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2023 DIGILAW 329 (AP)

G. Israel v. Penninti Lakshmi Narayana

2023-02-07

T.MALLIKARJUNA RAO

body2023
JUDGMENT : T. MALLIKARJUNA RAO, J. 1. Aggrieved by the order and decree dated 23.07.2012 in M.V.O.P. No. 238 of 2011 passed by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge, Fast Track Court, Prakasam District, Ongole, (for short “the tribunal”) the respondents therein has preferred the present appeal questioning the award passed by the tribunal. 2. For convenience, the parties will hereinafter be referred to as arrayed in the M.V.O.P. 3. The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation Rs. 5,00,000/- on account of the injuries sustained by him in a motor vehicle accident that occurred on 27.02.2011. 4. The claimant’s case is that on 27.02.2011, when he was going on a motorcycle at about 9.00 A.M. and when he reached near water tank situated by the side of Tammavaram and Medarametla road, a tractor and trailer bearing No. AP-W-1456, AAE-3786 (hereinafter referred to as “the offending vehicle”) came in a rash and negligent manner and dashed the motorcycle; as a result, the claimant fell and received injuries; thereby he was taken to Jayanthi Nursing Home, Medarametla, later shifted to NRI hospital, Mangalagiri for better treatment. 5. The second respondent filed his counter, the same was adopted by the first respondent, wherein it is disputed the manner of the accident, age, avocation, income and injuries sustained by the claimant and the accident occurred due to the rash and negligent riding of the motorcycle. Therefore, there was no negligence on the part of the first respondent. 6. Based on the pleadings, the tribunal framed relevant issues. To substantiate the claim, on behalf of the claimant during the trial, PWs. 1 and 2 were examined, Exs.A.1 to A.11 were marked; on behalf of respondents, RWs. 1 and 2 were examined, and Exs.B.1 to B.4 were marked. After evaluating the evidence on record, the tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle’s driver and awarded compensation Rs. 1,73,000/- against respondents 1 and 2 with interest at 9% P.A. from the date of petition till realization. 7. Heard both the learned counsel. 8. After evaluating the evidence on record, the tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle’s driver and awarded compensation Rs. 1,73,000/- against respondents 1 and 2 with interest at 9% P.A. from the date of petition till realization. 7. Heard both the learned counsel. 8. During the hearing, learned counsel for the appellants (respondents in M.V.O.P.) has contended that the tribunal came to the conclusion based on the crime registration, which is adjudicated by the criminal court, to decide the negligence of the first appellant and mere filing of the charge sheet could not establish the rash and negligent driving of the first appellant and PW-2 did not mention the exact number of wounds in the wound certificate. The tribunal erred in granting Rs. 86,000/- towards treatment based on the essentiality certificate and the tribunal failed to note that the first respondent did not produce his driving license and prayed to allow the appeal by dismissing the claim petition. 9. Learned counsel for the respondent (claimant in M.V.O.P.) has supported the findings and observations of the tribunal. 10. The claimant sustained injuries in the accident is not disputed. However, the manner of the accident and the quantum of compensation awarded by the tribunal are disputed. Now the points for determination are: (I) Whether the tribunal erred in holding that the accident occurred due to the rash and negligent driving of the first respondent. (II) Whether the quantum of compensation fixed by the tribunal is just and reasonable or requires modification. POINT No. 1: (a) The claimant himself got examined as PW-1. In the chief examination, he narrated the manner of the accident. According to his evidence, on 27.02.2011, while he was going on the motorcycle, when he reached the water tank situated by the side of Tammavaam and Medarametla road, a tractor and trailer came in a rash and negligent manner and dashed the motorcycle. In support of his case, the claimant relied on Ex.A.1, F.I.R. and Ex.A.3, charge sheet. The second respondent, the offending vehicle’s owner, was examined as RW-2. In the cross-examination, RW-2 testified that he had not mentioned in his counter what he had stated in his chief examination affidavit. The tribunal has not given any credence to the evidence of RW-2. It is not in dispute that the police filed the charge sheet against the first respondent. In the cross-examination, RW-2 testified that he had not mentioned in his counter what he had stated in his chief examination affidavit. The tribunal has not given any credence to the evidence of RW-2. It is not in dispute that the police filed the charge sheet against the first respondent. The first respondent, the offending vehicle’s driver, is also examined as RW-1. In the chief examination, RW-1 testified that he was driving the offending vehicle from west to east, and he turned the tractor towards the southern side, showing the hand signal. The said evidence of RW-1 goes to show that despite noticing the coming of PW-1, RW-1 could not stop his vehicle. Except for the self-serving testimony of RW-1, no other evidence is placed before the court to substantiate his evidence. As seen from the evidence of RW-2, it is not his case that he was present at the time of the accident, and reading of RW-2’s evidence shows that he was informed by RW-1 about the manner of the accident. The evidence of RW-2 in chief affidavit is not helpful to the case of the first respondent regarding the manner of the accident, as his evidence is in the nature of hearsay. (b) It is elicited in the cross-examination of PW-1 that, as per Ex.A.4, rough sketch, he was going from east to west and the tractor was coming from west to east. In the evidence, RW-1 admitted that the tractor had to take a right turn to enter into the premises. Except for the said evidence, nothing is elicited in the cross-examination to discredit his evidence. It is not suggested to PW-1 that the accident occurred due to his negligence as contended in the counter and no effort was made in the cross-examination of PW-1 to establish that the accident occurred as stated in the counter. Though PW-1 was cross-examined at length, nothing was elicited in the cross-examination to discredit his testimony; hence, PW-1’s evidence is trustworthy and believable. This court sees no reason to disbelieve the evidence of PW-1. (c) The normal rule is for the petitioners to prove negligence. But in accident cases, hardship is caused to the petitioner