IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.1739 of 2005 Dated:11-08-2011 Between: Integrated Child Development Society and another. ….Appellants. And Madduru Venkata Ravi Sarma. ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.1739 of 2005 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the award and decree passed in M.V.O.P.No.15 of 2001 by the Motor Accidents Claims Tribunal - cum - District Judge, Cuddapah on 19.08.2002. The respondent herein, who is the claim petitioner has filed an application under Section 166 of Motor Vehicles Act claiming compensation of Rs.13,42,000/- for the injuries sustained by him in a motor vehicle accident occurred on 02.10.1997. According to the petitioner on 02.10.1997 the petitioner along with his staff traveling in the jeep bearing No.AP 04 6821 belonging to the 1st respondent from Pulivendula to Inaganuru to meet the Joint Collector and at about 4.00 P.M., when the jeep reached near Rayalapuram, the driver drove the jeep in a rash and negligent manner and took sudden turn and lost control over the vehicle, as a result of which, the jeep turned turtle. The petitioner has sustained fracture of left humerus and pelvis bone and injuries on the head. Immediately, he was shifted to Government Hospital, Pulilvendula and from there to Government Hospital, Cuddapah. Thereafter, the petitioner took treatment in Amar Hospital, Cuddapah from 02.10.1997 to 18.10.1997 and during that period he underwent two operations and rods and plates were fixed for left humerus and pelvis. In spite of the said treatment, he is unable to walk freely. The District Medical Board, Cuddapah has issued disability certificate assessing the disability at 70%. He engaged a attendant and paying Rs.2,000/- per month. At the time of the accident, the petitioner was worked as Mandal Revenue Officer and was drawing monthly salary of Rs.13,000/-. The 1st respondent has filed the counter denying the allegations and put the petitioner to strict proof with regard to the manner in which the accident has taken place and pleaded that there is no negligence on the part of the driver of the jeep and put the petitioner to strict proof with regard to the expenses incurred by him. A memo was filed by the 2nd respondent adopting the counter of 1st respondent. On the above pleadings, the lower Tribunal has framed the following issues: (1) Whether the petitioner received injuries in a motor vehicle accident on 02.10.1997 due to rash and negligent driving of respondent jeep bearing No.AP 04 6812 by its driver? (2) Whether the petitioner is entitled for compensation and if so to what amount and from whom? (3) To what relief? The petitioner examined himself as P.W.1 and got marked Exs.A.1 to A.15. On behalf of the respondents, R.W.1 was examined but no documents were marked. Taking into consideration of the said oral and documentary evidence, the lower Tribunal has held that the accident was occurred due to rash and negligent driving of the driver of the jeep and awarded compensation of Rs.10,04,000/- for the injuries sustained by the petitioner. Aggrieved by the said award and decree, the present appeal is filed by the respondents therein. Now, the points that arise for consideration are: (1) Whether the accident was occurred due to rash and negligent driving of the jeep bearing No. AP 04 6821 by its driver? (2) Whether the petitioner is entitled for the compensation awarded by the lower Tribunal? P O I N T No.1: Learned counsel for appellants has pleaded that the petitioner has engaged his own driver and met with an accident, as such the appellants are not liable to pay compensation. The claimant examined himself as P.W.1 and narrated about the manner in which the alleged accident has taken place and nothing was suggested to him with regard to engaging his own driver at the time of accident. No suggestion was put to him that the accident was not occurred due to rash and negligent driving of the driver of the jeep. P.W.1 has got marked Ex.A.1, the certified copy of FIR in Crime No.73 of 1997 of Pulivendula Police Station. The said FIR was issued on recording the statement of P.W.1 in the hospital, wherein he has categorically stated about the rash and negligent driving of the driver of the jeep bearing No.AP 04 6821. Ex.A.3 is the charge sheet filed in Crime No.73 of 1997 of Pulilvendula police station and the said charge sheet was filed against the driver of the jeep bearing No.AP 04 6821 alleging that he drove the vehicle in a rash and negligent manner and caused the accident. R.W.1, who is working as Superintendent in 1st respondent society has only stated about the petitioner engaging private driver to drive the vehicle and he does not speak anything about the rash and negligent driving of the vehicle at the time of the