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2010 DIGILAW 92 (AP)

National Insurance Co. Ltd v. Adepu Raghunath

2010-02-17

C.V.NAGARJUNA REDDY

body2010
JUDGMENT : This M.A.C.M.A. is filed against order dt. 31.1.2006 in O.P. No.574 of 2004 on the file of the Chairman, Motor Accidents Claims Tribunal (District Judge), Warangal (for short, the Tribunal). The appellant – Insurance Company represented by the Divisional Manager, Chennai and the Branch Manager, Warangal, who were respondent Nos.2 and 3 in the O.P., filed this appeal feeling aggrieved by the Award of Rs.70,000/- towards the injuries sustained by respondent No.1 in the accident involving lorry bearing No.AP 9K 8559 belonging to respondent No.2 and insured with the appellants. I have heard Sri Katta Lakshmi Prasad, learned Counsel for the appellants, and Sri P. Mehar Srinivasa Rao, learned Counsel representing Smt. N. Kamala Mehar, learned Counsel for respondent No.1 – claimant. As the appellants have not disputed the finding of the Tribunal on issue No.1 relating to the cause of the accident, it is not necessary to refer in detail the manner in which the accident has occurred. It will suffice to note that respondent No.1 along with his brother sustained injuries when they were going on a motor cycle when the above mentioned lorry hit the said motor cycle. Respondent No.1 claimed to have sustained three injuries. He filed Ex.A.3 – wound certificate which showed that injury No.1 was grevious and injury Nos.2 and 3 are simple in nature. The Tribunal awarded Rs.20,000/- for dislocation of left hip joint, Rs.10,000/- for two simple injuries, Rs.20,000/- for pain and suffering and Rs.20,000/- for medicines, treatment and extra nourishment for speedy recovery. At the hearing, the learned Counsel for the appellants contended that the Tribunal fell into error by placing reliance on Ex.A.3 – wound certificate, as the doctor who issued the wound certificate was not examined. The learned Counsel further submitted that respondent No.1 could file medical bills under Ex.A.10 only for a sum of Rs.3,011/-whereas the Tribunal has awarded Rs.20,000/- towards medicines, treatment and extra nourishment. The learned Counsel for respondent No.1 - claimant sought to justify the Award of the Tribunal. With regard to the first contention of the learned Counsel for the appellants, admittedly the doctor who issued the wound certificate was not examined. This fact is mentioned even by the Tribunal. However, the Tribunal has ignored the said aspect on the premise that the insurance company has not denied the accident and the injuries sustained by respondent No.1 – claimant. This fact is mentioned even by the Tribunal. However, the Tribunal has ignored the said aspect on the premise that the insurance company has not denied the accident and the injuries sustained by respondent No.1 – claimant. In my opinion, this approach of the Tribunal is not correct. The initial burden is on the claimant to prove the nature of the injuries and their severity. The insurance company is not expected to prove in the negative that the claimant has not suffered the injuries as alleged by him. It is only after the initial burden placed on the claimant is discharged that the onus shifts to the owner or the insurance company, as the case may be, to disprove the claim of the claimant. By not examining the doctor, respondent No.1 - claimant failed to discharge this initial burden. Therefore, Ex.A.3, the alleged wound certificate, has no evidentiary value which should not have been taken into consideration by the Tribunal in awarding the compensation. The further question which requires to be considered is, if the wound certificate is eschewed from consideration, what would be the reasonable compensation which respondent No.1 is entitled to receive. The oral evidence of respondent No.1, given as P.W.1, shows that his motor cycle was damaged in the accident and he has received Rs.22,000/-towards expenses for repairing the Motor cycle from the insurance company. The extensive damage caused to the motor-cycle suggests the severity of the impact with which the offending lorry had hit the two wheeler and it can be inferred therefrom that respondent No.1 would have suffered injuries ranging between simple and severe. The fact of respondent No.1 taking treatment in M.G.M. Hospital, Warangal, is not in dispute. The accident was registered as a crime. In the face of this un-controverted evidence, it can safely be concluded that respondent No.1 was involved in the accident and suffered injuries for which he has taken treatment from M.G.M. Hospital. Respondent No.1 would therefore have spent considerable amounts towards taking treatment and also on extra nourishment, apart from undergoing pain and suffering. A perusal of the record reveals that on 30.6.2006 this Court granted stay on condition of the appellants depositing half of the awarded amount together with proportionate costs and interest. The learned Counsel for the appellants submitted that in pursuance of the said order, the amount has been deposited and is kept in Fixed Deposit. A perusal of the record reveals that on 30.6.2006 this Court granted stay on condition of the appellants depositing half of the awarded amount together with proportionate costs and interest. The learned Counsel for the appellants submitted that in pursuance of the said order, the amount has been deposited and is kept in Fixed Deposit. Having regard to the facts and circumstances of the case, I deem it appropriate to reduce the compensation amount awarded by the Tribunal to the extent of the deposit already made by the appellants. Respondent No.1 is permitted to withdraw the said amount unconditionally. The award under appeal is accordingly modified to the extent indicated above. The M.A.C.M.A. is accordingly disposed of.