Andhra Pradesh High Court - Amravati

Paidi Chandrasekhar vs S.Murasha 3 Ors on 14 February, 2023

Bench: T Mallikarjuna Rao

          HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                      M.A.C.M.A. No. 200 of 2012

JUDGMENT:

1. Aggrieved by the order and decree dated 14.09.2006 in M.V.O.P.

No.237 of 2004 passed by the Chairman, Motor Accidents Claims

Tribunal-cum- VII Additional District Judge, Madanapalle (for

short, "the tribunal"), the claimant has preferred this appeal for

enhancement of the compensation.

2. For convenience, the parties herein will be referred to as per their

rankings in the M.V.O.P.

3. The claimant filed a petition under Section 166 (1) of the Motor Ve-

hicles Act, 1988, for compensation of Rs.4,00,000/- on account of

the injuries sustained in a motor vehicle accident that occurred on

13.02.2004.

4. The claimant's case is that on 13.02.2004, at about 10.45AM, the

petitioner as a pillion rider of the motorcycle bearing

No.KA05EP4621 was proceeding on from ANgallu - Kadari road

and at that time the lorry bearing No.AP A 1809 (hereinafter as re-

ferred to as the "offending vehicle"), in a rash and negligent manner

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and at high speed without blowing the horn, dashed the claimant's

motorcycle. The claimant fell on the road and sustained injuries.

Immediately, he was taken to the Government Hospital, Madana-

palle, obtained treatment there and was shifted to CMC Hospital,

Vellore and took treatment there from 13.02.2004 to 02.03.2004

and again he was joined on 24.03.2004 to 10.04.2004 and also

again he admitted on 29.06.2004 and till today he was undergoing

treatment. The petitioner spent nearly a sum of Rs.3,00,000/- to-

wards medicines, a sum of Rs.75,000/- towards extranourishment

and Rs.30,000/- towards transportation and attendant charges.

5. The respondents 1 and 3 were remained exparte.

6. The respondents 2 and 4 filed written statements separately.

7. The 2nd respondent filed written statement denying the petitioner's

age, avocation, injuries treatment, expenditure and permanent dis-

ability, the injuries will not constitute any partial or permanent

disability as contemplated under law and did not mention his per-

centage of disability. If there is any disability that would be proved

by producing a medical certificate issued by the medical board con-

stituted for the said purpose. The respondent denied the relation-

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ship of employer and employee between 1st respondent and the al-

leged accident occurred during the course of alleged employment.

The petitioner is also put to strict proof as to whether the driver of

offending vehicle as well as himself were possessing any valid and

effective driving license to drive the said vehicle and that the of-

fending vehicle was carrying any valid permit and fitness certificate

and the offending vehicle was insured at the time of accident. The

accident occurred due to negligence of driver of two wheeler.

8. The 4th respondent filed written statement and denied that there

was no rash and negligent driving on the part of the driver of mo-

torcycle bearing No.KA05KP4621. Hence, the insurer has no liabili-

ty to pay compensation. The offending vehicle is insured with 2 nd

respondent. The accident occurred due to rash and negligent driv-

ing of driver of offending vehicle only.

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

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

P.Ws. 1 and 2 got examined and marked Exs. A.1 to A.11. On be-

half of the respondents, no oral evidence adduced, but the policy

copy got marked as Ex.B.1.

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10. After appreciation of oral and documentary evidence, the tribunal

held that the accident occurred due to the rash and negligent driv-

ing of the offending vehicle's driver and awarded compensation

Rs.2,11,000/- together with interest at 7.5% p.a. payable by the

respondents 1 and 2 from the date of petition till the date of realiza-

tion. The petition against the respondents 3 and 4 is dismissed.

11. I have heard the learned counsel representing both parties.

12. In the grounds of appeal, learned counsel for the appel-

lant/claimant contended that the tribunal erred in restricting the

claim of appellant; tribunal ought to have been accepted the evi-

dence of PW.2/doctor who issued Ex.A9 Permanent Disability Cer-

tificate. The Tribunal ought to have applied the multiplier method

in assessing the compensation. The Tribunal ought to have

awarded Rs.3,00,000/- towards medical expenses instead of

Rs.75,000/- towards extra nourishment and Rs.30,000/- towards

transportation charges and not awarded loss of past earnings.

13. Per contra, learned counsel appearing for the third respondent has

supported the findings and observations of the tribunal.

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14. Upon hearing the argument of both the learned counsel and hav-

ing perused the record, the point that has arisen for consideration

is whether the quantum of compensation awarded by the tribunal

is just and reasonable?

POINT:

15. The tribunal's findings that the accident occurred on account of

negligent driving of offending vehicle's driver and the claimant

sustained injuries in the said accident are not disputed by the

respondent by filing cross-appeal or cross-objection by respon-

dents 1 and 2, though the petition is dismissed against the res-

pondents 3 and 4, the claimant has not questioned the said find-

ing of the tribunal despite filing of this appeal. Hence this finding

has also attained finality.

