JUDGMENT:
THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A No. 125 of 2007 Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant filed the present appeal under Section 173 of the Motor Vehicles Act. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the Tribunal.
2. The facts in issue are as under:
The claimant filed an application under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained on the ground that on 30.11.2002 at about 7.00 PM, while himself and others were traveling in an autorickshaw and when the said autorickshaw reached a place between Shapur and Thondakur village, a tractor and trailor bearing No. AP 25F 2176 and AP 25G 6280 came from opposite side driven by its driver in a rash and negligent manner and dashed the auto in which the claimant was traveling. Due to the said impact, the claimant is said to have sustained fracture to his right arm, head injury and multiple grievous injuries on various parts of the body. Immediately thereafter, the claimant was shifted to Venkateshwara hospital, Nizamabad, where PW2 was said to have performed operation to the fracture injuries by inserting rods. The claimant in his claim petition stated that he was doing photography business, earning Rs.7,000/- per month and used to contribute the entire amount towards his family. Though the claim petition was originally filed seeking compensation of Rs.40,63,000/-, but the same was restricted to Rs.3,00,000/-.
The first respondent remained exparte and the 2nd respondent filed written statement disputing the averments in the petition. It was specifically stated that the auto rickshaw itself was responsible for the accident and as such the insurance company is not liable to pay any compensation. In any event, it is stated that the claim made is exorbitant and excessive. Based on the above pleadings, the Tribunal framed the following issues:
(i) Whether the accident has taken place due to rash and negligent driving of the vehicle bearing No. AP 25 F 2176 and AP 25H 6280 by its driver?
(ii) Whether the petitioner is entitled for compensation? If so, what just amount and against whom?
(iii) To what relief?
In support of the claim, the claimant examined himself as PW1 and also the doctor who treated him as PW2. He also got marked Exs.A1 to A37 in support of his plea. The respondent did not adduce any oral evidence, but they got marked Ex.B1-insurance policy. The manner in which the accident took place has become final as the same is not challenged either by the owner or by the insurer of the vehicle. Therefore, the point that arises for consideration is whether the compensation awarded by the Tribunal is just and reasonable?
3. The evidence on record would disclose that immediately after the accident PW1 was admitted in the hospital of PW2 at Nizamabad, which fact was also revealed not only by the evidence of PWs.1 and 2, but also through Ex.A33-the case sheet. PW2 is the doctor who is said to have treated PW1, deposed as under:
“On 01.12.2002, PW1 C. Rajshekhar came to Venkateshwara hospital with the injuries said to have been sustained in motor vehicle accident. I examined him and found following injuries:-
i) Degloving injury of approximately 10x10 cms to the right arm on the anterior aspect with the fracture of right humerus, compound in nature. Bones were exposed muscles were cut. X-ray was taken to confirm my clinical examination. X-ray also showed fracture of right humerus compound fracture. He was admitted as inpatient and operated for his said fracture injury and applied rush-nails for his fracture.
…………………………………………………………………………………………………… He was discharged on 09.12.2002. Ex.A4 is the certified copy of wound certificate issued by me. Ex.A23 is the discharge card issued by me. I prescribed medicines as shown in case sheet Ex.A33, accordingly he purchased medicine under cash bills Ex.A6 to Ex.A14. Ex.A15 is the bill for Rs.14,950/- (Rupees Fourteen thousand Nine hundred and fifty only) issued by me for the payment made by PW1 Rajashekar for his treatment as inpatient. Ex.A26, Ex.A27, Ex.A28 and Ex.A31 are the x-ray films taken by PW1 on my advise and they show fracture of right humerus.
Again on 28th December 2005 he came to me to assess his disability. After taking x-ray of the right arm and on clinical examination, I found restriction of flexion of elbow, as such I assessed 10% partial permanent disability and issued disability certificate Ex.A34.”
Though PW2 was cross examined at length, nothing useful was elicited to discredit his testimony. The evidence of PW2 is supported by Ex.A33 and Ex.A4, the case sheet and wound certificate respectively. These two certificates, coupled with the evidence of PW2, would show that PW1 sustained an fracture injury to his right arm. X-rays taken were marked as Exs.A26 to A32. Further, the evidence of PW1 would show that he spent an amount of Rs.972/- (Ex.A6), Rs.717/- (Ex.A7), Rs.783/- (Ex.A8), Rs.1,803/- (Ex.A9), Rs.1,341/- (Ex.A10), Rs.2,452/- (Ex.A11), Rs.135/- (Ex.A12), Rs.1,389/- (Ex.A13), Rs.300/- (Ex.A14), Rs.2,752/- (Ex.A16), Rs.1,281/- (Ex.A17), Rs.509/- (Ex.A18), Rs.1,199/- (Ex.A19), Rs.406/- (Ex.A20). The amounts spent by PW1 towards medical expenditure was accepted by the Tribunal while awarding a sum of Rs.30,989/- towards medical expenses and the same was not challenged by the insurance company. Even the counsel for the appellant did not make any effort to seek enhancement of the same. The evidence on record further discloses that the claimant was treated in the hospital of PW2 for a period of twenty days (ten days as an inpatient in the hospital and ten days after discharge). Having regard to the nature of injury sustained by PW1 and due to the fact that he underwent operation, he must have taken the help of an attendant during the said period. Taking the attendant charges at Rs.100/- per day, the Tribunal awarded Rs.2,000/- which appears to be reasonable. PW2 in his evidence further deposed that he inserted nails to PW1. His evidence disclose that the nature of operation undergone, treatment taken after the operation, do make the claimant suffer due to acute pain. Since the claimant was treated in the hospital for a period of twenty days, the Tribunal awarded Rs.9,000/- towards pain and suffering, which appears to be reasonable. Coming to the quantum of loss of income for thirty days, the Tribunal assessed the loss of income at the time of treatment at Rs.1,500/- by taking the income at Rs.50/- per day. In the absence of any evidence with regard to the avocation, the income of the claimant, and by taking the income of PW1 at Rs.15,000/- per annum, assessing the disability at 10%, and applying the multiplier 18, the Tribunal rightly awarded an amount of Rs.27,000/- towards loss of future earnings. Though the learned counsel for the respondent/insurance company submits that the said amount is without any basis, I am afraid the same cannot be accepted as the insurance company did not prefer any appeal against the order.
Accepting the finding of the Tribunal with regard to the award of loss of future earning, I am of the view that the order awarding compensation of Rs.70,489/- for the injury sustained, which did not lead to total loss in earning capacity, warrants no interference.
Accordingly, the appeal is dismissed. No costs. Miscellaneous petitions if any pending in this appeal shall stand closed.
JUSTICE C. PRAVEEN KUMAR 08.07.2014 ksm