accident. Except R.W.1 stating that P.W.1 has engaged a private driver to drive the vehicle at the time of accident, no material was placed on record to show that the P.W.1 has engaged his own driver for driving the jeep at the time of accident. Moreover, the driver of the said jeep was not examined before the lower Tribunal. Therefore, from the evidence of P.W.1 and Exs.A.1 and A.3 it is established that the accident was occurred due to rash and negligent driving of the jeep by its driver. Therefore, the contention of the appellants that they are not liable to pay compensation, cannot be accepted. P O I N T No.2: The appellants’ counsel has pleaded that the lower Tribunal has awarded the compensation of Rs.10,04,000/- for the alleged injuries sustained by the petitioner even without examining any doctor, who has treated P.W.1. He further contended that the disability certificate Ex.A.4 was not proved by P.W.1 by examining the Doctor, who has issued the same. The respondent’s counsel, on the other hand, has pleaded that the petitioner is Law graduate and he has got 10 merit certificates and he is successfully attending his duties and in view of the injuries sustained by him in the said accident, he lost his future earnings after retirement. He further pleaded that the evidence of P.W.1 and documents Exs.A.2 and A.4 clearly establish the injuries sustained by the petitioner and disability suffered by him, as such the lower Tribunal has rightly awarded compensation and the same does not warrant any interference by this Court. According to P.W.1, he sustained injuries on left side of forehead, left humerous, left shoulder, and left humerous and pelvis were fractured. Immediately, he was shifted to Government Hospital, Pulivendula. From there he was shifted to Government Head Quarters Hospital, Cuddapah. Thereafter, he was shifted to Amar Hospital, Cuddapah and there he took treatment from 02.10.1997 to 18.l0.1997 as inpatient. During that period, two operations were conducted on his left humerous and pelvis by the doctors from Madras by inserting rods, plates and screws. Thereafter, he took treatment from Dr. K.V. Reddy and Medinova at Proddatur. Still he is taking treatment. He spent Rs.1,00,000/- towards medical and other expense. He appointed an attendant for attending his duties while he was on bed and paid Rs.20,000/- to him. He cannot walk even to a small distance without any support. The Medical board examined him and issued a certificate assessing the disability at 70%. He is drawing salary of Rs.14,000/- per month as Mandal Revenue Officer at Muddanur. He got marked Ex.A.2 wound certificate, Ex.A.4 disability certificate, Ex.A.5 salary certificate, Ex.A.6 discharge summary of Amar hospital, Cuddapah, Ex.A.7 medical prescriptions and bills 15 in number, Ex.A.8 receipt issued by Dr. K.V. Reddy for Rs.20,000/-, Ex.A.9 receipt issued by attendant towards attendant charges for Rs.20,000/-, Ex.A.10 is another bill issued by Amar hospital, Cuddapah for Rs.10,000/-, Ex.A.11 is the bill and receipt issued by Amar Hospital, Cuddapah for Rs.35,796/- and Ex.A.12 is the report of medinova. The lower Tribunal has awarded Rs.10,04,000/- by holding that the petitioner is having 70% disability due to the injuries sustained by him and he is having pain on the left hip joint and he cannot walk for more than one furlong and now he is retired from his service and he is getting pension and he is a Law graduate and he can earn more than Rs.7,000/- per month by doing any part-time job or legal profession. Due to the injuries he cannot get any additional remuneration after retirement. Therefore, the lower Tribunal has taken into consideration of the age of the injured as 54 years and monthly salary as Rs.14,000/- per month and taking into consideration the disability of 70% awarded Rs.4,70,000/- towards loss of earnings. The lower Tribunal also awarded Rs.38,500/- towards loss of salary for 5 ½ months and Rs.75,000/- towards medical expenses and Rs.20,000/- towards attendant charges and Rs.1,00,000/- towards pain and suffering. The appellants have questioned the quantum of compensation awarded by the Tribunal on the ground that the injuries sustained by the petitioner were not established by examining any Doctor. Admittedly, the claimant alone examined himself as P.W.1 and none of the doctors, who treated him or who has issued disability certificate are examined before the lower Tribunal. Ex.A.2 is the wound certificate issued by the Civil Assistant Surgeon, Community Hospital, Pulivendula, Cuddapah District. As per the said certificate, the petitioner was examined by him on 02.10.1997 at 4.35 P.M. and found (1) A lacerated wound above the left eye-brow measuring about 6 cm X 1 Cm X bone deep. (2) A lacerated wound below the left eye measuring