THE HON’BLE MR. JUSTICE R. KANTHA RAO C.M.A.NO.3002 of 2003 Dated:05.03.2010 BETWEEN: R.Sukanya .. Petitioner And Baba Patel and another .. Respondents * THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.M.A.NO.3002 of 2003 % Dated:05.03.2010 BETWEEN: # R.Sukanya .. Petitioner And $ Baba Patel and another .. Respondents ! Counsel for the Appellants: Mr. G.Venkata Narayana Reddy ^ Counsel for the Respondent : Mr V.Srinivasa Rao <GIST: > HEAD NOTE: ? Cases HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO.3002 of 2003 JUDGMENT:- This appeal is filed against the Order, dated 20.02.2002 passed in O.P.No.2503 of 2000 by the Motor Accident Claims Tribunal-cum-IV Additional Chief Judge, Hyderabad. 2. The injured claimant is the appellant herein. He filed the claim petition under Section 166 of the Motor Vehicles Act before the Tribunal below seeking compensation of Rs.4,00,000/- in respect of the injuries sustained by him in a motor vehicle accident occurred on 07.11.2000. After making enquiry into the claim petition, the learned Tribunal dismissed his claim holding that the accident was not as a result of any rash and negligent act of the driver of the water tanker bearing No. APP 5450 and that the same occurred on account of the appellant’s own fault, and therefore, he is not entitled for any compensation. Having arrived at the conclusion that the appellant is not entitled for any compensation, the learned Tribunal below did not go into the question of quantum of compensation. 3. I have heard the learned counsel appearing for the appellant and the second respondent-insurance company. 4. According to the appellant on 07.11.2000 at about 4.00 pm a water tanker bearing No. APP 5450 belonging to the first respondent came to their locality for supplying drinking water to the residents. Due to some mechanical defect of the valve drinking water could not be drawn from the connection annexed to the tanker and on the request of the inhabitants of the locality and with the permission of the driver of the water tanker, he went on to the top of the tanker and was distributing water to the people who gathered there by filling of the water in the respective containers by taking out directly from the tanker. It is the version of the appellant that such a course was permitted by the driver of the said water tanker and some time thereafter without giving any signal and without observing him, the driver of the water tanker suddenly started the vehicle, due to which he fell down from the top of the water tanker and received injuries to left thigh, abdomen and pelvis. Initially, he was removed to Osmania General Hospital, from there he was shifted to Kamineni Hospital for better treatment and he spent an amount of Rs.1,50,000/-. He claimed compensation of Rs.4,00,000/- under various heads. 5. It was the contention of the second respondent insurance company before the tribunal below in the course of its counter that the appellant who was in a drunken state without the permission of the driver of the water tanker went on to the top of the water tanker to fetch water, fell down from there and received injuries. The second respondent-insurance company sought to establish its contention mainly basing on the statement of the appellant recorded by the Head Constable of the Amberpet Police Station according to which the appellant himself said to have stated to the Head Constable that in a drunken state he climbed the water tanker and fell down from the tanker due to his own fault and nobody was responsible for the accident. 6. To prove their respective contentions, the appellant examined himself as PW.1, an eye witness to the accident as PW.2 and marked Exs.A.1 to A.11. Whereas, the second respondent- insurance company examined one of its officials as RW.1 and marked Ex.B.1-copy of the policy of insurance. 7. PW.1-appellant and PW.2-inhabitant of the locality of the appellant where the incident took place had categorically spoken to the fact of the appellant going over the top of the tanker and distributing water to the inhabitants of the locality with the permission of the driver of the water tanker and thereafter, without informing the appellant and without giving any signal, the driver starting the tanker suddenly, as a result of which, the appellant falling down from the tanker and receiving severe injuries. RW1, who is not at all a witness to the accident deposed that the accident occurred not as a result of the rash and negligent driving of the driver of the water tanker and was the result of the appellant’s own fault. The learned Tribunal accepted the version of the insurance company mainly taking into consideration the contents of Ex.A.1 copy of the FIR which indicates that the appellant stated to the Head Constable, who recorded his statement that while in a drunken state he climbed the water tanker for the purpose of fetching water, fell down from there and received injuries. However, Ex.A.3 – copy of the charge sheet discloses that after thorough investigation the police came to the conclusion that the accident occurred as a result of the driver starting the water tanker suddenly after permitting the appellant to climb the water tanker for the purpose of distributing water to the inhabitants of the locality and the accident occurred due to the rash and negligent driving of the driver of the water tanker. Accordingly, the driver of the said vehicle was charge sheeted for the offence punishable under Section 338 of the Indian Penal Code. 8. The contention of the appellant is that initially the driver of the water tanker promised him to bear all the expenses incurred for his treatment and on his promise he affixed thumb impression on a paper and he did not in fact, state before the Head Constable that while in a drunken state climbed the water tanker and fell down from there due to his drunken condition. The investigating officer, who filed the charge sheet also found the version of the appellant to be correct and accordingly believing the same and after ascertaining true facts, charge sheeted the driver of the water tanker for the offence punishable under Section 338 IPC. The medical evidence in this case, does not disclose that the appellant was in a drunken state when he was admitted