IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF FEBURARY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.4037 of 2003 Between: Kongalaty Jacob ..... Appellant And Kesineni Srinivas and another …Respondents The Court made the following: JUDGMENT: This appeal is directed against the award in MVOP.No.50 of 1999, dated 24-09-2003 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Guntur. The appellant was the driver of Jeep No.ADG-9786 on which he was returning to Mangalagiri and near the fish ponds in Timmapuram, the tourist bus AP-9U-2728 coming in the opposite direction at high speed and driven rashly and negligently hit the jeep on its right side at about 5.00 P.M. on 24-1-1996. The appellant claimed to have sustained a fracture on the right knee and pain in the chest. He claimed that he was given first aid at Government Hospital, Chilakaluripet and was then treated at a private Nursing Home. He claimed to have suffered a permanent partial disability and to have lost his earning capacity in spite of treatment for which he spent Rs.20,000/-. He claimed to be earning Rs.2,000/- per month as jeep driver and the police to have registered Crime No.19 of 1996 of Yadlapadu police station. Hence, he claimed a compensation of Rs.70,000/- from the owner and insurer of the tourist bus. While the owner of the bus remained ex parte before the Tribunal, the insurer denied the claims of the appellant and contended that the claim was bad for non-joinder of the owner and insurer of the jeep. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimant to compensation and during the enquiry, PWs.1 and 2 were examined and Exs.A.1 to A.8 and B.1 were marked. The Tribunal rendered the impugned award firstly holding that the evidence of PW.1 not contradicted by any other evidence proved that the accident took place due to the rash and negligent driving of the driver of the tourist bus. The Tribunal, however, took adverse note of the accident being on 24-1-1996 and PW.2-the doctor examining the injured-PW.1 only on 3-2-2003. Consequently, the Tribunal considered the claimant to have failed to prove the injuries allegedly sustained in the accident, due to which it found it not possible to grant just compensation to him. The Tribunal, therefore, dismissed the petition with costs of the 2nd respondent. The claimant is before this Court with this appeal being aggrieved by the said award and contended that PW.2 was the doctor who treated him while Exs.A.3, A.4 and A.6 to A.8 proved the disability of 30% due to mal-union of the fractures. The evidence of PW.2 could not have been ignored and therefore, the claimant desired that the entire compensation of Rs.70,000/- be granted. Heard Sri G.V. Gangadhar, learned counsel representing Sri N. Subba Rao, learned counsel for the appellant and Sri Nisaruddin Ahmed Jeddy, learned standing counsel for the 2nd respondent-insurer. None appeared before this Court for the 1st respondent-owner of the bus. Insofar as the finding of the Tribunal about the rash and negligent driving of the driver of the tourist bus being the cause for the accident is concerned, there was no challenge by any party and the said conclusion had become final. The acceptance of the evidence of PW.1 by the Tribunal concerning the responsibility of the tourist bus driver for the accident presupposes the involvement of the tourist bus and the jeep driven by the claimant in the accident and also the truth of the claim of PW.1 about his driving the jeep at the relevant time. PW.1 being injured in such an accident would, therefore, have been a natural consequence, while the extent of the injuries and their consequences of course needed positive evidence. PW.1 in his evidence on oath claimed to have suffered a fracture above the right knee and pain in the chest apart from other unspecified injuries in the accident. He claimed that the fracture did not heal properly due to which he got himself attended to by PW.2. During his cross-examination by the insurer what was suggested was only that Ex.A.2-Disability Certificate was created and that the claimant did not suffer any disability but not that he did not sustain any injuries at all. In fact, there was a positive suggestion that PW.1 sustained only simple injuries. While it is true that PW.2 stated that he saw the injured for the first time only on 3-2-2003 more than 7 years after the accident, it is also true that the disability certified in Ex.A.4 by PW.2 with reference to Exs.A.7 and A.8-X-rays was not convincingly stated by PW.2 to be the result of any injury sustained in the accident more than 7 years earlier. The mal-united fracture of right femur, thus, cannot be linked with the accident that occurred as mentioned in Ex.A.2-charge sheet or the other documents filed by the claimant. However, that does not improbablise PW.1 sustaining some injuries in the accident or his claims of being treated first in the Government Hospital and then at Sudheer Nursing Home for the fracture, more so, in the light of specific suggestions of the insurer itself. The