IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.1721 of 2002 Between: Vaddiparthi Ravikanth ..Appellant AND B.A.V. Lakshminarayana and 2 others .. Respondents JUDGMENT: This appeal is directed against the order and decree in M.O.P.No.1873 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam, dated 07-01-2002. The factual background for the appeal is that injured- petitioner then aged about 19 years and studying B.Com degree was travelling as pillion rider of Bajaj Chetak AP31-H-1109 on 13- 07-1999 and near Bangaramma temple at Visakhapatnam, car No.AP-31-E-8228 driven by the 1st respondent rashly and negligently without headlight or blowing horn, dashed the scooter from the right side. The petitioner sustained grievous injuries including the fracture of right leg and the petitioner’s brother Anantha Satyanarayana and his cousin also received multiple injuries in the accident, for which Crime No.61 of 1999 was registered. The injured-petitioner underwent a surgery for the fracture of shaft of right femur and he had also injuries and bleeding in the ear, nose and throat. He was disabled from attending the classes or move freely and suffered physical disability and hardship. Hence, he sued the driver, owner and insurer of the car for a compensation of Rs.2,00,000/-. The driver contended the scooter itself to be driven rashly and negligently in spite of his applying brakes to the car and he also claimed the injured-petitioner’s brother and insurer of the scooter to be necessary parties. He denied the other allegations of the injured-petitioner. The 2nd respondent, owner of the vehicle, died during the pendency of the claim and the insurer contested the claim contending that the scooter was driven rashly and negligently and not the car and the compensation claimed is excessive. The Tribunal framed issues on the responsibility for the accident, the entitlement of the injured-petitioner for compensation and the liability of the respondents for the same. During enquiry, the Tribunal examined PWs.1 and 2 and marked Exs.A.1 to A.11, B.1 and X.1. The Tribunal rendered the impugned award referring to the rival contentions and evidence and firstly, concluded in the absence of any rebuttal evidence that PW.1, the injured-petitioner, proved the rash and negligent driving of the car by its driver. The Tribunal assessed the compensation in the light of the evidence of PW.2, the doctor, while noting the absence of any record to show that the injured-petitioner subsequently completed his B.Com degree. The Tribunal awarded Rs.1,500/- towards transport to hospital, Rs.14,200/- proved by the medical bills towards medical expenses, Rs.5,800/- towards extra nourishment, Rs.10,000/- towards pain and suffering and Rs.15,000/- each for future surgery for the removal of the plates and the temporary disability. While refusing to grant any compensation for any continuing permanent disability in view of PW.2’s evidence and the loss of earning power due to the absence of any earning power, the said compensation of Rs.61,500/- was directed to carry interest at 9% per annum from the date of petition till realization and proportionate costs. Directions were given regarding disbursement of the compensation. The injured-petitioner filed the appeal contending that the Tribunal should have appreciated the just and reasonable claim of the injured-petitioner and the claim is supported by bills and the evidence of the doctor. The continuing permanent disability cannot be measured only by means of evidence of the doctor and the invisibility of the agony and pain cannot be the reason for refusing to give just and adequate compensation, more so, when it affects the future earning capacity of the claimant. Hence, he desired that the remaining compensation claimed also be awarded. Sri G. Ram Gopal, learned counsel for the appellant and Sri Srinivasa Rao Vutla, learned standing counsel for the insurer, are heard and none appeared for the 1st respondent in this appeal. Insofar as the finding of the Tribunal about the rash and negligent driving of the car being the cause for the accident is concerned, no party has challenged the same and it has become final. The 2nd respondent, the owner of the vehicle, died during pendency of the claim petition and the 1st respondent is stated to be the son of the deceased 2nd respondent and no other legal representatives were brought on record in the claim petition or the appeal. The subsisting insurance with the 3rd respondent is proved by Ex.B.1-Policy marked on behalf of 3rd respondent itself and the joint and several liability of respondents 1 to 3 to pay just and adequate compensation to the injured-petitioner thus cannot be in