* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.568 of 2009
%06.06.2014
Between:
Janapareddy Nagayya @ Naganna. .... Appellant AND R. Mallikarjuna Rao and others …. Respondents ! Counsel for Appellant : Sri A. Gopala Krishnamacharyulu ^ Counsel for Respondent No.3 : Smt. M. Bhaskara Lakshmi < Gist:
> Head Note:
? Cases referred:
1) 2001 (1) ALT 485 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.568 of 2009
JUDGMENT:
Challenging the award dated 10.07.2003 in O.P.No.647 of 2001 passed by the Chairman, M.A.C.T-cum-District Judge, East Godavari at Rajahmundry (for short “the Tribunal”), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 14.08.2001 at about 3:00am, he was proceeding on his cycle on Gowthami Bridge to Jonnada junction along with vegetables and when he reached near Gowthami Bridge, Ravulapalem, one lorry bearing No.AIC 5040 came in opposite direction being driven by its driver/1st respondent in a rash and negligent manner without blowing horn and dashed him. Thereby, the claimant fell on the road and sustained fracture to right and left leg thighs, injury on the chest and contusions all over the body. Immediately, he was shifted to Government Hospital, Kothapeta and then to Government Headquarters Hospital, Rajahmundry and from there to Chaitanya Orthopedic Hospital, Tanuku, where his thighs were operated. It is averred that the accident was occurred due to the rash and negligent driving by the driver of the offending lorry. On these pleas, the claimant filed OP.No.647 of 2001 against respondents 1 to 3, who are the driver, owner and insurer of the offending lorry and claimed Rs.2,50,000/- as compensation under different heads mentioned in the O.P.
b) Respondent Nos.1 and 2 remained ex parte.
c) Respondent No.3/Insurance Company filed counter and opposed the claim, denying all the material averments made in the O.P and urged to put the claimant in strict proof of the same. R3 denied the age, avocation and income of the claimant. Finally it contended that the compensation claimed is highly excessive and exorbitant and prayed to dismiss the OP.
d) During trial P.Ws.1 and 2 were examined and Exs.A1 to A11 were marked on behalf of claimant. Policy copy filed by 3rd respondent was marked as Ex.B.1.
e) Perusal of the Award would show that Tribunal basing on the oral and documentary evidence has held that the accident was occurred due to the rash and negligent driving of the offending lorry by its driver/R.1. Compensation is concerned, the Tribunal awarded Rs.22,000/- with costs and interest at 6% p.a from the date of O.P till the date of realization under different heads as below:
For three injuries Rs. 7,000/-
Medical expenditure Rs.15,000/-
Total Rs.22,000/-
Hence, the appeal by the claimant challenging the inadequacy of compensation.
3) Heard arguments of Sri A.Gopala Krishnamacharyulu, learned counsel for appellant/claimant and Smt. M. Bhaskara Lakshmi, learned counsel for respondent No.3/Insurance Company. Case against respondents 1 and 2 was dismissed for default on 21.10.2008. However, since they remained ex parte and suffered decree before the Tribunal, their absence will not have any effect in this appeal in the light of decision reported in Meka Chakra Rao vs. Yelubandi Babu Rao @ Reddemma
[1]
and others .
4) Impugning the award, learned counsel for appellant argued that the claimant suffered fracture of thigh bones of both legs and he also suffered the consequent disability. Besides, he spent about Rs.44,000/- for his treatment. Inspite of it, on a wrong appreciation of evidence, the Tribunal granted only meager compensation on the observation that the claimant failed to prove his disability whatsoever and he also failed to prove the medical expenditure by examining the doctor who treated him. Learned counsel argued that going by the fact that the petitioner suffered fracture to both thigh bones, the Tribunal ought to have granted reasonable compensation irrespective of petitioner’s failure to examine the treatment doctor as he was a poor vegetable vendor. He thus prayed to allow the appeal and enhance the compensation.