about 2 Cm X ½ Cm X skin deep. (3) An abrasion on left cheek measuring about 2 Cm X ½ cm. (4) An abrasion on the anterior aspect of right wrist measuring about 2 cm X 1 cm. (5) An abrasion on the left knee measuring about 5 Cm X 3 Cm. (6) An abrasion on the outer aspect of left knee measuring about 10 Cm X 3 Cm. (7) Transure abrasion on right knee measuring 4 Cm X ½ Cm (8) As per the radiologist opinion Amar Hospital, Cuddapah fracture dislocation of left Hurnasus neck and open look type of fracture of left hemi pelvis. He opined that the injury Nos.1 to 7 are simple and injury No.8 is grievous injury. Therefore, as per the said certificate, the petitioner has sustained 7 simple injuries and 1 grievous injury. The said certificate Ex.A.2 was not proved by examining the Doctor, who has issued the said certificate. Ex.A.4 is the disability certificate issued by the District Medical Board, Cuddapah on 23.07.1998, wherein it was mentioned old fracture pelvis and complaint of post Traumatic stiffness shoulder, 70% disability. The Doctor who has issued the said certificate was also not examined before the lower Tribunal as such the disability certificate Ex.A.4 was also not proved. The said certificate does not disclose about the injuries sustained by the petitioner and how he has arrived at 70% disability. As per Ex.A.2, P.W.1 has sustained only one grievous injury and 7 simple injuries and as the Doctor, who has issued the disability certificate was not examined, it is not safe to rely upon the said document to arrive at the percentage of disability. Moreover, even as per Ex.A.2 wound certificate, the injury No.8 was not found by the Doctor at the time of his examination, as per the radiologist opinion, Amar Hospital he has mentioned the injury No.8. Therefore, the petitioner could not establish the disability 70% as claimed by him. Even if the Ex.A.2 wound certificate is taken into consideration, the petitioner has sustained 7 simple injuries and 1 grievous injury. As such, the petitioner can be awarded compensation for the said injuries only in the absence of proof of disability. Thus, the petitioner can be awarded a sum of Rs.1,00,000/- for the grievous injury sustained by him and Rs.1,000/- for each simple injury. Thus, in all the petitioner is entitled for Rs.1,07,000/- for the injuries sustained by him. With regard to the medical expenses, the petitioner has produced Exs.A.7, A.8, A.10 and A.11, for an amount of Rs.76,154/- and the lower Tribunal has awarded Rs.75,000/- towards medical expenses in view of the production of the said medical bills Exs.A.7, A.8, A.10 and A.11, the petitioner can be awarded Rs.75,000/- towards medical expenses incurred by him. The lower Tribunal has awarded Rs.38,500/- towards loss of salary for 5 ½ months. According to P.W.1, he took treatment in the Amar Hospital from 02.10.1997 to 18.10.1997 as inpatient and he did not speak about the leave applied by him during the period of treatment. But in the cross-examination, he admitted that as per Ex.A.13 the R.D.O, Jammalamadugu has recommended, the treatment period as special disability leave. As per rules, he is entitled for disability leave. When the petitioner is entitled for special disability leave for the treatment period, there cannot be any loss of salary for the said period. Hence, the petitioner is not entitled for Rs.38,500/- towards loss of salary as awarded by the lower Tribunal. The lower Tribunal also awarded an amount of Rs.20,000/- towards attendant charges basing on Ex.A.9 receipt said to have been issued by the attendant by name K.Shankar. To establish the said document Ex.A.9, K.Shankar was not examined before the lower Tribunal. Since the document Ex.A.9 was not proved by the petitioner, he cannot be awarded any amount towards attendant charges. The lower Tribunal has awarded Rs.1,00,000/- towards pain and suffering. Since the petitioner took treatment in the Amar Hospital, Cuddapah for the injuries sustained by him, he can be awarded the said amount of Rs.1,00,000/- towards pain and suffering. Since the petitioner has taken treatment for the fracture, he would have spent some amount towards nutritious food. Thus, he can be awarded an amount of Rs.25,000/- towards nutritious food. Thus, in all the petitioner is entitled for total compensation of Rs.3,07,000/-. Since the jeep involved in the accident is belonging to the appellants/respondents, they are liable to pay the above said compensation. In the result, the appeal partly allowed and the compensation awarded by the lower Tribunal is reduced from Rs.10,04,000/- to Rs.3,07,000/-. The petitioner is also entitled for interest at 6% P.A. from the date of filing of the petition till the date of realization. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:11-08-2011 Ksp