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2020 DIGILAW 159 (AP)

Batchu Sreenivas v. Managing Director

2020-02-26

KONGARA VIJAYA LAKSHMI

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JUDGMENT : Kongara Vijaya Lakshmi, J. Being aggrieved by the award of Rs.40,000/- as compensation, by the order, dated 22.01.2007, in MVOP No.520 of 2005 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur, as against the claim of Rs.3,00,000/- laid under Sections 140 and 163-A of the Motor Vehicles Act, 1988 (for short 'the Act'), the instant appeal is preferred by the petitioner seeking enhancement. 2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the Original Petition before the Tribunal. 3. The facts, in brief, are that on 18.01.2005 the petitioner and others after visiting Sabarimalai were returning to Guntur in a bus bearing registration No.AP 7X 1076; on the way, near Tiruchi leading to Chennai 45 Road, their bus was stopped due to mechanical defect, as such at about 8.00 AM the petitioner and others got down from the bus and were waiting on the left side of the road margin in search of a tea stall; meanwhile, the bus bearing registration No.TN 7N 9358 came from behind in a rash and negligent manner without blowing horn and dashed the petitioner, due to which he sustained fracture to his right leg besides receiving other injuries to head, face and all over the body; the petitioner was shifted to Devi Clinic at Vempur and on the advice of the Doctors he was shifted to the Government Hospital, Vistachalam, from there he was shifted to the Government Hospital, Tirupathi; again he was shifted for better treatment to a private nursing home namely Venkateswara Nursing Home where he underwent operations twice and rods were inserted to his right leg; he needs further operation; the police registered a case against the driver of the crime vehicle; as on the date of incident, the petitioner was aged about 24 years and earning Rs.300/- per day by doing business; due to accident, the petitioner sustained permanent disability and lost his earning capacity; he spent Rs.80,000/- for medical expenses, hence he claimed compensation of Rs.3,00,000/-. 4. The respondent - Transport Corporation filed written statement denying the claim of the petitioner stating that the injuries said to have been sustained by the petitioner have already been healed and he is discharging his duties, hence there is no loss of earning capacity. 4. The respondent - Transport Corporation filed written statement denying the claim of the petitioner stating that the injuries said to have been sustained by the petitioner have already been healed and he is discharging his duties, hence there is no loss of earning capacity. It is further stated that the quantum of compensation claimed by the petitioner is excessive and exorbitant. 5. The Tribunal, based on the said pleadings, framed the following issues. "1. Whether the accident occurred due to rash and negligent driving of the driver of Bus bearing No.TN 7N 9358? 2. Whether the petitioner is entitled to the compensation, if so, to what amount and against whom? 3. To what relief? 6. During enquiry, the petitioner besides examining himself as PW.1 examined Dr. V.V. Narayana Rao as PW.2 and marked Exs.A1 to A11 to substantiate his claim. On behalf of the respondent - Transport Corporation, RW.1 was examined, but no documents were marked. 7. The Tribunal, on appraisal of evidence, let in by the petitioner, held issue No.1 in favour of the petitioner recording a finding that the accident occurred due to rash and negligent driving of the driver of the bus bearing No.TN 7N 9358. On issue No.2, the Tribunal awarded a sum of Rs.25,000/- towards pain and suffering, Rs.5,000/- towards medical expenses and Rs.10,000/- towards loss of income during healing period of the fracture injury, thus awarded total compensation of Rs.40,000/- to the petitioner with proportionate costs and interest at 7.5% p.a., from the date of petition till realization. 8. It is the aforesaid order which is under challenge in the instant appeal contending that the Tribunal has not properly appreciated the evidence of PW.2 and erred in not accepting Ex.A6 medical bills and Ex.A7 X-ray reports. It is further contended that the Tribunal erred in not granting any amount towards loss of income, though PW.2 gave disability certificate Ex.A10 showing that the petitioner sustained 40% of partial permanent disability and granted very meagre amount of Rs.40,000/-, therefore, sought to grant balance amount. 9. Heard learned counsel for the appellant and learned counsel for the respondent - Transport Corporation. 10. Perused the order and material on record. 9. Heard learned counsel for the appellant and learned counsel for the respondent - Transport Corporation. 10. Perused the order and material on record. The case of the petitioner is that when their bus was stopped due to mechanical defect, they got down from the bus and were waiting on the left side of the road margin in search of a tea stall and meanwhile the bus bearing registration No.TN 7N 9358 came from behind in a rash and negligent manner without blowing horn and dashed the petitioner, due to which he sustained fracture to his right leg besides receiving other injuries to head, face and all over the body. The respondent Corporation has not pleaded any contributory negligence on the part of the petitioner. The Tribunal by placing reliance on the unchallenged evidence of PW.1 and Exs.A1, A3 and A4, which are certified copies of FIR, Charge Sheet and Motor Vehicle Inspector's report, held that the accident occurred due to rash and negligent driving of the driver of the crime vehicle, hence the same is confirmed. 