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2004 DIGILAW 562 (AP)

Gundala Mallamma v. T. Anka Prasad

2004-06-14

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) ALLEGING that she, while travelling in a tractor and trailor bearing no. AAK 5442 and AAK 7756 along with others, a Lorry bearing No. AAT 5853 belonging to the first respondent and insured with second respondent, being driven in a rash and negligent manner, dashed against the trailor resulting in injuries and consequent permanent disability to her appellant, filed a claim petition seeking compensation of rs. 1,00,000/- from the respondents. First respondent chose to remain ex parte both before the Tribunal and in this Court. Second respondent contested the claim petition by filing a counter. In support of her case, appellant examined herself as P. W. I and marked Exs. A1 to A4. No oral evidence was adduced by 2nd respondent but Ex. B1 was marked by consent on its behalf. The tribunal having held that the accident occurred due to the rash and negligent driving of the lorry of the first respondent, awarded rs. 2,000/- as compensation to the appellant. Dissatisfied with the compensation awarded to her, claimant preferred this appeal seeking enhanced compensation. ( 2 ) THE point for consideration is to what compensation is the appellant entitled to? ( 3 ) THE contention of the learned counsel for the appellant is that since Ex. A4 shows that appellant suffered fracture to her ribs apart from a lacerated injury to her upper lip, compensation of Rs. 2,000. 00 awarded by the Tribunal is too meager. ( 4 ) THE contention of the learned counsel for 2nd respondent is that since the appellant did not examine the doctor who issued Ex. A4, or who treated her, the compensation awarded by the Tribunal is adequate and in any event since the appeals preferred by the other injured in the same accident were dismissed on the ground that the doctor who issued the wound certificates to them is not examined, this appeal also deserves dismissal. ( 5 ) SINCE the defences open to the second respondent are set out in Section 149 (2) of the Motor Vehicles Act, 1988 (the act) and since it cannot take any other plea or the pleas open to the owner unless it obtains permission under Section 170 of the act and since no such permission, admittedly, was obtained by second respondent second respondent cannot raise the pleas not open to it and are open to the first respondent. Even otherwise I do not find any force in the contentions raised by the learned Counsel for the second respondent. ( 6 ) SINCE each claim petition has to be decided on the basis of the merits and the evidence adduced therein, even if the appeals preferred by the other injured in the accident seeking enhanced compensation were dismissed, as contended by the learned counsel for the 2nd respondent, that fact cannot be a ground for dismissing this appeal, because this appeal has to be decided on the basis of the evidence adduced in the claim petition, but not on the basis of the evidence in other claim petitions. ( 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 issued 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 certificate of inquiry (injury) from Medical Officer can be the basis for awarding compensation by the Tribunal. Since Ex. A4 shows that appellant had a lacerated injury on the upper lip, and contusion as a result of the fracture of 5th and 8th ribs on the fight side, it can be taken that appellant suffered simple and grievous injuries in the accident. Therefore, she is entitled to Rs. 5,000. 00 for the pain and suffering undergone by her due to the injuries suffered by her in the accident. ( 8 ) SINCE there is no independent evidence on record as to the avocation, income etc. , of the appellant, and since in ex. Therefore, she is entitled to Rs. 5,000. 00 for the pain and suffering undergone by her due to the injuries suffered by her in the accident. ( 8 ) SINCE there is no independent evidence on record as to the avocation, income etc. , of the appellant, and since in ex. A3 appellant is described as an agriculturist, it can be taken that appellant is an agriculturist aged about 58 years, as mentioned in Ex. A3 and so she is not entitled to any compensation towards loss of earnings during the period of treatment. ( 9 ) THOUGH there is no medical evidence on record with regard to the nature and the period of treatment undergone by the appellant and since she must have taken some medicines and must have taken bed rest for some time, she can be awarded rs. 1,500/- towards purchase of medicines, attendant charges and transport charges and damages to clothing. ( 10 ) SINCE the facture to ribs does not normally cause permanent disability and since there is no medical evidence on record to establish that appellant suffered a permanent disability either due to the fracture to the ribs or due to the injury to her upper lip, appellant is not entitled to any compensation towards continuing disability. ( 11 ) THUS appellant is entitled to rs. 5,000/- + Rs. 1,500. 00 = Rs. 6,500. 00 as compensation for the injuries suffered by her in the accident. The point is answered accordingly. ( 12 ) IN the result, the appeal is allowed in part and the award passed by the Tribunal is modified. An award is passed for Rs. 6,500. 00 in favour of the appellant against the respondents, with interest at Rs. 12% p. a. on rs. 2,000/- from the date of petition till the date of deposit as awarded by the Tribunal, and with interest at Rs. 9% p. a. , on the enhanced amount of Rs. 4,500. 00 from the date of award of Tribunal i. e. , 14. 9. 1998 till the date of deposit into Court, with proportionate costs in the Tribunal. Rest of the claim of the appellant is dismissed without costs. Parties are directed to bear their own costs in this appeal.