earliest version in Ex.A.1-First Information Report shows that PW.1 was admitted in the Government hospital, Chilakaluripet immediately after the accident and it was on the hospital intimation that the crime was registered. PW.1 stated in the earliest version about sustaining bleeding injuries at the chin and right ear and suffering pain at the right knee and chest. The charge sheet filed by the statutory investigating agency after independent investigation converted the crime into one under Section 338 of the Indian Penal Code from Section 337 of the Indian Penal Code, for which the crime was registered under Ex.A.1 and Ex.A.2-Charge sheet clearly specified about PW.1 being the injured driver of the jeep and suffering injuries to the right knee and pain in the chest. The charge sheet also specified about the Government doctor certifying the injuries suffered by PW.1 to be grievous. Ex.A.3-Wound certificate about the injuries found on the date of accident itself by the Civil Assistant Surgeon at the Government Hospital, Chilakaluripet specified that there was a fracture of right thigh and a lacerated bleeding injury over the chin. The injuries were considered to be grievous and were specified to be fresh. Exs.A.1 to A.3 thus clearly corroborate the claims of PW.1 and were not contradicted by any evidence for the respondents. The Tribunal should have compensated PW.1 for the said grievous injury and simple injury in the light of the above circumstances, even if the evidence of PW.2 and his documents could not have been relied on as linking any disability of 30% in the right leg with the accident. While both the respondents are liable to pay such compensation, the occupation of PW.1 as driver is evident from the evidence of PW.1 and the accident itself and he claimed to be earning Rs.3,000/- per month including batta by the time of accident. Giving a reasonable margin for exaggeration, he can be safely considered to be earning Rs.2,000/- per month even with reference to the minimum wages payable at the relevant time for a driver under the Minimum Wages Act. By virtue of the fracture, he would have been disabled from attending his normal duty at least for six to eight weeks and loss of earnings can be calculated at about Rs.4,000/-. The claimant also should have to be compensated for the attendant charges during the period of disablement, extra nourishment, inevitable medical expenses, damage to clothing and other miscellaneous expenses, which can also be calculated at about Rs.4,000/-. One grievous and one simple injury suffered by the claimant have to result in adequate compensation for pain and suffering, which can be about Rs.20,000/- and rounding off the compensation to Rs.30,000/- under all pecuniary and non-pecuniary heads will be granting just and adequate compensation to the claimant. Learned counsel for the appellant referred to G.V. Sathya SeshaSai v. M. Siva Leela and others[1] wherein it was held that the court has a duty to consider the evidence produced by the claimant as well as the evidence produced on the opposite side including the medical evidence and judge its truth and acceptability on the basis of its own assessment of the extent of disability. It is only in discharge of the said legal obligation that the above adjudication has been made. Learned counsel for the 2nd respondent referred to National Insurance Co. Ltd., and another v. Adepu Raghunath and another[2] wherein the learned Judge refused to take the wound certificate in that case into consideration as having no evidentiary value on the ground of non- examination of the doctor, who issued it. However, that was a case where the learned judge felt that the initial burden placed on the claimant was not discharged. But, in the present case, the very suggestion from the 2nd respondent being about the injured suffering simple injuries and in the light of Exs.A.1 to A.7, the contents of which were not questioned during the cross- examination of PW.1, just and adequate compensation has to be awarded notwithstanding that the person who issued Ex.A.3 was not examined. In view of the length of time for which the interest has to be paid by the respondents in respect of the compensation, it can be confined to 6% p.a., while proportionate costs should be awarded to the claimant against both the respondents jointly and severally. Thus, while any permanent partial disability cannot be considered proved, the claimant will be entitled to compensation on the above lines. In the result, the award dated 24-09-2003 in MVOP.No.50 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal- cum-I Additional District Judge, Guntur, is set aside and MVOP. No.50 of 1999 is ordered granting a compensation of Rs.30,000/- with interest thereon at 6% p.a. from the date of petition till the date of realization and proportionate costs against both the respondents jointly and severally and the appeal is allowed in part accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 01-02-2011 Ksn [1] 1998 (1) Andhra Law Times 14 [2] 2010 (3) ALD 487