Andhra Pradesh High Court - Amravati
Bade Gurumurty Guruvulu vs K. Koteswara Rao And 2 Others on 1 October, 2019
Author: M. Ganga Rao
Bench: M. Ganga Rao
HON'BLE JUSTICE SRI M. GANGA RAO
MACMA. NO.1912 OF 2007
JUDGMENT:
The appellant is the injured claimant filed this appeal under Section 173 of Motor Vehicle Act, 1988 against the award and decree dated 04.06.2007 passed in M.O.P.No. 368 of 2004 by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Vizianagaram. Whereby, the Tribunal granted compensation of Rs.23,500/- along with interest 7.5% p.a against the claim of Rs.1,00,000/- with 12% p.a. for 15% partial and permanent disability sustained by the appellant due to injuries sustained in the motor accident occurred on 30.04.2004.
2. The appellant filed the claim petition under Section 166 of Motor Vehicle Act, 1988 read with Rule 455 of Motor Vehicle Rules, 1989 alleging that appellant was returning by cycle from Goddupalem village in order to go to his village Barripeta and on the way at 7-00 p.m when he reached Nathavalasa junction, a lorry bearing registration No.AP 7 U 4329 came behind him and hit the appellant in a rash and negligent manner at high speed, as a result of which, appellant sustained grievous injuries. The Denkada police station registered a crime in Cr.No.48 of 2004 under Section 338 IPC. As a fishermen, the appellant used to earn Rs.100/- per day, was aged about 40 years, he was hale and healthy at the time of accident. Because of injuries sustained in the accident, he lost his source of income.
3. The respondent Nos.1 and 2 remained exparte and 3rd respondent-insurance company filed counter denying all material MGR, J M.A.C.M.A.No.1912 of 2007 2 aspects of the claim petition. Based on the pleadings of the parties, the Tribunal framed the following issues for its consideration:
i. Whether the accident occurred due to rash and negligent driving of lorry bearing registration No.AP 7 U 4329 ? ii. Whether the petitioner is entitled for any compensation, if so, from which of the respondents ?
iii. To what relief ?
4. At trial, before the Tribunal, the appellant himself was examined as PW.1 and PW.2 & PW.3, Doctors were examined on his behalf, Ex.A1 to Ex.A5 and Ex.X.1 and Ex.X.2 got marked. On behalf of respondent No.3 insurance company nobody was examined and Ex.B.1, insurance policy was marked.
5. The Tribunal considering the evidence of PW.1 coupled with Ex.A.1, copy of F.I.R and Ex.A3, copy of M.V.I. report, Ex.A.4, true copy of charge sheet, rightly came to conclusion that the accident occurred due to rash and negligent driving of the driver of the offending lorry bearing registration No.AP 7 U 4329. In the absence of any contrary evidence available on record, the finding of the Tribunal that the accident was occurred due to rash and negligent driving of the offending vehicle by its driver could not be found fault with. The Tribunal based on the evidence of PW.1 and considering the Ex.A2, copy of wound certificate issued by the Doctor, who treated the appellant in the Government Hospital, Vizianagaram, reveals that the appellant sustained the following injuries :-
i. A lacerated injury on right thigh of size 16 x 10 x 4 cm ii. Lacerated injury over posterior aspect of left knee joint MGR, J M.A.C.M.A.No.1912 of 2007 3 iii. Multiple abrasion of various sizes vertical on left lower limb and right lower limb and necessary X-ray was taken which reveals fracture of fibula right.