in Osmania General Hospital or in Kamineni Hospital. Further it is highly unconvincing to accept the version of the second respondent that the appellant himself admitting before the police that while he was in a drunken state climbed the water tanker without the permission of the driver, fell down from there and positively stating that the driver is not responsible for the accident. The evidence of RW.1 is of no avail for the second respondent – insurance company since he was not at all witness to the accident. Whereas the appellant, who is the injured and PW.2- an independent witness stated in their evidence that the driver of the water tanker permitted the appellant to climb the water tanker for the purpose of distributing the water to the inhabitants of the locality and the accident took place as a result of the driver suddenly starting the vehicle without either informing the appellant or giving any signal to him. The appellant himself filed Ex.A.1 certified copy of the FIR and in normal course he is not supposed to contradict the contents of the said document because it is filed by him. However, having regard to the peculiar facts and circumstances of the present case and more particularly the manner in which the appellant sought to explain the incorrectness of the contents of Ex.A.1-copy of FIR and ultimately the said version being accepted by the investigating officer, who filed charge sheet against the driver of the offending vehicle under Section 338 IPC as disclosed from Ex.A.3-certified copy of the charge sheet, much credence has to be given to the evidence of PWs.1 and 2. In this case, the appellant by examining PW.2, an independent witness could be able to demonstrate that the accident occurred due to rash and negligent act of the driver of the water tanker as contended by him in the claim petition and the said version is accepted by the investigating officer, who filed charge sheet against the driver under Section 338 IPC. The learned Tribunal below ignoring reliable and trustworthy evidence of PWs.1 and 2 and also the outcome of the investigation which is evidenced by Ex.A.3- certified copy of charge sheet had fallen into error holding that the accident was not on account of any rash and negligent driving of the driver of the offending vehicle and recorded a finding that the appellant is not entitled for any compensation. The said finding is contrary to the evidence forthcoming in this case and is liable to be set aside in this appeal. Accordingly, the same is set aside, and it is held that the accident was caused due to rash and negligent act of the driver of the water tanker bearing No. APP 5450 and indisputably the said water tanker belongs to the first respondent and it was validly insured with the second respondent-insurance company at relevant point of time and the same is also disclosed from the contents of Ex.B.1 copy of the insurance policy filed by the second respondent. Therefore, the respondents 1 and 2 are jointly and severally liable to pay compensation to the appellant. 9. The next aspect which requires consideration is the quantum of compensation. Though the learned tribunal had not dealt with the said aspect since it dismissed the entire claim holding that the accident was on account of the fault of the appellant himself. This Court is of the opinion that no useful purpose would be served by remitting the matter back to the Tribunal for the purpose of deciding only the quantum of compensation after a lapse of 10 years period and therefore, proceeds to decide the said issue in this appeal itself. 10. The appellant is a labourer and was said to be earning Rs.3,000/- per month on the date of accident. Though, Ex.A.10- disability certificate issued by one Dr.P.Prasad indicates that the appellant sustained disability of 35% which is partial and permanent in nature to prove the said factor, the doctor was not examined. In the absence of examination of the doctor, it is not possible to proceed on the assumption that the appellant sustained permanent disability. However, basing on the injuries borne out from the medical record, this Court can grant reasonable compensation to the appellant. Ex.A.5-discharge summary issued by the Kamineni Hospital discloses that the appellant underwent debrigement and repair of scrotal injury and the operative findings are as follows: Scrotal injury with prolapse of ® testis haematoma of scrotal wall layers. Haemotoma around cord strclena Small laceration over tunica albugena Here the patient is investigated and cross consulted with orthro and CT surgery, patient undergone Debridment and repair of scrotal injury, operation was performed under local anesthesia on 08.11.2000. X ray pelvis shows fractured 4-9 ribs on left side (Rt) scrotal injury, but the patient is not willing for surgery. Ex.A-5-discharge summary was marked before the Tribunal without any protest from the respondent No.2-Insurance Company and thus the insurance company is estopped from contending that no reliance can be placed on the said document. 11. From the medical record, therefore, it is obvious that the appellant received grievous injuries to the scrotum which was operated upon and also fractures of ribs on left side. For the grievous injuries sustained by the appellant, an amount of Rs.30,000/- can be granted (Rs.15,000/- + Rs.15,000/-). An amount of Rs.15,000/- can be granted towards pain and suffering. Though no person is examined to prove Ex.A.8-medical prescriptions and Ex.A.9-advanced medical bills for Rs.78,745.77 ps, an amount of Rs.10,000/- can be granted to the appellant towards medical expenses considering the nature of injuries sustained by the appellant and his treatment in a private super specialty hospital. Thus, the appellant is entitled for total compensation of Rs.55,000/-. The amount of compensation shall carry interest at the rate of 7.5% per annum from the date of petition till the date of realization. The second respondent – insurance company is directed to deposit the amount within a period of one month from the date of the judgment in this appeal. 12. In the result, the appeal is partly allowed. There shall be no order as to costs. _______________ R. KANTHA RAO, J Date: 05.03.2010 Note : L.R. copy to be marked b/o kvrm