16. The tribunal's finding that the policy Ex.B.1 to the offending ve-

hicle was in force and subsisting at the time of accident is not dis-

puted by the insurance company by filing appeal or cross objec-

tions. It also attained finality. It is the evidence of P.W.1 that he

received fracture of his right leg. He was shifted to Government

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Hospital, Madanapalle immediately; on the same day he went to

CMC Hospital, Vellore for about 45 days. He was admitted at CMC

Hospital for 3 times in total and stayed in the hospital for 45 days

; visiting the hospital for every 15 days for checkup. The said case

of the petitioner is accepted by the Tribunal and the said evidence

of PW.1 is not seriously disputed by the respondents 1 and 2. Fur-

ther in support of his case the claimant relied on Ex.A2 certified

copy of wound certificate. It shows that PW.1 sustained the follow-

ing injuries ;

1) Open fracture of lower end of femur right lower end of femur

projecting out through a wound of 12x10 Cms Articular end

of femur fractured.

2) Clinical fracture both bones of right leg upper third.

3) Lacerated injury of 10 x 5 Cms present over middle of leg.

17. According to the opinion of the doctor, the injuries 1 and 2 are griev-

ous in nature and injury No.3 is simple in nature. The petitioner got

examined PW.2 - Dr.K.Viswakiran Reddy, Orthopaedic Surgeon to

prove the disability certificate issued by him. His evidence shows

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that on 20.01.2006 he examined PW.1 and issued Ex.A9 Permanent

disability certificate. PW.1 sustained fracture of right femur lower

1/3rd fracture of right tibia. He was treated in CMC Vellore. On ex-

amination he found that PW.1 was walking with the help of hand

stick, his knee movements are terminally restricted and he cannot

squat. PW.1 cannot walk long distance even with the help of stick;

PW.1 cannot walk on uneven surface. The disability is assessed

60%. From the reading of the evidence of PW.2 shows that he did not

treat the injured and has not issued certificate as a Medical Board

Member. His evidence in cross examination shows that he did not

mention in Ex.A9 about the tests conducted by him and the data

basing on which he assessed the percentage of disability. However,

the Tribunal accepted his evidence and granted compensation

amount of Rs.50,000/- under the head of disability. The petitioner

has not given reasons for not examining the doctor who treated him.

It is not the case that he was examined by the Medical Board to as-

sess the disability. The finding of the Tribunal awarding compensa-

tion under the head of disability is not disputed by the respondents

1 and 2. Even otherwise, after considering the evidence of PW.2, the

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said amount awarded under the disability can be taken as under the

head of loss of amenities basing on the physical condition of the pe-

titioner which is observed by the qualified doctor as the said version

is not disputed by the respondents. As such, this court is inclined to

confirm the said amount awarded by the Tribunal. The evidence of

PWs.1 and 2 shows that, PW.1 sustained two fractures. The Tribunal

awarded Rs.36,000/- under the head of pain and suffering. The Tri-

bunal awarded an amount of Rs.1,00,000/- towards medical ex-

penses. The petitioner has relied on medical bills the petitioner spent

more than Rs.1,60,000/-. The Tribunal has not given any reason for

not accepting all medical bills relied by the petitioner. After carefully

going through the medical bills which genuineness is not disputed

by the respondents. This court views that amount of Rs.60,000/-to

be awarded in addition to the amount awarded by the Tribunal un-

der medical expenses. The petitioner relied on Ex.A6 transportation

bills, which shows that the petitioner spent an amount of

Rs.17,500/-, but the Tribunal awarded an amount Rs.10,000/- to-

wards transportation charges. Thus, an additional amount of

Rs.7,500/- to be awarded towards transportation

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charges. The Tribunal awarded only an amount Rs.10,000/- towards

extra nourishment, This Court views that an additional amount of

Rs.10,000/- to be awarded under this head. The Tribunal awarded

only an amount of Rs.5,000/- towards attendant charges, this court

views that an additional amount of Rs.10,000/- under this head.

18. In all, this Court is inclined to enhance the compensation under var-

ious heads in addition to the compensation awarded by the Tribun-

al, as detailed hereunder:

Enhanced S.No. Head of the claim Compensation

1. Medical expenses Rs.60,000/-

                   2.   Transportation         Rs.7,500/-
                        Charges
                   3.   Extra nourishment     Rs.10,000/-
                   4.   Attendant charges     Rs.10,000/-
                        Total                 Rs. 87,500/-

19. After considering the material on record, this Court is inclined to

award a sum of Rs.87,500/- in addition to the award passed by the

Tribunal. In all, the claimant is entitled to an amount of

Rs.2,98,500/- (Rs.2,11,000+ Rs.87,500/-). Accordingly, the point is

answered.

20. In the result, the appeal is partly allowed, enhancing the compensa-

tion from Rs.2,11,000/- to Rs.2,98,500/- with interest at 7.5% per

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annum from the date of the petition. The respondents 1 and 2 are

directed to deposit the compensation within two months, after ex-

cluding the already amount deposited, from the date of receipt of a

copy of this order. On such deposit, the claimant is entitled to with-

draw the compensation amount by filing an appropriate application

before the Tribunal. There shall be no order as to costs.