HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.NO.1671 OF 2007 Dt.24.6.2010 Between: The New India Assurance Company Ltd., Rep. by its Divisional Manager, Visakhapatnam. ..Appellant And Raparthi Trinadha Rao and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.NO.1671 OF 2007 JUDGMENT: The appellant is the insurer of the offending vehicle. The 1st respondent herein filed O.P.No.1345 of 2005 on the file of the IX Additional District and Sessions Judge-cum- Chairman, Motor Accidents Claims Tribunal, Visakhapatnam, under Section 166 of Motor Vehicles Act claiming compensation of Rs.2,00,000/- for the injuries sustained by him in the motor accident which is said to have been occurred due to the rash and negligent driving of the offending motor cycle bearing No.AP 31Q 1666 by the 2nd respondent herein. The 1st respondent is the claimant and the 2nd respondent is the owner of the said offending vehicle. The Tribunal after considering the oral and documentary evidence awarded total compensation of Rs.1,00,000/-. Aggrieved by the same, the insurer filed this appeal. The parties are hereinafter referred to as they are arrayed before the Tribunal for the purpose of convenience. The claimant filed the said O.P.No.1345 of 2005 stating that he is permanent resident of Porlupalem, Pendurthy of Visakhapatnam and he is aged about 39 years and working as permanent employee in Andhra Cement Company Limited, Meghadri Gedda, and used to get a salary of Rs.7,000/- per month. While so, on 17.7.2004 at about 10.30 a.m., he along with one Demudu proceeding towards their village on a motor cycle bearing No.AP 31AE 7472 Kawasaki driven by him and when they reached near Brahmamgari Mattam at Cheemalapalli, one motor cycle bearing No.AP 31Q 1666 driven by the 1st respondent owner in rash and negligent manner without following the traffic rules and without blowing horn came in the opposite direction dashed the petitioner’s vehicle, resulting which the petitioner sustained multiple internal and grievous injuries all over his body including brain injury, resulting which he fell unconscious and immediately he was shifted to K.G.Hospital, Visakhapatnam, for treatment where he was treated as inpatient for a period of ten days by Dr.Pranajit Ray and he has spent Rs.20,000/- towards medicine, brain scan and other expenses and still he is taking treatment. It is stated that the accident occurred due to the rash and negligent driving of the said offending vehicle. It is stated that before the accident he was hale and healthy, but due to the brain injury his life is deteriorated day by day and he is not able to do normal duties due to brain injury and with other injuries sustained by him in the accident. His mental faculties affected due to the brain injury and are in drowsiness due to the brain injury and other injuries. Therefore, he is claiming compensation of Rs.2,00,000/- for financial loss and for permanent disability and loss of earning power. In so far as involvement of the offending vehicle driven by its driver-cum-owner is concerned, it is not in dispute. The only dispute is with regard to quantum of compensation. It is contended that the claimant was in intoxicating mood at the time of the accident and he was under the influence of alcohol and it cannot be said that the accident occurred due to the rash and negligent driving of the said offending vehicle. It is further stated that awarding of compensation of Rs.67,000/- under the head ‘inconvenience’ for the 1st respondent is not reasonable and therefore this appeal is filed aggrieved by the quantum of compensation alone. Heard both the learned counsel and perused the records. On behalf of the petitioner, the claimant himself was examined as P.W.1, the doctor who treated him was examined as P.W.2 and the employer was examined as P.W.3 and marked exhibits A-1 to A-10. On behalf of the respondent, R.W.1 was examined and no documents were marked. P.W.1 stated that his salary is between Rs.5,800/- and Rs.7,000/- and on 17.7.2004 at about 10.30 a.m., or 11.00 a.m., while he was going to his village on motor cycle bearing No.AP 31E 7472 along with the pillion rider reached near Brahmamgari Matam at Cheemalapalli village, the 1st respondent came in opposite direction on his motor cycle and while he was trying to overtake one auto came across his vehicle and dashed his vehicle. At the time of the accident, he was going on his left side on the road. Immediately after the accident he lost his consciousness and regained the same after two days of the accident. At