THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A. No. 230 OF 2009 DATE: 14-07-2011 Between: The Oriental Insurance Company Ltd., .. Petitioner And G.Bhaskar Reddy and another .. Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A. No. 230 OF 2009 JUDGMENT: This appeal is directed against the order dated 04.08.2008 in M.V.O.P. No.653 of 2005 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Kadapa, wherein the said application filed by the 1st respondent herein for compensation was allowed in part awarding compensation of Rs.10 lakhs with interest @6% per annum from the date of petition. Heard the learned counsel for the appellant and 1st respondent- claimant. Perused the records. The 1st respondent herein filed the claim application seeking compensation of Rs.10 lakhs on account of injuries sustained by him in a motor vehicle accident that occurred on 31.12.2004. According to the claimant, on that day he was proceeding from Rayachoti to Kadapa on his Maruti Zen vehicle and on account of the rash and negligent driving of a lorry bearing No.AP04-U-2124 by its driver coming in opposite direction, the lorry dashed against the car which resulted in grievous injuries to the claimant. It is further pleaded that he was initially admitted to Government Hospital, Kadapa and from there he was referred to Manipal Hospital, Bangalore where he underwent surgery for insertion of rods in the right femur and he also underwent plastic surgery for the facial fractures and he spent Rs.3,50,000/- for the treatment. According to the claimant, he was a railway contractor and was also having Ac.3.00 cents of land and is an Income Tax assessee. The owner of the lorry and the insurer filed counters denying their liability to pay compensation. The Tribunal framed the following issues for enquiry: 1. Whether the petitioner received injuries in a motor vehicle accident occurred on 31.12.2004 at 7.30 p.m. due to rash and negligent driving by the driver of lorry bearing No.AP04-U-2124? 2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? 3. To what relief? During the enquiry, P.Ws.1 to 5 were examined and Exs.A-1 to A-14 were marked on behalf of the claimant. No oral or documentary evidence was adduced by the insured and the insurer. Exs.C-1 to C-5 were also marked. On a consideration of the evidence available on record, the Tribunal held on issue No.1 that the accident occurred due to rash and negligent driving of the lorry No.AP04-U-2124 by its driver; on issue No.2, the Tribunal held that the claimant is entitled for total compensation of Rs.10 lakhs. Accordingly, an award was passed for the said amount with interest at 6% per annum from the date of petition. Aggrieved by the same, the insurer filed the present appeal. The learned counsel for the appellant-insurer would contend that the Tribunal erred in fastening the liability on the appellant-insurer, when the F.I.R. was registered in respect of an unknown lorry. She would further contend that the amount awarded by the Tribunal is highly excessive and wholly disproportionate to the injuries sustained by the claimant. The learned counsel for the 1st respondent-claimant, on the other hand, sought to justify the award. Though in the F.I.R. Ex.A-1, which was registered on the basis of the complaint given by the claimant himself, it is stated that the registration number of the crime lorry was not known, as the crime vehicle did not stop, but went away after causing the accident, the police, after due investigation, identified the crime vehicle as the lorry bearing No.AP04-U-2124 and filed charge sheet Ex.A-3 against the driver of the said lorry. In the charge sheet Ex.A-3, it is stated that on 05.02.2005 the accused voluntarily surrendered before the Sub- Inspector of Police, who arrested the driver. Simply because the driver himself surrendered before the police about a month after the accident, no inference of collusion between the owner of the vehicle and the claimant can be drawn especially when the claimant is admittedly a stranger. When the police have after due investigation arrested the driver of the crime lorry duly identifying the vehicle and filed a charge sheet against him, the Tribunal was justified in relying upon the same as affording prima facie evidence to establish the identity of the crime vehicle. The appellant-insurer has not adduced any evidence to the contra, oral or documentary, to show that the said lorry is not the crime vehicle. Admittedly, no investigation was caused to be made by the appellant-insurer into the accident. In the absence of any evidence, to the contra, by the appellant-insurer, the Tribunal was certainly justified in relying upon the criminal case record for establishing the identity of the crime vehicle. The learned counsel for the appellant seeks to rely upon a decision of this Court reported in the case of ARKALA PRAKASH v. BALAKISHAN RAO AND OTHERS[1], but the same is not applicable to the facts of the present case, for the reason that, in the above case, the insurer appointed investigator and examined him as R.W.1 and his evidence disclosed that the accident was caused by some other vehicle, which was not insured and, therefore, the claimant colluded with the respondents 1 and 2 therein and filed a claim petition inventing a false story. As per the investigation done by the insurer, it was found that the vehicle bearing No.ATI 8593 belonging to one ‘DR’ was actually involved in the said accident but not the vehicle AAR 7262 belonging to the 1st respondent therein, as claimed. No such evidence