* THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND *THE HON’BLE SRI JUSTICE B.N.RAO NALLA %Date: 01.02.2011 M.A.C.M.A. No.2772 OF 2007 Between: #S.Ramana @ Ramana Reddy s/o.late Ramachandra Reddy Appellant/Petitioner And $1.T.Venkateswarlu s/o.Eshwaraiah 2.The Oriental Insurance Company Limited, Ananthapur Respondents/Respondents M.A.C.M.A.No.198 OF 2008 Between: #The Oriental Insurance Company Limited, Ananthapur Appellant/Respondent No.2 And $1.S.Ramana @ Ramana Reddy s/o.late Ramachandra Reddy Respondent/Petitioner 2.T.Venkateswarlu s/o.Eshwaraiah Respondent/Respondent No.1 ! Counsel for the Appellant in MACMA No.2772 of 2007, and Respondent No.1 in MACMA No.198 of 2008: Sri P.Ramakrishna Reddy ^ Counsel for Second Respondent in MACMA No.2772 of 2007, and appellant in MACMA No.198 of 2008 : Mrs. A.Anasuya < GIST : > HEAD NOTE : ? Cases referred : --- HON’BLE SRI JUSTICE B.PRAKASH RAO & HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A. Nos.2772 OF 2007 & 198 OF 2008 COMMON JUDGMENT: (per Hon’ble Sri Justice B.N. Rao Nalla): Since the subject matter of these appeals arises out of the same accident and the parties are one and the same, both the Civil Miscellaneous Appeals are being disposed of by this common judgment. 2. M.A.C.M.A.No.2772 of 2007 is filed by the claimant and M.A.C.M.A.No.198 of 2008 is filed by the Oriental Insurance Company against the order, dated 21.3.2007 passed in O.P.No.1948 of 2000 by the Motor Vehicle Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad. 3. For the sake of convenience, the parties shall be referred to as they were arrayed in the O.P. 4. The brief facts leading to the filing of these appeals are as follows: The petitioner was aged 38 years at the time of the accident and he was the Managing Director of Akhil Ceramics Limited and was earning Rs.20,000/- per month. On 23.12.1994, the petitioner went to Ananthapur in his Maruthi Esteem Car and therefrom he was travelling by that car along with others to go to Kanekal. At about 5.30 p.m. when the Car reached between Ananthapur and Kalyandurg at Kalupalli Thanda, a lorry bearing No.APQ 5897 being driven in a rash and negligent manner came in the opposite direction, and dashed against the Car, as a result, the petitioner sustained injuries to his skull and the Car was badly damaged. P.S.Beluguppa registered a case in Crime No.101 of 1994 against the driver of the lorry. The petitioner was treated in the Government hospital, Ananthapur and later shifted to National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore, where he underwent major surgery, and consequently, he is unable to lift his left hand, unable to walk and is still undergoing treatment. Further, his entire left part of the body is paralysed and he is suffering from pain and giddiness, as such, he is unable to concentrate on his profession. Hence, he claimed Rs.78,92,000/- as compensation. 5. The first respondent-owner of the lorry remained ex parte. The second respondent-insurance company filed counter denying that the petitioner is an industrialist and was earning Rs.20,000/- per month. It disputes the manner of the accident as averred in the claim petition as well as the rash and negligent driving on the part of the driver of the lorry. It is stated that the accident had occurred due to rash and negligent driving of the Maruthi Esteem driven by the petitioner and the owner of the Maruthi Esteem and its insurer are necessary parties to the petition. The wound certificate discloses that the injuries are simple in nature and the Doctors have assessed the partial disability at 50%. Further, it is stated that the petitioner was driving a new car, without temporary registration and contrary to the provisions of the Motor Vehicles Act. The petitioner was recovered completely after being treated in NIMHANS, Bangalore and the claim made by him is highly excessive and without any basis. It is denied that the petitioner is unable to sit or walk freely and suffering from severe head ache and reeling sensation or with any neurological problem. Further, it is stated that the petitioner would not be put to any loss as he is a share holder in Akhil Ceramics Limited. 6. Based on the pleadings of both sides, the following issues were framed: i. Whether the accident occurred on 23.12. 1994 due to rash and negligent driving of the lorry bearing No.APQ 5897, by its driver, hit the Car of the petitioner and caused grievous injuries to the petitioner? ii. Whether the petitioner is entitled to compensation? If so, to what amount and from which respondent? iii. To what relief? 