HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.3049 of 2008 and Cross Objections (sr) No.47641 of 2008 Date: 08-07-2011 Between: The New India Assurance Co. Ltd ………… Appellant and Mohammed Abdul Fathe and another ……… Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.3049 of 2008 and Cross Objections (sr) No.47641 of 2008 COMMON JUDGMENT: Being aggrieved by the order, dated 31-01-2007 passed in O.P.No.2273 of 2003 on the file of the Additional Metropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Case- cum-Additional Family Court-cum-XXIII Additional Chief Judge, Red Hills, Nampally at Hyderabad, the present appeal is filed by the second respondent therein-Insurance Company and the cross objections are filed by the petitioner-claimant. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 2. The brief facts of the case are that on 13-06-2003 at about 10-00 AM, the petitioner by name Mohammed Abdul Fathe along with others was proceeding as a pillion rider on a scooter from Owaisinagar Colony towards Santoshnagar. When they reached in front of the Electrical Sub Station in Owaisinagar Colony, a tipper lorry bearing No.AP 26T 8190, driven by its driver in a rash and negligent manner in high speed, came from their opposite direction and dashed against the scooter, on which the petitioner was travelling as a pillion rider, due to which he sustained fracture injuries. Immediately he was taken to Owaisi hospital and subsequently, he was shifted to Osmania General Hospital at Hyderabad and underwent treatment as inpatient. Therefore, the petitioner filed the O.P. claiming compensation of Rs.3,00,000/-. 3. During the course of trial, on behalf of the petitioner, the petitioner himself was examined as PW-1 and PW-2 was got examined, and Exs.A-1 to A-6 and X-1 were got marked. On behalf of the respondents, none were examined, however, Ex.B-1, insurance policy, was got marked. 4. The Tribunal, after considering the entire evidence on record, partly allowed the petition awarding compensation of Rs.75,000/- i.e., Rs.25,000/- towards pain and suffering and Rs.50,000/- towards physical disability, with proportionate costs and interest thereon @ 7.5% per annum from the date of petition till the date of award. Being aggrieved by the same, the second respondent- Insurance Company preferred the present appeal, and the petitioner- claimant filed the Cross Objections. 5. Learned counsel appearing for the Insurance Company- appellant mainly urged that admittedly the alleged accident took place while the petitioner was travelling as a pillion rider on the scooter, a tipper lorry bearing No.AP 26T 8190 dashed the said scooter and therefore, this is a case of composite negligence and the petitioner shall have impleaded the owner and insurer of the scooter as party respondents and therefore, the petition is bad for non-joinder of necessary parties. It is his further contention that the Tribunal grossly erred in awarding the compensation of Rs.50,000/- towards physical disability without there being any evidence on record and therefore, the order of the Tribunal is not sustainable and it is liable to be set aside. 6. The learned counsel appearing for the petitioner-cross objector mainly urged that the Tribunal ought to have considered the evidence of PW-2, doctor, and Ex.A-4, disability certificate, according to which the disability is 40%, and ought to have awarded more compensation instead of Rs.25,000/- under the head of pain and suffering. He further urged that the Tribunal did not consider the salary of the petitioner at Rs.4,000/- per month, but as on the date of accident, the petitioner was earning Rs.4,000/- as a Plumber and therefore, the Tribunal ought to have considered the salary of the petitioner at Rs.4,000/- per month and ought to have assessed the compensation on that basis. It is his further contention that the Tribunal failed to grant loss of income for five months during which the petitioner was under treatment, and therefore, requested for enhancement of the compensation towards loss of future earnings and placed reliance on the decision reported in YADAVA KUMAR v. DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. [1]. 7. The learned counsel appearing for the petitioner-cross objector, while supporting the order of the Tribunal to the extent of fastening the liability on the insurance company, urged that even though the Tribunal held that there is triple riding, whether the same would amount to contributory negligence on the part of the driver of the scooter to be seen. But the Tribunal, while discussing the evidence on record, came to the correct conclusion that the accident occurred due to rash and negligent driving of the driver of the tipper lorry and fastened the liability against the driver, owner and insurer of the offending tipper lorry. In support of his contention, the learned counsel placed reliance on the decisions reported in NATIONAL INSURANCE CO. LTD, VISAKHAPATNAM v. YAKALA SIMHACHALAM [2] and UNITED INDIA INSURANCE CO. LTD v. CHENDRI RAMAIAH [3]. It is further urged that the Tribunal committed error in granting the interest on the compensation at 7.5% per annum from the date of petition till the date of award and therefore, the same has to be modified granting the interest from the date of petition till the date of realisation. 8. Now the point for consideration is whether the order of the Tribunal, dated 31-01-2007 is sustainable? 9. The factum of the accident is not disputed. The controversy is only regarding the negligence of the driver i.e., whether the accident occurred due to the rash and negligent driving of the driver of tripper lorry or the rider of the two wheeler on which the petitioner was travelling as a pillion rider. The petitioner as PW-1 deposed that the accident occurred due to rash and negligent driving of the driver of the tripper lorry. In order to prove the same, the petitioner also filed Ex.A-1, first information report, and Ex.A-3, charge sheet, which proves that the accident occurred due to rash and negligent driving of the driver of the tipper lorry. Except suggesting to PW-1 that the accident occurred due to rash and negligent driving of the scooter by its driver and there is no negligence on the part of the driver of the tipper lorry, the respondents did not adduce any rebuttal evidence against the documentary evidence of Exs.A-1 and A-3 and the ocular evidence of PW-1. In the absence of any such rebuttal evidence, the evidence of PW-1 and the documentary evidence of Exs.A-1 and A-3 remained as unrebutted. 