Mohd Jabbar Jabbarmmiya vs Somanath Another
2022 Latest Caselaw 5952 Tel

      THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                 M.A.C.M.A. No. 3177 of 2014

JUDGMENT:

This appeal is filed by the claimant, injured, aggrieved by

the order and decree, dated 30.05.2014 passed in O.P.No.984 of

2010 on the file of the Motor Vehicle Accident Tribunal-cum-IV

Additional District Judge, Ranga Reddy District, (for short, the

Tribunal).

2. For the sake of convenience, hereinafter, the parties are

referred to as per their array before the Tribunal.

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

Motor Vehicles Act claiming compensation of Rs.1,80,000/-

towards compensation for the injuries sustained by him in a

motor vehicle accident that occurred on 22.08.2010. It is stated

that on 22.08.2010 at about 4:00 p.m., while the claimant was

proceeding on motorcycle bearing No.AP 28 BD 9173 as pillion

rider towards Mohd. Jalal Qureshi Stone Polishing Company

through flyover bridge of Tandur-Kodangal, at that time one

Bolero Car bearing No.KA 32 M 8363, owned by respondent

No.1 and insured with respondent No.2, being driven by its

driver in a rash and negligent manner, dashed the motorcycle

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from opposite side, due to which, the claimant sustained

grievous fracture injuries. It is further stated that immediately

after the accident, the claimant was shifted to Government

Hospital, Thandur and subsequently shifted to Gandhi Hospital,

Secunderabad, where he took treatment as inpatient. The

Police, Tandur, registered a case in Crime No.153 of 2010

against the driver of the Car. Since the accident occurred due

to the rash and negligent driving of the driver of the Car, the

claimant laid the claim for Rs.1,80,000/- against the

respondents, who are the owner and insurer of the aforesaid

offending Car.

4. Before the Tribunal, while the respondent No. 1 remained

ex parte, respondent No. 2, Insurance Company, contested the

claim denying all the averments of the claim petition including

the manner in which the accident took place, nature of injuries

sustained and nature of treatment undergone by the claimant

and also the amount spent by him for his treatment. It is

further contended that the driver of the Car was not having

valid driving licence at the time of the accident. It is further

contended that the amount claimed is excessive and prayed for

dismissal of the claim petition.

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5. The Tribunal, after considering the claim, counter and the

evidence, both oral and documentary brought on record, has

allowed the O.P. in part awarding a sum of Rs.1,05,160/-

towards compensation. Seeking further enhancement of

compensation, the claimant approached this Court with the

present appeal.

6. Heard both sides and perused the material available on

record.

7. Learned Counsel for the claimant mainly submits that the

quantum of compensation awarded by the Tribunal is on lower

side. It is further submitted that as per the evidence available

on record, the claimant has sustained fracture of shaft right

femur mid third and treatment was given as ORIF C-K9 and

P.W.2 also assessed the disability at 38%, but the tribunal

awarded meager amount under the head of pain and suffering

and also the disability sustained by the petitioner. Therefore, it

is prayed to enhance the compensation by considering the

nature of injuries sustained by the claimant, nature of

treatment undergone by him and the disability sustained by

him.

MGP, J Macma_3177_2014

8. Learned Standing Counsel appearing for the respondent

No.2 has contended that considering the nature of injuries

sustained by the claimant, the tribunal has rightly awarded just

compensation and the same needs no interference by this

Court.

9. The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is

not challenged either by the owner or by the insurer of the

vehicle.

10. The short question that arises for consideration in this

appeal is "whether the compensation awarded by the Tribunal is

just and equitable"?

11. A perusal of the material on record, as per Ex.A4-

discharge card issued by Gandhi Hospital, Secunderabad, the

claimant has sustained fracture of shaft right femur mid third

and treatment was given as ORIF-C K9. P.W.2, the doctor,

issued Ex.A6-disability certificate stating that the claimant has

suffered 38% permanent partial disability as the claimant was

suffering with difficulty to walk, sitting, squatting and stiffness

of right knee joint. Admittedly, the claimant has sustained

MGP, J Macma_3177_2014

fracture of shaft of right femur mid third and he took treatment

conservatively in the form of injunctions and ORIF C-K9 was

fixed. Though the Tribunal has granted an amount of

Rs.20,000/- towards the charges for future surgery, but

awarded only Rs.7,000/- under the head of pain and suffering.

As the claimant has sustained fracture to his right femur mid

third and he is facing difficulty in sitting, squatting and he took

treatment for a considerable period, this Court is inclined to

enhance the amount awarded by the Tribunal under the head of

pain and suffering from Rs.7,000/- to Rs.25,000/-.

12. Though P.W.2, the doctor, certified that the claimant has

suffered with 38% of the permanent partial disability, the

claimant failed to produce any disability certificate issued by the

Medical Board to show that he had sustained 38% permanent

partial disability. Further as per PW2, the claimant was treated

conservatively in the form of injection and POP based on

previous medical records of Gandhi Hospital, where he was

admitted on 23.8.2010 and discharged on 31.8.2010.

Therefore, this Court is not inclined to accept Ex.A6, disability

certificate. However, due to the fracture injury, as there was

stiffness of right knee joint, this Court is inclined to enhance the

MGP, J Macma_3177_2014

amount awarded by the Tribunal under the head of disability

from Rs.25,000/- to Rs.75,000/-. The other amounts awarded

by the Tribunal under the heads of medical expenses,

transportation, fracture injury, extra nourishment, future

treatment and loss of earnings during the period of treatment,

need no interference as they are just and reasonable. Therefore,

except the said enhancement, rest of the amount awarded

under the other heads awarded by the Tribunal remains

unchanged.

13. In the result, the appeal is allowed in part enhancing the

compensation from Rs.1,05,160/- to Rs.1,73,160/-. The

enhanced compensation shall carry interest at 7.5% per annum

till the date of realization. The respondents are directed to

deposit the amount within months from the date of receipt of a

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

withdraw the said amount. No order as to costs.

Pending Miscellaneous petitions shall stand closed.

______________________________ JUSTICE M.G. PRIYADARSINI 17.11.2022 tsr

MGP, J Macma_3177_2014

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A. No. 3177 of 2014

DATE: 17-11-2022