the injuries received, he underwent operation and during the course of operation, ORIF was inserted with nailing of Tibia, DCP to Fibula and DCP to right forearm and undergone several clinical and pathological tests. Therefore, the petitioner filed the claim MGP,J 3 MACMA_87_2019 petition against the respondent Nos.1 and 2 claiming compensation of Rs.5,00,000/- on various heads.
4. Before the Tribunal, while the respondent No.1-owner of offending vehicle remained ex-parte. Respondent No.2 filed counter denying the averments of the petition, age, avocation of the injured and further contended that the driver of the crime vehicle as well as petitioner were not having valid driving license as on the date of accident. It is further contended that the claim of compensation is excessive and exorbitant and prayed to dismiss the claim petition.
5. Based on the pleadings of the parties, the Tribunal framed the following issues:
1) Whether the accident took place as alleged by the petitioner on 06.11.2011 at about 1600 hours at Gosampalli Village as alleged by the petitioner due to rash and negligent driving by the driver of Tractor bearing No.AP-01-H-1620 and AP-01-TM-
2489 of 1st respondent or whether there was any contributory negligence on the part of the petitioner?
2) Whether the petitioner suffered injuries and disability as alleged?
MGP,J 4 MACMA_87_2019
3) Whether there was any insurance coverage for the driver of Tractor bearing No.AP-01-H-1620 and AP-01-TM-2489 and if so, does the policy cover the risk of the petitioner and if so, was there any breach of policy condition alleged by the second respondent?
4) Whether the petition is bad for non-joinder of owner and insurer of motorcycle bearing No.AP- 15-AK-1026?
5) Whether the petitioner is entitled to any compensation, if so, to what extent and against whom?
6) To what relief?
6. Before the Tribunal, the petitioner, in order to substantiate his claim, examined himself as PW1 apart from examining the Doctors who treated him as PWs 2 and 3 and also got marked Exs.A1 to A12. On behalf of respondent No.2, RW1 was examined and he got marked Ex.B1.
7. Considering the claim and counter filed by respondent No.2 and on evaluation of oral and documentary evidence, the Tribunal allowed the O.P. in part, awarding a total compensation of Rs.1,25,000/- along with interest @ 7% per annum from the date of petition till the date of award till the MGP,J 5 MACMA_87_2019 date of deposit or realization, to be deposited by respondent Nos.1 and 2, jointly and severally. Aggrieved by the same, the claimant has filed this appeal.
8. Heard Sri K. Ajay Kumar, learned counsel for the appellant/claimant and Sri A. Ramakrishna Reddy, learned Standing Counsel for respondent No.2. Perused the material available on record.
9. The main contention of the learned counsel for the appellant is that though the claim petitioner has proved the case by adducing cogent and convincing evidence and also relying upon Ex.A1 to A12, the learned Tribunal without considering the same has awarded meager amount and hence, prayed to award just and reasonable compensation.
10. Per contra, learned standing counsel for the Insurance Company argued that after considering all the aspects, the learned Tribunal has awarded reasonable compensation, for which, interference of this Court is unwarranted.
11. Now the point for consideration is that:
MGP,J 6 MACMA_87_2019 Whether the appellant-petitioner is entitled for enhancement of compensation amount in addition to the compensation amount granted vide impugned Order?
P O I N T:
12. This Court has perused the entire evidence and documents available on record.
13. The petitioner as PW1 has reiterated the contents of claim petition and deposed about the manner of accident and also the injuries and disability sustained by him. He also got marked Ex.A1 to A11. During cross-examination, nothing could be elicited to disbelieve his evidence. It has to be seen whether the disability as alleged by the petitioner was on account of the accident or not.
14. In support of his claim, the petitioner got examined PW2-Doctor, who is an Orthopedic surgeon in Pragathi Hospital at Nizamabad. He deposed that on 07.11.2011, the petitioner came to their hospital with history of road traffic accident and on examination, he found the petitioner sustained fracture of both bones of right leg and fracture of MGP,J 7 MACMA_87_2019 radius lower end of right forearm. He further deposed that the petitioner had undergone surgery on 09.11.2011 with IL nailing ORIV nailing to Tibia and DCP to Fibula right leg and DCP to radius right forearm and also ORIF and patient was discharged on 18.11.2011 with an advise to take bed rest for a period of three months. During cross-examination, nothing could be elicited to disbelieve his evidence.
15. PW3, who was working as Civil Surgeon and Chairman of Medical Board Area Hospital, Nirmal deposed that the petitioner came to their hospital on 27.11.2014 for issuance of disability certificate. She further deposed that the cause of disability is due to accident and it is post traumatic disability and percentage of disability is 57% and the disability is in relation to his right lower limb impaired reach sub type of disability Post Polio Residual Paralysis (PPRP) and they have issued disability certificates under Ex.A6. She further deposed that they have issued another disability certificate under Ex.A12 after rectification of Ex.A6. In the cross examination, she admitted that the petitioner has never taken treatment in her hospital. She further admitted that in every MGP,J 8 MACMA_87_2019 case before issuing the disability certificate, the Medical Board will go through the medical record of the patient and also conduct physical examination of the patient, however, contrary to the same, she further admitted that Ex.A6 was issued by the Medical board after following the requirements. She further admitted that on the date of her evidence, the petitioner came to the Court on his own without any assistance. She further admitted that she did not observe him keenly whether he had any difficulty in walking and as per Ex.A6, the disability is mentioned as relating to left lower limb and sub-type of disability as post polio residual paralysis, which means polio problem. She further admitted that whenever clerical or typographical error is found in any disability certificate, then the said certificate has to be corrected by rounding of the correction and noting the correct thing and thereafter the said correction has to be attested by the Medical officer and it has also to be noted under the bottom of the said certificate with stamp and seal of the medical officer and for such corrections, no fresh certificate can be issued. She further admitted that fresh disability certificate will be issued only after examining the patient and MGP,J 9 MACMA_87_2019 re-assessing the disability if the same is increased or decreased and that the medical board cannot issue another disability certificate for the same patient on the date of issuance of first certificate. She further admitted that Ex.A6 and A12 were issued by the Medical Board for the same patient on the same day on 27.11.2014 and that in both the certificates, the percentage of disability mentioned by the Medical Board is 57%. She further deposed that she worked as Gynecologist and also Chairman, Medical Board and she does not know the disability part and that based on the endorsement of Orthopedic surgeon, Ex.A12 was issued. She further deposed that she has not gone through the medical record of patient before giving evidence in this case. She simply denied the suggestion that they have issued the second certificate under Ex.A12 in collusion with the petitioner on a different date after the evidence of the petitioner in the Court by putting back date and that the Ex.A6 issued by Medical Board is the correct certificate.
