G. Israel Another vs Penninti Lakshmi Narayana
2023 Latest Caselaw 645 AP

          HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                        M.A.C.M.A. No. 4386 OF 2012

JUDGMENT:

1. Aggrieved by the order and decree dated 23.07.2012 in

M.V.O.P.No.238 of 2011 passed by the Chairman, Motor Accidents

Claims Tribunal-cum-V Additional District Judge, Fast Track

Court, Prakasam District, Ongole, (for short "the tribunal"), the

respondents therein has preferred the present appeal questioning

the award passed by the tribunal.

2. For convenience, the parties will hereinafter be referred to as

arrayed in the M.V.O.P.

3. The claimant filed a petition under Section 166 of the Motor

Vehicles Act, 1988 seeking compensation Rs.5,00,000/- on

account of the injuries sustained by him in a motor vehicle

accident that occurred on 27.02.2011.

4. The claimant's case is that on 27.02.2011, when he was going on a

motorcycle at about 9.00 A.M. and when he reached near water

tank situated by the side of Tammavaram and Medarametla road, a

tractor and trailer bearing No.AP W 1456, AAE 3786 (hereinafter

referred to as "the offending vehicle") came in a rash and negligent

manner and dashed the motorcycle; as a result, the claimant fell

and received injuries; thereby he was taken to Jayanthi Nursing

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Home, Medarametla, later shifted to NRI hospital, Mangalagiri for

better treatment.

5. The second respondent filed his counter, the same was adopted by

the first respondent, wherein it is disputed the manner of the

accident, age, avocation, income and injuries sustained by the

claimant and the accident occurred due to the rash and negligent

riding of the motorcycle. Therefore, there was no negligence on the

part of the first respondent.

6. Based on the pleadings, the tribunal framed relevant issues. To

substantiate the claim, on behalf of the claimant during the trial,

P.Ws.1 and 2 were examined, Exs.A.1 to A.11 were marked; on

behalf of respondents, R.Ws.1 and 2 were examined, and Exs.B.1

to B.4 were marked. After evaluating the evidence on record, the

tribunal held that the accident occurred due to the rash and

negligent driving of the offending vehicle's driver and awarded

compensation Rs.1,73,000/- against respondents 1 and 2 with

interest at 9% P.A. from the date of petition till realization.

7. Heard both the learned counsel.

8. During the hearing, learned counsel for the appellants

(respondents in M.V.O.P.) has contended that the tribunal came to

the conclusion based on the crime registration, which is

adjudicated by the criminal court, to decide the negligence of the

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first appellant and mere filing of the charge sheet could not

establish the rash and negligent driving of the first appellant and

P.W.2 did not mention the exact number of wounds in the wound

certificate. The tribunal erred in granting Rs.86,000/- towards

treatment based on the essentiality certificate and the tribunal

failed to note that the first respondent did not produce his driving

license and prayed to allow the appeal by dismissing the claim

petition.

9. Learned counsel for the respondent (claimant in M.V.O.P.) has

supported the findings and observations of the tribunal.

10. The claimant sustained injuries in the accident is not

disputed. However, the manner of the accident and the quantum

of compensation awarded by the tribunal are disputed. Now the

points for determination are,

I. Whether the tribunal erred in holding that the accident occurred due to the rash and negligent driving of the first respondent.

II. Whether the quantum of compensation fixed by the tribunal is just and reasonable or requires modification.

POINT No.1:

a. The claimant himself got examined as P.W.1. In the chief

examination, he narrated the manner of the accident. According to

his evidence, on 27.02.2011, while he was going on the motorcycle,

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when he reached the water tank situated by the side of

Tammavaam and Medarametla road, a tractor and trailer came in a

rash and negligent manner and dashed the motorcycle. In support

of his case, the claimant relied on Ex.A.1, F.I.R. and Ex.A.3, charge

sheet. The second respondent, the offending vehicle's owner, was

examined as R.W.2. In the cross-examination, R.W.2 testified that

he had not mentioned in his counter what he had stated in his

chief examination affidavit. The tribunal has not given any

credence to the evidence of R.W.2. It is not in dispute that the

police filed the charge sheet against the first respondent. The first

respondent, the offending vehicle's driver, is also examined as

R.W.1. In the chief examination, R.W.1 testified that he was

driving the offending vehicle from west to east, and he turned the

tractor towards the southern side, showing the hand signal. The

said evidence of R.W.1 goes to show that despite noticing the

coming of P.W.1, R.W.1 could not stop his vehicle. Except for the

self-serving testimony of R.W. 1, no other evidence is placed before

the court to substantiate his evidence. As seen from the evidence

of R.W.2, it is not his case that he was present at the time of the

accident, and reading of R.W.2's evidence shows that he was

informed by R.W.1 about the manner of the accident. The evidence

of R.W.2 in chief affidavit is not helpful to the case of the first

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respondent regarding the manner of the accident, as his evidence

is in the nature of hearsay.

b. It is elicited in the cross-examination of P.W.1 that, as per Ex.A.4,

rough sketch, he was going from east to west and the tractor was

coming from west to east. In the evidence, R.W.1 admitted that the

tractor had to take a right turn to enter into the premises. Except

for the said evidence, nothing is elicited in the cross-examination to

discredit his evidence. It is not suggested to P.W.1 that the

accident occurred due to his negligence as contended in the

counter and no effort was made in the cross-examination of P.W.1

to establish that the accident occurred as stated in the counter.