11. Coming to the award of compensation, the case of the petitioner is that he underwent operations twice to his right leg and rods were inserted. He spent Rs.80,000/- for medical expenses and he needs further operation. He was earning Rs.300/- per day by doing business and due to accident he sustained permanent disability resulting loss of earning capacity. In support of his case, petitioner examined Dr. Y.V. Narayanarao, Assistant Professor of Orthopaedics, Government General Hospital, Guntur, as PW.2 and the certified copy of wound certificate issued by the Civil Assistant Surgeon, Government Hospital, Vistachalam of Tamilnadu State was marked as Ex.A2. Ex.A6 are medical bills and Ex.A7 are 12 X-rays. PW.2 deposed that the petitioner was admitted in a private hospital i.e., Sri Venkateswara Nursing Home, Railpet, Guntur on 20.01.2005 for fracture of soft femur and intracapsular fracture neck of femur on right thigh. He was operated for the above said fracture injury and nailing was done. He was discharged on 03.02.2005. Thereafter, he went for reviews in the clinic several times and the x-rays taken show that fracture femur is united well but intracapsular fracture neck femur was united in malunion. The rod passed through the neck of femur came out of the neck because of collapse of the fracture. He was discharged on 03.02.2005. Thereafter, he went for reviews in the clinic several times and the x-rays taken show that fracture femur is united well but intracapsular fracture neck femur was united in malunion. The rod passed through the neck of femur came out of the neck because of collapse of the fracture. The petitioner is having gross limitation of right hip movement and mild to moderate limitation of right knee movement with shortening of right lower limb and the doctor issued Ex.A10 disability certificate opining that the petitioner sustained 40% partial permanent disability and that he requires further surgery which costs about Rs.30,000/- to Rs.40,000/- and there may be difficulty in cycling as well as in daily activities. The Tribunal disbelieved the x-ray films marked as Ex.A7 as they do not contain the name of the petitioner and as the petitioner failed to produce the record of two Government Hospitals, wherein he claimed to have taken treatment from 09.01.2005 to 20.01.2005. As PW.2 in his cross-examination admitted that the condition of the petitioner at the time of discharge was satisfactory and no certificate certifying the percentage of disability of the petitioner was issued by him, the Tribunal did not accept Ex.A10 disability certificate said to have been issued by PW.2 and no amount under the head permanent disability and loss of earnings was granted. However, the Tribunal agreed with the case of the petitioner observing that he sustained fracture injury to his right leg for which he was given conservative treatment and even though the petitioner filed medical bills Ex.A6, as the author of the said bills was not examined, it was disbelieved and awarded a sum of Rs.25,000/- towards pain and suffering, Rs.5,000/- towards medical expenses and further a sum of Rs.10,000/- towards loss of income during healing period of the fracture injury and accordingly awarded compensation of Rs.40,000/- with interest at 7.5% p.a. 12. When the Doctor PW.2 was examined in support of the case of the petitioner, the Tribunal ought not to have rejected the x-rays and medical bills Exs.A6 and A7. The petitioner produced medical bills to a tune of Rs.26,578/-, but the Tribunal awarded only Rs.5,000/- towards medical expenses, hence the same is enhanced to Rs.26,500/-. The Tribunal has not awarded any amount towards extra nourishment, attendant and transport charges. Hence, an amount of Rs.10,000/- is awarded under the said heads. The petitioner produced medical bills to a tune of Rs.26,578/-, but the Tribunal awarded only Rs.5,000/- towards medical expenses, hence the same is enhanced to Rs.26,500/-. The Tribunal has not awarded any amount towards extra nourishment, attendant and transport charges. Hence, an amount of Rs.10,000/- is awarded under the said heads. PW.2 in his evidence deposed that rods were inserted to the right leg of the petitioner and future surgery is necessary which costs about Rs.30,000/- to Rs.40,000/-, hence an amount of Rs.30,000/- is awarded towards future surgery. The amount of Rs.25,000/- awarded by the Tribunal towards pain and suffering and Rs.10,000/- towards loss of income during healing period of the fracture injury shall remain as it is. Accordingly, the petitioner is entitled to total compensation of Rs.1,01,500/- (Rs.26,500/- + 10,000/- + 30,000/- + 25,000/- + Rs.10,000/-). 13. The contention of the petitioner is that he sustained partial permanent disability resulting loss of earning capacity, but the Tribunal did not grant any amount towards loss of future earnings. In this regard, a perusal of the record would show that even though PW.2 stated in his chief examination that he issued Ex.A10 disability certificate opining that the petitioner sustained 40% disability, in the cross-examination by the respondent, he stated that no certificate certifying the percentage of disability of PW.1 was issued by him. The disability certificate Ex.A10 produced by the petitioner was not issued by any Medical Board. Admittedly, the petitioner has not taken any steps asking the Court to refer him to the Government Medical Board to assess his alleged disability. Per contra, PW.2 has categorically stated in his examination in chief that when the petitioner was discharged from the hospital, his condition was satisfactory, therefore, the disability certificate alleged to have been issued by PW.2 under Ex.P10 is only an afterthought creation, as the same was not filed at the earliest point of time i.e., at the time of filing the claim petition. Further, the photos of the petitioner marked as Ex.A8 in unequivocal terms speak that white cement plaster was applied to the right leg of the petitioner. This gives irresistible inference that the petitioner was given conservative treatment for fracture of his right leg. It is well known fact that after operation to the fracture injury, no white cement plaster would be applied. This gives irresistible inference that the petitioner was given conservative treatment for fracture of his right leg. It is well known fact that after operation to the fracture injury, no white cement plaster would be applied. As the evidence of the petitioner brought on record is exaggerated one and after thought creation, the Tribunal did not grant any amount towards loss of future earnings which needs no interference by this Court. 14. Accordingly, the instant MACMA is partly allowed and the amount of compensation awarded by the Tribunal is enhanced from Rs.40,000/- to Rs.1,01,500/- with interest at 7.5% p.a. There shall be no order as to costs. 15. As a sequel thereto, Miscellaneous Applications, if any, pending in this appeal shall stand closed.