5) Per contra while supporting the award, learned counsel for respondent No.3/Insurance Company argued that the petitioner by non-examining the doctor who treated him in a private hospital, failed to prove the nature of treatment and alleged medical expenditure covered by Ex.A.11 and therefore, the Tribunal rightly restricted the medical expenditure to Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act (M.V.Act). Further, the claimant also failed to prove his disability since PW.2 Government Doctor, clearly deposed that he cannot speak about the disability of claimant on the sole basis of X-ray photos without examining PW.1. Thus, the claimant failed to prove his disability and therefore, the Tribunal rightly treated his case only as a general injury case. Ex.A.8—O.P ticket produced by him relates to one year after the accident and no case sheet issued by the private hospital was produced by the claimant. So the compensation awarded by the Tribunal was just and reasonable in the light of quality of evidence produced by the claimant and there is no need to revise the same. Learned counsel thus prayed for dismissal of the appeal.
6 ) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs enhancement?”
7) POINT: Upon perusal of the evidence on record and hearing both sides, I am of the considered view that the Tribunal committed a blunder in treating the claim application as one under Section 163-A of M.V. Act on the observation that the claimant failed to prove his alleged permanent disability. It should be noted that failure on the part of a petitioner to prove his permanent disability cannot be taken as ground to treat his claim petition filed u/s 166 of the M.V. Act as one u/s 163-A of the M.V. Act. The evidence on record would clearly show that the claimant suffered fracture of both femurs for which he took treatment in a private hospital. Earlier, it appears he was treated for a short while in Government Hospital and he was examined by PW.2—the Government Doctor who deposed that he cannot
decide the disability of the claimant. So it is obvious that the claimant failed to prove his permanent disability caused on account of the injuries suffered by him in the accident. However merely because he failed to establish his permanent disability, his claim which is filed under Section 166 of M.V. Act cannot be automatically treated as one under Section 163-A of M.V.Act to grant restricted compensation under different heads as mentioned in the Second Schedule of the M.V. Act. That is what it appears the Tribunal did. In Para 7 of its award, the Tribunal noted that as the petitioner has not proved that the injuries resulted either partial or permanent disability, the general damages covered by Second Schedule—163-A of the M.V. Act have to be awarded. This is obviously a wrong appreciation of law. Running the risk of repetition, it must be said that when a claim petition is filed under Section 166 of the M.V.Act and the claimant come up with the case of suffering permanent disability but failed to prove the same, still the Tribunal for all practical purposes decide the case as one under Section 166 of M.V. Act only. In the instant case, the claim petition is filed under Section 166 of M.V. Act and while deciding issue No.1, the Tribunal gave a finding that the accident was occurred due to the fault of driver of the oil tanker (1st respondent in the OP). Having recorded such finding, it is the bounded duty of the Tribunal to determine the compensation as per Section 166 of M.V. Act only rather than restricting the compensation under Section 163-A of M.V. Act. Hence the compensation has to be reassessed.
8) In the instant case, as per Ex.A.5—wound certificate, the claimant suffered fracture of both femurs, besides he suffered two non-grievous injuries. In such consideration, he is awarded Rs.25,000/- for fracture injuries and Rs.3,000/- for the simple injuries, totaling Rs.28,000/-. He is also awarded Rs.3,000/- towards extra nourishment charges and Rs.2,000/- towards transportation charges, considering them as reasonable and probable under the circumstances of the case. Then medical expenditure is concerned, it is true that though the claimant produced Ex.A.11—medical bills but failed to prove the same by examining either the doctor who treated him or the concerned person who prepared the bills. However having regard to the fact that he suffered two fractures to both thighs and took treatment in a private hospital, he deserves a reasonable amount towards medical expenditure. In such consideration, he is awarded Rs.30,000/- towards medical expenditure. Thus the total compensation payable to the claimant under different heads can be detailed as below:
For fracture injuries Rs. 25,000/-
For simple injuries Rs. 3,000/- Extra nourishment charges Rs. 3,000/- Transportation charges Rs. 2,000/-
Medical expenditure Rs. 30,000/-
Total Rs. 63,000/-
So the compensation is enhanced by Rs.41,000/- (Rs.63,000/- minus Rs.22,000/-).
9) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.41,000/- with proportionate costs. The enhanced compensation amount shall carry interest at 7.5% p.a from the date of O.P till the date of realization.
b) The respondents are directed to deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out against them.
c) No order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 06.06.2014
Note: L.R. Copy to be marked: YES/NO scs
[1] 2001 (1) ALT 485