Telangana High Court
Abdul Raheem vs Appani Rajeshwar on 28 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.87 of 2019
JUDGMENT:
Dissatisfied with the quantum of compensation awarded
in the order and decree, dated 05.06.2018 passed in
M.V.O.P.No.427 of 2012 on the file of the Additional Motor
Accidents Claims Tribunal-cum-I Additional District and
Sessions Judge at Adilabad (for short "the Tribunal"), the
appellant/claimant preferred the present appeal seeking
enhancement of the compensation.
2. For the sake of convenience, hereinafter, the parties will
be referred to as per their array before the Tribunal.
3. Brief facts of the case are that the petitioner filed a claim
petition claiming compensation of Rs.2,00,000/-
(subsequently enhanced to Rs.5,00,000/- as per orders dated
05.10.2016 in I.A.No.342 of 2016) on account of the injuries
sustained by him in a motor vehicle accident that occurred on
06.11.2011. According to the petitioner, on 06.11.2011, he
along with his wife and son were proceeding on a motorcycle
bearing No.AP-15-AK-1026 from Yellagadapa village to
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Khanapur, near Gosampalli Village at about 1600 hours, the
driver of a Tractor bearing temporary registration No.AP-01-
H-1620 and AP-01-TMR-2489 came from opposite direction in
high speed and dashed to the motorcycle of the petitioner, as
a result of which, he received fracture of both bones of right
leg and fracture of right radius lower end forearm multiple
injuries. He was immediately shifted to Khanapur hospital
and after first aid, he went to Prashanthi hospital,
Nizamabad, where, he undergone operation and discharged
on 18.11.2011 with an advice to take up follow up treatment
and he spent an amount of Rs.1,00,000/-. The Police,
Khanapur registered a case in Crime No.132 of 2011 under
Section 338 of IPC against the driver of tractor and took up
the investigation and filed charge sheet. According to the
petitioner, he was hale and healthy at the time of accident
and was earning an amount of Rs.6,000/- per month by
doing business and agriculture. Due to the injuries received,
he underwent operation and during the course of operation,
ORIF was inserted with nailing of Tibia, DCP to Fibula and
DCP to right forearm and undergone several clinical and
pathological tests. Therefore, the petitioner filed the claim
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petition against the respondent Nos.1 and 2 claiming
compensation of Rs.5,00,000/- on various heads.
4. Before the Tribunal, while the respondent No.1-owner of
offending vehicle remained ex-parte. Respondent No.2 filed
counter denying the averments of the petition, age, avocation
of the injured and further contended that the driver of the
crime vehicle as well as petitioner were not having valid
driving license as on the date of accident. It is further
contended that the claim of compensation is excessive and
exorbitant and prayed to dismiss the claim petition.
5. Based on the pleadings of the parties, the Tribunal
framed the following issues:
1) Whether the accident took place as alleged by the
petitioner on 06.11.2011 at about 1600 hours at
Gosampalli Village as alleged by the petitioner
due to rash and negligent driving by the driver of
Tractor bearing No.AP-01-H-1620 and AP-01-TM-
2489 of 1st respondent or whether there was any
contributory negligence on the part of the
petitioner?
2) Whether the petitioner suffered injuries and
disability as alleged?
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3) Whether there was any insurance coverage for
the driver of Tractor bearing No.AP-01-H-1620
and AP-01-TM-2489 and if so, does the policy
cover the risk of the petitioner and if so, was
there any breach of policy condition alleged by
the second respondent?
4) Whether the petition is bad for non-joinder of
owner and insurer of motorcycle bearing No.AP-
15-AK-1026?
5) Whether the petitioner is entitled to any
compensation, if so, to what extent and against
whom?
6) To what relief?
6. Before the Tribunal, the petitioner, in order to
substantiate his claim, examined himself as PW1 apart from
examining the Doctors who treated him as PWs 2 and 3 and
also got marked Exs.A1 to A12. On behalf of respondent No.2,
RW1 was examined and he got marked Ex.B1.
7. Considering the claim and counter filed by respondent
No.2 and on evaluation of oral and documentary evidence, the
Tribunal allowed the O.P. in part, awarding a total
compensation of Rs.1,25,000/- along with interest @ 7% per
annum from the date of petition till the date of award till the
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date of deposit or realization, to be deposited by respondent
Nos.1 and 2, jointly and severally. Aggrieved by the same, the
claimant has filed this appeal.
