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2023 DIGILAW 381 (AP)

Paidi Chandrasekhar v. S. Murasha

2023-02-14

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order and decree dated 14.09.2006 in M.V.O.P. No.237 of 2004 passed by the Chairman, Motor Accidents Claims Tribunal-cum-VII Additional District Judge, Madanapalle (for short, "the tribunal"), the claimant has preferred this appeal for enhancement of the compensation. 2. For convenience, the parties herein will be referred to as per their rankings in the M.V.O.P. 3. The claimant filed a petition under Section 166 (1) of the Motor Vehicles Act, 1988, for compensation of Rs.4,00,000/- on account of the injuries sustained in a motor vehicle accident that occurred on 13.02.2004. 4. The claimant's case is that on 13.02.2004, at about 10.45AM, the petitioner as a pillion rider of the motorcycle bearing No.KA05EP4621 was proceeding on from ANgallu – Kadari road and at that time the lorry bearing No.AP A 1809 (hereinafter as referred to as the "offending vehicle"), in a rash and negligent manner and at high speed without blowing the horn, dashed the claimant's motorcycle. The claimant fell on the road and sustained injuries. Immediately, he was taken to the Government Hospital, Madanapalle, obtained treatment there and was shifted to CMC Hospital, Vellore and took treatment there from 13.02.2004 to 02.03.2004 and again he was joined on 24.03.2004 to 10.04.2004 and also again he admitted on 29.06.2004 and till today he was undergoing treatment. The petitioner spent nearly a sum of Rs.3,00,000/-to-wards medicines, a sum of Rs.75,000/-towards extranourishment and Rs.30,000/-towards transportation and attendant charges. 5. The respondents 1 and 3 were remained exparte. 6. The respondents 2 and 4 filed written statements separately. 7. The 2nd respondent filed written statement denying the petitioner’s age, avocation, injuries treatment, expenditure and permanent disability, the injuries will not constitute any partial or permanent disability as contemplated under law and did not mention his percentage of disability. If there is any disability that would be proved by producing a medical certificate issued by the medical board constituted for the said purpose. The respondent denied the relation ship of employer and employee between 1st respondent and the alleged accident occurred during the course of alleged employment. If there is any disability that would be proved by producing a medical certificate issued by the medical board constituted for the said purpose. The respondent denied the relation ship of employer and employee between 1st respondent and the alleged accident occurred during the course of alleged employment. The petitioner is also put to strict proof as to whether the driver of offending vehicle as well as himself were possessing any valid and effective driving license to drive the said vehicle and that the offending vehicle was carrying any valid permit and fitness certificate and the offending vehicle was insured at the time of accident. The accident occurred due to negligence of driver of two wheeler. 8. The 4th respondent filed written statement and denied that there was no rash and negligent driving on the part of the driver of motorcycle bearing No.KA05KP4621. Hence, the insurer has no liability to pay compensation. The offending vehicle is insured with 2nd respondent. The accident occurred due to rash and negligent driving of driver of offending vehicle only. 9. Based on the pleadings, the tribunal framed relevant issues. To substantiate the claim, during the trial, on behalf of claimants, P.Ws. 1 and 2 got examined and marked Exs. A.1 to A.11. On behalf of the respondents, no oral evidence adduced, but the policy copy got marked as Ex.B.1. 10. After appreciation of oral and documentary evidence, the tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver and awarded compensation Rs.2,11,000/- together with interest at 7.5% p.a. payable by the respondents 1 and 2 from the date of petition till the date of realization. The petition against the respondents 3 and 4 is dismissed. 11. I have heard the learned counsel representing both parties. 12. In the grounds of appeal, learned counsel for the appellant/claimant contended that the tribunal erred in restricting the claim of appellant; tribunal ought to have been accepted the evidence of PW.2/doctor who issued Ex.A9 Permanent Disability Certificate. The Tribunal ought to have applied the multiplier method in assessing the compensation. The Tribunal ought to have awarded Rs.3,00,000/-towards medical expenses instead of Rs.75,000/-towards extra nourishment and Rs.30,000/-towards transportation charges and not awarded loss of past earnings. 13. Per contra, learned counsel appearing for the third respondent has supported the findings and observations of the tribunal. 14. The Tribunal ought to have applied the multiplier method in assessing the compensation. The Tribunal ought to have awarded Rs.3,00,000/-towards medical expenses instead of Rs.75,000/-towards extra nourishment and Rs.30,000/-towards transportation charges and not awarded loss of past earnings. 13. Per contra, learned counsel appearing for the third respondent has supported the findings and observations of the tribunal. 14. Upon hearing the argument of both the learned counsel and having perused the record, the point that has arisen for consideration is whether the quantum of compensation awarded by the tribunal is just and reasonable? POINT: 15. The tribunal’s findings that the accident occurred on account of negligent driving of offending vehicle’s driver and the claimant sustained injuries in the said accident are not disputed by the respondent by filing cross-appeal or cross-objection by respondents 1 and 2, though the petition is dismissed against the respondents 3 and 4, the claimant has not questioned the said finding of the tribunal despite filing of this appeal. Hence this finding has also attained finality. 