Telangana High Court

Byagari Rachaiah vs P.Shivaraj Kumar on 6 February, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                      M.A.C.M.A.No.2905 of 2008

JUDGMENT:

This appeal is filed by the appellant - claimant aggrieved by the award

and decree dated 02.06.2005 passed in O.P.No.554 of 2000 by the Motor

Accident Claims Tribunal (for short "The Tribunal") (II Additional District

Judge - Fast Track Court), Nizamabad, in dismissing the petition filed by him.

2. The claimant filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988 claiming an amount of Rs.1,50,000/- as compensation for

the injuries sustained by him in a motor vehicle accident. The case of the

claimant was that he was aged 25 years and was working as A.P.S.P. Constable

in 8th Battalion, Kondapoor Village of Rangareddy District and was earning

Rs.6,300/- per month by the date of accident. On 12.12.1999 at 03:00 PM,

while he was proceeding towards market to purchase vegetables on the way on

N.H.No.7 Road at Old Bus Stand of Balkonda, Nizamabad District, a TVS

Suzuki motorcycle bearing No. AP-25-E-6089 driven by its rider in a rash and

negligent manner with high speed coming from Nirmal side hit the claimant.

Due to which, the claimant sustained right leg fracture, head injury, injury to

right shoulder, multiple and grievous injuries on various parts of the body.

Immediately after the accident, the petitioner was shifted to Government

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Hospital, Balkonda. Thereafter, the petitioner was referred to Hyderabad

Orthopedic Hospital for further treatment. Due to the fracture injury sustained

by him, the claimant was facing difficulty in attending to his duties. He was

unable to do hard work such as combing and was assigned orderly duties. He

incurred an amount of Rs.75,000/- towards his treatment and as the accident

was due to the rash and negligent driving of the rider of the motorcycle bearing

No.AP-25-E-6089, claimed compensation from respondents 1 and 2, the owner

and insurer of the TVS Suzuki motorcycle bearing No.AP-25-E-6089.

3. The respondent No.1 remained ex-parte.

4. The respondent No.2 filed counter and called for strict proof of the

petition averments and that the alleged accident was due to the rash and

negligent driving of the rider of the TVS Suzuki motorcycle bearing No.AP-25-

E-6089 and that the rider was holding a valid and subsisting driving license to

drive the said vehicle at the time of the accident. He also contended that the

compensation of Rs.1,50,000/- claimed by the claimant was excessive and out

of all proportions and prayed to dismiss the petition against the said respondent.

5. The Tribunal after framing the issues, caused enquiry. The claimant

examined himself as PW.1 and got marked Exs.A1 to A12 in support of his

contention. The respondent No.2 had not adduced any oral evidence but got

filed the copy of the Insurance Policy as Ex.B1.

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6. On considering the oral and documentary evidence on record, the

Tribunal opined that the claimant sustained injuries due to the rash and

negligent driving of the rider of the TVS Suzuki motorcycle bearing No.AP-25-

E-6089. But, however as the claimant failed to examine any doctor to prove the

treatment taken by him and the medical bills issued by the hospital authorities,

the Tribunal dismissed the claim petition.

7. Aggrieved by the said dismissal of the claim petition, the claimant

preferred this appeal contending that the Tribunal ignored the relevant facts and

brushed aside the evidence on record. The Tribunal did not appreciate that the

claimant sustained fracture and other injuries and the documentary proof filed in

support of his contention. The claim could not be rejected on technical grounds

that too in the absence of contra evidence and prayed to modify the award and

decree dated 02.06.2005 and to award just compensation.

8. Heard Sri K.Sarala Mahender Reddy, the learned counsel for the

appellant - claimant and Sri S.Satyananda Rao, the learned counsel for the

respondent No.2 - Insurance Company.

9. The learned counsel for the respondent No.2 - Insurance Company

supported the judgment of the Tribunal and contended that placing reliance

upon the judgment of a Single Bench in United India Insurance Company

Limited, Hyderabad v. Mohd. Khaja Rasool Syed @ Mohd.Khaja Mian

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Shaik and Another 1, wherein it was held that in the absence of any evidence in

proof of the documents, proper witnesses, the documents produced could not be

accepted nor could be relied on by the Court, the Tribunal dismissed the

application. No witness was examined by the claimant to prove the medical

certificates and medical bills. As such, the said order passed by the Tribunal

would not require any interference and prayed to dismiss the appeal.

10. The learned counsel for the appellant on the other hand relied upon a

Single Bench judgment of this Court in Gundala Mallamma v. T.Anka

Prasad and Another 2, wherein it was held that even though, the doctor who

issued the wound certificate was not examined, as the wound certificate was a

public document, it could be taken as basis for awarding compensation to the

victims in motor accident claims.

11. Perused the record.

12. As per the evidence adduced before the Tribunal, the claimant examined

himself as PW.1. He stated that while he was working at PS Balkonda, on

12.12.1999 at 03:00 PM, while he was proceeding to market at Balkonda to

purchase vegetables on the way on N.H.No.7, a TVS Suzuki motorcycle bearing

No.AP-25-E-6089 driven by its rider with high speed in a rash and negligent

manner came in opposite direction and hit him. In that accident, he sustained

2003 (5) ALD 162

2004 (5) ALD 400

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fracture to his right leg, injuries to his right shoulder, forehead, back and other

parts of the body. Immediately after the accident, he was shifted to Government

Hospital, Balkonda. On the same day, he was shifted to a private hospital at

Armoor and thereafter to Government Head Quarters Hospital, Nizamabad and

from there to Medinova Hospital at Sangareddy. Dr.P.L.Srinivas examined

him. There, he was treated as in-patient for a period of two months. Thereafter,

he was treated by Dr.G.Nagender Rao, Chandanagar, Hyderabad. He was

advised to take complete bed rest for a period of three months. He took medical

leave for two months and leave on loss of pay for one month. He spent an

amount of Rs.80,000/- towards his treatment . Due to the fracture injury

sustained by him, he lost his promotion opportunities. His salary was

Rs.5,800/- at the time of the accident. If the accident was not occurred, he

would have promoted and would have been getting a salary of Rs.10,000/- per

month. He was forced to work as orderly at the houses of officers.

