HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No.520 of 2008 DATED: 08.2010 Between: B. Chinnaiah Appellant/Ptr. And 1. S.Kullayappa 2. M/s. United India Insurance Company Limited Respondents JUDGMENT: This Motor Accident Civil Miscellaneous Appeal is directed against the order dated 14.11.2007 made in O.P. No.201 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Madanapalle, whereby an amount of Rs.2,00,000/- was awarded to the appellant-claimant against his claim of Rs.3,50,000/- with interest at 7.5% per annum. 2. The facts of the case in brief are that on 04.05.2006, at about 02:00 P.M., while the claimant was walking on the left side of Chittoor- Madanapalle road, a Tata Sumo bearing No.TN-23-X-1456 driven by the 1st respondent-owner in a rash and negligent manner, came from behind at high speed and dashed against him, as a result, the claimant fell down and the offending vehicle ran over his right leg causing burst wound over his right ankle and fracture and dislocation of right fibula. Subsequently, the injured was treated at various hospitals from 05.05.2006 to 18.05.2006. Hence, he filed O.P. No. 201 of 2006 claiming compensation of Rs.3,50,000/-. 3. The 2nd respondent-Insurance Company inter alia, denied that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and also denied its liability. 4. Based on the pleadings of both sides, the Tribunal framed the following issues: (i) Whether the accident occurred due to rash and negligent driving of the offending Tata Sumo bearing No.TN-23-X-1456 involved resulting in injuries to the petitioner - B.Chinnaiah? (ii) Whether the petitioner is entitled to compensation? If so, by whom and to what amount? (iii) To what relief? 5. To substantiate the claim of the petitioner-claimant, PWs. 1 to 5 were examined and Exs.A.1 to A.17 were marked on his behalf. PW1 is the injured, PW2 is a doctor, who issued Ex.A9 - Disability certificate, PW3 is another Doctor who treated the injured and was examined on commission and Exs.X1 and X2 were marked through him and PW5 is owner of the vehicle. No witnesses were examined, except marking of Ex.B.1 – Insurance Policy by consent on behalf of the 2nd respondent-Insurance Company. 6. Taking into consideration, the evidence and other material on record, the Tribunal awarded a total compensation of Rs.2,00,000/- with proportionate costs and interest at 7.5% per annum. Being dissatisfied with the same, the injured-claimant preferred this appeal seeking enhancement of the compensation amount. 7. Though this Court sent notice to the 1st respondent-owner of the vehicle, the same was returned unserved with a postal endorsement “no such person is present at the given address”. 8. Heard the learned counsel for both the parties and perused the material placed on record. 9. It is evident from the record that the 1st respondent remained ex parte even before the Tribunal. Hence, this Court is inclined to dispose of the case after hearing the learned counsel for the appellant-claimant and the learned Standing Counsel for the 2nd respondent-Insurance Company. 10. It is the case of the appellant that though the Tribunal is justified in not considering Ex.A9 - Disability certificate since it was not issued by PW3 - Doctor, who treated him, but it was issued by PW2 after examining the appellant-injured after one year of the accident assessing the permanent liability at 30% based on the history sheet, x-rays and other documents issued by PW3, who in fact, treated him. That the Tribunal ought to have considered the fact that though documents are marked through PW3, who treated the appellant, the Doctor (PW2), who did not treat the injured but assessed the 30% permanent disability basing on Exs.X1 and X2 issued by PW3. That the Tribunal did not consider Ex.A9 – Disability certificate as the injured suffered 30% permanent disability as per the evidence of PWs 2 and 3 - Medical witnesses. That the Tribunal was not justified in rejecting Ex.A9 observing that it was not issued by medical board. 11. On the other hand it is the case of the 2nd respondent-Insurance Company that it is an injury case and the amount of compensation of Rs.2.00 lakhs awarded by the Tribunal against the claim made by the claimant for Rs.3,50,000/- is just and reasonable. That as per Ex.A2 - wound certificate, the appellant/claimant suffered only one grievous injury i.e. fracture on his right ankle joint. That Ex.A-9 disability certificate was not issued by the competent authority i.e., the medical board, but it was issued by PW2, who did not treat the claimant- injured. Thus, the evidence of PW3 - the Doctor, who examined the appellate/claimant, cannot serve the purpose of proving Ex.A-9 in any way since it was not issued by him. Moreover, it is also contended that the appellant/claimant did not suffer any disability at all, but only suffered fracture injury on his right ankle, which was healed after treatment. Therefore, it is contended that the lower Tribunal is justified in coming to a conclusion that the alleged disability of 30% was not established. That the Tribunal is justified in observing that though PW2 had deposed in his cross-examination that he had taken X-ray of the relevant part of the appellant-claimant before issuing Ex.A9, neither PW2 nor the claimant produced the X-ray. Therefore, the Tribunal has held that the percentage of permanent disability assessed at 30% after more than one year and three months after the accident without producing and marking X-ray, the percentage of disability must be held to be baseless. That since the injuries were healed, they are not likely to affect him in discharging his work as municipal contractor/mastri or in carrying on with his agricultural activities, as such, the injuries did not result in loss of his income in any way. That further, he was also awarded Rs.5,000/- towards transportation charges. Therefore, it is contended that there is no scope for enhancing the compensation amount together with interest at 7.5% p.a. already awarded to the appellant/claimant by the Tribunal, which is just and reasonable. 12. The evidence of PWs 1 to 3 coupled with Ex.A.9 proves that the appellant-claimant had suffered fracture of his right ankle and that he suffered 30% permanent disability on account of the same. 13. It cannot be denied that the said fracture injury is healed after treatment. However, disability cannot be ruled out completely. 14. It is a fact that PW.3 had issued Ex.A.9. However, it was marked through PW.2. It is not the case of the respondent that PW.3 who issued Ex.A.9 was not examined. Both the witnesses, PWs 2 and 3 have spoken as to the contents of Ex.A.9. Therefore, it cannot be said that the appellant-claimant did not suffer disability at all. 15. In the circumstances, this court is of the view that the appellant is entitled to some reasonable amount towards the disability and that an amount of Rs.20,000/- appears to be just and reasonable and the same may be and is hereby awarded enhancing total compensation from Rs.2,00,000/- to Rs.2,20,000/-. 16. With this modification, the Appeal is disposed of. _________________ B.N. RAO NALLA, J 13-08-2010 Stp /skm /bcj