Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 134 (AP)

Vibudi Malleswara Rao v. Mandala Atchim Naidu

2020-02-18

BATTU DEVANAND

body2020
JUDGMENT : BATTU DEVANAND, J. 1. This Appeal was filed by the Appellant/claimant under Section 173 of the Motor Vehicles Act, aggrieved by the compensation of Rs. 27,300/- awarded by the Motor Accidents Claims Tribunal (District Judge), Vizianagaram, by its decree and judgment, dated 16.02.2010 passed in M.V.O.P. No. 1047 of 2007 against the claim of Rs. 1,40,000/- with interest at 18% per annum from the date of petition till the date of realization on account of the injuries sustained by him in a motor vehicle accident that occurred on 21.08.2007. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the Appeal. 2. As per the averments in claim application the petitioner is a resident of Tettangi Village, Gurla Mandal, Vizianagaram District. On 21.08.2007 the petitioner boarded the auto bearing No. AP-35U-3542 as passenger after completion of his work at Gurunaidupeta and at about 12-00 noon the 1st respondent drove the auto in a rash and negligent manner and the auto reached near Burlapeta road junction, the driver applied sudden brakes as a result, the petitioner fell down on the road and received both simple and grievous injuries all over the body, fracture on left upper arm. Immediately the petitioner was admitted in Government Headquarters Hospital at Vizianagaram. He stayed there for a period of 30 days. He was shifted to private nursing home at Vizianagaram for better treatment and P.O.P. was applied to his left upper arm and thereby he spent huge amounts for treatment and extra-nourishment. He was hale and healthy at the time of accident and he used to earn Rs. 150/- per day as Tailor. Because of the injuries sustained in the accident he could not do hard work. He claimed a total compensation of Rs. 1,40,000/-. The petitioner claimed that the respondent Nos. 1 to 3 being driver, owner and insurer of the auto are jointly and severally liable to pay the compensation. The Station House Officer, Gurla Police Station has registered a case in Crime No. 67 of 2007 for the offence under Section 338 of the Indian Penal Code against the 1st respondent, driver of the auto. 3. 1 to 3 being driver, owner and insurer of the auto are jointly and severally liable to pay the compensation. The Station House Officer, Gurla Police Station has registered a case in Crime No. 67 of 2007 for the offence under Section 338 of the Indian Penal Code against the 1st respondent, driver of the auto. 3. The 1st respondent filed counter denying the averments in claim petition and further contended that he was a skilled driver having valid driving licence and he used to drive the vehicle with lowest speed and he was driving on the left side of the road always and he is not responsible for the alleged accident and that it happened due to the fault of the petitioner himself only and hence he is not liable to pay compensation. The 2nd respondent adopted the counter of the 1st respondent by filing a memo. 4. The 3rd respondent-Bajaj Allianz General Insurance Company Limited filed its counter denying the averments in the claim petition and further contended that the petitioner should prove that the vehicle was insured with it and that the policy was in force at the time of accident and that the 1st respondent held valid driving licence at the time of the alleged accident. The 3rd respondent seeks protection under Sections 147 and 149 of the Motor Vehicles Act. The 3rd respondent further contended that various amounts claimed in the petition are excessive and arbitrary and the petitioner is not entitled to the same. 5. During the course of trial, the petitioner examined himself as PW-1 and he also examined PW-2 and marked Exs.A.1 to A.6 and Ex.X1 and X2. On behalf of the respondents RWs. 1 and 2 are examined and Exs.B.1 to B.8 were marked. 6. The Tribunal after considering the oral and documentary evidence available on record, while answering issue No. 1 held that the accident occurred due to rash and negligent driving of the auto bearing No. AP-35U-3542 by its driver who is the 1st respondent herein and the finding of the Tribunal to this effect has become final. 7. 6. The Tribunal after considering the oral and documentary evidence available on record, while answering issue No. 1 held that the accident occurred due to rash and negligent driving of the auto bearing No. AP-35U-3542 by its driver who is the 1st respondent herein and the finding of the Tribunal to this effect has become final. 7. Though, it is contended by the 3rd respondent that it is not liable to pay compensation as there were violations of terms and conditions of policy, the Tribunal after considering the evidence of RW-1 and RW-2 and documents marked as Exs.B.1 to B.8 held that the 3rd respondent is liable to indemnify the 2nd respondent and that the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner. The Tribunal after considering the evidence of PW-2 i.e. Civil Assistant Surgeon, M.R. Government Hospital, Vizianagaram and Exs.X.1 and X.2, Exs.A.2 to A.5, awarded an amount of Rs. 25,000/- under the head pain and suffering and the Tribunal held that the petitioner is also entitled for the medical expenses covered by Ex.A.7 rounded off to Rs. 2,300/- in total the Tribunal awarded compensation of Rs. 27,300/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner filed the present Appeal. 8. Heard, Sri Taddi Nageswara Rao, learned counsel for the appellant and Sri Naresh Byrapaneni, learned counsel for the 3rd respondent. 9. Learned counsel for the appellant argued that the Tribunal failed to consider the evidence on record in proper perspective and erroneously awarded an amount of Rs. 27,300/- only against the total claim of Rs. 1,40,000/- which is on lower side. On the other hand, the learned counsel for the 3rd respondent submits that the compensation awarded by the Tribunal below is quite reasonable and no interference is required by this Hon'ble Court. 