10. Therefore, non-adding the rider, owner and insurer of the two wheeler is not fatal as they are not necessary parties in view of the evidence of PW-1 and Exs.A-1 and A-3. Hence, I see no merits in the argument advanced by the learned counsel for the appellant-Insurance Company. 11. In view of the above circumstances, the finding of the Tribunal fastening the liability against Respondent Nos.1 and 2 is sustainable. 12. Now it has to be considered whether the compensation awarded by the Tribunal is just and reasonable and whether it is liable to be reduced or enhanced? 13. The petitioner is aged about 25 years and he is a Plumber by occupation. In proof of the injuries sustained by him, the petitioner himself was examined as PW-1, and examined PW-2, doctor, and filed Exs.A-1 to A-6 and X-1. Exs.A-2, A-6 and X-1 were filed to prove that he sustained grievous fracture injuries. 14. The petitioner claimed Rs.5,000/- towards transport expenses and Rs.25,000/- towards extra nourishment, medicines etc. Though the petitioner filed a bunch of medical bills, he did not examine any person in connection with the said bills to prove the same. The Tribunal observed that some of the bills do not contain the name of the petitioner and thereby did not give credence to those bills. Though the petitioner did not examine any person connected with the said medical bills, it cannot be said that he did not spent any money towards medicines as he sustained grievous fracture injuries. Therefore, the Tribunal ought to have taken into consideration the gravity of the medical bills and the incidental charges if admissible. 15. Admittedly according to PW-2, doctor, the petitioner sustained grievous fracture injuries and the physical disability was assessed at 40%. According to the petitioner, he sustained compound fracture left humerous and fracture of both bones left leg besides some other multiple injuries all over the body. To substantiate the same, he has produced Ex.A-2, out patient card, Ex.A-6, discharge card, and Ex.X-1, discharge summary. It is evident from the said medical evidence that the petitioner had sustained fracture injuries besides other injuries. According to PW-2, the doctor, on 19-06-2003, he has seen the petitioner in Orthopaedic Unit-3 with compound fracture left humerous and fracture of both bone left leg and he was operated for the left leg injury by external fixator and the external fixator was also applied for the left humerous. The disability for the said injuries was assessed by the Medical Board at 40% under Ex.A-4. 16. Thus the medical evidence on record clinchingly proved that the petitioner sustained grievous injuries on the bones of left leg and on his left humerous and also undergone surgery. Therefore, one can assess the gravity of the injuries sustained by PW-1. The Tribunal awarded Rs.25,000/- towards compensation for the injuries sustained by the petitioner and towards pain and suffering. Though Ex.A-4 is marked through PW-2, the non-examination of the doctors to prove Ex.A-4 is not fatal in view of the positive finding of PW-2 about the injuries sustained by the petitioner as he treated the petitioner under his provision and conducted the surgery. In a case of this nature, that too when the petitioner aged about 25 years being a Plumber, he cannot discharge his obligation as Plumber with these injuries and thereby he is deprived of his earnings in future also. Any amount of compensation for the aforesaid injuries and towards pain and suffering will not compensate the petitioner. The aforesaid amount of compensation for the said two grievous injuries, in my view, is too meagre and it would be just and reasonable if an amount of Rs.50,000/- is awarded for the said two injuries and towards pain and suffering in view of the acceptable evidence of PW-2 and the disability certificate under Ex.A-4. Therefore, the amount of Rs.25,000/- granted by the Tribunal on that score is enhanced to Rs.50,000/-. 17. The Tribunal, while considering the disability of 40% for the injuries sustained by the petitioner, awarded only Rs.50,000/- towards compensation for the physical disability. On perusal of the impugned order, it discloses that the Tribunal did not assign any reasons and the mode of calculation while arriving at Rs.50,000/- towards compensation for the physical disability. Therefore, the amount of Rs.50,000/- is very meagre in view of the gravity of the injuries and the disability sustained by the petitioner and as the Tribunal awarded the compensation towards disability in lump sum, the same is enhanced to Rs.65,000/- having regard to the facts and circumstances of the case. 18. Admittedly the age of the petitioner is about 25 years and he is a Plumber by occupation. According to him, he was earning Rs.4,000/- per month, but there is no tangible evidence to that effect. 19. The Tribunal also failed to grant any amount of compensation towards medical expenses and extra nourishment. Therefore, an amount of Rs.10,000/- is granted towards medical expenses and extra nourishment. In view of the above findings, the compensation awarded by the Tribunal to the petitioner is enhanced from Rs.75,000/- to Rs.1,25,000/-. 20. Accordingly, the M.A.C.M.A. filed by the Insurance Company is dismissed and the Cross Objections filed by the petitioner are allowed in part enhancing the compensation from Rs.75,000/- to Rs.1,25,000/-. Respondent Nos.1 and 2 i.e., owner of the vehicle and the insurance company, are liable to pay the compensation to the petitioner-cross objector with interest @ 6% per annum from the date of petition till the date of realisation while applying the principles laid down in SARLA VARMA v. DTC [4]. No order as to costs. _______________ K.S. APPA RAO, J Date: -07-2011 YCR [1] 2010 (7) SCJ 409 [2] 2011(2) ALD 611 [3] 2011 (2) ALD 3 [4] (2009) 6 SCC 121