THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
M.A.C.M.A. No.878 OF 2007
DATE: 09.07.2014
Between:
Ganga Naresh … Appellant And
1. M/s. Chaya Hemarg Tavels, Owner of Private Bus bearing No.MH-01-L-7059, R/o. D.No.2/96, Pimle Chawl, Shiv Shakti, New Prabhadevi Road Mill Naka, Mumbai-400 075.
2. The New India Assurance Company Limited, Rep. by Its Branch Manager, Branch Office at Shree Pant Bhavan, Opp: Bombay Cycle Agency, Chowpatty, Mumbai- 400007.
(Insurer of Private Bus bearing No.MH-01-L-7059, Vide Policy No.11080/31/01/70838, valid from 12.3.2002 to 11.3.2003) …. Respondents THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
M.A.C.M.A. No.878 OF 2007
JUDGMENT:
Dissatisfied with the quantum of compensation awarded in O.P. No.1846 of 2002 on the file of the Motor Accident Claims Tribunal- cum-III Additional District Judge (FTC) at Nizamabad, the claimant preferred the present appeal under Section 173 of the Motor Vehicles Act seeking enhancement of the same.
2. Heard the learned counsel for appellant. In spite of service of notice, there is no representation on behalf of both the respondents. Hence, treated as heard.
3. The facts in issue are as under :
The claimant filed a petition under Section 166(1)(a) of the Motor Vehicles Act, 1988 read with Rule 455 of the Rules framed thereunder stating that on 07.11.2002 the claimant along with others were traveling in two tractors trallies bearing Nos.AP-25-F-1781 and AP-25-F-6367 to Badapahad from Pipri. At about 11.45 p.m., the claimant along with others got down from the vehicle for attending calls of nature. At that time a private bus bearing No.MH-01-L-7059 coming from Armoor side, driven by its driver in a rash and negligent manner dashed the tractors and trallies. As a result of the said accident, the claimant and others who were standing nearby, received injuries. It is alleged that the claimant sustained fractures to right shoulder, right foot and other injuries to right shoulder, right foot and head, back, legs, hands, chest, ribs and on various parts of the body. Immediately after the accident, the claimant was taken to Government Hospital, Nizamabad where P.W.2 – the Doctor is said to have treated him. Later the claimant was shifted to a specialized Doctor for further treatment. It is averred that an amount of Rs.50,000/- was spent towards treatment, medicines and other incidental charges. It is further stated that the claimant was hale and healthy prior to the accident and due to the said accident he was not in a position to work. As the accident took place due to rash and negligent manner driving by the driver of the bus, the O.P. came to be filed making the owner of the bus and also the insurer of the said bus held liable to pay compensation to the claimant.
4. The first respondent/owner of the vehicle remained exparte. While the second respondent/insurer filed its written statement denying the averments made in the petition.
5. On the basis of the pleadings, the trial Court framed the following issues :
1. Whether the motor vehicle accident was occurred due to rash and negligent driving of the private Bus bearing No.MH-01-L-7059 by its driver resulting in injuries to the petitioner ?
2. Whether the petitioner is entitled for compensation ? If so, to what amount and from which of the respondents ?
3. To what relief ?
6. In support of his case, the claimant himself was examined as
P.W.1 and on his behalf Dr. T.Narsing Rao was examined as P.W.2 apart from marking Exs.A-1 and A-2. The insurance company got marked Ex.B-1 – the policy. After considering the material available on record, the trial Court awarded compensation of Rs.5,000/- as against a claim of Rs.3,00,000/-. Challenging the same, the present application is filed.
7. The learned counsel for the appellant submits that the amount of compensation awarded by the Tribunal is quite low and hence seeks enhancement of the same. According to him, the evidence of
P.W.2 was not taken into consideration for assessing the nature of injuries sustained by the claimant. He submits that no amount was awarded towards transportation charges and also for the pain and suffering undergone by the claimant.
8. A perusal of the material placed on record would show that the accident took place due to rash and negligent driving by the driver of the bus bearing No.MH-01-L-7059. The said finding is not challenged either by the owner of the vehicle or by the Insurance Company and the same has become final.
9. The only question that arises for consideration is :
“Whether the quantum of compensation awarded to the claimant is just and necessary ?”
10. As stated above, the learned counsel for the appellant mainly relied upon the evidence of P.W.2, the Doctor, who initially treated the claimant at Government headquarters hospital, Nizamabad. A perusal of the material on record would show that this Hon’ble court while disposing of A.A.O. 3518 of 2004 directed the Commissioner under Workmen’s Compensation, Nizamabad and Chairman of Motor Vehicle Accident Claims Tribunal, Nizamabad not to act solely on the evidence of P.W.2 and one Dr.Ramulu in awarding the compensation in the claim petitions pending consideration unless it is corroborated by any other evidence. In the present case, there is no corroboration to the evidence of P.W.2 with regard to nature of injuries sustained by the claimant. Hence, the trial Court rightly refused to accept the evidence of P.W.2 to show that the claimant sustained two fractures on the body.
11. Apart from that, the evidence of P.W.1 would show that he sustained fractures to right shoulder, right foot and other injuries to right shoulder, right foot and head, back, legs, hands, chest, ribs and on various parts of the body. The said evidence of P.W.1 is totally contrary to the evidence of P.W.2 and Ex.A-2. Ex.A-2 the injury certificate said to have been issued by P.W.2 shows only three injuries on the body of the claimant. Further, P.W.2 in his cross-examination admitted that he gave only first aid to the petitioner and did not give any treatment. Basing on clinical examination he issued the certificate-Ex.A-2 showing the fracture, which was not confirmed by the X-rays.
12. No record from the Government Hospital at Nizamabad was brought on record to show that the claimant was treated at Government Hospital, Nizamabad. In view of the admission of P.W.2 that he gave only first aid to the claimant, the certificate issued by P.W.2 cannot be acted upon. If really, the claimant has sustained fractures he would have gone for X-rays and taken treatment from Orthopedic Doctor. No such record was filed to establish the same. However, the fact remains that the claimant along with others sustained injuries in an accident that took place on 07.11.2002 at 11.35 p.m. Immediately after the accident, the claimant along with others were taken to Hospital and some first aid was given. The charge-sheet which has been filed would clearly disclose that the claimant sustained four injuries, which were simple in nature.
13. The trial Court did not award any amount towards transportation charges from the scene of accident to the Hospital and also the initial expenses incurred while taking treatment at the Hospital. The trial Court also did not taken into consideration the pain, suffering and mental agony undergone by the claimant at the time of accident and subsequent thereto. The material on record show that accident took place between Pipri and Badapahad and immediately thereafter the injured was shifted to Nizamabad for treatment. The charge-sheet filed by the police clearly show that the claimant sustained four simple injuries for which he took medical aid at Nizamabad. Therefore, I am of the view that a further sum of Rs.10,000/- can be awarded towards transportation, medical expenses and also for the pain and suffering undergone by the claimant, which in my view appears to be just and reasonable.
14. Accordingly, the appeal is disposed of by enhancing the compensation amount from Rs.5,000/- to Rs.15,000/-. The enhanced amount of Rs.10,000/- will carry an interest of 6% p.a. from the date of judgment of the trial Court till the date of realization.
There shall be no order as to costs.
Miscellaneous petition pending in this appeal, if any, shall stand closed.
JUSTICE C. PRAVEEN KUMAR 09.07.2014 GBS