THE HON'BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A.No.1406 of 2008 And Cross-Objections (SR) No.36045 of 2008 28th April, 2010 Between :- The United India Insurance Co.Ltd., Rep. by its Branch Manager, Vengalrao Nagar, Hyderabad Now rep. by its Deputy Manager, Hyderabad Regional Office, Hyderabad .. Appellant And Thummeti Sudharshan Reddy And others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A.No.1406 of 2008 And Cross-Objections (SR) No.36045 of 2008 JUDGMENT:- 1. Heard Sri Ramakrishna Reddy, the learned Counsel representing the appellant – 3rd respondent in O.P.No.893/2004 on the file of the Chairman, Motor Vehicle Accidents Claims Tribunal-cum- Additional District Judge, ATG, Karimnagar – The United India Insurance Co.Ltd. and Sri Gopal Reddy, the learned Counsel representing 1st respondent – claimant. The claimant also preferred cross-objections. 2. The United India Insurance Co.Ltd. preferred the aforesaid M.A.C.M.A. being aggrieved of the award made by the Tribunal on the ground that the quantum granted is on the higher side whereas the claimant filed cross-objections to the effect that the Tribunal ought to have allowed higher compensation and the compensation awarded by the Tribunal cannot be said to be just and proper in the facts and circumstances of the case. 3. Sri Ramakrishna Reddy, the learned Counsel representing the appellant would maintain that there is no acceptable evidence much less independent evidence relating to the income of the injured being Rs.6,000/- per month and hence awarding compensation of Rs.5 lakhs under the head of disability is definitely excessive and not in accordance with law. The learned Counsel also pointed out to Ex.A.7 – the certificate of Lorry Owners’ Association filed by the claimant stating that he owns two lorries, but however, no evidence in proof thereof had been placed before the Tribunal. Further the learned Counsel would maintain that the Disability Certificate also would not reflect the true position and if the amputation was done to both the legs, may be 90% disability may be correct but in the light of the evidence of P.W.2 this is not being so. At the best, it can be said that the disability is half of the 90% disability and in the light of the same also, the quantum of compensation to be modified. The learned Counsel also had drawn the attention of this Court to the relevant portions of the evidence of P.W.1 and P.W.2 as well and specifically pointed out to certain findings recorded by the Tribunal. 4. Per contra, Sri Gopal Reddy, the learned Counsel representing the 1st respondent – claimant – cross-objector had pointed out to the grounds raised in the cross-objections and would maintain that when such serious crush injuries had been sustained, awarding meager amount of compensation of Rs.7,72,000/- cannot be said to be just and proper and the claimant is entitled to just compensation of Rs.12,00,000/- at least. The learned Counsel also pointed out to the observations made by the Tribunal while watching the injured in the Court and this aspect also may have to be taken into consideration. The learned Counsel also further pointed out to Ex.A.8 and Ex.A.9 and would maintain that in the light of 90% disability, the income to be taken as Rs.6,48,000/- and on the strength of the income, the quantum ought to have fixed at Rs.6,48,000/-, though under the said head the claim was made only to Rs.5,00,000/-. The learned Counsel ultimately would conclude that in the facts and circumstances of the case, the M.A.C.M.A. filed by the United India Insurance Co.Ltd. to be dismissed and the cross-objections to be allowed. 5. Heard the Counsel. 6. In the light of the submissions made by the Counsel on record, the following points arise for consideration in this M.A.C.M.A.:- 1) Whether the findings recorded by the Tribunal below to be confirmed or to be set aside or to be modified in the facts and circumstances of the case? 2) Whether the relief prayed for in the cross-objections for enhancement of compensation to be permitted or to be negatived in the facts and circumstances of the case? 3) If so, to what relief, the parties would be entitled to? 7. Points No.1 and 2:- For the purpose of convenience these points are being discussed together. The claimant filed O.P.No.893/2004 as aforesaid under Section 16 of the Motor Vehicles Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) claiming compensation of Rs.12,00,000/- together with interest at 12% p.a. The claimant stated that on 19-1-2004 he along with his family members and one P.Tirupathi Reddy boarded in his lorry bearing No.AP-7-T-2368 in order to go to Vemulawada Devasthanam from Hanamkonda and when the said lorry reached at the outskirts of Gattududdenapalli village on Karimnagar to Warangal State Highway, at around 2.00 a.m., the lorry driver stopped the lorry by keeping on left side of the road, checking the air in the lorry tyres. In the meantime, the crime lorry driven by the first respondent from Warangal side to Karimnagar side in a rash and negligent manner and lost control over the lorry, dashed to the claimant, who was standing on the road by the side of his lorry, due to which, he received grievous injuries. The accident took place purely due to negligent driving of the respondent No.1 only. The claimant and the Cleaner of