7. During the course of trial, on behalf of the claimant, PWs.1 to 8 were examined and Exs.A.1 to A.50 were marked, and on behalf of the insurer, the Senior Divisional Manager was examined as RW.1 and B.1 to B.3 were marked besides marking Ex.X.1. 8. The trial court, after taking into consideration the evidence on record and the facts and circumstances of the case, partly allowed the O.P.vide order dated 21.3.2007 by awarding compensation of Rs.27,20,000/- with proportionate costs and interest @ 7.5% per annum from the date of filing the petition till realization, against respondents 1 and 2. 9. Being aggrieved by the said order, these appeals are filed by both the parties. 10. The grievance of the petitioner-claimant is that the Tribunal failed to properly assess the loss of earnings, so also the medical expenses and the Tribunal ought to have granted appropriate compensation towards private attendant charges as the appellant is unable to move from bed and not in a position to walk without the support of the attendant due to paraplegia. The Tribunal failed to properly assess the compensation towards extra nourishment, pain and suffering, hardship, discomfort, disappointment, loss of income, physiotherapy and permanent disability and it also failed to consider the evidence of PW.7 and PW.8. The Tribunal ought to have taken the earnings of the petitioner at Rs.30,000/- per month towards salary and Rs.5,00,000/-per annum towards agricultural income and it ought to have granted the compensation by adopting multiplier method. 11. On the other hand, the second respondent-insurance company contends that the Tribunal failed to see that both the vehicles collided head on and there was contributory negligence on the part of the petitioner-claimant; that the Tribunal erred in awarding excess amount of Rs.5,00,000/- towards physiotherapy, Rs.1,00,000/- towards attendant charges, Rs.50,000 towards transportation, Rs.10,00,000/- towards medical expenses, Rs.2,00,000/- towards shock, pain and suffering, Rs.1,20,000/- towards loss of income and Rs.5,00,000/- towards continuing permanent disability without there being any evidence on record and that the Tribunal failed to see that the petitioner-claimant was in a managerial position and there could not be heavy loss of income due to the accident. 12. Heard the learned counsel for both the parties and perused the material placed on record. 13. It is to be seen that after the accident, petitioner-PW.1 gave a report to P.S.Baluguppa, who registered a case in Crime No.101 of 1994 against the driver of the lorry. Ex.A.1-certified copy of the F.I.R, Ex.A.2-certified copy of the charge sheet and Ex.A.3-certified copy of the judgment passed in C.C.No.47 of 1995 on the file of Judicial First Class Magistrate, Kalyandurg, indicate that the accident had occurred due to rash and negligent driving on the part of the driver of the lorry. PW.3, who is an eye witness to the accident, stated that he was sitting behind the car at the time of the accident; that the car was being driven by the petitioner at a slow speed on the extreme left side of the road and when they reached Kaluvapally Thanda at about 5.30 p.m., a lorry bearing No.APQ-5897, driven by its driver in a rash and negligent manner at high speed, came in opposite direction on wrong side from Kalyanadurgam and dashed against the car, as a result, he and petitioner sustained injuries. PW.3 stated that petitioner has sustained fractures of left parietal bone, left frontal bone and of right parietal bone, cerebral hemotoma, contusion with defuse cerebra odema and laceration on the lower chin, lacerations on left elbow and other injuries all over the body. So far as the contention of the insurance company that there was a contributory negligence on the part of the petitioner is concerned, there is no specific pleading on that aspect. Exs.B.1-investigation report and Ex.B.2- statement of the petitioner before the investigation, cannot be relied upon since the investigator concerned, appointed by the insurance company, was not examined. Further, Ex.B.1-investigation report filed by the insurance company is contrary to Ex.A.2- charge sheet filed by the Police. In the circumstances, it cannot be said that there is a contributory negligence on the part of the petitioner. 