Telangana High Court

Bathku Eswaraiah vs D.Venkat Reddy And 2 Ors on 10 November, 2023

Bench: Namavarapu Rajeshwar Rao

     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

               M.A.C.M.A.No.3920 OF 2011

JUDGMENT:

Aggrieved by the award and decree dated

11.08.2006 passed in O.P.No.1166 of 2003 by the

Additional Metropolitan Sessions Judge for the Trial of

Jubilee Hills Car Bomb Blast Case-cum-Additional Family

Court-cum-XXIII Additional Chief Judge, Red Hills,

Nampally, Hyderabad (for short 'the court below') the

appellant/petitioner preferred the present appeal seeking

enhancement of compensation.

2. For convenience, the parties hereinafter will be

referred to as they are arrayed before the Court below.

3. Brief facts of the case are that on 26.07.2002,

the petitioner and his son B.Narsing Rao were going on his

Scooter from Shamshabad to their village Tondipalli and

when they reached near Madhuranagar on N.H.No.7 road,

one Jeep bearing No.ABB 5207 was driven by its driver in a

rash and negligent manner and dashed against the Scooter,

as a result of which, the petitioner and his son fell on the

road, and the petitioner sustained a fracture on his right leg 2 RRN,J M.A.C.M.A.No.3920 of 2011

above the knee and three fractures on his right knee and

below the knee and his right leg, which was fractured, was

broken into pieces in the said accident. The Police

Shamshabad registered a case in Cr.No.210 of 2002 for the

offence punishable under Section 337 IPC against the Jeep

driver. After the accident, he was immediately shifted to

CDR Hospital, and he underwent treatment as an inpatient

in the said Hospital for a long time. Therefore, the

petitioner filed the claim petition seeking compensation of

Rs.6,00,000/-.

4. Before the court below, the 1st respondent

remained ex-parte. The 2nd respondent filed a counter

denying the allegations made in the claim petition. The 3rd

respondent filed a counter denying the allegations made in

the claim petition.

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

examined and Exs.A1 to A5 and Exs.X-1 and X-2 were

marked. On behalf of the respondents, RW.1 was examined

and Exs.B1 and B2 were marked.

3 RRN,J M.A.C.M.A.No.3920 of 2011

6. After considering the oral and documentary

evidence available on record, the Court below has awarded

compensation of Rs.3,68,756/- with interest @ 7.5% per

annum from the date of petition till the date of realisation

to be paid by respondent Nos.1 and 2 jointly and severally.

The claim against the 3rd respondent was dismissed.

Challenging the said award, the petitioner has filed the

present appeal seeking enhancement.

7. Heard both sides and perused the record.

8. Learned counsel appearing for the petitioner

contended that the Court below erred in not granting

compensation in toto as per the evidence of PW.2. The

Court below ought to have awarded just compensation

under various heads as claimed by the petitioner and

therefore, the amount awarded by the Court below is very

meager and unjustifiable.

9. Per contra, learned counsel appearing for the

respondents contended that the court below, based on the

evidence, after considering the nature of injuries sustained 4 RRN,J M.A.C.M.A.No.3920 of 2011

by the petitioner, has rightly awarded compensation and

the same needs no interference by this Court.

10. The finding of the Court below with regard to the

manner in which the accident took place has become final,

as the respondents do not challenge the same.

11. Insofar as the quantum of compensation is

concerned, PW.1 deposed that he spent Rs.5,00,000/-

towards medical expenses. In support of his contention, he

has produced Ex.A5-Medical bills with medical reports and

prescriptions. As can be seen from Ex.A5-Medical record,

the medical reports of PW.1, along with some prescriptions,

are produced along with the final bill issued by CDR

Hospital. The said final bill was issued for the period

25.07.2002 to 07.10.2002. It is pertinent to note here that

it is evident from the testimony of the Doctor, who was

examined as PW.2, that the petitioner herein underwent

medical treatment in CDR Hospital as an inpatient. Ex.X1

discharge summary also clinchingly proves the same.

Ex.A5 prescriptions, investigation reports accompanied by

final bill issued by the C.D.R. Hospital, where the petitioner 5 RRN,J M.A.C.M.A.No.3920 of 2011

underwent treatment, can safely be believed. Further, it is

pertinent to note here that the respondents did not dispute

the genuineness of Ex.A5. Therefore, the court below

awarded an amount of Rs.2,67,756/- towards medical

expenses and the same needs no interference by this Court.

