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2012 DIGILAW 686 (AP)

Mohd. Khaja v. K. Chandeshwar s/o. K. Sangappa

2012-08-06

B.N.RAO NALLA

body2012
Judgment : The petitioner in O.P. No.291 of 1999 assailing the impugned order dated 03.04.2003 on the file of the Motor Accidents Claims Tribunal -cum-District Judge, Medak at Sangareddy, filed this appeal seeking enhancement since he was awarded only Rs.1,52,500/-, with interest at 9% per annum from the date of petition till realisation, though he claimed a total compensation of Rs.4,00,000/-for the injuries and fractures sustained by him in a motor vehicle accident. 2. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the O.P. 3. The facts, in brief, are that on 26.7.1998, the petitioner – claimant after offering evening prayers 'Namaz' in the Masjid located by the side of the Police Station at Sanga Reddy, was proceeding on State High Way on his motor cycle bearing No.AP 23-6670 at about 7.30 p.m. towards new bus stand. When he reached near T-Junction, respondent No.2 who was driving Maruthi Car bearing No.AP-28-T-5060, came from Guest House side and took a long turn towards his left side while joining the State High Way Road at high speed in a rash and negligent manner and dashed the motor cycle of the petitioner due to which the petitioner was thrown away from the motor cycle. The petitioner received grievous injuries and both of his legs were fractured. The petitioner was shifted to Government Hospital, Sangareddy, from there he was taken to Medwin hospital and thereafter he was admitted as inpatient in Uday Clinic, which is specialised Orthopaedic Hospital at Hyderabad on the same night. After four days he was operated upon and bones were set by fixing steel rods. The petitioner was discharged on 11.8.1998. The S.H.O., Sangareddy town registered a case in Crime No.120/98. Respondent No.1, who is father of respondent No.2, is the owner of the Maruthi Car and he entrusted the same to his son i.e. respondent No.2. Respondent No.2 was holding a valid driving licence at the time of the accident. The Maruthi Car was insured with respondent No.3. The petitioner was earning more than Rs.10,000/-per month by doing business and giving Karate training to the students. 4. Respondent Nos.1 and 2 filed their separate counter denying the claim petition averments including the age, monthly income and business of the petitioner. The Maruthi Car was insured with respondent No.3. The petitioner was earning more than Rs.10,000/-per month by doing business and giving Karate training to the students. 4. Respondent Nos.1 and 2 filed their separate counter denying the claim petition averments including the age, monthly income and business of the petitioner. They denied that the petitioner sustained grievous injuries and was treated at Uday Clinic at Hyderabad and he could not attend the work for 10 months. In fact, he was treated at Government Hospital, Sangareddy and did not incur any expenditure. They alleged that the accident occurred due to the fault of the petitioner. They denied that respondent No.2 is responsible for the accident. The claim of the petitioner is highly excessive. 5. Respondent No.4 -New India Assurance Company filed its counter denying all the material allegations made in the claim petition including the age, business and monthly income of the petitioner. It denies the occurrence of the accident on 26.7.1998. It alleges that the petitioner did not possess driving licence to drive Hero Honda motor cycle and he drove the motor cycle in a rash and negligent manner and therefore, it is not liable to pay any compensation. It also denies that the petitioner sustained fractures to his both legs below the knee and steel rods were fixed. 6. Based on the pleadings, the Tribunal framed the following issues for consideration: i. Whether the alleged accident occurred due to the rash and negligent driving of the driver of Car No.AP-28-T-5050? ii. Whether the petitioner was having valid driving licence to drive Hero Honda AP-23 6670 at the time of accident? iii. Whether the petitioner sustained any permanent disability? iv. What is the just compensation to which the petitioner is entitled? v. To what relief? 7. The petitioner got himself examined as PW.1 apart from examining three other witnesses as PWs 2 to 4 and got marked Exs.A.1 to A.22. Respondents did not adduce any evidence except marking copy of the insurance policy as Ex.B.1. 8. The Tribunal, taking into consideration the evidence of PWs.1 to 4, Exs.A.1 to A3, A.5 to A.13, A.20 and Ex.B.1 decided issues in favour of the petitioner granting compensation of Rs.1,52,500/-and held that respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioner. 