is forthcoming in the present case on behalf of the appellant- insurer to show that the crime vehicle was something else but not the lorry bearing No.AP04-U-2124. The learned counsel for the appellant would contend that the Tribunal erred in failing to notice that there was a contributory negligence on the part of the claimant also and in not apportioning the liability. No such plea of contributory negligence was raised in the counter filed by the appellant-insurer. The stand of the appellant- insurer has been that the vehicle bearing No.AP04-U-2124 was not the crime vehicle at all. The police, after due investigation, found that it was not a case of head on collision between the two vehicles, but it is a case where the lorry, on account of the rash and negligent driving of its driver, dashed against the car and fled away. The question of any contributory negligence on the part of the claimant and apportionment of liability on that basis, does not, therefore, arise, in the absence of any evidence available on record to that effect. The finding of the Tribunal that the accident occurred due to rash and negligent driving of the lorry bearing No.AP04-U-2124 by its driver, based on the evidence available on record, does not, therefore, call for any interference. The learned counsel for the appellant relies upon a decision in the case of BIJOY KUMAR DUGAR v. BIDYA DHAR DUTTA[2], wherein it was held that inference that head-on collision implied contributory negligence is sustainable. In the above decision, it is held on facts that it was a case of a head-on collusion and deduction of 50% towards contributory negligence was proper as the deceased, as a prudent man, having observed the abnormal driving of bus from afar, ought to have taken due care and precaution to avoid a head-on collision. Such situation does not arise in the present case. The evidence on record establishes that it was not a head-on collision but is a case where the lorry hit the car and fled away. Regarding the quantum of compensation, the Tribunal awarded Rs.5,33,902/- towards compensation for extra nourishment and medicines; Rs.17,200/- towards transportation charges; Rs.2,40,000/- towards future medical expenses for removal of the implants; Rs.25,000/- for pain and suffering; Rs.3,00,000/- towards loss of earnings; Rs.50,000/- towards compensation for permanent disability of 50% making a total of Rs.11,66,102/- and confined the same to Rs.10,00,000/- as claimed. According to the claimant, he sustained fracture of right femur and commuted fracture of right patella and multiple fractures of facial bone. The wound certificate Ex.A-2 and the discharge summaries Exs.A-4, A-5 and A-6 would show the nature of injuries sustained by the claimant and the treatment undergone by him initially at Government Hospital, Kadapa and later as inpatient at Manipal Hospital, Bangalore. Ex.A-4 shows that the claimant has undergone a surgical procedure under general anaesthesia on 03.01.2005 with G.K. nailing. Ex.A-5 shows that the claimant has undergone a plastic surgery on 04.01.2005. The claimant was initially admitted in the hospital on 01.01.2005 and discharged on 18.01.2005 and again he was admitted for one day on 16.03.2005 as per Exs.A-4 to A-6. P.Ws.2 and 4, the doctors, who treated the claimant in the hospital, have also testified to the nature of the injuries and the course of treatment undergone by the claimant. Exs.A-7 to A-9 are the bills issued by the Manipal Hospital, Bangalore and also the medical bills for purchase of medicines showing an extent of Rs.2,31,832/-, Rs.15,222/- and Rs.22,614/-, which comes to Rs.2,69,668/-. The Tribunal, however, awarded a sum of Rs.5,33,902/- towards extra nourishment and medical expenses. The claimant is certainly entitled for the amount of Rs.2,69,668/-, which he actually incurred towards hospital expenses and purchase of medicines. In addition to that, he would be entitled for a reasonable amount towards extra nourishment but not for the fanciful amount by way of a windfall. Having regard to the fact that the claimant was in the hospital for a period of about 20 days, it is considered that a sum of Rs.20,000/- towards extra nourishment and Rs.10,000/- towards attendant charges will be just and reasonable. Ex.A-10, the transport bills, would show that the claimant incurred Rs.17,200/- towards transport expenses and he is certainly entitled for the same. Regarding future medical expenses the Tribunal awarded Rs.2,40,000/- based on the evidence of P.Ws.2 and 4. P.W.2, who treated the claimant at Manipal Hospital, Bangalore stated that the implant removal from the right femur may cost Rs.35,000/-. He further deposed that the claimant may require total hip replacement for the right side if the right hip becomes failure and the cost of which would be Rs.1,75,000/-. P.W.3, the Plastic Surgeon, who treated the claimant at Manipal Hospital, Bangalore, deposed that the claimant requires the implant removal of the facial fracture and the proximate cost thereof would be around Rs.30,000/- to Rs.35,000/-. Thus, as per the evidence of P.Ws.2 and 3, the cost of the future operations for removal of the implants would be around Rs.70,000/- and for replacement of the hip joint, it could be around Rs.1,75,000/-. The claimant is, therefore, held entitled for the sum of Rs.2,40,000/- awarded by the Tribunal towards future medical expenses. The Tribunal awarded Rs.25,000/- towards compensation for pain and suffering and having regard to the number of fractures, which are multiple, the amount awarded