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2010 DIGILAW 1254 (AP)

Potnuri Satya Rao v. B. Venkata Rao

2010-12-13

GHULAM MOHAMMED

body2010
Judgment : This is an appeal, under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) by the injured seeking enhancement of the compensation awarded by the II Additional District Judge, Visakhapatnam in M.O.P.No. 135 of 1999, on 07.03.2003. The facts, in brief, are as follows. The appellant filed the above said O.P. under Section 166 of the Act, claiming compensation of Rs.2,00,000/- for the injuries said to have been sustained by him in a motor vehicle accident. According to him, he was working as a driver and while discharging his duties as such, on 17.06.1997, at about 08.30 a.m., he started from Damuku and when reached Araku Village, a lorry bearing Registration No. APT 2139 which was coming in opposite direction, in a rash and negligent manner, dashed against the petitioner’s lorry bearing Registration No. AIQ 5868, as a result, the front portion of the petitioner’s lorry damaged and the petitioner’s right leg and left hand were fractured apart from grievous injuries all over his body. He pleads that he was earning Rs.6,000/-per month at the time of accident and he spent Rs.70,000/- towards his treatment. Before the Tribunal, Respondents 1 and 3 remained ex parte. In the counter-affidavits filed before the Tribunal, Respondents 2 and 4 denied their liability to pay the compensation. They further contended that the compensation claimed by the appellant is on higher side. Based on the pleadings of the parties, the Tribunal framed the following issues for trial. (1) Whether the accident has taken place that resulted in causing the injuries to the petitioner due to the rash and negligent driving of the lorry AP 31 T2139 by its driver? (2) Whether the respondents are liable to pay the compensation and if so, to what quantum and by which respondent? (3) To what relief? During trial, the claimant examined himself as P.W.1 and examined the Orthopaedic Surgeon, K.G. Hospital, Visakhapatnam as P.W.2 and got marked Exs.A1 to A12. On behalf of the contesting respondents, R.W.1 was examined and Exs.B1 to B3 were marked. The Tribunal, on issue No.1, held that the driver of the offending lorry bearing Registration No. AP 31 T 2139 alone is responsible for the accident. On issue No.2, the Tribunal took the income of the injured at Rs.2,000/- per month and his age as 32 years. The Tribunal, on issue No.1, held that the driver of the offending lorry bearing Registration No. AP 31 T 2139 alone is responsible for the accident. On issue No.2, the Tribunal took the income of the injured at Rs.2,000/- per month and his age as 32 years. It applied the relevant multiplier as ‘17’ and since the disability of the injured was assessed at 10%, it worked out the loss of dependency per annum at Rs.2,000 x 12 x 10% = 2,400/- and when it was multiplied with multiplier ‘17’, the compensation towards loss of earning capacity was worked out Rs. 2,400 x 17 = Rs.40,800/-. Though the petitioner claimed that he spent Rs.70,000/- towards medicines, he filed a bill for Rs.30,500/-, but the doctor who issued the same was not examined. However, considering the facts, the Tribunal awarded Rs.5,000/- towards medicines and extra nourishment, in total Rs.45,800/- towards compensation from Respondents 1 and 2, who are owner and insurer of the lorry bearing No. AP 31 T 2139, with interest at 9% per annum from 03.01.2003 till the date of realization and with proportionate costs. Learned counsel for the appellant contends that the Tribunal erred in assessing the monthly income at Rs.2,000/-. He further contends that though he produced the medical bill for a sum of Rs.30,500/-, the Tribunal has not taken the same into consideration. Heard the learned Standing Counsel for the contesting respondents. Now the only point that arises for consideration in this appeal is whether the appellant is entitled to enhancement of the compensation at all or not? The appellant, in support of his case, examined himself as P.W.1 and also examined P.W.2, Orthopaedic Surgeon, K.G. Hospital, Visakhapatnam. The Tribunal, after considering the evidence of P.Ws.1 and 2 and Ex.A3 wound certificate and Ex.A10 disability certificate, though P.W.2 certified that the injured suffered 20% disability, has taken the disability at 10% only. The learned counsel for the appellant contends that the Tribunal erred in taking the disability at 10%. Therefore, in view of the fracture sustained by the appellant, and in view of the judgment reported in National Insurance Co. The learned counsel for the appellant contends that the Tribunal erred in taking the disability at 10%. Therefore, in view of the fracture sustained by the appellant, and in view of the judgment reported in National Insurance Co. Ltd., Chennai vs. Adepu Raghunesh ( 2010 (3) ALD 487 ), wherein it has been held that the initial burden to prove the nature of injuries and their severity is on the claimant and that the Insurance company is not under obligation to prove that the claimant has not suffered injuries as alleged by him, I am of the opinion that the ends of justice would be met if the disability of the injured claimant is taken at 15%. As the age of the claimant was 32 years at the time of accident, the appropriate multiplier for the said age group, as per the decision of the Apex Court in Sarala Verma v. Delhi Transport Corporation (2009) 6 SCC 121), is ‘16’. Then, the compensation comes to Rs. 2,000/- p.m. x 12 months x 15% = 3600 X 16 = 57,600/-. In addition to it, a sum of Rs.20,000/-towards pain and suffering and Rs.5,000/-towards medical expenses is also awarded. In total, a sum of Rs. 82,600/- is awarded to the claimant. Thus, the compensation is enhanced from Rs.45,800/- to Rs.82,600/-. The award of the Tribunal in all other aspects shall remain unaltered.The enhanced compensation amount shall carry interest @ 7% per annum from the date of the petition till realization. With the above modification, the Civil Miscellaneous Appeal is allowed in part. No order as to costs.