the lorry at first were shifted to Government Hospital, Karimnagar and later they were shifted to NIMS Hospital, Hyderabad. The claimant was treated as inpatient and many tests were conducted and x-rays revealed multiple fracture to the right and left hip and legs. The claimant sustained multiple grievous fracture of left leg, it was amputated above the left knee. The claimant also sustained four fractures to the right leg due to which he underwent surgeries. Inspite of taking treatment for the last ten months, the fractures are not united and he is suffering from 90% disability. The claimant is not at all able to attend his natural calls without assistance of others. The claimant was treated and advised to take complete bed rest for four months and he loss his income of Rs.2,00,000/- besides the claimant incurred Rs.3,00,000/- towards doctors fee, medicines, tests, x-rays and salary of attendant engaged during the period of treatment. The claimant is aged about 45 years and he was hale and healthy and he was looking after his transport business with his own lorry and by engaging other lorries also and he used to earn net monthly income of Rs.20,000/- per month. Due to this unfortunate accident, the claimant was bed-ridden for a period of eleven months and lost monthly income of Rs.2,00,000/-. The claimant while taking treatment at NIMS Hospital, Hyderabad, was taken many x-rays and tests for his legs. As the claimant sustained crush injuries to the left leg, it was amputated above the knee. As a result of the injuries and prolonged treatment, the claimant did not attend the transport business for the last eleven months and in future also he will not be in a position to run the transport business. Due to his bed-ridden condition in house, the transport business has been closed down and the lorries are kept idle without plying. The claimant has lost his source of income. The claimant incurred an amount of Rs.3,00,000/- from medicines, extra nourishment, doctors fee etc., and one attendant engaged during the course of treatment. The claimant claims an amount of Rs.12,00,000/-. The police of Manakondur registered a case in Cr.No.16/2004 under Sections 337 and 338 I.P.C., and filed charge sheet against the accused alleging that the claimant received grievous injuries due to rash and negligent act in driving the lorry No.AP-36-V-3838 by the respondent No.1. Hence, the respondents No.1 to 3 are jointly and severally liable to pay compensation to the claimant. 8. Respondents 1 and 2 had not chosen to contest the matter. 9. The 3rd respondent filed counter denying the allegations made in the O.P., and the rash and negligent driving also had been specifically denied. The disability also had been denied and at any rate it was stated that the claim is excessive. 10. On the strength of these pleadings, the following issues were settled by the Tribunal:- 1) Whether the accident took placed due to rash and negligent driving of the vehicle i.e., lorry bearing No.AP-36- V-3838 by its driver? 2) Whether the petitioner is entitled to compensation, and if so, to what amount and from whom? 3) To what relief? The Tribunal on appreciation of the evidence available on record – P.W.1, P.W.2, Ex.A.1 to Ex.A.9 and Ex.B.1, came to the conclusion that the O.P. to be partly allowed and accordingly Rs.7,72,000/- together with costs and simple interest @ 6% per annum from the date of petition to the date of realization had been granted. As already aforesaid, aggrieved by the same, the United India Insurance Co.Ltd. preferred the M.A.C.M.A. and the claimant preferred the cross- objections. 11. This Court had given anxious consideration to the specific grounds raised in the Grounds of Appeal and also in the Grounds of Cross-objections as well and further had gone through the findings which had been recorded. The two principal contentions raised are that relating to the income there is no acceptable evidence and no independent evidence had been placed in relation to Ex.A.7 and at any rate in the light of the evidence of P.W.2, the disability to be taken as 50% of the 90% and it cannot be said that there is disability of 90% as such and hence the quantum of compensation fixed is on the higher side. 12. On behalf of the United India Insurance Co.Ltd., except marking the policy – Ex.B.1, no oral evidence as such had been let in. It is no doubt true that no independent evidence as such had been placed relating to the ownership of the lorries except marking Ex.A.7. But in the evidence of P.W.1, this witness deposed in detail that he is the owner of the lorry and on 18/19-1-2002 during mid-night he along with his family members started from Hanamkonda to go to Vemulawada. This witness also specifically deposed that he used to earn Rs.25,000/- per month in the lorry business and he got Ac.6-00 of land and certain details thereto also had been deposed. Ex.A.1, Ex.A.2, Ex.A.3, Ex.A.4, Ex.A.5, Ex.A.6, Ex.A.7, Ex.A.8 and Ex.A.9 also had been marked. Ex.A.9 is the bunch of medical bills; Ex.A.8 is the final bill of NIMS Hospital; Ex.A.7 is the certificate of Lorry Owners Association; Ex.A.6 is the Income Certificate of Land use by MRO; Ex.A.5 is the Disability Certificate; Ex.A.1 is the certified copy of F.I.R.; Ex.A.2 is the certified copy of the charge sheet; Ex.A.3 is the certified copy of