N.Krishna Kumar, Karimnagar ... vs P.Komuraiah, Karimnagar ...
2023 Latest Caselaw 516 Tel

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

               M.A.C.M.A. No. 1510 of 2015

JUDGMENT:

This appeal is filed by the appellant-claimant

aggrieved by the order and decree, dated 03.06.2015 made

in M.V.O.P.No.805 of 2013, on the file of the Motor

Accidents Claims Tribunal-cum-III Additional Chief Judge,

City Civil Court at Hyderabad (for short "the Tribunal).

2. Brief facts of the case are that the appellant filed a

petition under Section 166 of the Motor Vehicles Act

claiming compensation of Rs.20,00,000/- for the injuries

sustained by him in a road accident that occurred on

14.02.2013. It is stated that on the fateful day, while the

appellant was proceeding on his bike bearing No.AP 15 AR

9137 CBZ from Chandrampeta to Sircilla, one DCM Van

bearing No.AP 11 U 8609, owned by respondent No.1 and

insured with respondent No.2, being driven by its driver in

a rash and negligent manner at high speed, lost control

over the vehicle and dashed the petitioner. As a result, the

petitioner fell down on the road and sustained crush injury

over right forearm with neuro vascular injury, lower

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brachial plexus injury and both bones fractured apart from

multiple injuries all over the body. Immediately after the

accident, the petitioner was admitted at Government

Hospital, Sircilla and later he was shifted to Yashoda

Hospital, Hyderabad, where he underwent major operation

and was on bed rest for a prolonged period. The appellant

spent Rs.4,50,000/- for his treatment. It is further stated

that prior to the accident, the appellant was working as

School Correspondent and earning Rs.10,000/- per month,

but due to the injuries, he is unable to do any work and

lost his earning capacity. Therefore, the appellant laid a

claim against the respondents.

3. While the 1st respondent remained ex parte, the 2nd

respondent filed counter denying all the allegations made

in the claim-petition. It is further contended that the

compensation claimed is excessive and prayed to dismiss

the claim-petition.

4. Based on the above pleadings, the Tribunal framed

the following issues:

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1) Whether the accident occurred on 14.02.2013 due to the rash and negligent driving of the driver of the DCM Van bearing No.AP 11 U 8609 causing injuries to the petitioner?

2) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?

3) To what relief?

5. After considering the oral and documentary evidence

available on record, the Tribunal dismissed the claim-

petition on the ground that there was a delay of two days

in lodging the F.I.R. and as such the appellant has

miserably failed to prove the prima facie case against the

alleged driver of respondent No.1 to fix the liability.

Aggrieved by the said judgment, the claimant filed the

present appeal.

6. Heard both sides and perused the record.

7. Learned counsel for the appellant has submitted that

the appellant was admitted in Yashoda Hospital,

Hyderabad, which has been proved by the appellant by

marking Exs.A3 and A4, M.L.C., and the discharge

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summary issued by Yashoda Hospital, Hyderabad. It is

further submitted that as the appellant was undergoing

treatment, his father was attending on him at the hospital

and therefore, no complaint was lodged by either the

appellant or his relatives, immediately after the accident.

It is further submitted that after conducting investigation

only, the Investigating Officer has filed charge sheet, Ex.A2,

against the driver of the offending vehicle. It is further

submitted that the Tribunal has dismissed the O.P. only on

mere assumptions and presumptions and therefore, prayed

to allow the appeal.

8. Learned Standing Counsel for the insurance

company has submitted that the Tribunal has rightly

dismissed the O.P., as there was a delay in lodging the

F.I.R. and therefore, prayed to dismiss the appeal.

9. Having regard to the rival contentions made by both

the counsel, the point that arises for consideration in this

appeal is whether the appellant has proved the involvement

of the DCM Van bearing No.AP 11 U 8609 in the accident

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and, if so, what is the just and reasonable compensation to

which the appellant is entitled to?

10. POINT: It is the case of the appellant that on

14.02.2013 while he was proceedings on his motorcycle

from Chandrampeta to Sircilla, one DCM Van bearing No.

AP 11 U 8609 came in opposite direction in a rash and

negligent manner at high speed and dashed him, due to

which, he fell down and sustained fracture injuries.