10. After considering the rival contentions of the learned counsel and on perusal of the material available on record, it appears that as per the evidence of Civil Assistant Surgeon, M.R. Government Hospital, Vizianagaram, who was examined as PW-2, deposed that the petitioner received fracture of neck humerus left. Due to his treatment "U" slab was applied. Ex.X.1 is the case-sheet of the petitioner maintained in the hospital. Ex.X.2 is the X-ray. Due to his treatment "U" slab was applied. Ex.X.1 is the case-sheet of the petitioner maintained in the hospital. Ex.X.2 is the X-ray. PW-2 further deposed that because of the disability the petitioner cannot lift weights with his left hand and he cannot do his normal duties as he did prior to the accident. Ex.A.5 is the disability certificate issued by him and Ex.A.6 is the latest X-ray. PW-2 further deposed that on 04.08.2008 the petitioner attended before the District Medical Board, Vizianagaram. They assessed the disability after verification of copy of wound certificate, latest X-ray and on a clinical examination, at 40% which is partial and permanent in nature. As per Ex.A.2, wound certificate, the injury was grievous in nature. As per Ex.X.1 case-sheet the petitioner received treatment for about 10 days in the Government Hospital free of cost. The petitioner is claiming that because of the injuries he lost his income. The Tribunal observed that Ex.A.5 disability certificate is not issued by the District Medical Board and there is no evidence on record to show whether PW-2 is authorized to issue such disability certificate. As per the Tribunal there is no tangible evidence with regard to the income of the petitioner to grant compensation under the head of disability by applying multiplier taking into consideration the age of the petitioner. The Tribunal taking into consideration the severity of injury sustained by the petitioner and also the period of treatment undergone by him, an amount of Rs. 25,000/- is awarded under the head pain and suffering. 11. The counsel for the appellant invited the attention of this Court to the disability certificate. Admittedly, the Ex.A.5, disability certificate was issued by the District Medical Board on clinical examination of the petitioner on 04.08.2008. The disability certificate was issued with the signatures of the Chairman of the District Medical Board and its Members. The District Medical Board after verification of copy of wound certificate, latest X-ray and on a clinical examination assessed the disability of the petitioner as 40% partial and permanent disability. This fact was deposed by the PW-2, who is the Civil Assistant Surgeon in M.R. Government Hospital, Vizianagaram and who is also one of the Members of the District Medical Board. This fact was deposed by the PW-2, who is the Civil Assistant Surgeon in M.R. Government Hospital, Vizianagaram and who is also one of the Members of the District Medical Board. In the light of the evidence of the PW-2 and Ex.A.5, disability certificate, it can be safely construed that the petitioner has suffered 40% disability and the Tribunal failed to consider that aspect. 12. As per the averments of the claim petition, the petitioner was a Tailor and as per the evidence of PW-2, the Civil Assistant Surgeon, the petitioner cannot lift weights with his left hand and he cannot do his normal duties as he did prior to the accident because of the disability. As per the evidence of PW-1, he was aged 47 years and was hale and healthy and he used to earn Rs. 150/- per day as Tailor and because of the injuries sustained in the accident, he could not do hard work. The evidence of PWs.1 and 2 coupled with Exs.A.2 to A.6 and Exs.X.1 and X.2, it is clear that the petitioner suffered 40% disability and due to the disability and he is not in a position to do his normal duties as he did prior to the accident. As such, as compensation the petitioner is entitled for reasonable amount towards partial and permanent disability. 13. Considering the facts and circumstances of the case and the evidence available on record, the petitioner being a Tailor, he ought to have some reasonable income for his personal and family maintenance. In number of cases, this Hon'ble Court and Hon'ble Apex Court were pleased to consider the income of the labourers, coolies and street vendors @ Rs. 3,000/- per month. In present days, a 47 years aged person, doing Tailor work, will normally earn minimum Rs. 100/- to Rs. 200/- per day. Considering all aspects, though, there is no evidence on record about the income of the petitioner, it can be considered as he was earning Rs. 3,000/- per month. 14. As per the evidence of PW-1, he was aged 47 years. 100/- to Rs. 200/- per day. Considering all aspects, though, there is no evidence on record about the income of the petitioner, it can be considered as he was earning Rs. 3,000/- per month. 14. As per the evidence of PW-1, he was aged 47 years. The multiplier applicable to the age group of 46 to 50 years is "13" as per the judgment of the Hon'ble Supreme Court of India in the case of Sarla Varma and Others vs. Delhi Transport Corporation, (2009) 3 ALD 83 by adopting the multiplier method to assess the loss of earnings to the petitioner due to 40% partial and permanent disability i.e. Rs. 3,000/- x 12 x 13 x 40% which comes to Rs. 1,87,200/-. The petitioner is also entitled for an amount of Rs. 25,000/- under the head of pain and suffering and Rs. 2,300/- towards medical expenses as awarded by the Tribunal. Therefore, in total, the petitioner is entitled for compensation of Rs. 2,14,500/- however, the amount awarded is restricted to Rs. 1,40,000/- only as per his claim. 15. In the result, the appeal is allowed enhancing the compensation of Rs. 27,300/- (Rupees twenty seven thousand and three hundred only) awarded by the Tribunal to Rs. 1,40,000/- (Rupees one lakh and forty thousand only) with interest at the rate of 6% per annum from the date of the petition till the date of realization with costs. The respondents 1 to 3 are jointly and severally liable to pay the said compensation to the petitioner and they shall deposit the same within four (04) weeks. On such deposit being made, the petitioner is entitled to withdraw the enhanced amount of compensation along with accrued interest and costs. 16. As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.