Medical Certificate and Ex.A.4 is the certified copy of Form 54. Apart from this evidence, the evidence of P.W.2 also is available on record who deposed about Ex.A.5 – the Disability Certificate issued by him certifying the petitioner had sustained 90% which is permanent. No doubt, this witness deposed that if the right leg is amputated, the claimant will suffer 90% of disability. In the cross-examination this witness deposed that the disability mentioned in Ex.A.5 is regarding left leg. But this witness specifically deposed that it is not true to suggest that the petitioner did not sustain 90% disability and he had issued Ex.A.5 by showing excessive disability to help the claimant. The petitioner had taken treatment since two years as outpatient and that therefore, he had no record in the hospital. 13. This Court having carefully gone through the evidence available on record and also the findings recorded by the Tribunal, especially in the light of what was deposed by P.W.1 and since no contra evidence as such had been placed, the income taken at Rs.6,000/- per month cannot be said to be on higher side. In fact, P.W.1 specifically deposed about higher income being received, both from the lorries and also the agriculture, however, the Tribunal after recording findings, came to the conclusion that it would be just and proper to take the income as modest income of Rs.6,00/- and thus the quantum had been made. The Tribunal while answering issue No.2 at para 15 observed as hereunder:- “Now coming to the appreciation of these arguments and evidence in the petition, the petitioner claimed an amount of Rs.2,00,000/- as loss of earnings from 19-1-2004 to 18-5- 2004. The petitioner attended the Court at the time of recording evidence. This Court has virtually seen P.W.1 and his condition. P.W.1 cannot walk. He needs to be physically lifted by two to three persons. He cannot attend natural calls. He can do nothing for himself. He is a totally dependent on others. He was totally incapacitated and immobilized by the accident. In these circumstances, the capacity of the petitioner earning not only for last five months but it lost for ever. Further it is not loss of income of the petitioner, but on the contrary to the petitioner himself is a burden on income of others. Virtually, he needs to be maintained by others. As contended by the Counsel for the petitioner, the certificate – Ex.A.6 of Mandal Revenue Officer shows that the petitioner raised chilli crop in the year 2004. No doubt the possibility of petitioner getting agricultural income is snot totally lost. The land can be cultivated by his own family members. But the capacity of the petitioner to look after the cultivation is lost. As contended by the Counsel for the third respondent owning the lorry, a certificate from Lorries Association was produced and marked as Ex.A.7. It is difficult to accept the certificate of the nature of Ex.A.7 as a proof of income. But however, the evidence clearly shows that P.W.1 is not idle man but doing some activity and earning. There can be no dispute regarding the possession of agricultural land and the income. Therefore, by taking of modest income of Rs.6,000/- per month would be just and reasonable in the present case, and granting of one year loss of income would be just and reasonable during the period of treatment. Therefore, the petitioner is entitled for an amount of Rs.72,000/- under the head of loss of income.” Hence, the Tribunal having actually observed the position of the injured and having been satisfied, came to the conclusion that in the facts and circumstances of the case an amount of Rs.7,72,000/- together with costs and simple interest at 6% p.a., to be granted. It is no doubt true that Ex.A.5 – Disability certificate and Ex.A.9 – Bunch of Medical Bills had been strongly relied on. In relation to the Disability certificate and also in the light of the evidence of P.W.2 in relation to Ex.A.5, it is not clear whether this Physical Disability Certificate to the effect that there is 90% permanent disability can be said to be correct. It may be less than 90% for the reason that the second leg had not been amputated. Be that as it may, without expressing any further opinion, this Court is of the considered opinion that even on the careful examination of the oral and documentary evidence available on record and the grounds raised in the cross-objections, this Court is thoroughly satisfied and the cross-objector – 1st respondent – claimant is not entitled for any enhancement of the compensation. However, in the light of the evidence of P.W.2 in particular and Ex.A.5 – the Disability Certificate, this Court is inclined to modify the award to Rs.7,00,000/- instead of Rs.7,72,000/- and accordingly an amount of Rs.7,00,000/- is awarded with costs and simple interest at 6% per annum from the date of petition till the date of realization. In all other respects, the findings are hereby confirmed. 14. Point No.3:- Accordingly, the M.A.C.M.A. is partly allowed to the extent indicated above awarding Rs.7,00,000/- (Rs. Seven lakhs only) with costs and simple interest at 6% p.a. from the date of petition till the date of realization and the cross-objections are hereby dismissed. The parties to bear their own costs. _____________________ Justice P.S.Narayana 28th April, 2010 smr