Maddella Brahma Naidu vs D.Srinivaslu
2023 Latest Caselaw 4917 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No.639 of 2023


JUDGMENT:

Aggrieved by the impugned order dated 20.06.2011 on the file

of Motor Accident Claims Tribunal -cum- I Additional District Judge,

Nellore, passed in M.V.O.P.No.8 of 2005, whereby the Tribunal has

partly allowed the claim against the respondents 1 and 2, the instant

appeal is preferred by the appellant/ claimant for enhancement of

claim amount.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim application.

3. The claimant filed a Claim Petition under section 166 of Motor

Vehicles Act, 1988 against the respondents praying the Tribunal to

award an amount of Rs.5,00,000/- towards compensation for the

injuries sustained by him in a Motor Vehicle Accident occurred on

20.05.2004.

4. Facts germane to dispose of this appeal in brief stated as

follows:

The petitioner M.Brahma Naidu is the resident of Nellore town,

working as auto driver and earning Rs.3,500/- per month, aged

about 33 years and the petitioner was hale and healthy prior to the

accident. On the intervening night of 20/21.05.2004, while the

petitioner was driving the auto bearing No.AP26U 9785 and

proceeding towards Bujabuja Nellore, carrying the passengers in the

auto, and when the auto proceeding opposite to Mahindra Tractor

showroom, another auto bearing No.AP26U 6701, hereinafter

referred to as 'offending vehicle', driven by its driver, came in an

opposite direction in a rash and negligent manner without following

traffic rules and dashed against the auto of the petitioner, resulting

which, the petitioner sustained multiple injuries.

5. The first respondent remained exparte. The second

respondent filed counter denying the claim of the claimant and

contended that the claimant is not entitled any compensation and

the second respondent is not liable to pay any compensation to the

claimant.

6. Based on the above pleadings, the Tribunal framed the

following issues:

i. Whether the accident in question is occurred, if so, was it due to the fault of the driver of auto bearing registration No.AP 26U 6701 or driver of auto rickshaw bearing No.AP26U 9785?

ii. Whether the owner of aforementioned auto-

rickshaw bearing registration No.AP26U 9785 and its insurance company are proper and necessary parties to this petition?

iii.   Whether     the    claimant       is   entitled   to    the
       compensation, if so, to what amount and from
       which of the respondents?
iv.    To what relief?

7. During the course of enquiry in the claim petition, on behalf

of the petitioner, PW1 to PW4 were examined and Ex.A1 to Ex.A52

and Ex.X1 were marked. On behalf of the respondents, RW1 was

examined and Ex.B1 and Ex.B2 were marked.

8. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

has given a finding that the accident was occurred due to

negligence of both the petitioner and the driver of R.1 and the

Tribunal granted an amount of Rs.2,67,505/- to the claimant towards

compensation. Aggrieved by the same, the claimant filed the

present appeal claiming the remaining balance of compensation

amount.

9. Heard Sri V.Siva Prasad Reddy, learned counsel for the

petitioner and M/s.S.Agasthya Sharma, learned counsel for second

respondent Insurance Company and perused the material on record.

10. Now, the points for consideration are:

     1. Whether    the   Order    of    Tribunal    needs     any
       interference?

2. Whether the claimant/ appellant is entitled for enhancement of compensation as prayed for?

11. POINT Nos.1 and 2:-

In order to prove the rash and negligent driving of the driver of

the offending vehicle, the petitioner relied on the evidence of PW1

and Ex.A1 attested copy of First Information Report and Ex.A3

attested copy of charge sheet. PW1 is none other than the wife of

the petitioner. Since the petitioner is being deaf and dumb and

handicapped, his wife is examined as PW1 by the claimant. On

considering the entire material on record and so also considering

the Ex.A1 and Ex.A2, I am of the considered view that there was a

negligence of 75% on the part of the driver of the offending auto

bearing No.AP26U 6701 and so also there is a contributory

negligence on the part of the claimant, who is the driver of the auto

bearing No.AP26U 9785.