6. As per the testimony of PW.2, he worked as Civil Assistant Surgeon, Government Headquarters Hospital, Vizianagaram, who treated the appellant on 13.04.2004 states that the appellant was admitted in the hospital with multiple injuries including fracture of right fibula and he underwent operation on 16.04.2004 in the hospital with wound debridment and application of knee P.O.P slab and Ex. X.1 is the corresponding case sheet maintained by the hospital and Ex.X.2 is the corresponding X-ray. The appellant was given free treatment in the hospital. As per the testimony of PW.3, who worked as Civil Assistant Surgeon, Government Hospital, Vizianagaram, on 22.08.2005 he examined the appellant in the hospital, he verified wound certificate and latest X-ray and he found malunitied fracture of right fibula with mild stiffness of right knee joint and he is Member of the District Medical Board, Vizianagaram along with the other member and Chairman. On examination of the appellant on 22.08.2005, he issued Ex.A.5-disability certificate, assessing the disability of the appellant as 15% partial and permanent. On account of disability, the appellant has difficulty in prolonged walking, squatting and doing hard labour. However, the Tribunal disbelieved Ex.A.5, disability certificate, as it did not refer to the physical problems of the appellant. But, however, believing the wound certificate, nature of injuries and probable pain and suffering, Rs.12,000/- is awarded for the grievous injury and Rs.2,000/- is MGR, J M.A.C.M.A.No.1912 of 2007 4 awarded for the two simple injuries. Further the Tribunal granted Rs.3,000/- in all for extra nourishment and transportation to the hospital. The Tribunal has taken monthly income of the appellant as Rs.1,500/- being reasonable in the absence of evidence and granted Rs.4,500/- for three months towards loss of his earnings. No amount was granted for 15% partial and permanent disability.
7. In the facts and circumstances of the case, considering the submissions of counsel and perused the record, this Court having considering the evidence of PW.2 and PW.3 and Ex.A.5, Disability certificate issued by PW.3 being Member of the District Medical Board, Vizianagaram along with the other member and Chairman, assessed that the appellant suffered 15% partial and permanent disability. On account of disability, the appellant has difficulty in prolonged walking, squatting and doing hard labour work. The Tribunal grossly erred in disbelieving the testimony of PW.3, Doctor, who examined the appellant on 22.08.2005 and issued Ex.A.5, Disability certificate on the ground that there is no mention in Ex.A.5 about mathematical calculations in arriving the percentage of disability and no physical problems mentioned in Ex.A.5. There is no reason for the Tribunal to disbelieve the evidence with regard to the daily earning of the appellant at the rate of Rs.100/- per day being fishermen aged 40 years hale and healthy what evidence he could produced in support of his earnings. In view of the decisions of the Hon'ble Supreme Court, the Tribunal ought to have been taken the reasonable monthly income of the appellant as Rs.3,000/- instead of Rs.1,500/-. Hence, this Court has taken the monthly income of MGR, J M.A.C.M.A.No.1912 of 2007 5 appellant as Rs.3,000/-. This Court having considered the evidence of PW.2 and PW.3-doctor who issued Ex.A.5-disability certificate, came to conclusion that the appellant suffered 15% partial and permanent disability. The Tribunal committed grave error in not granting compensation for disability. The appellant is entitled for compensation towards 15% partial and permanent disability would be computed to Rs.86,400/- (Rs.3,000/- x 12 = Rs.36,000/- X 16 X 15%). The multiplier 16 is taken as the appellant was aged about 40 years at the time of the accident. The appellant was bed ridden for three months and towards loss of earnings appellant is entitled for Rs.9,000/- at the rate of Rs.3,000/- per month and Rs.3,000/- for extra nourishment and transportation. Rs.14,000/- for pain and suffering. Hence, this Court felt it just to grant total compensation of Rs.1,12,400/- to the appellant along with interest @ 7.5% p.a from the date of petition till the date of realization against the claim of Rs.1,00,000/-. In view of the decision of Hon'ble Supreme Court in Nagappa Vs Gurudayal Singh and others1 wherein it is held that under the provisions of Motor Vehicle Act, there is no restriction that the compensation should be awarded only to the extent of claim made by the appellants. The just compensation should be awarded. The appellant shall pay the court fee for amount granted over and above the claim petition. The respondent No.2 and 3 jointly and severally liable to pay the compensation of Rs.1,12,400/- along with proportionate costs and interest @ 7.5% p.a to the appellant. Further, the respondents No.2 and 3 are directed to deposit the entire amount in the Tribunal within a period of two months from the date of receipt of copy of this order. On 1 (2003) 2 SCC 274 MGR, J M.A.C.M.A.No.1912 of 2007 6 such deposit, the appellant is entitled to withdraw the entire amount without furnishing any security.
8. Accordingly, this appeal is partly allowed as indicated above, partially modifying the amount of award and decree to the extent indicated above. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE M. GANGA RAO Dated 01.10.2019 JKS MGR, J M.A.C.M.A.No.1912 of 2007 7 HON'BLE SRI JUSTICE M.GANGA RAO M.A.C.M.A. NO.1912 OF 2007 Date: 1st day of October, 2019 JKS