is held to be just and reasonable. The Tribunal awarded Rs.3,00,000/- towards compensation for loss of earnings past and future and Rs.50,000/- towards compensation for 50% disability. According to the claimant, he was a contractor with the Railways and he is having agricultural land also. As per the evidence available on record, he was in the hospital for about 20 days. The claimant relies upon Ex.A-11 disability certificate issued by the Medical Board. As per Ex.A-11, there is a shortening of leg by 1½ inches and it constitutes 50% disability. P.W.2, the Orthopeadic Surgeon, who treated the claimant at Manipal Hospital, Bangalore testified that there is a permanent disability of right leg to the extent of 50%. Admittedly, P.W.2 has not issued any certificate of disability. None of the members of the Medical Board, which is said to have issued Ex.A-11, is examined to prove the contents of Ex.A-11. In fact, Ex.A-11 certificate except mentioning that there is 50% disability on account of shortening of leg by 1½ inches, does not disclose as to the impact of the said disability on the functional capacity of the claimant. The contents of Ex.A-11 have not been proved as none connected with the said document is examined. Even assuming that there is a permanent disability to the extent of 50%, as deposed by P.W.2, there is nothing on record to establish that the said disability on account of the shortening of the leg had any adverse impact on the functional capacity or the earning power of the claimant as a railway contractor. P.W.1 admitted in his cross-examination that he has not filed any document to show that he is doing railway contract works or that he is earning Rs.25,000/- per month. He also admitted that no proof is filed evidencing that due to injuries sustained in the accident, he is unable to carry on the railway contract works. The claimant examined P.W.5, who is a Chartered Accountant, to show that the claimant is an Income Tax assessee. According to P.W.5, the claimant filed Income Tax return through him and he issued certified true copies of returns in Form-2D in Ex.A-14. As per Ex.A-14, the gross income for the year 2003 was around Rs.1 lakh; for the year 2004 it was around Rs.3 lakhs and for the year 2005 it was around Rs.3 lakhs and the agricultural income was around Rs.28 lakhs, Rs.39 lakhs and Rs.43 lakhs respectively. As per the evidence of P.W.5, no tax was payable for the years 2003 and 2005 and that Rs.344/- was paid for the year 2004. Even assuming that the claimant was an Income Tax assessee and he was having the income as stated in Ex.A-14 during that period, there is, however, nothing on record to show that subsequent to the accident, the claimant has stopped doing the contract works or the cultivation and, therefore, he sustained loss of earnings. In the absence of any evidence to show that the claimant suffered loss of earning capacity and that there was, in fact, loss of earnings, the question of granting any compensation in that regard, does not arise, even if he suffered any physical disability. No doubt, the claimant suffered multiple fractures for which he underwent surgery and as per medical evidence, he is required to undergo future surgery for removal of the implants. Having regard to the nature of the injuries sustained by him, the claimant was certainly put to hardship, discomfort and lack of mobility during the period of hospitalization and subsequently also requiring him to seek the assistance of someone. He is, therefore, held entitled for the amount of Rs.50,000/- awarded by the Tribunal by way of loss of amenities. As the contents of Ex.A-11 have not been proved, the question of estimating any loss of earning power due to any permanent disability, does not arise, especially in view of the admission of P.W.1 that he has not adduced any evidence to show that he could not carry on the railway contract works because of the injuries sustained in the accident. As P.W.2 has not issued any certificate of disability by making a proper assessment of the said disability, if any, his oral testimony that P.W.1 is having 50% disability cannot be taken into consideration, especially, when the nature and extent of the said disability, impact on the functional capacity of the claimant has not been detailed by P.W.2 in his evidence. The observation of the Tribunal that the claimant might have sustained some loss of earnings to some extent, is merely a surmise and granting Rs.3 lakhs towards loss of earnings purporting to be on the evidence of P.W.5 coupled with Ex.A-14, is unsustainable as the said evidence merely shows the income of the claimant during the period from 2003 to 2005, but does not in any way establish that on account of the injuries sustained in the accident, the claimant suffered any loss of earning capacity or loss of earnings in real terms. Again the quantum of Rs.3 lakhs awarded by the Tribunal towards loss of earnings has no basis at all. His claim is, therefore, upheld for a total compensation of Rs.6,31,868/- (Rupees six lakhs thirty one thousand eight hundred and sixty eight only), which can be rounded off to Rs.6,32,000/- (Rupees six lakhs thirty two thousand only) with interest at 6% per annum from the date of petition. The impugned award is modified accordingly. In the result, the appeal is allowed to the extent stated above. ___________________ G.V.SEETHAPATHY, J 14-07-2011 MR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A. No. 230 OF 2009 DATE: 14-07-2011 MR [1] 2010 (1) ALD 767 [2] (2006) 3 Supreme Court Cases 242