IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE ELEVENTH (11TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.4628 of 2008 Between: United India Insurance Co.Ltd., Secunderabad … Appellant And: Juloori Venugopal & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.4628 of 2008 JUDGMENT: This appeal is directed against the order dated 19.08.2008 in OP No.321 of 2005 on the file of the MACT cum XX Additional Chief Judge, City Civil Courts, Secunderabad, wherein, the said claim application filed by the first respondent herein, was allowed in part, awarding compensation of Rs.10,00,000/- with interest at 6% per annum from the date of petition. 2. Heard both sides. Perused the record. 3. The first respondent herein filed claim application under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.10,00,000/- for the injury sustained by him in the motor vehicle accident that occurred on 16.03.2005. As the claimant is stated to be in coma, the petition was filed through is father-natural guardian. According to the claimant, on that day, he was proceeding on his hero-honda motor cycle bearing No.AP 23 D 7407 from Dubbaka towards Siddepet and when he reached near Darmaram village, a lorry bearing No.AHT 8575 came in the opposite direction in a rash and negligent manner on wrong side of the road and dashed against the motor cycle from the opposite direction, as a result of which, the claimant sustained head injury and brainstem injury, besides other injuries all over the body and he was shifted to Government hospital, Siddipet and from there to Apollo hospital, Secunderabad. Subsequently, he was shifted to NIMS hospital, Hyderabad. He also took treatment at Heritage Hospital, Somajiguda, and Vijaya Health Care, Secunderabad. A case in Cr.No.10 of 2005 was registered by Mirudoddi Police against the driver of the lorry. The claimant was said to be in coma even by the date of filing of the claim application. The claimant was stated to be doing business in Grain Market at Siddipet and earning Rs.15,000/- per month. 4. The 2nd respondent herein-owner and the appellant-insurer filed counters, opposing the claim and denying their liability to pay the compensation. 5. During enquiry before the Tribunal, PWs.1 to 3 were examined and Exs.A.1 to A.17 were marked on behalf of the claimant. RWs.1 to 3 were examined and Exs.B.1 to B.10 were marked on behalf of the appellant. Ex.C.1 OP card and Ex.C.2 case sheet were also marked. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. Regarding the quantum of compensation, the Tribunal estimated total compensation at Rs.12,84,000/-, but restricted the same to Rs.10 lakhs as claimed by the claimant. Accordingly, the award was passed for the said amount with interest at 6% per annum from the date of petition. Aggrieved by the same, the insurer filed present appeal. 6. The main contention of the learned counsel for the appellant is that the lorry bearing No.AHT 8575 was not involved in the accident and the claimant appears to have sustained injuries because of an unknown vehicle. In the claim application, the claimant has specifically pleaded that the accident occurred due to the rash and negligent driving of the lorry AHT 8575 which came in the opposite direction and dashed against the motor cycle of the claimant. In the counter filed by the appellant, while putting the claimant to proof that the driver of the lorry was rash and negligent at the time of the accident, the appellant-insurer further pleaded that the accident occurred due to the total negligence on the part of the motor cycle rider. It was further pleaded that the accident occurred due to the fault of the claimant himself. It is not specifically pleaded in the counter of the appellant-insurer that the lorry AHT 8575 was not involved in the accident at all. The 2nd respondent herein-owner of the vehicle in his counter stated that the driver of the lorry was driving with due care and diligence and the accident occurred only due to the negligence on the part of the claimant himself. Thus, it is also not the case of the 2nd respondent-owner that his lorry AHT 8575 was not involved in the accident. Simply because, the 2nd respondent-owner in the counter, admitted the involvement of the vehicle in the accident, no inference of any collusion between the owner and the claimant can be drawn as sought to be contended by the appellant-insurer. The claimant is a resident of Secunderabad and the owner of the lorry belongs to Siddipet. There is absolutely nothing on record to show that there was any collusion between the claimant and the owner of the vehicle, who are both strangers to each other. There is again absolutely no reason as to why the owner of the lorry should oblige the claimant and press his vehicle into picture. 