14. So far as granting compensation to the petitioner-claimant is concerned, the evidence of PWs 2 to 8 has to be looked in. The evidence of PW.8, who is Senior Resident in Department of Neuro Surgery, NIMHANS, Bangalore, is that petitioner-PW.1 was treated by one Dr.K.V.R.Sastry. He stated that PW.1 sustained lacerated wound on left frontal region and abrasion over the chin and cerebral contusion. PW.1 was operated on 25.12.1994 for right frontal region and during the operation, a large blood clot was removed from the right frontal region and then he developed complications in the form of left side paralysis, diabetes, urinary tract infection and deep vein thrombosis. He was also treated for post traumatic seizures. At the time of discharge, PW.1 had total weakness of the left side of the body. He assessed the disability of the petitioner at 100%. He stated that PW.1 requires total assistance of at least one person for all his daily activities. PW.1 continues to have intermittent seizures involving the left side of the body for which, he is on medication, which has to be continued life long. PW.1 is also found to have deficiency in higher mental functioning in the form of loss of memory and difficulty in concentration. PW.8 further stated that PW.1 is not in a position to sit comfortably for a long period and he requires anti convulsants probably life long and limb physiotherapy. PW.1 also requires a walking stick, wheel chair, an attendant and there is no likelihood of recovering from his present condition. PW.7 is Assistant Professor in Gandhi Medical College and a member of the Medical Board. Ex.A.39-disability certificate was issued by him and other members of the medical board wherein the disability of petitioner- PW.1 was assessed at 70%. He stated that left hand and left leg of PW.1 are not functioning. PW.1 cannot walk or discharge his normal functions. PW.1 requires the assistance of an attendant for his regular day to day functioning. However, in Ex.A.39, it is not mentioned that the left hand and left leg of PW.1 are not functioning and that he is not able to discharge his normal work. The evidence of PW.3 is that petitioner-PW.1 has sustained fractures of left parietal bone, left frontal bone and of right parietal bone, cerebral hematome, contusion with defuse cerebra odema and laceration on the lower chin, lacerations on left elbow and other injuries all over the body. The evidence of PW.4-physiotherapist is that he is doing therapy to petitioner- PW.1. Ex.P.36 is bunch of bills showing the expenditure incurred towards physiotherapy. He substantiated the claim of PW.1 with regard to physiotherapy. The oral testimony of PW 2- farm servant-cum-supervisor, PW.5-attendant to PW.1 and PW.6-travel businessman, is not supported by any documentary evidence. 15. From perusal of the documents marked on behalf of petitioner-PW1 and evidence on record, it is seen that the petitioner is an industrialist and Managing Director of a private company. After the accident, he was treated in different hospitals including Institute of Mental Health and Neuro Sciences, Bangalore and incurred expenditure and to that effect, he filed Exs.A.4, A.5, A.6, A.7, A8, A.9, A.32 and A.33. Further, Exs.A.37, A.39 and A.40 go to show that PW.1suffered 80% disability, visual defects and defective hearing in the left ear. Because of the injuries sustained by the petitioner-PW.1 in the accident, it is seen that he is unable to lead independent life and will not be able to be in a position to work. In that view of the matter, the Tribunal has awarded Rs.2,00,000/- towards shock, pain and suffering, Rs.10,00,000/- towards medical expenses, Rs.1,00,000/-towards attendant charges, Rs.50,000/- towards extra nourishment, Rs.2,00,000/- towards inconvenience, hardship, discomfort, disappointment and mental stress, Rs.50,000/- towards transportation, Rs.1,20,000/- towards loss of income during the period of treatment, Rs.5,00,000/- towards physiotherapy and Rs.5,00,000/-towards permanent disability. 16. So far as the appeal for enhancement of compensation is concerned, we are of the opinion that the Tribunal, after assessing and appreciating the evidence on record, has awarded just and reasonable compensation at Rs.27,20,000/- as such, we are not inclined to interfere with the same. 17. In the above facts and circumstances of the matter and also having regard to the peculiar and pathetic condition of the petitioner-injured-claimant and also the fact that the Motor Vehicles Act being a social beneficial legislation, we are of the considered opinion that the Tribunal has not committed any error or irregularity in awarding the aforesaid amount of compensation in favour of the petitioner-injured-claimant and the same appears to be just and reasonable and as such the impugned order does not suffer from any infirmity warranting interference at the hands of this court. 18. Hence, both the M.A.C.M.As fail and accordingly they are dismissed. No order as to costs. ___________________ B.PRAKASH RAO,J ______________ B.N. RAO NALLA, J 01.02.2011 Note: L.R.copy to be marked. B/o. Stp HON’BLE SRI JUSTICE B.PRAKASH RAO & HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A. Nos.2772 OF 2007 & 198 OF 2008 -12-2010