Andhra Pradesh High Court - Amravati
S.Sri Devi Mangalakshmi Devi vs Peethala Srinivasa Rao And 2 Others on 9 February, 2024
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1979 OF 2016
JUDGMENT:
-
This M.A.C.M.A. is directed by the claimant against the
award, dated 12.01.2011 in M.V.O.P.No.614 of 2007 on the file
of Motor Accidents Claims Tribunal - cum - Family - cum -
Additional District Judge, Vizianagaram, ("Tribunal" for short),
where under, the learned Tribunal as against the claim of the
petitioner to a tune of Rs.3,70,000/- towards the compensation
for the injuries received by her in a Motor Vehicle accident,
granted compensation of Rs.2,00,000/-. Felt aggrieved that the
compensation so awarded is not just and reasonable, the
claimant filed the present M.A.C.M.A.
2. The parties to this M.A.C.M.A. will hereinafter be referred
to as described before the Tribunal for the sake of convenience.
3. The case of the petitioner/claimant in the claim petition
according to the petition averments before the Tribunal, in brief,
is that:
(i) The petitioner is resident of Kasapeta Village, L.Kota
Mandal, Vizianagaram. She was aged 24 years by the date of
accident. She was hale and healthy by the date of accident. She
was earning Rs.4,000/- by working as a Teacher and conducting
tuitions to the students. On 11.06.2007, while the petitioner was
proceeding on a motor cycle bearing No. AP 35 E 5230 as a
pillion rider and reached near Gangubudi Junction at about
07.30 a.m., the respondent No.1 driver of the auto bearing No.
AP 35 U 3196 ("offending vehicle" for short) dashed the motor
cycle from opposite direction in a rash and negligent manner at
high speed, as a result, the motor cycle was thrown and dashed
to a tree and the rider of the same died on the spot and the
petitioner fell down and received injuries all over her body.
Immediately, she was shifted to Vaishnavi Hospital,
Visakhapatnam, Doctors took X-ray and found fractures on right
thigh both tibia and fibula of left leg and injuries on right
temporal region of scalp and right foot, and right eye brow. The
petitioner cannot walk long distances, she cannot squat properly
and she cannot stand long time. The petitioner is unable to do
any work due to the injuries sustained by her in the above
accident and lost her income. She suffered much pain and metal
agony and spent huge amounts towards cost of medicines,
transport to hospital and extra nourishment.
(ii) The above accident was occurred only due to the
rash and negligent driving of the offending vehicle i.e.,
respondent No.1. The Station House Officer, L.Kota Police
Station registered a case in Crime No.40 of 2007 under Section
338, 304-A of I.P.C. against the respondent No.1 who is the
driver of the offending vehicle. The respondent No.2 is the
owner of the offending vehicle. The offending vehicle was duly
insured with respondent No.3. So, the respondent Nos.1 to 3 are
jointly and severally liable to pay compensation to the
petitioner. Hence, the claim.
4. The respondent Nos.1 and 2, the driver and owner of the
offending vehicle did not contest the claim and remained
exparte before the Tribunal.
5. It is the respondent No.3-Insurance Company, who
contested the claim of the claimant. Respondent No.3 filed
counter denying the averments in the petition and disputed the
age, income, avocation and the manner of the accident as
alleged. Respondent No.3 put the petitioner to strict proof of the
averments which she made in the claim petition. The further
contention of the respondent No.3 is that the petitioner has to
prove that the offending vehicle was insured with the company
and that the driver of the offending vehicle was having valid
driving license and the vehicle was in fit condition. The petition
is bad for non-joinder of necessary parties i.e., the owner and
Insurer of the motor cycle bearing No.AP 35 E 5230.
6. On the basis of the above, the Tribunal settled the
following issues for trial:
(1) Whether the accident occurred was due to the rash
and negligent driving of the respondent No.1?
(2) Whether the petitioner is entitled for compensation
and if so, what is the quantum of amount he is entitled to?
(3) To what relief?
7. During the course of trial before the Tribunal, petitioner
examined herself examined as PW.1 and further examined PW.2
the medical officer who treated her and further PW.3 who issued
so called disability certificate. On behalf of the petitioner,
Exs.A1 to A9 and Ex.X1 were marked. Ex.A1 is the copy of F.I.R.
in Crime No.40 of 2007 of L.Kota Police Station. Ex.A2 is the
copy of wound certificate. Ex.A3 is the copy of M.V.I.Report.
Ex.A4 is the copy of charge sheet. Ex.A5 is Bunch of medical
bills for Rs.1,76,814/-. Ex.A6 is discharge summary. Ex.A7 is
the disability certificate issued by PW.2. Ex.A8 is Latest X-ray.
Ex.A.9 is disability certificate issued by Medical Board,
Vizianagaram and Ex.X1 is case sheet.
