Andhra HC (Pre-Telangana)
Oriental Insurance Co. Ltd. vs D. Kiran Kumar And Anr. on 11 April, 2007
Equivalent citations: 2007(6)ALD261
ORDER C.Y. Somayajulu, J.
1. Since these two appeals arise out of the same claim petition, they are being disposed of by a common order. For the sake of convenience, the parties to these appeals would hereinafter be referred to as they are arrayed in the Tribunal.
2. During the minority of the claimant, his father as his guardian filed a claim petition under Section 166 of the Motor Vehicles Act ('the Act') seeking compensation of Rs. 2,00,000/- from the respondents, who are the owner and insurer of the lorry bearing No. AP 28 T 6311 alleging that when the claimant and his friend were proceeding on a scooter, the driver of the lorry of the first respondent due to his rash and negligent driving dashed the lorry against the scooter resulting in grievous injuries to the claimant and consequent permanent disability to him.
3. First respondent chose to remain ex parte both before the Tribunal and in this Court.
4. Second respondent, insurer, after obtaining permission under Section 170 of the Act to take all the pleas that are open to the owner, filed a counter and additional counter inter alia contending that the accident occurred only due to the negligence of the claimant a minor, not having a licence to drive a motor cycle and so it is not liable to pay any compensation and in any event the amounts claimed by the claimant under various heads are highly excessive.
5. In support of his case the claimant, besides examining himself as P.W.2, examined his father as P.W.1 and the doctor, who gave disability certificate as P.W.3 and marked Exs.A1 to A16. No oral evidence was adduced by the second respondent-insurer. But Ex.Bl was marked by consent on its behalf.
6. On the basis that the driver of the lorry of the first respondent was charge-sheeted by police, and as the respondents did not adduce evidence to show that the accident did not occur due to the rash and negligent driving of the lorry of the first respondent, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry and awarded Rs. 1,13,735-20ps as compensation to the claimant against both the respondents.
7. Dissatisfied with the compensation awarded to him, the claimant preferred CMA No. 2721 of 2002 and aggrieved by the award passed against it, the insurer preferred CMA No. 2680 of 2002.
8. The points for consideration in these appeals are:
1. Due to whose negligence did the accident occur ?
2. To what compensation if any is the claimant entitled ?
9. Point No. 1 : The contention of the learned Counsel for the insurer is that since the claimant, who admittedly was not having a driving licence, was driving the scooter at the time of the accident and since the accident admittedly occurred at a junction when the claimant was joining the main road from a bylane, it is easy to see that the accident occurred only due to the negligence of the claimant, but not due to the negligence of the driver of the lorry. The contention of the learned Counsel for the claimant is that since the evidence of P.W.I clearly shows that the scooter was under repair and it was not being driven by anybody at the time of the accident and that the claimant and his friend were pushing the scooter to take it to a workshop and since the police, after investigation, charge-sheeted the driver of the lorry in connection with the accident and since the first respondent chose to remain ex parte though an allegation of rash and negligent driving is made against his driver, the finding of the Tribunal that the accident occurred due to the negligence of the driver of the lorry of the first respondent, cannot be said be wrong.
10. As P.W.1, admittedly, was not a witness to the accident, his evidence as to how the accident occurred cannot be taken into consideration. P.W.2-the claimant who initially stated that while he and his friend Venugopal "were proceeding on his scooter bearing No. APU 7626 from Regimental Bazar towards Secunderabad", later stated that as the scooter was under repair, they were "dragging it" and when they reached near Manohar Talkies near Kattalmandi, a lorry bearing No. AP 28 T 6311 coming from St. Francis School in a rash and negligent manner dashed against them and dragged them to 5 to 6 yards, resulting in grievous injuries to him. During cross-examination, he stated that he was not driving the scooter at the time of the accident and that the scooter belongs to his father. He admitted that he has no driving licence and that he does not know driving and that he does not know if his father has a licence and stated that he saw the lorry when it was about 5 to 6 feet away and as it was dark, he cannot say the colour of the lorry and admitted that the lights of the lorry were switched on at the time of the accident.
11. Ex. A1, copy of the first information report issued in connection of the accident shows that it was registered on the basis of the following statement of Venugopal a friend of the claimant, who was with the claimant at the time of accident, recorded by the police.
On 7-9-1997 at about 11.00 p.m. 1 along with my friend Kiran after visiting Ganesh Temple, Secunderabad while we were returning on the scooter bearing No. APU 7626 through Rejimental Bazar, Laltalim road towards Manohar Talkies when we reached Manohar Talkies Cross roads near Kattelamandi, one lorry came suddenly from St. Francis School road towards Uppalapati Nursing Home in a high speed without blowing horn. By that time, Kiran Kumar was driving the scooter and I was pillion rider. He was not able to control the scooter and we both went underneath the lorry along with scooter. Due to which we both fell down at the middle of the lorry and I received severe injuries all over the body and I do not know about my friend Kiran Kumar's condition. Somebody came to my rescue and shifted me to Gandhi Hospital for treatment and gave me a chit containing lorry No. AP 28 T 6317. Hence requested to take necessary action against the lorry driver.