7. No doubt, in FIR Ex.A.1, the number of the vehicle is not mentioned and the vehicle involved is referred to as ‘unknown vehicle’. FIR was registered based on the complaint given by one Mysaiah, who is admittedly, not a witness to the accident. In Ex.A.1 itself, it is stated that the complainant was at Darmaram cross road and on coming to know about the incident, he reached the scene of offence, which is situated 1 KM away and found the claimant lying with injuries. After due investigation, police filed charge sheet Ex.A.2 against the driver of the lorry AHT 8575. In the charge sheet Ex.A.2, police have mentioned particulars of the offending vehicle as lorry bearing No.AHT 8575. The charge sheet was filed on 22.06.2005 i.e., three months from the date of the accident. In the charge sheet, it is mentioned that on 20.04.2005, the vehicle was identified and driver was traced and arrested. It can also be seen from the charge sheet Ex.A.2 and the case diary Ex.A.17 that the charge sheet was filed after recording statements of all witnesses, including the eye witnesses to the accident. One of the eye witnesses to the occurrence is examined as PW.2 and he also testified that the lorry bearing No.AHT 8575 was the crime vehicle. He further testified that at the time of the accident, he was going on TVS Excel as a pillion rider and the claimant was going ahead of him and when the lorry dashed against the claimant, they chased the crime vehicle, but in vain. The said version finds a mention in the charge sheet Ex.A.2 also. Thus, FIR is meant only to initiate criminal law into motion and the failure to mention the particulars of the crime vehicle in the FIR is not fatal. When the police during the course of investigation have identified the crime vehicle as lorry No.AHT 8575, within a week of the accident and arrested the lorry driver and prosecuted him, there is absolutely no reason to suspect the involvement of the said vehicle in the accident. The contention of the appellant-insurer that the said vehicle has been falsely implicated remains unsubstantiated. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry AHT 8575 does not therefore call for any interference, as the said finding is based on proper appreciation of the evidence available on record. 8. Regarding the quantum of compensation, voluminous medical evidence on record establishes the plea of the claimant that he sustained multiple injuries, including head injury and injury to the brain and that he was initially taken to Government hospital, Siddipet, and from there he was shifted to Apollo Hospital, Secunderabad and later to NIMS and he continued treatment at Heritage Hospital and Vijaya Health Centre. PW.3 doctor of Vijaya Health Care testified that on account of the head injury, the claimant is rendered totally dependent on his parents and he needs regular check up for life time. It is also in his evidence that the claimant was in state of coma and there is no chance of recovery. The claimant filed Exs.A.4 to A.7 discharge summaries issued by various hospitals, where he underwent treatment, Ex.A.8 disability certificate issued by Vijaya Health Care, Ex.A.12 bunch of hospital bills and receipts, Ex.A.13 bunch of prescriptions, Ex.A.14 bunch of diagnostic reports, Ex.A.16 bunch of X.ray and Ex.A.17 case dairy, which all establish the serious nature of the injuries sustained by the claimant and the long drawn treatment undergone by him in various hospitals. The evidence on record also shows that in spite of such treatment, the claimant has not recovered from the brain stem head injury and he has become totally dependent on his parents on account of the disability. PW.3 issued disability certificate Ex.A.8 where in it is stated that the claimant suffered major head injury, brain stem injury and became totally dependent. 9. Bunch of medical bills Ex.A.12 shows the expenditure of Rs.5,30,838/- and the Tribunal has awarded the same rounding of to Rs.5,30,000/-. As seen from Ex.A.3, wound certificate, the claimant sustained three grievous injuries, for which, the Tribunal awarded Rs.60,000/-. The claimant would be entitled for a sum of Rs.5000/- for each of the grievous injury as per the II Schedule of the Motor Vehicles Act, which can be taken as a guide and therefore, the claimant is entitled for a sum of Rs.15,000/- towards pain and suffering. The Tribunal awarded Rs.2000/- towards transport charges, Rs.2000/- towards extra nourishment, which are just and reasonable. 10. The evidence on record established that the claimant was doing business in the grain market and he filed income tax returns Ex.A.10 and Trade licence Ex.A.11. As per Ex.A.10, declared income of the claimant for the year 2004-05 was Rs.61,624/-, which was rounded to Rs.60,000/-. The Tribunal after deducting 1/3rd towards personal expenses, has taken Rs.40,000/-for the purpose of estimating the loss of earning capacity and applying the multiplier 17, awarded total compensation of Rs.6,80,000/- towards loss of earning capacity. In fact, the question of deducting any amount towards personal expenses does not arise in case of injuries. As per the evidence on record, the claimant was aged 32 years and applying the suitable multiplier ‘17’, loss of earning capacity would be much more, if no such deduction is made. The Tribunal has estimated total compensation as Rs.12,84,000/-. Even if the amount of Rs.60,000/- is held to be superfluous because the Tribunal has awarded Rs.10,000/- separately towards pain and suffering, still the amount of compensation payable would far exceed the amount of Rs.10,00,000/- claimed by the claimant. Thus, viewed from any angle and having regard to the age of the claimant, who was only 32 years and the permanent disability sustained by him on account of the serious head injury sustained by him and the long drawn medical treatment, and hospitalization at considerable expense, the amount of Rs.10,00,000/- claimed and awarded by the Tribunal cannot be considered to be excessive or unreasonable. In the circumstances, it is held that there are absolutely no valid or justifiable grounds to interfere with the award passed by the Tribunal. 12. In the result, the appeal is dismissed. No order as to costs. G.V.SEETHAPATHY, J Date: 11.10.2011 bss