13. He admitted in his cross-examination that he did not file any documents

to show that he availed medical leave and leave on loss of pay. The claimant

filed Exs.A1 to A12 in support of his contention. Ex.A1 is the certified copy of

the FIR in Crime No.137 of 1999, Ex.A2 is the certified copy of the charge

sheet in C.C.No.352 of 1999 on the file of the Judicial Magistrate of First Class,

Armoor, Ex.A3 is the certified copy of the wound certificate, Ex.A4 is the

prescription issued by Dr.P.L.Srinivas, Ex.A5 is the medical certificate issued

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by Dr.P.L.Srinivas, Ex.A6 is the radiologist report of Medinova Hospital,

Sangareddy, Ex.A7 is the prescription of Dr.G.Nagender Rao, Ex.A8 is the

radiologist report, Ex.A9 are medical bills (7 in No.), Ex.A10 are X-ray films (2

in No.), Ex.A11 is the copy of the registration certificate of the crime vehicle

and Ex.A12 is the copy of the insurance policy of the crime vehicle.

14. Nothing was elicited in the cross-examination of this witness to

disbelieve his evidence. But, he had not examined any doctor or any witnesses

to prove the injuries sustained by him or the expenses incurred by him towards

his treatment.

15. As per the judgment relied by the learned counsel for the appellant in

Gundala Mallamma v. T.Anka Prasad & Another (cited supra), the learned

Judge of this Court held that:

"7. As per Rule 457 of the A.P. Motor Vehicles Rules 1989, a claim petition has to be disposed of summarily. Ex.A4 is a certified copy of the wound certificate issued by the doctor who examined the appellant on her being sent to the hospital by the police after the accident. Ex.A3, a certified copy of the charge-sheet filed against the driver of the offending lorry shows that as many as 18 persons received injuries in the accident and were referred to the hospital. Since Ex.A4 is a public document, it can be taken into consideration for finding out the injuries received by the appellant, even without the doctor who issuing it being examined. The evidence of the doctor is necessary to prove if the injuries suffered resulted in any permanent disability to the victim. In fact as per Rule 476(7) of A.P. Motor Vehicle Rules, 1989

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certificate of inquiry (injury) from Medical Office can be the basis for awarding compensation by the Tribunal."

This Court also agrees with the opinion of the learned Judge in the above

case.

16. In the present case also, the Station House Officer of PS Balkonda

referred the injured to the Medical Officer, Government Civil Hospital,

Balkonda after the report was lodged by the claimant. The injury certificate

issued by the Civil Assistant Surgeon, Government Civil Hospital, Balkonda

marked under Ex.A3 is a public document. The Tribunal ought to have taken

the same into consideration while awarding compensation. The X-ray films,

radiologist report and the medical record filed by the petitioner would disclose

that he sustained fracture upper one-third of right fibula and above knee POP

cast was applied on 13.12.1999 and advised immobilization for 8 to 10 weeks

and medicines were prescribed to him.

17. The claimant was admittedly a Police Constable who was in service. As

such, there could be no loss of income during the period of treatment. The

evidence of PW.1 would disclose that he availed medical leave. Though, he

stated that he availed medical leave for two months and leave on loss of pay for

a period of one month, admitted in his cross-examination that no document was

filed to show that he availed leave on loss of pay. As such, no amount can be

awarded towards loss of income. As the claimant had not stated about the

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injury resulting in any permanent disability and no doctor was examined or any

disability certificate was filed, no amount can be awarded towards permanent

disability.

18. But, however, as the evidence of PW.1 and the documents marked under

Ex.A3 to A8 would disclose that the claimant sustained fracture injury and was

advised bed rest for a period of 10 weeks, it is considered fit to award an

amount of Rs.20,000/- towards "pain and suffering" sustained by the claimant

due to this injury. As some of the family members of the claimant might have

attended him during the period of his admission in the hospital or during the

period of his recovery, as he was advised immobilization for 8 to 10 weeks, it is

considered fit to award an amount of Rs.3,000/- towards attendant charges. As

the petitioner might have incurred some amount towards transportation "to and

fro" to various hospitals visited by him for his treatment and for extra nutritious

diet taken by him during the period of his recovery, it is considered fit to award

an amount of Rs.2,000/- towards extra nourishment and Rs.1,500/- towards

transportation.

19. Hence, the compensation entitled by the appellant - claimant under

various heads is as follows:

                   S. No.              Heads              Compensation
              1.            Pain & Suffering        Rs.20,000/-
              2.            Attendant Charges       Rs.3,000/-
              3.            Extra Nourishment       Rs.2,000/-

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            4.        Transportation           Rs.1,500/-
                                        Total: Rs.26,500/-

20. As such, it is considered fit to award the compensation of Rs.26,500/- to

the injured claimant, which is considered as just and reasonable.

21. In the result, M.A.C.M.A. is allowed in part setting aside the order of the

Tribunal in O.P.No.554 of 2000, by awarding compensation of Rs.26,500/- with

interest @ 7.5 % per annum from the date of petition till the date of deposit.

The respondent No.2 - Insurance Company is directed to deposit the above

amount within a period two months from the date of receipt of a copy of this

judgment. On such deposit, the appellant - claimant is permitted to withdraw

the same.

No order as to costs.

As a sequel, miscellaneous applications pending in this appeal if any,

shall stand closed.