as the true cause of the accident is not known to them but is solely within the knowledge of the respondent who caused it. This court sees no reason to disbelieve the evidence of PW-1. (c) The normal rule is for the petitioners to prove negligence. But in accident cases, hardship is caused to the petitioner as the true cause of the accident is not known to them but is solely within the knowledge of the respondent who caused it. It will then be for the respondent to establish the accident due to some other cause than his negligence. The Respondent places no evidence to show that the contents of the charge sheet are incorrect. (d) In K. Rajani vs. M. Satyanarayana Goud and Others, 2011 ACJ 1 this Court observed that “when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false.” (e) In Bheemla Devi vs. Himachal Road Transport Corporation, 2010 (4) ALD 217 the Hon'ble Apex Court observed as follows: “It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied.” (f) Nothing on record suggests that the Investigating Officer filed a charge sheet against the offending vehicle’s driver without conducting a proper investigation. It is also difficult to hold that the Police Officer fabricated a case. In a proceeding under the M.V. Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. The document having some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. As such, it is by now well settled that even F.I.R. or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of the happening of the accident. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. As such, it is by now well settled that even F.I.R. or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of the happening of the accident. (g) The Tribunal has accepted the claimants' case regarding the manner of the accident and also took the observations made by the Investigating Officer in the charge sheet making the offending vehicle's driver responsible for the accident. As observed, the charge sheet contents also support the claimants' case regarding the manner of the accident. The reading of the documents placed before the tribunal clearly shows that the accident occurred due to rash and negligent driving of the offending vehicle’s driver; when the appellant contends that the accident happened differently, it is to place necessary evidence before the tribunal based on which the tribunal expected to give its conclusion. Upon careful reading of the material on record, this Court views that the tribunal has correctly appreciated the evidence on record and the finding of the tribunal that the accident occurred due to rash and negligent driving of the offending vehicle holds good. Accordingly, the point is answered. POINT No. II (a) Regarding the quantum of compensation, the claimant relied on Ex.A.3, wound certificate, to show his injuries. The claimant sustained five grievous injuries per Ex.A.3, wound certificate. The claimant also examined PW-2, Dr. B. Suryanarayana, N.R.I. hospital, who deposed that PW-1 received six injuries. Out of them, five injuries are grievous in nature, and one injury is simple in nature. By taking into consideration the evidence of PWs. 1 and 2, the tribunal has given a finding that the claimant received five grievous and one simple injury and awarded Rs. 15,000/- each to the grievous injury and Rs. 2,000/- for simple injury and the total awarded Rs. 77,000/- under the head pain and suffering. (b) As seen from the evidence of PWs. 1 and 2, there is no serious dispute that the claimant sustained five grievous injuries. After considering the nature of the injuries, and the nature of treatment undergone, this court finds that the tribunal awarded a reasonable amount under the head pain and suffering. The claimant also adduced evidence regarding the treatment provided to him in the hospital. 1 and 2, there is no serious dispute that the claimant sustained five grievous injuries. After considering the nature of the injuries, and the nature of treatment undergone, this court finds that the tribunal awarded a reasonable amount under the head pain and suffering. The claimant also adduced evidence regarding the treatment provided to him in the hospital. He also relied on Ex.A.6, medical bills, which show that the claimant spent an amount of Rs. 85,315/-. To prove the nature of treatment undergone by him, he also examined the doctor as PW-2. According to the evidence of PW-2, the claimant was admitted in the hospital on 27.02.2011 and discharged on 24.03.2011. The evidence of PW-2 shows that after discharge, he advised the claimant to take bed rest for three months. The tribunal assessed the monthly earnings of the claimant at Rs. 5,000/- and awarded an amount of Rs. 10,000/- under the head loss of earnings; and awarded an amount Rs. 86,000/- towards medical expenses. The respondent has not raised any objection when marking the said documents. On the other hand, the claimant is able to establish the genuineness of the documents by examining the doctor who treated him. (c) After considering the material on record, this court views that the tribunal awarded a just and reasonable amount, as observed above. Though it is the case of the evidence of PW-1 that he sustained disability in the accident, the tribunal has not accepted the said case relying on the evidence of PW-2. In the cross-examination, PW-2 categorically stated that there is no disability to the claimant he is able to do work as earlier. As the said evidence of PW-2 shows that there is no disability, the tribunal rightly not granted any compensation under head of disability. As seen from the tribunal's order, the claimant has not considered the claimant's case to award the compensation under the heads attending charges, extra nourishment and transportation charges. The claimant has not preferred any appeal questioning the order passed by the tribunal with regard to the quantum of the compensation amount. This court views that the amount awarded by the tribunal under various heads are to be confirmed. Though the claimant is entitled to more than the amount awarded by the tribunal, this court is not inclined to consider the same in the facts and circumstances of the case. This court views that the amount awarded by the tribunal under various heads are to be confirmed. Though the claimant is entitled to more than the amount awarded by the tribunal, this court is not inclined to consider the same in the facts and circumstances of the case. Hence, I do not find any substance in the appeal; the appeal is devoid of merit, and accordingly, the appeal is liable to be dismissed. Accordingly, the point is answered. 11. Accordingly, the appeal is dismissed. No costs. 12. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.