doubt. The only question that remains for consideration is, hence, the quantum of just and adequate compensation. Ex.A.6-Bill issued by the C.D.R. Hospitals shows the injured-petitioner having been charged a sum of Rs.18,545-07ps for the treatment undergone from 14-07-1999 to 30-07-1999 including for the surgery. Ex.A.9-Discharge summary shows that the injured-petitioner had to again undergo treatment from 08-08- 2001 to 13-08-2001 in Apex Hospital, Visakhapatnam for implant removal corresponding to the surgery performed earlier in the C.D.R. Hospitals and the billing by Apex Hospital appears to be for a total of Rs.8,025/-. While the accident was immediately reported to the police on 14-07-1999 itself as seen from Ex.A.1, Ex.A.2 shows that fracture of right femur lower 1/3rd, which was a grievous injury, was certified by the C.D.R. Hospitals, the discharge note of which Hospital is Ex.A.4 showing the course of treatment. The amounts charged by the Hospitals were claimed to have been paid by the injured-petitioner and Ex.X.1-Case Sheet of Apex Hospital also supports the claims of PW.1 about the course of his treatment. Though it is true that PW.2 stated that there was no disability for the injured-petitioner, the fact that he suffered 25% temporary partial disability was stated by him and the injured- petitioner claimed that he is still getting pain in spite of operation. However, while he suffered some discomfort and inconvenience in pursuing his studies at that time, the documentary evidence or the oral evidence produced by him do not support the claim of any continuing disability. His claim that he cannot walk without any aid is, therefore, unsubstantiated and the compensation has to be, therefore, assessed accordingly. The Tribunal awarded Rs.1,500/- towards transport to Hospital as claimed and as against Rs.10,000/- claimed towards extra nourishment, the Tribunal awarded Rs.5,800/- to disturb which assessment there is no positive material. Similarly, the award of Rs.15,000/- each towards surgery for removal of the plates and the temporary disability cannot be considered to be unjust and the refusal by the Tribunal to grant any compensation towards any continuing permanent disability or loss of earning power in the absence of proof of any such disability or earning power also cannot be faulted. However, it is not known how the Tribunal concluded that the medical bills had come to Rs.14,200/-, while in fact the earlier treatment costed Rs.18,545-07ps to the petitioner and the subsequent surgery costed Rs.8,025/-. Even assuming that the subsequent surgery for removal of plates is covered by Rs.15,000/- awarded by the Tribunal under that head, the medical expenses incurred in C.D.R. Hospitals were obviously not covered. A sum of Rs.4,345/- is not granted in spite of proof of such expenses for no explicable reason. The Tribunal also did not consider the damage to the clothing, the attendant’s charges and other inevitable expenses, which the injured-petitioner would have incurred during the first spell of treatment or the attendant’s charges and other inevitable expenses that would have been incurred during the second spell of treatment, apart from the amounts paid under the bills. In view of the fracture requiring the injured-petitioner undergo two surgeries, pain and suffering also should have been compensated with a little higher amount and therefore, the compensation can be enhanced by about Rs.7,000/- in respect of other medical and miscellaneous expenses and about Rs.5,000/-towards pain and suffering i.e. by Rs.12,000/-. The dislocation in studies and consequential adverse impact on the future prospects of the injured-petitioner, though not specifically proved are self-evident from the consequences of the injuries suffered by the petitioner as seen from the evidence towards which a compensation of Rs.3,000/- can also be awarded. In view of the length of time for which the interest has to be paid by respondents 1 and 3 in respect of enhanced portion of the compensation of Rs.15,000/-, such interest can be granted at 6% per annum with proportionate costs. Accordingly, the award dated 07-01-2002 in M.O.P.No.1873 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam, is modified by enhancing the compensation by Rs.15,000/- with interest thereon at 6% per annum from the date of petition till realization and proportionate costs, in addition to the compensation already awarded by the Tribunal by the impugned award and the appeal is allowed accordingly in part without costs. No further directions need be given at this distance of time regarding disbursement of the compensation. _____________________ G. BHAVANI PRASAD, J Date: 02-09-2010 Ksn