16. The tribunal’s finding that the policy Ex.B.1 to the offending vehicle was in force and subsisting at the time of accident is not disputed by the insurance company by filing appeal or cross objections. It also attained finality. It is the evidence of P.W.1 that he received fracture of his right leg. He was shifted to Government Hospital, Madanapalle immediately; on the same day he went to CMC Hospital, Vellore for about 45 days. He was admitted at CMC Hospital for 3 times in total and stayed in the hospital for 45 days ; visiting the hospital for every 15 days for checkup. The said case of the petitioner is accepted by the Tribunal and the said evidence of PW.1 is not seriously disputed by the respondents 1 and 2. Further in support of his case the claimant relied on Ex.A2 certified copy of wound certificate. It shows that PW.1 sustained the following injuries ; 1) Open fracture of lower end of femur right lower end of femur projecting out through a wound of 12x10 Cms Articular end of femur fractured. 2) Clinical fracture both bones of right leg upper third. 3) Lacerated injury of 10 x 5 Cms present over middle of leg. 17. According to the opinion of the doctor, the injuries 1 and 2 are grievous in nature and injury No.3 is simple in nature. 2) Clinical fracture both bones of right leg upper third. 3) Lacerated injury of 10 x 5 Cms present over middle of leg. 17. According to the opinion of the doctor, the injuries 1 and 2 are grievous in nature and injury No.3 is simple in nature. The petitioner got examined PW.2 -Dr.K.Viswakiran Reddy, Orthopaedic Surgeon to prove the disability certificate issued by him. His evidence shows that on 20.01.2006 he examined PW.1 and issued Ex.A9 Permanent disability certificate. PW.1 sustained fracture of right femur lower 1/3rd fracture of right tibia. He was treated in CMC Vellore. On examination he found that PW.1 was walking with the help of hand stick, his knee movements are terminally restricted and he cannot squat. PW.1 cannot walk long distance even with the help of stick; PW.1 cannot walk on uneven surface. The disability is assessed 60%. From the reading of the evidence of PW.2 shows that he did not treat the injured and has not issued certificate as a Medical Board Member. His evidence in cross examination shows that he did not mention in Ex.A9 about the tests conducted by him and the data basing on which he assessed the percentage of disability. However, the Tribunal accepted his evidence and granted compensation amount of Rs.50,000/-under the head of disability. The petitioner has not given reasons for not examining the doctor who treated him. It is not the case that he was examined by the Medical Board to assess the disability. The finding of the Tribunal awarding compensation under the head of disability is not disputed by the respondents 1 and 2. Even otherwise, after considering the evidence of PW.2, the said amount awarded under the disability can be taken as under the head of loss of amenities basing on the physical condition of the petitioner which is observed by the qualified doctor as the said version is not disputed by the respondents. As such, this court is inclined to confirm the said amount awarded by the Tribunal. The evidence of PWs.1 and 2 shows that, PW.1 sustained two fractures. The Tribunal awarded Rs.36,000/-under the head of pain and suffering. The Tribunal awarded an amount of Rs.1,00,000/-towards medical expenses. The petitioner has relied on medical bills the petitioner spent more than Rs.1,60,000/-. The Tribunal has not given any reason for not accepting all medical bills relied by the petitioner. The Tribunal awarded Rs.36,000/-under the head of pain and suffering. The Tribunal awarded an amount of Rs.1,00,000/-towards medical expenses. The petitioner has relied on medical bills the petitioner spent more than Rs.1,60,000/-. The Tribunal has not given any reason for not accepting all medical bills relied by the petitioner. After carefully going through the medical bills which genuineness is not disputed by the respondents. This court views that amount of Rs.60,000/-to be awarded in addition to the amount awarded by the Tribunal under medical expenses. The petitioner relied on Ex.A6 transportation bills, which shows that the petitioner spent an amount of Rs.17,500/-, but the Tribunal awarded an amount Rs.10,000/-to-wards transportation charges. Thus, an additional amount of Rs.7,500/-to be awarded towards transportation charges. The Tribunal awarded only an amount Rs.10,000/-towards extra nourishment, This Court views that an additional amount of Rs.10,000/-to be awarded under this head. The Tribunal awarded only an amount of Rs.5,000/-towards attendant charges, this court views that an additional amount of Rs.10,000/-under this head. 18. In all, this Court is inclined to enhance the compensation under various heads in addition to the compensation awarded by the Tribunal, as detailed hereunder: S. No. Head of the claim Enhanced Compensation 1. Medical expenses Rs.60,000/- 2. Transportation Charges Rs.7,500/- 3. Extra nourishment Rs.10,000/- 4. Attendant charges Rs.10,000/- Total Rs. 87,500/- 19. After considering the material on record, this Court is inclined to award a sum of Rs.87,500/-in addition to the award passed by the Tribunal. In all, the claimant is entitled to an amount of Rs.2,98,500/- (Rs.2,11,000+ Rs.87,500/-). Accordingly, the point is answered. 20. In the result, the appeal is partly allowed, enhancing the compensation from Rs.2,11,000/- to Rs.2,98,500/-with interest at 7.5% per annum from the date of the petition. The respondents 1 and 2 are directed to deposit the compensation within two months, after excluding the already amount deposited, from the date of receipt of a copy of this order. On such deposit, the claimant is entitled to withdraw the compensation amount by filing an appropriate application before the Tribunal. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.