IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.4711 of 2003 Between: Kunteddula Srinivasulu Reddy .. Appellant AND M/s. Pioneer Builders rep. by its Manager, owner of the lorry, Sajjaladinne, Tadipatri Mandal, Anantapur District and another .. Respondents JUDGMENT: The appeal is directed against the award in M.V.O.P. No.1107 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Kadapa, dated 17-11-2003. The appellant travelling on a two wheeler along with Golla Seenu and Ramireddy on 11-09-2001 was involved in a motor accident when lorry No.AP 02U 1835 owned by the 1st respondent and insured with the 2nd respondent being driven rashly and negligently, hit the two wheeler. The appellant was treated at Government hospital, Anantapur for 8/9 days and then at Venkateswara Nursing Home up to 05-10-2001. Thereafter, he was treated by Dr. Venkata Subbaiah at Kadapa and the appellant incurred an expenditure of Rs.15,000/- for treatment, Rs.10,000/- for surgery, etc., and he became disabled to pursue his avocation as lorry driver due to the injuries, while he was earning Rs.8,000/- to Rs.9,000/- per month earlier. Hence, he claimed a compensation of Rs.2,00,000/- from the owner and insurer of the lorry. While the owner of the lorry remained ex parte before the Tribunal, the insurer denied the allegations of the claimant or any responsibility for the lorry driver in the accident. It claimed that the accident was due to the fault of the driver of the two wheeler and the insurer desired the claim to be negatived, as it was excessive. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation and examined P.Ws.1 and 2 and R.W.1 and marked Exs.A.1 to A.12 and B.1 during the enquiry. The Tribunal accepted the evidence of P.W.1, the injured, corroborated by Ex.A.1 first information report and Ex.A.2 charge-sheet to conclude that the accident occurred due to the rash and negligent driving of the lorry, more so due to the non-examination of the lorry driver. The Tribunal, while assessing the compensation, considered the evidence of P.W.2, who examined P.W.1 on 25-01-2003, to be not dependable in view of P.W.1 never undergoing treatment under him and the doctor seeing P.W.1 for the first time only for issuing the disability certificate. The non-examination of the doctors, who treated P.W.1, was also taken adverse notice of and the disability claimed was not accepted to be in consequence of the injuries sustained in the accident. The Tribunal, therefore, with reference to the facts and circumstances available on record, considered it appropriate to grant a lump sum compensation of Rs.85,000/- including loss of about Rs.5,000/- income during the period of treatment at Anantapur and Tadipathri. The Tribunal accordingly granted such compensation with interest at 9 per cent per annum and proportionate costs. The appellant challenged the said award contending that the monthly income ought to have been taken as Rs.8,000/- and Rs.9,000/- as per Ex.A.12 certificate issued by lorry owner and the disability should have been taken as 35% as mentioned in Ex.A.5 issued by P.W.2. The disability can be assessed only during the evidence and not before. The multiplier system under II Schedule ought to have been followed. The lump sum compensation awarded is not adequate or just and hence, the appellant desired the balance compensation to be awarded. Sri D. Kodanda Rami Reddy, learned counsel for the appellant and Sri C. Prakash Reddy, learned standing counsel for the 2nd respondent are heard and none appeared for the 1st respondent before this Court. The conclusion of the Tribunal about the responsibility of the lorry driver for the accident with his rash and negligent driving was not challenged by any party and the ownership of the vehicle with the 1st respondent and its subsisting insurance with the 2nd respondent not being in dispute, the joint and several liability of both the respondents to justly and adequately compensate the claimant cannot be in dispute. What remains to be considered is only the quantum of just and adequate compensation and it is seen from the evidence on record that P.W.2, who issued Ex.A.5 disability certificate, had issued Ex.A.5 on verification of Ex.A.3 wound certificate, but not on the basis of any treatment given by him to P.W.1. The result of the injuries and the restricted movements noted by P.W.2 was stated to be consequential restriction in the movements of right upper limb due to P.W.1 being unable to raise his hand at 90 degrees. The inability of P.W.1 to lift the right upper limb at 90 degrees was stated by him to be presenting difficulty in moving the lorry tyres, to keep jockey, to climb lorry, etc., which may not be relevant to the capacity of driving of P.W.1. The possibility of difficulty in holding the steering for long distances and feeling of strain and pain in the right hand may have some impact on the capacity of P.W.1 to drive. But the alleged disability of 35% stated by P.W.2 also does not appear to have the same percentage of impact on the continuance of his avocation as lorry driver by P.W.1. P.W.2 admitted that injury No.4 of Ex.A.3 alone was the grievous injury noted immediately after the accident and that injury was a contusion over the right forearm. The Tribunal refused to act upon the evidence of P.W.2 due to the absence of examination of doctors who treated P.W.1 earlier and the absence of any reasons for their non-examination and the non-production of the record of treatment in between. Therefore, the Tribunal could not have granted any compensation on the alleged disability certificate by P.W.2. However, coming to the injuries suffered, it is seen from Ex.A.3 would certificate that P.W.1 was examined immediately after the accident by the Government Medical Officer and he was found to have suffered one grievous injury and three simple injuries and the grievous injury related to the contusion in the right upper ulna. While there was no independent evidence or record to show that this grievous injury resulted in any permanent disability, the fracture noted by x-ray as per Ex.A.4 possibly leading to any significant disability is also not proved by any medical evidence. However, the charge-sheet also mentions that the accused driver was prosecuted for an offence under Section 338 of the Indian Penal Code for obviously causing grievous hurt and injury No.4 of P.W.1 was described as grievous in the charge- sheet. The injured P.W.1, therefore, has to be compensated for a grievous injury and three simple injuries and their consequences. The evidence of P.W.1 shows that after the incident, he took treatment between 12-09-2001 and 30-10-2001 as in-patient for about one and half months and he also produced Exs.A.8 to A.10 medical bills to show the expenses he had incurred for treatment. The Tribunal took into account the medical bills produced to an extent of Rs.9,769/- and also noted that he would have lost about Rs.5,000/- while undergoing treatment at Anantapur and Tadipathri towards loss of income. Taking all these things into account, the Tribunal fixed a lump sum compensation of Rs.85,000/- which is obviously including all claims for pecuniary and non-pecuniary damages under any head including pain and suffering. There is nothing on record to show that even if each head of such damages had been calculated separately, the same would have altogether amounted to more than the lump sum awarded by the Tribunal and in the absence of any strong reasons, the quantum of compensation cannot be considered to have been inadequate and the appeal has, therefore, to fail. In the result, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 02-02-2011 Svv