8. The contesting respondent examined RW.1 and further
examined the Record Assistant in the Regional Transport
Authority, Vizianagaram as RW.2. On behalf of the respondents,
Exs.B1 to B4 were marked. Ex.B1 is the policy copy. Ex.B2 is
Authorization letter. Ex.B3 is B-Register extract of the crime
vehicle and Ex.B4 is Driving license extract of respondent No.1.
9. The learned Tribunal on hearing both sides and on
considering the oral as well as documentary evidence, found
that the accident was occurred due to the rash and negligent
driving of the driver of the offending vehicle i.e., respondent
No.1 and that respondent Nos.1 to 3 are jointly and severally
liable to pay compensation to the petitioner and awarded
compensation of Rs.2,00,000/-. Accordingly, the Tribunal passed
award with a direction to the respondents jointly and severally
to pay a sum of Rs.2,00,000/- with interest @ 7.5% per annum
from the date of petition till the date of realization along with
proportionate costs directing the respondent No.3 to deposit the
amount within one (01) month and on such deposit petitioner
was permitted to withdraw 20% of the compensation and the
rest of the compensation shall be kept in Karur Vysya Bank,
Vizianagaram for a period of three (3) years. Felt aggrieved that
the compensation so awarded is not just and reasonable, the
present M.A.C.M.A. has been filed by the appellant.
10. Now, in deciding this M.A.C.M.A., the point for
determination is as follows:
(1) Whether the award, dated 12.01.2011 in
M.V.O.P.No.614 of 2007 on the file of Motor Accidents
Claims Tribunal - cum -Family - cum - Additional District
Judge, Vizianagaram is sustainable under law and facts
and the compensation awarded to the claimant is just and
reasonable under the circumstances?
Point No.1:
11. As seen from the evidence of PW.1 who is the petitioner,
she put forth the facts in accordance with the pleadings. As seen
from the evidence of PW.2, he spoke of the treatment given to
PW.1. As seen from the evidence of PW.3, he spoke of the so
called issuance of the disability certificate.
12. It is to be noted that insofar as the findings of the Tribunal
that the accident occurred was due to rash and negligent act of
the respondent No.1 in driving the offending vehicle, there is no
cross-objection filed.
13. So, the scope of this appeal is to decide as to whether the
compensation awarded is just and reasonable.
14. Sri Saripalli Subrahmanyam, learned counsel for the
appellant would contend that the Tribunal did not consider the
evidence of the PW.1 and PW.3 coupled with the documentary
evidence pertaining to the disability sustained by the petitioner
and declined to grant any compensation under the head of
permanent disability partial in nature. The Tribunal did not
consider the medical expenses as claimed by the petitioner and
without proper reasons, declined to consider the amount of
Rs.74,500/- and the Tribunal granted a sum of Rs.1,00,000/-
towards medical expenditure as against the claim of
Rs.1,76,814/-. Even the compensation under the other heads
was also not reasonable. With the above contentions, he prays
this Court to interfere with the award of the Tribunal so as to
enhance the compensation.
15. Sri C.Upendra, learned counsel representing
Ms.T.V.Sridevi, learned counsel for the respondent No.2 would
submit that there is no need or necessity to interfere with the
award of the Tribunal.
16. In spite of the opportunity given, no arguments were
advanced on behalf of the contesting respondent No.3.
17. It is to be noted that insofar as the evidence of PW.1 that
the accident occurred was due to rash and negligent act of the
respondent No.1 in driving the offending vehicle is concerned, it
has support from Ex.A1-copy of F.I.R. in Crime No.40 of 2007
and copy of charge sheet under Ex.A4. Considering the evidence
of PW.1 coupled with the above, the Tribunal gave findings that
the petitioner was able to prove that she received grievous
injuries and simple injuries in the Motor Vehicle accident, which
was occurred on the account of rash and negligent act of the
respondent No.1 and in this regard these findings are not sought
to be disturbed by filing any cross-objection.
18. Under the circumstances, the scope of this M.A.C.M.A is
admittedly regarding the quantum of compensation. There is no
dispute as evident from the evidence of PW.1 coupled with
Ex.A2-wound certificate that the petitioner received two (02)
grievous injuries and three (03) simple injuries during the
course of accident. She took treatment from 11.06.2007 to
27.08.2007 for a period of two (02) months fifteen (15) days. In
this regard, Ex.X1-case sheet supports the case of the claimant.
19. Firstly, this Court would like to deal with the contention of
the appellant that the Tribunal did not consider the disability as
evident from Ex.A7 and Ex.A9.