Immediately after the accident, the appellant was shifted to

Government Hospital, Sircilla by 108 ambulance for first

aid and thereafter he was shifted to Yashoda Hospital,

Hyderabad, where he took treatment from 15.02.2013 to

22.02.2013. Undoubtedly, there was delay of two days in

lodging the first information report. Based on a complaint

lodged by one Nakka Ravichander, the Police, Sircilla,

registered a case in Crime No.63 of 2013 and after

completion of investigation, the police filed Ex.A2-charge

sheet, which was taken cognizance as C.C.No.229 of 2013

on the file of the Judicial Magistrate of First Class, Sircilla

and the accused admitted his guilt and the learned

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Magistrate convicted and sentenced him to pay a fine of

Rs.1,000/-. The contents of Ex.A3-M.L.C. record show

that the appellant was admitted in Yashoda Hospital,

Hyderabad on 15.02.2013 vide M.L.C.No.147788/13.

Having regard to these facts, it can be safely concluded

that the DCM Van bearing No.AP 11 U 8609 was the

vehicle which caused accident to the appellant.

11. It is true that there is delay in lodging the first

information statement. But, the delay itself will not take

away the right of the appellant if there is an acceptable

explanation for such delay. As already noted above, since

the police did not register the case, the brother-in-law of

the appellant lodged private complaint, which was referred

by the Court to the police. Under these circumstances, the

delay can be condoned. In this regard, it is relevant to refer

the decision of the Apex Court rendered in Ravi v.

Badrinarayan and others1, wherein it is held as

hereunder:-

AIR 2011 SC 1226

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"The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."

12. It is also to be noted that in a claim for compensation

under Section 166 of Motor Vehicles Act, 1988, the

claimant has to prove the incident only on preponderance

of probabilities and the standard of proof beyond

reasonable doubt is not required as held by the Hon'ble

Supreme Court in the decision rendered in Bimla Devi Vs.

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Himachal Road Transport Corporation2. After

completion of investigation, the investigating officer has

filed charge sheet against the driver of the offending DCM

Van concluding that the accident occurred only due to his

negligence. In view of above reasons, the tribunal ought to

have held that the appellant sustained injuries due to the

rash and negligent driving of the driver of the DCM Van

bearing No.AP 11 U 8609. Hence, this Court concludes

that the accident occurred only due to the rash and

negligent driving of the driver of the DCM Van bearing

No.AP 11 U 8609.

13. Since this Court has decided that it is the offending

vehicle that has caused the accident, since the accident

pertains to 2013, instead of remanding the matter to the

tribunal for determining the quantum of compensation,

this Court is inclined to determine the compensation based

on the evidence adduced before the Tribunal. As per

Ex.A3-M.L.C. record, the appellant has sustained crush

injury right forearm with neuro vascular injury lower

AIR 2009 SC 2819

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brachial plexus injury both bone fracture. As per Ex.A4-

discharge summary issued by Yashoda Hospital,

Hyderabad, the appellant was admitted in the hospital on

15.02.2013 and was discharged on 27.03.2013. The

discharge summary also discloses that the appellant has

sustained communited fracture mid shaft of radius fixed

with external fixator, fracture of mid shaft of ulna fixed

with nail and soft tissue irregularity noted along

anterolateral aspect of forearm. Further, the appellant has

undergone surgery and debridement, exploration of

neurovascular structures ligation of contusion radial artery

ends and fasciotomy, ORIF with rush nail for ulna right

and external fixator for radius right was done on

15.02.2013. Ex.A4 further discloses that on 16.02.2013

the appellant underwent another surgery of free flap

microvascular ALT flap cover + SSG; re-exploration +

venous anastamosis. Furthermore, as seen from Ex.A5,

discharge summary, the appellant again admitted in

Yashoda Hospital, Hyderabad on 17.04.2013 and was

discharged on 21.04.2013 and during that period, external

fixator removal - ORIF Radius and Ulna with plate and

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screw - bone grafting, flap elevation and tissue