8. Heard Sri K. Ajay Kumar, learned counsel for the
appellant/claimant and Sri A. Ramakrishna Reddy, learned
Standing Counsel for respondent No.2. Perused the material
available on record.
9. The main contention of the learned counsel for the
appellant is that though the claim petitioner has proved the
case by adducing cogent and convincing evidence and also
relying upon Ex.A1 to A12, the learned Tribunal without
considering the same has awarded meager amount and
hence, prayed to award just and reasonable compensation.
10. Per contra, learned standing counsel for the Insurance
Company argued that after considering all the aspects, the
learned Tribunal has awarded reasonable compensation, for
which, interference of this Court is unwarranted.
11. Now the point for consideration is that:
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Whether the appellant-petitioner is entitled for
enhancement of compensation amount in addition to
the compensation amount granted vide impugned
Order?
P O I N T:
12. This Court has perused the entire evidence and
documents available on record.
13. The petitioner as PW1 has reiterated the contents of
claim petition and deposed about the manner of accident and
also the injuries and disability sustained by him. He also got
marked Ex.A1 to A11. During cross-examination, nothing
could be elicited to disbelieve his evidence. It has to be seen
whether the disability as alleged by the petitioner was on
account of the accident or not.
14. In support of his claim, the petitioner got examined
PW2-Doctor, who is an Orthopedic surgeon in Pragathi
Hospital at Nizamabad. He deposed that on 07.11.2011, the
petitioner came to their hospital with history of road traffic
accident and on examination, he found the petitioner
sustained fracture of both bones of right leg and fracture of
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radius lower end of right forearm. He further deposed that the
petitioner had undergone surgery on 09.11.2011 with IL
nailing ORIV nailing to Tibia and DCP to Fibula right leg and
DCP to radius right forearm and also ORIF and patient was
discharged on 18.11.2011 with an advise to take bed rest for
a period of three months. During cross-examination, nothing
could be elicited to disbelieve his evidence.
15. PW3, who was working as Civil Surgeon and Chairman
of Medical Board Area Hospital, Nirmal deposed that the
petitioner came to their hospital on 27.11.2014 for issuance
of disability certificate. She further deposed that the cause of
disability is due to accident and it is post traumatic disability
and percentage of disability is 57% and the disability is in
relation to his right lower limb impaired reach sub type of
disability Post Polio Residual Paralysis (PPRP) and they have
issued disability certificates under Ex.A6. She further
deposed that they have issued another disability certificate
under Ex.A12 after rectification of Ex.A6. In the cross
examination, she admitted that the petitioner has never taken
treatment in her hospital. She further admitted that in every
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case before issuing the disability certificate, the Medical
Board will go through the medical record of the patient and
also conduct physical examination of the patient, however,
contrary to the same, she further admitted that Ex.A6 was
issued by the Medical board after following the requirements.
She further admitted that on the date of her evidence, the
petitioner came to the Court on his own without any
assistance. She further admitted that she did not observe
him keenly whether he had any difficulty in walking and as
per Ex.A6, the disability is mentioned as relating to left lower
limb and sub-type of disability as post polio residual
paralysis, which means polio problem. She further admitted
that whenever clerical or typographical error is found in any
disability certificate, then the said certificate has to be
corrected by rounding of the correction and noting the correct
thing and thereafter the said correction has to be attested by
the Medical officer and it has also to be noted under the
bottom of the said certificate with stamp and seal of the
medical officer and for such corrections, no fresh certificate
can be issued. She further admitted that fresh disability
certificate will be issued only after examining the patient and
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re-assessing the disability if the same is increased or
decreased and that the medical board cannot issue another
disability certificate for the same patient on the date of
issuance of first certificate. She further admitted that Ex.A6
and A12 were issued by the Medical Board for the same
patient on the same day on 27.11.2014 and that in both the
certificates, the percentage of disability mentioned by the
Medical Board is 57%. She further deposed that she worked
as Gynecologist and also Chairman, Medical Board and she
does not know the disability part and that based on the
endorsement of Orthopedic surgeon, Ex.A12 was issued. She
further deposed that she has not gone through the medical
record of patient before giving evidence in this case. She
simply denied the suggestion that they have issued the
second certificate under Ex.A12 in collusion with the
petitioner on a different date after the evidence of the
petitioner in the Court by putting back date and that the
Ex.A6 issued by Medical Board is the correct certificate.
