Telangana High Court
Jakkula Shanker, Nizamabad vs Mr. Mohd. Mohiuddin, Adilabad And ... on 30 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1935 of 2015
JUDGMENT:
This appeal is filed by the appellant-claimant aggrieved by the order and decree, dated 05.10.2009 passed in O.P.No.40 of 2005 on the file of the Motor Accident Claims Tribunal (VIII Additional District Judge), Nizamabad (for short, the Tribunal).
2. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Tribunal.
3. Brief facts of the case are that the claimant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.6,00,000/- for the injuries sustained by him in a motor vehicle accident. It is stated that on 27.02.2004, the claimant and his brother-in-law Bhoosa Narahari were going on Scooter bearing No.AP 25 G 3123 from Bheemgal to Armoor and when they reached the limits of Pachalnadkuda Village, another Scooter bearing No.AP 1 C 1135 driven by its driver in a rash and negligent manner at high speed and dashed the scooter of the claimant, due to which the claimant fell down and sustained injuries. Immediately after the accident, the claimant was 2 GSD, J Macma_1935_2015 shifted to Government Hospital, Nizamabad and later he was admitted in Aparna Hospital, Armoor and he spent huge amount of Rs.2,00,000/- towards medical expenses. Since the accident occurred only due to the rash and negligent driving of the driver of the Scooter bearing No.AP 1 C 1135, the claimant filed the aforesaid O.P. against the respondents 1 and 2, who are the owner and insurer of the said Scooter, respectively.
4. Before the Tribunal, the 1st respondent remained ex parte and the 2nd respondent filed counter denying all the allegations including the manner in which the accident occurred. It is also alleged that there was a delay of 55 days in lodging the F.I.R. and it shows serious doubt about the occurrence of the accident and that there was collusion between the claimant and the 1st respondent and as such the insurance company is not liable to pay the compensation.
5. Basing on the above pleadings, the following issues are framed before the Tribunal:-
1) Whether the accident has taken place due to rash and negligent driving of the vehicle bearing No.AP 1 C 1135 Scooter by its driver?3
GSD, J Macma_1935_2015
2) Whether the petitioner is entitled for compensation. If so, to what just amount and against whom?
3) To what relief?
6. During trial, on behalf of the claimant, P.Ws.1 to 3 were examined and got marked Exs.A1 to A15. On behalf of the respondents, no oral evidence was adduced but Ex.B1- certificate of insurance was marked.
7. After considering the oral and documentary evidence available on record, the Tribunal dismissed the claim-petition on the ground that after the delay of 55 days the claimant filed the private complaint by falsely implicating the scooter of the 1st respondent only to get compensation. Aggrieved by the said order, the claimant filed the present appeal.
8. Even though the matter pertains to the year 2015, none represents on behalf of the 2nd respondent -Insurance Company. In order to give a quietus to the litigation, this Court appoints Ms.P.Satya Manjula, who is also one of panel advocate for the 2nd respondent-insurance company, to argue on behalf of the 2nd respondent. Hence, heard Sri L.Dayakar Reddy, learned Counsel for the appellant and Ms.P.Satya Manjula, learned Counsel 4 GSD, J Macma_1935_2015 appearing for the 2nd respondent-Insurance company and perused the record.
9. The point that arises for consideration in this appeal is whether the claimant has proved the involvement of the Scooter bearing No.AP 1 C 1135 in the accident and, if so, what is the just and reasonable compensation to which the claimant is entitled to?
10. It is the case of the claimant that on 27.02.2004 while he, along with his brother-in-law, was proceeding on Scooter and when they reached the limits of Pachalnadkuda village, one Scooter bearing No.AP 1C 1135 came in opposite direction and on wrong side of the road at high speed and dashed the scooter on which the claimant was proceeding, due to which, the claimant sustained grievous injuries. Immediately after the accident, the claimant was shifted to Government Hospital, Nizamabad, where after giving first aid he was referred to Hyderabad for better treatment, therefore he was admitted in Udai Clinic Hyderabad and later he was admitted in Aparna Hospital, Armoor, where he took treatment from 13.04.2004 to 5 GSD, J Macma_1935_2015 22.04.2004. Undoubtedly, there was delay of 55 days in lodging the first information report. The record reveals that a private complaint has been filed by the brother-in-law of the appellant, which was referred to the police and on such reference the F.I.R. was registered and after completion of investigation the police filed Ex.A2-charge sheet, which was taken cognizance as C.C.No.854 of 2004 on the file of the Judicial Magistrate of First Class, Armoor and the accused admitted his guilt and the learned Magistrate convicted and sentenced him to pay a fine of Rs.1,000/-. The contents of Ex.A3-Injury Certificate would show that the petitioner was brought to Uday Clinic, Hyderabad on 28.02.2004 on 28.02.2004 and in the column "Brief History of the case" it is mentioned that the patient alleged to have been met with R.T.A. on 27.02.2004 at 6.30 p.m. at Pachalandukula hit by Scooter. Having regard to these facts, it can be safely concluded that the Scooter bearing No.AP 1 C 1135 was the vehicle which caused accident to the appellant.
11. It is true that there is delay in lodging the first information statement. But, the delay itself will not take away the right of the appellant if there is an acceptable explanation 6 GSD, J Macma_1935_2015 for the delay. As already noted above, since the police did not register the case, the brother-in-law of the appellant lodged private complaint, which was referred by the Court to the police. Under these circumstances, the delay can be condoned. In this regard, I rely upon the decision of the Apex Court rendered in the case of Ravi v. Badrinarayan and others1, wherein it is held as hereunder;
"The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons. If the court finds that there is no indication of 1 AIR 2011 SC 1226 7 GSD, J Macma_1935_2015 fabrication or it has not been concocted or engineered to implicate innocent persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."
