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2005 DIGILAW 337 (AP)

Penkey Konda v. Sorapalli Zedson Moses

2005-04-07

R.SUBHASH REDDY

body2005
R. SUBHASH REDDY, J. ( 1 ) THIS Civil Miscellaneous Appeal under section 173 of the Motor Vehicles Act, 1988 (for short, the Act ) is filed by the claimant seeking enhancement of compensation, aggrieved by the award of the Motor Accidents claims Tribunal-cum-the Court of iv Additional District Judge, Kakinada (for short thetribunal below ), passed in M. V. O. P. No. 104 of 2000, dated 19-4-2004. ( 2 ) THE said claim petition was filed by the appellant herein under Section 166 of the Act read with Rule 455 of the Andhra Pradesh motor Vehicles Rules, 1989, claiming compensation of Rs. 1,00,000/- on account of injuries suffered by him in a motor vehicle accident on 18-9-1999. ( 3 ) AS stated in the claim petition, it was the case of the claimant that he was working as ajattu coolly in Koramandal Company Limited at Kakinada. On 18-9-1999, while he was returning along with other co-workers from the Company and when they reached nadakuduru, the offending lorry bearing no. ABK-144 was driven by its driver rashly and negligently and dashed the claimant. It is stated, in the said accident, he has suffered multiple injuries and has taken lengthy treatment on account of injuries suffered by him and ultimately he suffered disability. The compensation was claimed on account injuries suffered by him, pain and suffering, loss of future earnings in view of disability etc. Respondents 1 and 2, driver and owner of the lorry respectively, remained ex parte before the Tribunal below. Respondent No. 3, insurerof the lorry, has contested the matter. While generally denying the allegations of the claimant, it was the case of the insurer that the compensation claimed was excessive and exorbitant. With reference to the above said pleadings, the Tribunal below has framed the following issues for trial: (1) Whether the accident took place due to the rash and negligent driving of the 1st respondent-Driver of lorry abk-144? (2) Whether the petitioner is entitled for the compensation, if so, what amount and from which of the respondents? (3) To what relief? to prove the claim on behalf of the claimant, he himself was examined as P. W. 1 and the doctor, who has treated him, was examined as P. W. 2 and another doctor, before whom the claimant is still taking treatment, was examined as P. W. 3. Exs. (3) To what relief? to prove the claim on behalf of the claimant, he himself was examined as P. W. 1 and the doctor, who has treated him, was examined as P. W. 2 and another doctor, before whom the claimant is still taking treatment, was examined as P. W. 3. Exs. A-1 to A-4 and X-1 and X-2 were marked on his behalf. On behalf of respondent No. 3, no oral evidence was adduced, but a copy of the policy was marked as Ex. B-1. Having regard to the oral and documentary evidence on record, the tribunal below has recorded the finding that the accident occurred due to negligent driving of the driver of the offending vehicle. Then, proceeding to assess the compensation, the tribunal below has considered the claim on different heads and ultimately, granted total compensation of Rs. 65,900/- Though it was the claim of the claimant that the deceased was earning Rs. 6,000/-per month by working as a jattu coolly, in absence of any evidence, the Tribunal below has assessed his earnings at Rs. 1,500/- per month and having regard to the percentage of disability of 10 per cent, awarded compensation of Rs. 32,400/- on account of loss of future earnings in view of the disability, in addition to compensation on other aspects. ( 4 ) IN this appeal, it is submitted by smt. D. Geetha, learned Counsel appearing for the appellant-injured that in the accident the claimant has suffered several grievous injuries including an urethral injury, which ultimately led to closing of his urinary track and all the while he is to carry the urinary bag. Further, it is submitted, immediately after the accident, the claimant underwent operation on 18-9-1999. Thereafteralso, he underwent series of operations. In that view of the matter, the Tribunal below ought to have considered higher compensation than awarded on account of pain and suffering. Further, it is submitted by the learned Counsel appearing forthe appellant that the claimant was working as a jattu coolly and earning Rs. 200/- per day. In that view of the matter, the Tribunal below ought to have accepted the said evidence of P. W. 1 for the purpose of assessment of earnings of the claimant. Further, it is submitted by the learned Counsel appearing forthe appellant that the claimant was working as a jattu coolly and earning Rs. 200/- per day. In that view of the matter, the Tribunal below ought to have accepted the said evidence of P. W. 1 for the purpose of assessment of earnings of the claimant. ( 5 ) ON the other hand, it is submitted by sri R. K. Suri, learned Counsel appearing for the third respondent-insurer that in this case, having regard to the evidence on record, the tribunal below itself has awarded just and reasonable compensation and that there are no grounds for enhancement of the said compensation. ( 6 ) WITH reference to the above submissions, it is to be seen that the Tribunal below has categorically recorded the finding that the accident occurred due to negligence on the part of the driver of the offending lorry. With regard to the quantum of compensation, though it was the claim of the claimant that he was earning Rs,200/- per day by working as a jattu coolly in Koramandal Company limited, Kakinada, except the interested testimony of P. W. 1, there is no other evidence to prove the earnings. In that view of the matter, the Tribunal below itself has reasonably assessed the earnings at rs. 1,500/- per month and awarded the compensation on account of disability, which was accepted at 10 percent. But, at the same time, while considering the compensation on different heads, the Tribunal below has awarded compensation of Rs. 10,000/- only on account of pain and suffering. But, in this case, from the evidence of P. Ws. 1 and 2, it is clear that the petitioner has suffered grievous injuries in the accident, which took place on 18-9-1999. P. W. 2, who treated P. W. 1, deposed that immediately afterthe accident, in view of the injuries suffered by the claimant, he underwent operation on 18-9-1999. Further, he has stated that cystostomy operation was also conducted for his urethral injury on 22-9-1999. Even P. W. 3, who continued the treatment, stated that further operations were conducted on /-2-2000. Having regard to the nature of injuries and series of operations, which the claimant underwent, it is evidently a fit case at least to award compensation of Rs. 25,000/- on account of pain and suffering and mental agony suffered by the claimant. Even P. W. 3, who continued the treatment, stated that further operations were conducted on /-2-2000. Having regard to the nature of injuries and series of operations, which the claimant underwent, it is evidently a fit case at least to award compensation of Rs. 25,000/- on account of pain and suffering and mental agony suffered by the claimant. In that view of the matter, the compensation of rs. 10,000/- (Rupees ten thousand only) awarded by the Tribunal below is enhanced to Rs. 25,000/- (Rupees twenty five thousand only) on account of pain and suffering and mental agony undergone by the claimant. In all other respects, the compensation awarded by the Tribunal below is Gonfirmed. In that view of the matter, the total compensation, which is payable to the claimant, is fixed at rs. 80,900/- (Rupees eighty thousand and nine hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition till realization. ( 7 ) IN that view of the matter, the Civil miscellaneous Appeal is partly allowed to the extent indicated above. No order as to costs.