Joshi Srnivas Rao vs K Mulugaiah,
2023 Latest Caselaw 1763 Tel

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                                                       MACMA No.2375 of 2014

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                   M.A.C.M.A.No.2375 of 2014

JUDGMENT:

This M.A.C.M.A is filed by the appellant/claimant

challenging the order and decree dated 10.02.2014 passed in

O.P.No.215 of 2008 on the file of the Chairman, Motor Accidents

Claims Tribunal-cum-VII Additional District Judge, Bodhan.

2. For the sake of convenience, the parties hereinafter

will be referred to as they are arrayed before the Tribunal.

3. The brief facts of the case are as follows:

The petitioner filed a claim petition claiming

compensation of Rs.3,00,000/- on the account of injuries

sustained by him in a motor vehicle accident stating that on

19.02.2006, he and others were travelling in an Auto bearing

No.AP25-U-7683 from Chinna Devda Village to Bichkunda.

When the said auto reached in front of Junior College,

Bichkunda, at about 10.00 am, the driver of auto drove it in a

rash and negligent manner with high speed and dashed against

a TVS motorcycle, which was coming in opposite direction. As a

result, the petitioner fell down and sustained a compound 2 RRN,J MACMA No.2375 of 2014

fracture to both bones of the right leg, fracture to the supine

pubic ram, fracture to the condoyle tibia left, injuries on the

shoulder, head, hands backside neck ribs and other parts of the

body. Immediately, he was shifted to Government Hospital,

Banswada, and later shifted to Government Hospital, Nizamabad

from there, he was shifted to Seshank Hospital, Nizamabad and

underwent surgery to his both legs and incurred an amount of

Rs.1,50,000/- towards medical expenses. Hence the claim

petition.

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

parte. Respondent No.2 filed a counter denying all the allegations

in the petition. He further submitted as per the charge sheet, the

said accident occurred due to negligence of both drivers i.e.,

driver of the crime auto and rider of TVS motorcycle and the

owner and insurance company of the TVS motorcycle are

necessary parties and the petitioner did not implead them. On

such ground only, respondent No.2 is not liable to pay any

compensation and the same is liable to be dismissed.

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

following issues:

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i) Whether the accident occurred due to the rash and negligent driving of driver of Auto bearing No.AP-25U-7683?

ii) Whether the petitioner is entitled to compensation and if so, to what amount?

iii) Whether the respondents are liable to pay compensation?

iv) To what relief?

6. On behalf of the petitioner, P.Ws.1 and 2 were

examined and got marked Exs.A1 to A.9 and Ex.C.1. No oral

evidence was adduced on behalf of respondents and only marked

Ex.B1/copy of Policy.

7. On appreciation of the evidence on record, the Tribunal

answered issue No.1 observing that there was contributory negligence

on the part of both vehicles and negligence was fixed @ 80% on the

part of the driver of the Auto and 20% on the rider of the TVS Moped.

Accordingly, the Tribunal allowed the O.P. in part by awarding

compensation of Rs.69,900/- in total under different heads, but the

petitioner was entitled to Rs.55,920/- keeping in view of 80%

negligence on the part of the driver of the Auto. Aggrieved by the

same, the present appeal is filed by the petitioner.

8. Heard both sides and perused the record.

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                                                MACMA No.2375 of 2014

9. Learned Counsel appearing for the petitioner mainly

urged that the Tribunal erred in fixing 20% liability on the part

of the rider of the TVS Moped where no negligence on his part

was proved and the 2nd respondent did not adduce any contrary

evidence and the Tribunal ought to have considered 100%

negligence on the part of the driver of the Auto. He further

contended that the Tribunal failed to award just compensation

by not considering the proper income of the petitioner in view of

Ex.A8/Pahani. He also contended that the compensation under

other heads was meagre, thus praying to allow the appeal by

enhancing the compensation.