12. It is also to be noted that in a claim for compensation under Section 166 of Motor Vehicles Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by the Hon'ble Supreme Court in the decision rendered in Bimla Devi Vs. Himachal Road Transport Corporation2. After the investigation, the investigating officer has filed charge sheet against the rider of the offending Scooter concluding that the accident was occurred only due to his negligence. In view of above reasons, the tribunal ought to have held that the appellant sustained injuries due to the rash and negligent riding of the Scooter bearing No.AP 1 C 1135 by its rider. Hence, this Court held that the accident occurred only due to the rash and negligent driving of the rider of the Scooter bearing No.AP 1 C 1135.
2 AIR 2009 SC 2819 8 GSD, J Macma_1935_2015
13. Since this Court has decided that it is the Scooter that has caused the accident, now this Court is inclined to determine the compensation basing on the evidence adduced before the Tribunal. As per Ex.A3-Injury Certificate, the petitioner has sustained compound fracture of both bones of right leg. The contents of Ex.A7-discharge summary issued by the Udai Clinic, Hyderabad would show that the appellant was admitted in the hospital on 28.02.2004 with Grade III B Compound fracture of both bones of right leg with extensive loss of skin and segmental loss of tibia 5" right and wound debridement and external fixation was done on 28.02.2004, hemisoleus reverse flap and skin grafting was done on 05.03.2004 and secondary close of S.S.G. done on 27.03.2004 and he was discharged on 03.04.2004. At the time of discharge the doctors informed the appellant that the wound require multiple operation and may take upto two years and beyond for the fracture to heal and he was also told that the amputation may have to be considered if attempts at reconstructions are not successful. P.W.2, the doctor, who treated the appellant in Udai Clinic deposed that the appellant was treated by a team of Orthopaedic Surgeons 9 GSD, J Macma_1935_2015 including plastic surgeons, the wound debridement was done and external fixator was applied. He further deposed that Exs.A3, A6 and A7 were issued by the hospital authorities, Ex.A8 is the hospital bill and Exs.A9 to A10 are issued by Udai Clinic and Ex.A11 (47) medical bills were purchased on the advice of doctors at Udai Clinic. P.W.3, who is consultant Orthopaedic Surgeon in Aparna Hospital, Armoor, deposed that the appellant came to his hospital on 13.04.2004 and on examination he noticed external fixable and raw area on right leg and the appellant was externally treated at Uday Clinic, Hyderabad, for fracture of both bones of right leg from 28.02.2004 to 03.04.2004. He further deposed that surgery was performed by applying external fixator and skin grafting and the amputation of right leg below knee was performed on 14.04.2004 and he was discharged on 22.04.2004. Though no disability certificate has been produced by the appellant, the fact remains that the right leg of the appellant was amputated below the knee, more particularly when the insurance company has not contradicted the said evidence before the Tribunal. Therefore, on guess work, this Court inclined to fix the permanent disability at 25%. 10
GSD, J Macma_1935_2015 In view of the nature of disability sustained, the appellant is entitled to loss of earnings due to disability.
14. The contention of the learned Standing Counsel for the Insurance Company is that no document has been filed to prove the income of the appellant. In Latha Wadhwa vs. State of Bihar3 the Apex Court held that even there is no proof of income and earnings, it can be reasonably estimated minimum at Rs.3,000/- per month for any non-earning member. Therefore, this Court is inclined to take the income of the appellant at Rs.3,000/- per month. In view of the judgment of Sarla Verma Vs. Delhi Transport Corporation4, the suitable multiplier to be adopted for calculating the loss of earnings would be '14' as the appellant was aged about 45 years at the time of accident. Therefore, the loss of earnings on account of his 25% disability would be Rs.3,000/- x 12 x 14 x 25/100 = Rs.1,26,000/-. As per Exs.A8 to A11, the appellant has spent a considerable amount towards hospital charges and medical expenses. Therefore, this Court inclined to award an amount of 3 (2001) 8 SCC 197 4 2009 ACJ 1298 11 GSD, J Macma_1935_2015 Rs.75,000/- towards medical expenses. Apart from the above this Court inclined to award an amount of Rs.15,000/- towards transportation, extra nourishment and attendant charges and Rs.12,000/- towards loss of income during the period of treatment for a period of four months and Rs.30,000/- under the head of pain and suffering. Thus, in all the appellant is entitled to Rs.2,58,000/-(Rs.1,26,000/- towards loss of earnings on account of disability; Rs.75,000/- towards medical expenses; Rs.15,000/- towards transportation, extra nourishment and attendant charges and Rs.12,000/- towards loss of income during the period of treatment and Rs.30,000/- towards pain and suffering).
15. In the result, the appeal is allowed by setting aside the order and decree, dated 05.10.2009 passed in O.P.No.40 of 2005 on the file of the Motor Accident Claims Tribunal (VIII Additional District Judge), Nizamabad. The appellant/ claimant is awarded compensation of Rs.2,58,000/- with interest @ 7.5% per annum from the date of petition till the date of realisation. Both the respondents are jointly and severally liable to pay the 12 GSD, J Macma_1935_2015 said amount and they are directed to deposit the said amount within two months from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw 50% of the amount without furnishing any security and the remaining 50% shall be kept in F.D.R. in any Nationalised Bank for a period of one year. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
___________________ JUSTICE G. SRI DEVI 30.06.2022 gkv