16. It is pertinent to state that apart from the oral evidence,
petitioner also relied upon documentary evidence marked
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under Exs.A1 to A6. Ex.A1-FIR discloses that based on a
complaint, a case in Crime No.132 of 2011 was registered by
Police, Khanapur and they took up investigation and laid
charge sheet under Ex.A2 against the driver of the tractor.
Ex.A3-Injury certificate, Ex.A5-Discharge summary and
Ex.A7-Prescriptions were issued by PW2. Ex.A8 are the
medical bills amounting to Rs.2,020/-. Ex.A4 is the insurance
policy, which shows that the offending vehicle was owned by
respondent No.1 and the policy was in force as on the date of
accident. Ex.A9 to A11 of photographs showing the injuries
sustained by the petitioner. Ex.A5 and A12 are the disability
certificates.
17. On behalf of respondent No.2, its legal officer was
examined as RW1. In his chief examination, he deposed that
no such disability was sustained by the petitioner due to the
accident and that Ex.A12 was issued only to change left lower
limb as shown in Ex.A6 to right lower limb and also to show
that the petitioner had sustained disability out of the accident
instead of polio. In the cross examination, he admitted that
the policy under Ex.B1 was in force as on the date of accident
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and that the driver of the offending vehicle was holding valid
driving license at the time of accident.
18. As regards the manner of accident is concerned, the
Tribunal after evaluating the evidence of PW1 coupled with
the documentary evidence available on record, held that the
accident occurred due to rash and negligent driving of the
driver of tractor. Therefore, this Court is not inclined to
interfere with the said findings of the Tribunal which are
based on appreciation of evidence in proper perspective.
Thus, the only dispute in the present appeal is with regard to
the quantum of compensation.
19. In so far as the quantum of compensation is
concerned, it is pertinent to state that there is no dispute
with regard to accident and the two grievous injuries
received by petitioner in the said accident. The learned
Tribunal after considering the grievous nature of injuries
had awarded an amount of Rs.50,000/- (Rs.25,000/- x 2)
for two fractures, Rs.45,000/- towards pain and suffering
and Rs.10,000/- towards transportation and this Court is
not inclined to interfere with the said findings. As per the
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petitioner, he was earning an amount of Rs.10,000/- per
month by doing agriculture and business. However,
nobody was examined in support of the same. The learned
Tribunal considering the occupation of petitioner has taken
the monthly income at Rs.5,000/- and awarded an amount
of Rs.15,000/- towards loss of earnings for a period of
three months. Therefore, this Court is inclined not to
interfere with the said finding of the Tribunal.
20. Coming to the disability, during cross examination of
PW3, it was elicited by respondent No.2 that PW3 has issued
the disability certificate under Ex.A12 without following the
proper procedure. Even, PW2, who treated the petitioner
immediately after the accident has not deposed about the
petitioner sustaining any disability in the said accident. The
learned Tribunal after considering the evidence on record has
dis-believed the documents under Ex.A6 and A12 and come
to the conclusion that the disability mentioned therein was
not sustained due to the accident and it is a polio problem.
Therefore, the learned Tribunal has rightly not granted any
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compensation under the head of disability and this Court is
not inclined to interfere with the said finding.
21. Coming to the loss of earnings, the learned Tribunal has
rightly granted loss of income at Rs.15,000/- for three
months. The medical bills under Ex.A8 clearly show that an
amount of Rs.2,020/- was spent by the petitioner towards
medicines for treatment of injuries. Hence, this Court is
inclined to grant an amount of Rs.2,020/- towards medical
bills. Further, the learned Tribunal has granted an amount of
Rs.5,000/- towards extra nourishment, treatment and private
attendant, which is at a lower side. Therefore, this Court is
inclined to interfere with the above quantum of compensation
and the same has to be increased. The petitioner is entitled
for Rs.10,000/- towards extra nourishment, Rs.5,000/-
towards treatment and Rs.5,000 towards private attendant.
Thus, in all, petitioner is entitled to compensation of
Rs.1,42,020/-.
22. In the result, this Motor Accident Civil Miscellaneous
Appeal is partly allowed enhancing the compensation
amount awarded by the Tribunal from Rs.1,25,000/- to
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Rs.1,42,020/-. The enhanced compensation amount shall
carry interest at the rate of 7.5 percent per annum. The
enhanced compensation amount shall be deposited by
respondents within a period of one month from the date of
receipt of a copy of this Judgment. On such deposit,
petitioner is entitled to withdraw the same without furnishing
any security. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 28.06.2024
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