10. Opposing the same, learned Counsel appearing for the

2nd respondent/Insurance Company had contended that the

Tribunal was justified in fixing 20% liability on the part of the

rider of the TVS Moped in contributing negligence in causing the

accident and also learned Counsel for the respondent No.2 said

that the Tribunal ought to have considered the monthly income

of the petitioner at Rs.4,500/- only. Further contended that the

compensation under other heads is adequate and no interference

is required in the impugned order. Accordingly, prayed to

dismiss the appeal.

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                                                  MACMA No.2375 of 2014

11. We would first deal with the issue raised by the

learned Counsel for the petitioner with regard to the negligence

and ratio of it. It is seen from the record that the Tribunal found

fault both on the part of the driver of the Auto and the rider of

the TVS Moped, considering Ex.A2/Charge Sheet. Other than

the oral evidence of the petitioner that the negligence was only

on the part of the driver of the Auto, no material is placed to

supersede the version of the investigation as in the Charge

Sheet. Though the petitioner claimed that the 2nd respondent

did not elicit anything in his cross-examination, the petitioner

could not prove that the rider of the TVS Moped did not

contribute negligence. As such, the Tribunal was justified in

fixing 20% liability on the part of the rider of the TVS Moped in

contributing negligence in causing the accident. Thus, the

petitioner would be entitled to only 80% of the awarded

compensation.

12. With respect to the other grounds questioning the

quantum, the petitioner claimed that the was earning

Rs.10,000/- per month by doing agriculture and in support of

the same, he filed Ex.A8/Pahani. The Tribunal considered

Rs.3,000/- per month on guess work. This Court is inclined to 6 RRN,J MACMA No.2375 of 2014

take into consideration the monthly income of the petitioner @

Rs.5,000/- as the land existing for the petitioner to cultivate

under Ex.A8/Pahani is Ac.8.17 Gts. The Tribunal awarded

compensation under various heads, some of which are justified

and some of which are not. The Tribunal failed to award

compensation for the injuries sustained by the petitioner viz.

(03) grievous injuries and (01) simple injury and the Tribunal

also failed to consider future medical expenses despite the doctor

deposed that the petitioner would incur at least Rs.25,000/- for

the same, and this Court is inclined to award compensation

under those heads.

13. The petitioner was awarded compensation under

various heads and the same is interfered with in the following

manner:

HEAD AMOUNT AWARDED BY AMOUNT AWARDED BY THE TRIBUNAL THIS COURT PAIN AND SUFFERING RS.30,000/- RS.30,000/- LOSS OF INCOME (2 RS.6,000/- RS.10,000/-

Months) (03) GREVIOUS INJURIES NIL RS.60,000/- (20,000 each) SIMPLE INJURIES NIL RS.10,000/-

        MEDICAL                 RS.28,900/-                   RS.30,000/-
    BILLS/EXPENSES
     TRANSPORTAION               RS.2,000/-                   RS. 5,000
  EXTRA NOURISHMENT              RS.3,000/-                   RS.10,000/-
    FUTURE MEDICAL                  NIL                       RS.25,000/-
       EXPENSES
         TOTAL           RS.69,900/- (But entitled to   Rs.1,80,000/- (But entitled
                         only Rs.55,920/- in view of     to only Rs.1,44,000/- in
                         80% negligence of the driver    view of 80% negligence of
                                 of the Auto)              the driver of the Auto)
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                                                   MACMA No.2375 of 2014

14. In the result, the M.A.C.M.A is allowed in part and the

compensation amount awarded by the Tribunal is enhanced from

Rs.69,900/- to Rs.1,80,000/-. However, in view of the negligence of

the driver of the Auto at 80%, the petitioner is entitled to

Rs.1,44,000/- (Rupees One Lakh and Forty Four Thousand only)

with interest @ 7.5 % p.a. from the date of petition till the date of

realization. The respondents are directed to deposit the said amount

with costs and interest after deducting the amount, if any, deposited

earlier, within one month from the date of receipt of a copy of this

judgment. On such deposit, the petitioner is permitted to withdraw

the same. There shall be no order as to costs.

As a sequel thereto, miscellaneous applications, if any,

pending in this appeal, shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 25th day of April, 2023.

BDR/PNS
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    MACMA No.2375 of 2014