Though P.W.1 was cross-examined at length, nothing was elicited

in the cross-examination to discredit his testimony; hence, P.W.1's

evidence is trustworthy and believable. This court sees no reason

to disbelieve the evidence of P.W.1.

c. The normal rule is for the petitioners to prove negligence. But in

accident cases, hardship is caused to the petitioner as the true

cause of the accident is not known to them but is solely within the

knowledge of the respondent who caused it. It will then be for the

respondent to establish the accident due to some other cause than

his negligence. The Respondent places no evidence to show that

the contents of the charge sheet are incorrect.

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d. In K.Rajani and V. M.Satyanarayana Goud and others1, this

Court observed that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

e. In Bheemla Devi V. Himachal Road Transport Corporation2 the

Hon'ble Apex Court observed as follows:

"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 are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

f. Nothing on record suggests that the Investigating Officer filed a

charge sheet against the offending vehicle's driver without

conducting a proper investigation. It is also difficult to hold that

the Police Officer fabricated a case. In a proceeding under the M.V.

2015 ACJ 797

2009 ACJ 1725 (S.C.)

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Act, where the procedure is a summary procedure, there is no need

to go by strict rules of pleading or evidence. The document having

some probative value, the genuineness of which is not in doubt,

can be looked into by the Tribunal for getting preponderance of

probable versions. The preponderance of probabilities is the

touchstone for concluding rashness and negligence, as well as the

accident's mode and manner of happening. As such, it is by now

well settled that even F.I.R. or Police Papers, when made part of a

claim petition, can be looked into for giving a finding in respect of

the happening of the accident.

g. The Tribunal has accepted the claimants' case regarding the

manner of the accident and also took the observations made by the

Investigating Officer in the charge sheet making the offending

vehicle's driver responsible for the accident. As observed, the

charge sheet contents also support the claimants' case regarding

the manner of the accident. The reading of the documents placed

before the tribunal clearly shows that the accident occurred due to

rash and negligent driving of the offending vehicle's driver; when

the appellant contends that the accident happened differently, it is

to place necessary evidence before the tribunal based on which the

tribunal expected to give its conclusion. Upon careful reading of

the material on record, this Court views that the tribunal has

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correctly appreciated the evidence on record and the finding of the

tribunal that the accident occurred due to rash and negligent

driving of the offending vehicle holds good. Accordingly, the point

is answered.

POINT No.II

a. Regarding the quantum of compensation, the claimant relied on

Ex.A.3, wound certificate, to show his injuries. The claimant

sustained five grievous injuries per Ex.A.3, wound certificate. The

claimant also examined P.W.2, Dr.B.Suryanarayana, N.R.I.

hospital, who deposed that P.W.1 received six injuries. Out of

them, five injuries are grievous in nature, and one injury is simple

in nature. By taking into consideration the evidence of P.Ws.1 and

2, the tribunal has given a finding that the claimant received five

grievous and one simple injury and awarded Rs.15,000/- each to

the grievous injury and Rs.2,000/- for simple injury and the total

awarded Rs.77,000/- under the head pain and suffering.

b. As seen from the evidence of P.Ws.1 and 2, there is no serious

dispute that the claimant sustained five grievous injuries. After

considering the nature of the injuries, and the nature of treatment

undergone, this court finds that the tribunal awarded a reasonable

amount under the head pain and suffering. The claimant also

adduced evidence regarding the treatment provided to him in the

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hospital. He also relied on Ex.A.6, medical bills, which show that

the claimant spent an amount of Rs.85,315/-. To prove the nature

of treatment undergone by him, he also examined the doctor as

P.W.2. According to the evidence of P.W.2, the claimant was

admitted in the hospital on 27.02.2011 and discharged on

24.03.2011. The evidence of P.W.2 shows that after discharge, he

advised the claimant to take bed rest for three months. The

tribunal assessed the monthly earnings of the claimant at

Rs.5,000/- and awarded an amount of Rs.10,000/- under the head

loss of earnings; and awarded an amount Rs.86,000/- towards

medical expenses. The respondent has not raised any objection

when marking the said documents. On the other hand, the

claimant is able to establish the genuineness of the documents by

examining the doctor who treated him.

c. After considering the material on record, this court views that the

tribunal awarded a just and reasonable amount, as observed

above. Though it is the case of the evidence of P.W.1 that he

sustained disability in the accident, the tribunal has not accepted

the said case relying on the evidence of P.W.2. In the cross-

examination, P.W.2 categorically stated that there is no disability

to the claimant he is able to do work as earlier. As the said

evidence of P.W.2 shows that there is no disability, the tribunal

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rightly not granted any compensation under head of disability. As

seen from the tribunal's order, the claimant has not considered the

claimant's case to award the compensation under the heads

attending charges, extra nourishment and transportation charges.

The claimant has not preferred any appeal questioning the order

passed by the tribunal with regard to the quantum of the

compensation amount. This court views that the amount awarded

by the tribunal under various heads are to be confirmed. Though

the claimant is entitled to more than the amount awarded by the

tribunal, this court is not inclined to consider the same in the facts

and circumstances of the case. Hence, I do not find any substance

in the appeal; the appeal is devoid of merit, and accordingly, the

appeal is liable to be dismissed. Accordingly, the point is answered.

11. Accordingly, the appeal is dismissed. No costs.

12. Miscellaneous petitions, if any, pending in this appeal shall stand

closed.

___________________________ T.MALLIKARJUNA RAO, J Dt. 07 .02.2023 BV