From Ex.A1 it is clear that the accident took place when the claimant was driving the scooter involved in the accident. For reasons best known to the claimant, he did not examine his friend Venugopal who was with him at the time of accident.
12. Since the specific averment in the claimant petition is:
On 7-9-1997 at about 11.00 p.m. the petitioner and Venugopal were proceeding on scooter bearing No. ABU 7626 and when they reached Manohar Talkies cross roads, Secunderabad near Kattelamandi, one lorry bearing No. AP 28 T 6311 coming from St. Francis School road towards Uppalapati Nursing Home in high speed....
It is clear that the accident occurred when the claimant and his friend Venugopal were proceeding on the scooter. So the evidence of the claimant as P.W.2 that he and his friend were 'pushing the scooter' is an after thought, in view of the plea taken by the second respondent that inasmuch as the claimant, a minor, not having a driving licence, was driving the scooter, the accident occurred only due to his negligence. Since scooter mechanic shops would not normally be kept open after 9 or 10 p.m. it is difficult to believe the statement of P.W.2 that he and his friend were pushing the scooter to take it to the workshop at that time in the night. Therefore it is easy to see that the accident occurred when the claimant and his friend were proceeding on the scooter.
13. The claimant who produced several documents relating to his merit in sports and athletics, for reasons best known to him did not produce the certificate showing his date of birth. In the charge-sheet filed by the police against the driver of the lorry, which is marked as Ex.A2, the age of the claimant is shown as 15 years. In the claim petition also, the claimant described himself as a person aged about 15 years. The age of the claimant is also relevant to decide this point because Section 4 of the Act reads, No person under the age of eighteen years shall drive a motor vehicle in any public place : (Provided that (a motor cycle with engine capacity not exceeding 50 cc) may be driven in a public place by a person after attaining the age of sixteen years)....
14. Since the claimant is described as a person aged 15 years, it is clear that he did not attain the age of 16 years and so he should not drive a scooter in a public place. Probably, the claimant and his friend Venugopal might have taken out the scooter from the house for a ride during night without the knowledge of their parents. The averments in Ex.Al show that the claimant was 'unable to control the scooter' at the cross-roads. Therefore it can be inferred that the accident occurred due to the claimant not being able to control the scooter after seeing the lorry coming in his opposite direction when he was joining the main road from a by lane.
15. Ex.A2, charge-sheet, does not disclose any punch of scene of accident being conducted by the police. It shows that the Investigation Officer on the basis of the statements of the appellant and his friend and the witnesses examined by him arrested the driver of the lorry and sent him to remand. None of the persons cited as eye-witnesses to the accident in Ex.A2 are examined by the claimant. The exact place of impact, the positions of the vehicles involved in the accident, after the accident is not known, as there is no such evidence on record. In the above circumstances merely on the basis that the driver of the lorry involved in the accident was charge-sheeted it cannot be inferred that the accident occurred due to the negligence of the driver of the lorry.
16. Since the accident occurred during night time, at the cross-roads even if any of the drivers involved in the accident were careful, they could have averted the accident. Since Ex.A1 shows that the claimant could not control the scooter, he must have been driving the scooter at a high speed and so he might not been unable to control it. For that reason and since the owner of the lorry chose to remain ex parte inspite of an allegation being made that the accident occurred due to his driver's negligence, the accident can be said to have occurred due to 50% negligence or contributory negligence of the claimant. So, I hold that the accident occurred due to 50% negligence of the claimant and due to 50% negligence of the driver of the lorry of the first respondent. Point is answered accordingly.
17. Point No. 2:-The evidence of PW2-the claimant, is that he received injuries on the left leg, head, stomach and suffered a fracture and underwent two operations and skin drafting and was an inpatient in Gandhi Hospital for two months and later he took treatment in a private nursing home and that he is not able to walk and sit properly and is unable to play and cannot fold his leg completely and lost memory power and is getting frequent head-ache and giddiness and is unable to participate in sports and other activities and that he used to play Volley ball and Chocho and other games and sports and was awarded a green belt in Karate.