The Court below granted an amount of Rs.1,000/- towards

extra nourishment, which is very meager, and this Court is

inclined to award an amount of Rs.5,000/-.

12. As per Ex.A4-Medico Legal Record, the

petitioner has sustained the following injuries :-

1) 10 x 8" Gr. IV compound fracture with deep muscle vessels/tissue bones fibre fibula exposed due to the road accident.

2) Fracture of G.2 lower end of the femur with fragment protruding out. P.W.2 is the doctor who treated P.W.1 and he categorically deposed in his evidence that he was the consultant in CDR hospital during the year 2002 to 2004 in the Orthopaedic department and he is D.N.B. Orthopaedic. He further deposed that the petitioner was admitted in CDR hospital on 26.02.2002 and that he sustained the following injuries:

1. Grade III compound commuted segmental fracture of both the bones of the right leg.

6 RRN,J M.A.C.M.A.No.3920 of 2011

2. Grade III compound fracture of right femur."

13. The Court below granted an amount of

Rs.50,000/- towards injuries and pain and suffering, which

is very meager. As the petitioner sustained the above said

injuries, this Court is inclined to grant an amount of

Rs.1,00,000/- towards injuries and pain and suffering.

14. With regard to the disability, P.W.2-doctor, who

treated P.W.1, categorically deposed in his cross-

examination, that the knee joint of P.W.1 is shortened. He

further deposed that P.W.1 has to walk with the help of

some support and that he sustained a disability of 50%,

which is permanent in nature. He further deposed that

because of the said disability, P.W.1 cannot sit and squat.

P.W.2 also categorically deposed that he has subsequently

examined P.W.1 physically on 06.10.2005 with reference to

Ex.X.2-X-Ray films. So, P.W.2, who has actually treated

P.W.1 and operated on him, is the best person to speak as

to whether P.W.1 has sustained any physical disability or

not. In fact, P.W.2 is the only competent person to assess

his disability. Subsequently, P.W.2 also examined P.W.1 to

assess his disability, after referring to the latest X-Ray films 7 RRN,J M.A.C.M.A.No.3920 of 2011

and based on the said examination, he deposed that the

petitioner has sustained 50% of his physical disability as he

could not walk properly without any support and that he

could not sit and squat, and further deposed that there is

shortening in his knee joint. Therefore, the evidence of

P.W.2 can safely be believed in proof of the said disability

sustained by the petitioner. Considering the above

evidence, the court below granted an amount of

Rs.50,000/- towards physical disability, which is very

meagre. In the present case, the petitioner has not

produced any disability certificate, but in view of the nature

of injuries sustained by the petitioner, as stated supra, this

Court is inclined to award a sum of Rs.1,00,000/- towards

physical disability.

15. With regard to loss of earning power, the

petitioner did not produce any evidence to prove that he is

owning agricultural lands and earning Rs.1 lakh per

annum on it. He has admitted in his cross-examination

that he did not produce any documents to show that there

are agricultural lands in his name and that he also did not

produce any document to show that he is earning Rs. 1 8 RRN,J M.A.C.M.A.No.3920 of 2011

lakh per annum. Therefore, in the absence of any such

evidence, and more particularly in the absence of any

evidence to prove that he has sustained functional

disability or that he could not attend to his agricultural

work, the court below held that the petitioner is not

entitled to any compensation towards loss of earning power

and did not grant any amount. But, this Court is inclined

to grant an amount of Rs.50,000/- towards loss of earnings

in view of the above said injuries suffered by the petitioner.

16. Insofar as the disability is concerned, learned

counsel appearing for the petitioner relied upon the

judgment of the Hon'ble Apex Court in JAKIR HUSSEIN

Vs. SABIR AND OTHERS 1, wherein the Hon'ble Apex Court

held as follows :-

15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move

2015 (3) ALD 115 (SC) 9 RRN,J M.A.C.M.A.No.3920 of 2011

his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days.

....... However, it is important to consider the relevant fact namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. In the case of Raj Kumar v. Ajay Kumar (supra), this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again."

17. In the present case, there is no 100% disability,

and the petitioner is not at all a driver and moreover, the

petitioner is working as an Agriculturist. Therefore, the

above said judgment is not applicable to the case on hand.

10 RRN,J M.A.C.M.A.No.3920 of 2011

18. Insofar as the liability of the 3rd respondent is

concerned, this Court is of the considered view that the

court below has rightly dismissed the claim against the 3rd

respondent and the same needs no interference by this

Court.

19. The court below has rightly awarded the rate of

interest at 7.5% per annum, and the same needs no