the time of the accident one Demudu was travelling with him as pillion rider and the said Demudu gave complaint to the police and he has taken treatment in K.G. Hospital for a period of 38 days as inpatient and still he is taking treatment when he was examined on 21.4.2006. It is stated that he has spent Rs.2,75,000/- for treatment and due to the said accident and he is feeling difficulty even to speak and also suffering with fits. He lost salary for a period of one year eight moths and he is suffering with fever and headache regularly and also shivering occasionally. It is stated that presently he is not in a position to attend to his duties. The court observed that at the time of giving evidence the petitioner is not in a position to speak conveniently and also in a clear manner. In the cross-examination by the insurance company he denied the suggestion of getting salary from Rs.5,800/- to Rs.7,000/- at that time. It is stated that he is entitled to Rs.50,000/- under the head of loss of earning. The doctor who treated the petitioner was examined as P.W.2. He stated that the petitioner was suffering physical inconveniences of posttraumatic headache and seizures and dysartheria (difficulty in speech) and said disability is permanent and there is no possibility for reduction of disability. It is stated that Ex.A-8 is the disability certificate and the said disability is permanent nature. It is stated that he himself treated the patient and in Ex.A-4 it was mentioned that the petitioner is alcoholic. It is stated that the petitioner is suffering inconvenience with disability. P.W.3, Deputy Manager, Personal Administration, Andhra Cements Limited, Visakhapatnam, where the petitioner is working, stated that the petitioner was on leave from 17.7.2004 to 19.12.2004 and he has sustained loss of salary for the said period. It is stated that if the employee worked for a period of 31 days he would get Rs.8,000/- and above per month and the petitioner received gross amount of Rs.8,873/- as per wages slip in the month of March, 2005. Basing on the evidence available on record, the court below rightly held that the accident occurred due to rash and negligent driving of the 1st respondent in the O.P., in which the claimant petitioner received injuries. In so far as the quantum of compensation is concerned, it is not in dispute about the receipt of the said injuries. According to Ex.A-2 wound certificate, the petitioner received injury to his brain and it is grievous in nature. He claimed Rs.28,000/- under the head of earning. According to the evidence of P.W.3, the petitioner did not attend duty from 17.7.2004 to 19.12.2004 for a period of five months. Therefore, the court below having taken into consideration the salary of Rs.5,000/- alone granted compensation of Rs.25,000/- under the head of loss of income. The petitioner claimed Rs.2,000/- under the head of transport to hospital, but the court below granted Rs.1,000/-. Under the head of extra nourishment and medicines, he claimed Rs.20,000/-, but only Rs.7,000/- was awarded by the court below. In so far as the claim of Rs.1,50,000/- under the head of permanent disability and loss of earning power is concerned, the Tribunal below awarded compensation of Rs.67,000/-. Learned counsel for the appellant submits that as per Ex.A-4 the claimant was under the influence of alcohol before the accident and the accident occurred due to his negligence. The accident occurred in the morning and merely because a person is alcoholic, it cannot be assumed or presumed that he consumed liquor at the time of the accident. The accident occurred in the morning and there is no record to show that the petitioner was in intoxicating mood and he was under the influence of alcohol. Therefore, it cannot be said that the claimant consumed liquor at the time of the accident and that there was negligence on his part also. Absolutely no evidence is adduced or any record is produced to support the contention that the claimant was under the influence of alcohol at the time of the accident. In so far as the awarding of total compensation of Rs.1,00,000/- under various heads is concerned, I am of the opinion that the Tribunal rightly taken into consideration the permanent disability and loss of earning capacity of the petitioner and therefore it cannot be said that the said amount is excessive. Therefore, I do not see any justification to interfere with the order impugned. The appeal is accordingly dismissed. No order as to costs. _______________ V.ESWARAIAH, J. 24.6.2010 kpr