20. It is to be noted that it is a case where the petitioner did
not whisper anything that she sustained partial and permanent
disability of 40%. Ex.A7 and Ex.A9 were not filed along with the
petition. On the other hand, Ex.X1-case sheet, even it did not
whisper about any disability. At the time of discharge of the
petitioner from the hospital, she was in good condition.
PW.2 the medical officer, who treated PW.1 did not speak of any
disability. It was the PW.3 who spoke of so called disability.
According to PW.3, he examined the petitioner on 11.10.2010.
Here, the date of accident was on 11.06.2007. So admittedly,
after about three (03) years after the accident, PW.3 claimed to
have examined the PW.1 and issued a disability certificate. It is
to be noted that there was no loss of limb and there was no
amputation. Ex.X1 reveals that the petitioner-PW.1 was
discharged from the hospital in a good condition. The petitioner
received only two (02) grievous injuries and three (03) simple
injuries, for which she was treated and she was discharged from
the hospital. Even the petitioner did not produce any piece of
document to show that subsequent to the discharge, whether
she took any further treatment so as to get the fracture united.
So, in my considered view, the Tribunal rightly held that there
was no permanent disability partial in nature occurred to
petitioner on account of the Motor Vehicle accident. In my
considered view, the Tribunal rightly declined to grant any
compensation under the head of disability.
21. Now, coming to the contention of the appellant that the
Tribunal did not consider the medical expenses incurred by the
petitioner under Ex.A5-bunch of medical bills to a tune of
Rs.1,76,814/-. This Court would like to make it clear that the
contesting respondent did not bring in any evidence so as to
dispute the medical expenditure under Ex.A5. Admittedly
according to Ex.A5-bunch of medical bills, the petitioner
separately calculated the medical expenditure to a tune of
Rs.1,76,814/-. But the Tribunal made a findings that the
petitioner calculated the amounts by including the payments
towards advance and some bills appears to have written one
and the same date and that expenditure appears to have shown
on higher side. It is to be noted that when the petitioner
calculated the medical expenditure as Rs.1,76,814/-, the
Tribunal restricted the claim towards the purchase of medicines
and treatment to Rs.1,00,000/-. Such restriction made by the
Tribunal was not with any calculations. If Ex.A5 medical
expenditure is considered, there is no dispute that there are
some bills of same date, but the bills numbers are of different.
Apart from this, under the Ex.A5 medical expenditure, the
petitioner shown an amount of Rs.74,500/- the consolidated
amount for bed charges, nursing charges etc., This amount was
not shown in any other documents i.e., medical bills under
Ex.A5. So, it appears that the Tribunal without proper scrutiny
disallowed the medical expenditure Rs.74,500/-. If Ex.A5 is
considered carefully, it appears that petitioner did not
miscalculate the medical expenditure. The petitioner claimed
medical expenditure under Ex.A5-bunch of medical bills and the
bills are totally different. In my considered view the Tribunal
without there being proper reason, restricted the medical
expenditure from that of Rs.1,74,500/- to Rs.1,00,000/-. In my
considered the Tribunal ought to have granted the medical
expenditure under Ex.A5 as it was not brought in evidence that
the petitioner claimed medical expenditure excessively. Hence,
medical expenditure should be to a tune of Rs.1,74,500/-.
22. With regard to the grievous injuries sustained by the
petitioner, the Tribunal awarded a sum of Rs.20,000/- each
towards the grievous injury and further Rs.3,000/- each towards
the simple injury. The accident was occurred in the year 2007.
Considering the same, it cannot be held that compensation
under the head of grievous injury and simple injury is lesser on
side. The Tribunal further rightly awarded Rs.10,000/- towards
the transport to hospital and attendant charges and further
Rs.10,000/- towards extra-nourishment and further Rs.15,000/-
for pain and suffering.
23. Apart from this, the Tribunal duly considered the period of
treatment and awarded Rs.16,000/- towards loss of earnings.
Having regard to the above, except restricting the claim under
the medical expenditure, the compensation that was awarded by
the Tribunal was on reasonable basis. Hence, this Court is of the
considered view that the medical expenditure restricted by the
tribunal was not on the proper basis as such appellant/petitioner
is entitled to a medical expenditure of Rs.1,74,500/- as against
Rs.1,00,000/- granted by the Tribunal. To the above extent, the
appeal is liable to be allowed in part.
24. In the result, the M.A.C.M.A. is allowed in part enhancing
the compensation from Rs.2,00,000/- to Rs.2,74,500/- with
proportionate costs by holding that the respondent Nos.1 to 3
are liable to pay jointly and severally. The respondent No.3 is
directed to deposit the difference amount of Rs.74,500/- along
with interest @ 7.5% per annum from the date of petition till the
date of realization, within one month from the date of this order
and on such deposit, the claimant is entitled to withdraw the
entire difference amount.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.09.02.2024.
Vnb
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date: 09.02.2024
Vnb
