HON’BLE SMT JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL No.4203 of 2004 J U D G M E N T This appeal is filed by the appellant/petitioner under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’), aggrieved by the award dated 24.08.2004, passed by the Chairman, Motor Vehicle Accident Claims Tribunal-cum-X Additional District Judge, (Fast Track Court), Guntur, in M.V.O.P.No.122 of 2003, awarding compensation of Rs.25,600/-.
2. The appellant/petitioner filed the above O.P under Section 166 of the Act, claiming compensation of Rs.1,00,000/- on account of the injuries sustained by her in a motor vehicle accident. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the Original Petition.
3. The brief averments made in the petition are that on 17.01.2003 at about 2:30 p.m, the petitioner along with her paternal aunt’s daughter got down from the auto at A.L college near Lodge centre, Guntur, and when they tried to cross the road, a motorcycle bearing No.AP.7Q.349 suddenly came in a rash and negligent manner and dashed against the petitioner and also her paternal aunt’s daughter, due to which, they fell on the road and the petitioner sustained fracture to her both mandibles and injuries on her mouth. She also received injury on left eye brow, left eye, left wrist, left leg in between ankle and knee and she was admitted in Nightingale Private Nursing Home in Guntur town. A surgery was also conducted on her mandibles both sides and wire was arranged. She remained in the hospital till 24.01.2003. Due to the accident, petitioner lost her enjoyment and amenities of life. She cannot lead happy marital life. She spent Rs.35,000/- towards medicines and nourishing food etc. Therefore, claimed compensation of Rs.1,00,000/- and stated that the first respondent being the owner and second respondent being the insurer are jointly liable to pay the compensation.
4. Before the Tribunal, the first respondent remained ex parte.
5. The brief averments made in the written statement filed by the second respondent are as follows:
The respondent put the petitioner to prove the manner of accident, age, occupation, income of the petitioner and also treatment taken by her in the private hospital by spending huge amounts. The respondent further stated that the petitioner did not give any report to the police on 17.01.2003, but gave report on 21.01.2003. Further, the vehicle was not insured with the second respondent and therefore, the second respondent is not liable to pay any compensation to the petitioner. The respondent stated that accident was occurred not due to rash and negligent riding of the rider of the motorcycle. Further, the rider of the motorcycle was not holding valid driving license. Therefore, the second respondent is not liable to pay any compensation to the petitioner and finally, prayed the Court to dismiss the petition with costs.
6. Basing on the pleadings, the Tribunal framed three issues and to substantiate the claim, the petitioner got examined PWs.1 & 2 and got marked Exs.A.1 to A.5 on her behalf. On behalf of the contesting respondent, no oral or documentary evidence was adduced.
7. After considering the oral and documentary evidence, the Tribunal held that the accident occurred due to rash and negligent riding of the rider of the motorcycle bearing No.AP.7Q.349 and awarded compensation of Rs.25,600/- along with interest at 9% p.a to the petitioner against both the respondents.
8. Being not satisfied with the award passed by the Tribunal, the petitioner preferred the present appeal.
9. The learned counsel appearing for the appellant/petitioner argued that the Tribunal awarded meagre compensation though appellant/petitioner sustained grievous injuries. Further, the Tribunal failed to appreciate the evidence of PWs.1 & 2, who categorically stated that the appellant/petitioner suffered grievous injuries and sustained 25% permanent disability, which resulted in loss of enjoyment and loss of amenities of life. Further, it is also argued that the appellant/petitioner was hospitalised for six weeks and took treatment for her fracture of lower jaw, plating was done and she spent Rs.45,000/- towards medical expenses. Further, the Tribunal has not considered to grant compensation for pain and sufferings, extra nourishment and transportation charges and it is also argued that after the accident, appellant/petitioner was unconscious and she was not in a position to give report to the police, therefore, the delay was occurred and prayed the Court to enhance the compensation.
10. On the other hand, the learned counsel appearing for respondent No.2-Insurance Company argued that the compensation awarded by the Tribunal is just and reasonable and the appellant/petitioner has not filed any proof to show that she spent Rs.45,000/- and the Tribunal rightly awarded the compensation, which needs no interference by this Court and prayed the Court to dismiss the petition with costs.
11. Having regard to the submissions made by the learned counsel appearing for both the parties, the points which are to be decided in this appeal are as follows:
1. Whether the compensation awarded by the Tribunal is just and reasonable?
2. Whether the appellant/petitioner is entitled for enhancement of compensation as prayed for?
12. As per the oral and documentary evidence available on record, there is no dispute about the fact that the accident occurred due to rash and negligent riding of the rider of the motorcycle bearing No.AP.7Q.349.
The claim of the petitioner is that she suffered grievous injury and simple injuries and was in the hospital for about six weeks and took treatment for the grievous injuries.
13. To support her pleadings, the petitioner examined herself as PW.1 and filed Ex.A3 wound certificate. To support her evidence, she also examined PW.2, who treated her in the hospital. To prove the injuries, the petitioner is relying on Exs.A3 to A5. Ex.A3 is the wound certificate, Ex.A4 is the X-ray film and Ex.A5 is the bunch of receipts issued by PW.2. A perusal of Ex.A3 shows that the petitioner sustained one grievous injury and three simple injuries and the Tribunal altogether awarded Rs.15,600/- for the grievous and simple injuries as per the II schedule of the Act, but the Tribunal has not awarded compensation under the head of pain and sufferings.
14. To prove the injuries, the petitioner got examined PW.2. According to him, the petitioner was admitted in his hospital. He operated for fracture of lower jaw and plating was done in areas replacement of lost teeth was done after surgery and petitioner spent Rs.45,000/- for her treatment. According to him, Rs.5,000/- was spent towards surgery charges and Rs.6,000/- for other charges. PW.2 clearly stated that as per Ex.A5, the petitioner incurred Rs.11,000/- for her treatment, but she had not filed any evidence to show that she paid Rs.11,000/- to PW.2. But, the fact remains that the petitioner sustained grievous injury and the Tribunal after considering the treatment taken by the petitioner awarded Rs.10,000/- towards medical expenses. Thus, the Tribunal granted Rs.25,600/- to the petitioner.
15. Admittedly, the Tribunal has not granted any compensation to the petitioner for pain and sufferings, extra nourishment and transportation charges. Therefore, I am of the view that, an amount of Rs.5,000/- shall be awarded towards pain and sufferings, Rs.3,000/- shall be awarded towards extra nourishment and Rs.2,000/- shall be awarded towards transportation charges. Thus, in total, the appellant/petitioner is entitled for an amount of Rs.10,000/- in addition to the compensation of Rs.25,600/- awarded by the Tribunal.
18. In view of the above discussion, the appeal is partly allowed enhancing the compensation awarded by the Tribunal to the appellant/petitioner from Rs.25,600/- to Rs.35,600/-. No order as to costs.
18. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
ANIS, J Date: 25.07.2014 sr