debridement was done. P.W.2, the consultant plastic

surgeon, who treated the appellant in Yashoda Hospital,

deposed that there will be a permanent neurological

disability because of crush injury. P.W.4, physiotherapist,

deposed that the appellant came to his clinic for

physiotherapy management for the condition of right

brachial plexus injury with severe communited fracture of

both bones of right fore arm and he charged Rs.500/- per

visit and in total the appellant had paid Rs.1,05,000/- to

him for the physiotherapy treatment. P.W.4 further

deposed that the appellant requires continuous

physiotherapy management. P.W.5, consultant plastic and

reconstructive micro surgeon in Ganga Medical Centre and

Hospital, Coimbatore, deposed that the appellant had

major crush injury with global brachial plexus palsy with

both bones of right forearm, for which, he had undergone

surgery in Yashoda Hospital, Hyderabad and at the time of

his deposition, the appellant is under his supervision for

the treatment of brachial plexus palsy. He further deposed

that the appellant had no moment or sensation in his right

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upper limb below the shoulder and on 12.06.2013, he

underwent major micro surgical reconstructive in the form

of exploration and nerve grafting. P.W.5 further deposed

that he too was of the opinion that the appellant had

sustained 70% permanent disability as mentioned in

Ex.A4, as there is no moment or sensation in his upper

limb. P.W.7, Orthopedic Surgeon in Area Hospital,

Malakpet, Hyderabad, deposed that he examined the

appellant both clinically and radiologically and he issued

Ex.A14, disability certificate by assessing disability at 70%

as the appellant cannot perform anything with his right

hand.

14. Considering the evidence of the doctors, who treated

the appellant and the discharge summaries issued by

Yashoda Hospital, Hyderabad and Ex.A4, disability

certificate, issued by the Government Orthopedic Surgeon,

this Court is inclined to accept that the appellant had

sustained disability at 70%. In view of the nature of

disability sustained, the appellant is entitled to loss of

earnings due to disability.

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15. The contention of the learned Standing Counsel for

the Insurance Company is that no document has been filed

to prove the income of the appellant though he claimed

that he was a School Correspondent and earning

Rs.10,000/- per month. In Latha Wadhwa vs. State of

Bihar3 the Apex Court held that even there is no proof of

income and earnings, it can be reasonably estimated.

Considering the age and avocation of the appellant, this

Court is inclined to fix the income of the appellant at

Rs.5,000/- per month. In view of the judgment of Sarla

Verma Vs. Delhi Transport Corporation4, the suitable

multiplier to be adopted for calculating the loss of earnings

would be '17' as the appellant was aged about 27 years at

the time of accident. Therefore, the loss of earnings on

account of his 70% disability works out to Rs.5,000/- x 12

x 17 x 70/100 = Rs.7,14,000/-.

16. As regards the medical expenses, as per Exs.A8 to

A13, which were supported by P.Ws.3 and 6, the appellant

has spent an amount of Rs.8,99,471.00 towards hospital

(2001) 8 SCC 197

2009 ACJ 1298

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charges and medical expenses. Therefore, this Court

inclined to award an amount of Rs.8,99,000/- towards

medical expenses. Apart from the above, this Court

inclined to award an amount of Rs.25,000/- towards

transportation, extra nourishment and attendant charges

and Rs.50,000/- under the head of pain and suffering.

Thus, in all the appellant is entitled to Rs.16,88,000/-.

17. In the result, the appeal is allowed in part by setting

aside the order and decree, dated 03.06.2015 passed in

M.V.O.P.No.805 of 2013 on the file of the Motor Accident

Claims Tribunal-cum-III Additional Chief Judge, City Civil

Court, Hyderabad. The appellant/ claimant is awarded

compensation of Rs.16,88,000/- with interest @ 7.5% per

annum from the date of petition till the date of realisation.

Both the respondents are jointly and severally liable to pay

the said compensation amount and they are directed to

deposit the said amount within two months from the date

of receipt of a copy of this judgment. On such deposit, the

appellant is permitted to withdraw 50% of the amount

without furnishing any security and the remaining 50%

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shall be kept in F.D.R. in any Nationalised Bank for a

period of one year. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI 01.02.2023 Tsr

MGP, J Macma_1510_2015

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

M.A.C.M.A. No. 1510 of 2015

DATE: 01-02-2023