16. It is pertinent to state that apart from the oral evidence, petitioner also relied upon documentary evidence marked MGP,J 10 MACMA_87_2019 under Exs.A1 to A6. Ex.A1-FIR discloses that based on a complaint, a case in Crime No.132 of 2011 was registered by Police, Khanapur and they took up investigation and laid charge sheet under Ex.A2 against the driver of the tractor. Ex.A3-Injury certificate, Ex.A5-Discharge summary and Ex.A7-Prescriptions were issued by PW2. Ex.A8 are the medical bills amounting to Rs.2,020/-. Ex.A4 is the insurance policy, which shows that the offending vehicle was owned by respondent No.1 and the policy was in force as on the date of accident. Ex.A9 to A11 of photographs showing the injuries sustained by the petitioner. Ex.A5 and A12 are the disability certificates.
17. On behalf of respondent No.2, its legal officer was examined as RW1. In his chief examination, he deposed that no such disability was sustained by the petitioner due to the accident and that Ex.A12 was issued only to change left lower limb as shown in Ex.A6 to right lower limb and also to show that the petitioner had sustained disability out of the accident instead of polio. In the cross examination, he admitted that the policy under Ex.B1 was in force as on the date of accident MGP,J 11 MACMA_87_2019 and that the driver of the offending vehicle was holding valid driving license at the time of accident.
18. As regards the manner of accident is concerned, the Tribunal after evaluating the evidence of PW1 coupled with the documentary evidence available on record, held that the accident occurred due to rash and negligent driving of the driver of tractor. Therefore, this Court is not inclined to interfere with the said findings of the Tribunal which are based on appreciation of evidence in proper perspective. Thus, the only dispute in the present appeal is with regard to the quantum of compensation.
19. In so far as the quantum of compensation is concerned, it is pertinent to state that there is no dispute with regard to accident and the two grievous injuries received by petitioner in the said accident. The learned Tribunal after considering the grievous nature of injuries had awarded an amount of Rs.50,000/- (Rs.25,000/- x 2) for two fractures, Rs.45,000/- towards pain and suffering and Rs.10,000/- towards transportation and this Court is not inclined to interfere with the said findings. As per the MGP,J 12 MACMA_87_2019 petitioner, he was earning an amount of Rs.10,000/- per month by doing agriculture and business. However, nobody was examined in support of the same. The learned Tribunal considering the occupation of petitioner has taken the monthly income at Rs.5,000/- and awarded an amount of Rs.15,000/- towards loss of earnings for a period of three months. Therefore, this Court is inclined not to interfere with the said finding of the Tribunal.
20. Coming to the disability, during cross examination of PW3, it was elicited by respondent No.2 that PW3 has issued the disability certificate under Ex.A12 without following the proper procedure. Even, PW2, who treated the petitioner immediately after the accident has not deposed about the petitioner sustaining any disability in the said accident. The learned Tribunal after considering the evidence on record has dis-believed the documents under Ex.A6 and A12 and come to the conclusion that the disability mentioned therein was not sustained due to the accident and it is a polio problem. Therefore, the learned Tribunal has rightly not granted any MGP,J 13 MACMA_87_2019 compensation under the head of disability and this Court is not inclined to interfere with the said finding.
21. Coming to the loss of earnings, the learned Tribunal has rightly granted loss of income at Rs.15,000/- for three months. The medical bills under Ex.A8 clearly show that an amount of Rs.2,020/- was spent by the petitioner towards medicines for treatment of injuries. Hence, this Court is inclined to grant an amount of Rs.2,020/- towards medical bills. Further, the learned Tribunal has granted an amount of Rs.5,000/- towards extra nourishment, treatment and private attendant, which is at a lower side. Therefore, this Court is inclined to interfere with the above quantum of compensation and the same has to be increased. The petitioner is entitled for Rs.10,000/- towards extra nourishment, Rs.5,000/- towards treatment and Rs.5,000 towards private attendant. Thus, in all, petitioner is entitled to compensation of Rs.1,42,020/-.
22. In the result, this Motor Accident Civil Miscellaneous Appeal is partly allowed enhancing the compensation amount awarded by the Tribunal from Rs.1,25,000/- to MGP,J 14 MACMA_87_2019 Rs.1,42,020/-. The enhanced compensation amount shall carry interest at the rate of 7.5 percent per annum. The enhanced compensation amount shall be deposited by respondents within a period of one month from the date of receipt of a copy of this Judgment. On such deposit, petitioner is entitled to withdraw the same without furnishing any security. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 28.06.2024 gvl