9. 8. The Tribunal, taking into consideration the evidence of PWs.1 to 4, Exs.A.1 to A3, A.5 to A.13, A.20 and Ex.B.1 decided issues in favour of the petitioner granting compensation of Rs.1,52,500/-and held that respondents 1 to 3 are jointly and severally liable to pay the compensation to the petitioner. 9. It is the case of the petitioner that the Tribunal failed to notice that he was earning more than Rs.10,000/-per month and was bed ridden for more than 10 months. The Tribunal without applying the appropriate multiplier has granted lump sum compensation. The Tribunal ought to have granted the amount under the heads 'pain and suffering', 'loss of income' for actual period of disablement and 'loss of future earning capacity' as he sustained 40% permanent disability. The Tribunal failed to consider that he spent more than Rs.1,30,000/-towards medicines and treatment. The Tribunal also erred in not granting motor cycle repairing bill. Further, the Tribunal erred in granting only 9% per annum interest. 10. On the contrary, it is the case of respondent No.3 -insurance company that though the petitioner claimed to have been bed ridden for more than 10 months due to the injuries sustained by him in the accident and also due to the effect of the treatment thereof, no document was filed in support thereof. The petitioner has not filed any documentary evidence with regard to his age, earning capacity and avocation. Therefore, the Tribunal was right in granting Rs.80,000/-for sustaining injuries to both legs, and Rs.72,500/-under the heads 'medicines', 'hospital charges', 'conveyance allowance', 'extra nourishment' and 'pain and suffering'. Therefore, the impugned order does not warrant any interference from this court. 11. The evidence of PW.2 and Exs.A.3, A.5 to A.10 disclose that the petitioner sustained fractures tibia to both legs below knee in the motor vehicle accident and he was hospitalised and sustained 40% permanent disability. The Tribunal taking in to consideration injuries, fractures sustained by the petitioner and 40% disability, granted Rs.80,000/-as compensation. There is no conclusive proof with regard to his age, earning capacity and avocation. However, a perusal of the record reveals that the Tribunal ought to have granted at least Rs.1,00,000/-to meet the ends of justice. Therefore, the petitioner is entitled to Rs.1,00,000/-as compensation instead of Rs.80,000/-. There is no conclusive proof with regard to his age, earning capacity and avocation. However, a perusal of the record reveals that the Tribunal ought to have granted at least Rs.1,00,000/-to meet the ends of justice. Therefore, the petitioner is entitled to Rs.1,00,000/-as compensation instead of Rs.80,000/-. Further, the Tribunal taking into consideration Exs.A.11 -hospital bills, A.12 – medical bills and Ex.A.13 -transport bill, granted Rs.72,500/-to the petitioner under the heads of 'medicines', 'hospital charges', 'conveyance allowance', 'extra nourishment' and 'pain and suffering'. It appears the Tribunal has not granted any substantial amount under the heads 'pain and suffering' and 'extra nourishment'. It is to be found in the averments of the claim petition as well as in the evidence of PW.1 that he was bed ridden for eight (8) months after the accident in view of the injuries and fractures sustained by him. Therefore, it is obvious that he was subjected to pain and suffering for a considerable time. Therefore, the Tribunal ought to have granted Rs.20,000/-towards 'pain and suffering', and Rs.5,000/-towards 'extra nourishment'. As such, the petitioner is entitled to Rs.20,000/-towards 'pain and suffering and Rs.5,000/-towards 'extra nourishment'. The claim of the petitioner with regard to motor cycle repairing bills cannot be considered for non-examination of the proprietor of the repairing shop. 12. Therefore, it has to be held that the appellant -petitioner is entitled to an amount of Rs.1,00,000/-for sustaining fractures and 40% disability, Rs.72,500/-under the heads 'medicines', 'hospital charges' and 'conveyance allowance', Rs.20,000/-towards 'pain and suffering' and Rs.5,000/-towards 'extra nourishment'. Thus, the appellant petitioner is held to be entitled to a total compensation of Rs.1,97,500/-. 13. In the result, the appeal is partly allowed awarding a total compensation of Rs.1,97,500/-(Rupees one lakh ninety seven thousand and five hundred) only. However, having regard to the decisions rendered by the Apex Court in the context of awarding interest in motor accident cases, the rate of interest is reduced to 7.5% per annum from 9% per annum so far as the enhanced amount of compensation is concerned. No order as to costs.