18. For reasons best known to him, the claimant did not summon the case-sheet from the Gandhi Hospital where he underwent treatment for two months. Ex.A-3, wound certificate relating to the claimant, shows that he had a laceration over the abdomen, upper thigh, left side muscle deep size 30 x 30 cm, laceration 30 x 30 cm left leg and was referred to duty surgical officer after advising X-ray to pelvic region left leg excluding both the joints, X-ray of chest and head. Ex.A4 is the letter addressed by the Superintendent, Gandhi Hospital to the Inspector of Police forwarding the original of Ex.A3 to him. Ex.Al6 is a duplicate discharge card said to have been issued by Dr. G. Venkata Reddy, professor and civil surgeon, Orthopedics, Gandhi Hospital, Secunderabad. The claimant did not explain the reason why the original is not produced. Ex.A16 cannot be taken into consideration for deciding this case because it does not contain the stamp of the Gandhi Hospital, and the person who affixed his signature to Ex.A16 is not known. It is not proved by summoning somebody responsible from Gandhi Hospital. Had the claimant taken steps to summon the case-sheet maintained by the Gandhi Hospital, it would have revealed for how long he underwent treatment there. Even Ex.A16 shows that the date of admission as 7-9-1997, date of operation as 6-10-1997 and date of discharge as 3-11-1997, and that the claimant had a crush injury on the left thigh with pelvic fracture and that split skin grafting was done and was discharged after prescribing some medicines. In view of Ex.A16 read with Ex.A3 it can be taken that besides suffering crush injuries, the claimant suffered fracture of the pelvic bone and underwent skin grafting. So, he must have undergone pain and suffering for which Rs. 20,000/- would be a reasonable amount of compensation.
19. Ex.A5 discharge record issued by Jagadamba Nursing Home dated 29-11-1997 does not disclose the reasons for the claimant joining that nursing home. It only shows that he was admitted on 29-11-1997 and was discharged on 3-12-1997 after giving medical treatment. Significantly the claim petition filed on 10-12-1997 does not disclose about the claimant undergoing treatment in Jagadamba Nursing Home, in Col. No. 12 of the claim petition relating to 'name and address of the medical practitioner. If any who attended on the injured', it is stated duty medical officer, Gandhi Hospital. No other hospital is mentioned therein and in Col. 13, it is stated that still undergoing treatment which means that the claimant was given the treatment in Gandhi Hospital but not elsewhere.
20. Though the claimant did not examine the doctor, who treated him, assuming that the appellant incurred the expenditure by purchasing the medicines etc., as per the bills produced by him, since all those bills show that he spent Rs. 15,735/- for purchase of medicines etc., and assuming that they are some of the bills and that he might have spent some more, Rs. 20,000/- can be awarded under the head of purchase of medicines.
21. Since the claimant seems to have undergone treatment for about two months in the hospital, he can be awarded Rs. 5,000/- towards attendant charges, Rs. 5,000/- towards transport to hospital, Rs. 5,000/- towards extra nourishment.
22. Since the claimant admittedly was a student, no compensation need be awarded towards loss of earnings during the period of treatment. It is the case of the claimant that since he lost his studies for about one year due to the accident and since he spent a huge amount towards school fee, he is entitled to the amount spent as school fee, he produced Exs.A12 and Ex.A13 in that regard. Ex.A12 is the certificate issued by Satyam Public School stating that the total expenditure on a student in Class XI is Rs. 17,400/- per year and in Ex.A13, it is stated that they received Rs. 19,200/- towards the fees for 1998-99 and Rs. 11,100/- towards the fees for 1999-2000. So from Ex.A.13, it is clear that the claimant studied in Satyam Public School during the years 1998-99 and 1999-2000. The claimant did not adduce any evidence to show that because of the injuries suffered by him in the accident, he could not appear to the annual examination and that he did not get through the annual examination for that year and that he had to study the same class for the next year. Since Ex.A13 shows that he continued his studies, it is clear that the claimant continued his studies even after the accident. So, no compensation need be awarded to the claimant towards loss of any academic year because there is no evidence in that regard.
23. Coming to the continuing permanent disability, the claimant examined P.W.3 the doctor, who gave Ex.A15 disability certificate. The evidence of P.W.3 is that in case of the crush injury to the left thigh calf and fracture to the pelvis the estimated disability will be about 55% which is of permanent in nature. The claimant produced Ex.A14 photographs, which show disfiguration of the pelvis and left thigh and left calf. The disfiguration of the left abdomen, left thigh and left calf would not hamper his earning capacity or earnings. They only cause inconvenience to him. On what basis P.W.3 arrived at 55% disability is not known. As stated earlier, the disability, even if true, does not cause any loss of earnings or earning capacity. For the inconvenience and disfiguration, the claimant has to be compensated by paying reasonable amount. In the facts and circumstances of the case, I am of the considered opinion that an amount of Rs. 1,00,000/- (Rupees one lakh only) would be a reasonable amount of compensation for the disfiguration suffered by the claimant.
24. Therefore, the claimant would have been entitled to Rs. 20,000/- + 20,000/- + 5,000/- + 5,000/- + 5,000/- + 1,00,000/- = Rs. 1,55,000/- as compensation for the injuries suffered by him in the accident, but as I held that the accident occurred due to 50% negligence or contributory negligence of the claimant himself and 50% negligence of the driver of the respondent, he is entitled to 50% compensation, i.e. Rs. 77,500/-. The point is answered accordingly.
25. In the result, an award is passed for Rs. 77,500/- (Rupees seventy seven thousand and five hundred only) in favour of the claimant against the respondents with interest at 9% per annum from the date of petition till the date of deposit with proportionate costs in the Tribunal. The rest of the claim of the claimant is dismissed without costs. Parties are directed to bear their own costs in these appeals.