12. As seen from the material on record, the petitioner sustained

one grievous injury and two simple injuries. The said grievous injury

is a severe head injury. The petitioner, in order to prove his claim,

examined Dr.A.Sasidhar, who treated him, as PW2. As per his

evidence, the claimant was admitted in SVIMS hospital, Tirupati on

22.05.2004. He met with an accident on 20.05.2004, immediately he

was taken to Government Head Quarters Hospital, Nellore and on

account of the neurological problem he was unable to speak. He

was referred to SVIMS hospital. At the time of admission, the

injured was unable to speak and write and he underwent major

surgery to the brain. PW2 further deposed in his evidence that as

per Ex.A52 medical certificate for deaf issued by the Medical Board,

the claimant is suffering with aphasia of right and left ear due to

head injury. As seen from the evidence of PW2, the petitioner

suffered with severe head injury and because of the accident he is

suffering with deaf and dumb problem. On considering the evidence

of PW2 and so also and on considering the entire evidence on

record, the Tribunal awarded an amount of Rs.3,84,000/- towards

permanent disability sustained by the petitioner. On considering the

evidence of PW2 coupled with the entire evidence on record, I am of

the considered view there is no need to interfere with the said

finding given by the Tribunal in awarding Rs.3,84,000/- under the

head of permanent disability sustained by the petitioner.

13. The material on record reveals that the petitioner sustained

one grievous injury and two simple injuries and the petitioner also

sustained severe injury to the head and underwent major surgery to

the head. Therefore, the Tribunal rightly awarded an amount of

Rs.60,000/- under the head of pain and suffering. On considering

the entire medical bills Ex.A11 to Ex.A49 coupled with the evidence

of the doctor, the Tribunal awarded an amount of Rs.59,010/- under

the head of medical expenses. The Tribunal also awarded an

amount of Rs.6,000/- towards transport, incidental expenses and

extra nourishment and an amount of Rs.6,000/- was awarded

towards attendant charges. On considering the severe disability

and on considering the head injury and so also on considering the

deaf and dumb problem suffered by the petitioner, because of the

accident, the Tribunal rightly awarded an amount of Rs.20,000/-

towards future medical expenses. In total the Tribunal awarded an

amount of Rs.5,35,010/- towards compensation. No appeal is filed

by the respondents against the said finding.

14. It is not in dispute that the first respondent being the owner of

the auto bearing No.AP26U 6701 insured the auto with the second

respondent Insurance Company and the policy is in force and the

driver of the offending auto is having valid driving licence at the time

of accident. For the reasons stated above 25% of the compensation

amount has to be deducted towards 25% contributory negligence of

the petitioner. If 25% of the compensation amount is deducted from

out of Rs.5,35,010/-, it comes to Rs.4,01,258/- (5,35,010 - 133,752).

Accordingly, the petitioner is entitled an amount of Rs.4,01,258/-

towards total compensation.

15. In the result, this appeal is partly allowed, modifying the order

dated 20.06.2011 passed in MVOP No.8/2005 on the file of the

Motor Accident Claims Tribunal-cum- I Additional District Judge,

Nellore, consequently, the claim amount is enhanced from

Rs.2,67.505/- to Rs.4,01,258/-. The petitioner is entitled the

enhanced compensation of Rs.1,33,753/- with interest @7.5% p.a.

from the date of petition, till the date of realization. The second

respondent is directed to deposit the enhanced compensation of

Rs.1,33,753/- with interest as ordered above, before the Tribunal

within two months from the date of this judgment. On such deposit,

the petitioner is entitled to withdraw the same along with accrued

interest thereon. There shall be no order as to costs.

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

________________________________ V.GOPALA KRISHNA RAO, J Dated: 12.10.2023.

sj

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.639 of 2023

12.10.2023

sj