HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.1790 OF 1999 Date:04.12.2009: Between: K.Jaya Ram Reddy …Appellant And Sri Balbir Singh and three others …Respondents HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.1790 OF 1999 JUDGMENT:- This appeal is filed by the appellant/injured claimant challenging the Award dated 30.01.1999 passed by the Motor Accidents Claims Tribunal-cum- District Judge, Mahaboobnagar in O.P.No.986 of 1992. 2. The appellant filed the present appeal challenging the findings of the learned Tribunal viz. fixing contributory negligence on drivers of both the vehicles involved in the accident at 50% each and that the amount of compensation which was granted is not just and reasonable and the same requires to be enhanced. 3. I have heard the learned counsel appearing for the appellant. Respondents 2 and 3 though served with notice did not appear. Though, respondent No.4 appeared through an advocate, there is no representation on behalf of him on this day as well as on previous dates of adjournments. 4. As per the averments of the claim petition as well as the evidence of PW.1-injured claimant, who is the appellant herein that on 06.06.1992 at about 3.00 PM while he along with his colleagues of his department was traveling in an ambassador car bearing No.ADU 7784 belonging to A.P Agricultural University, Rajendernagar from Palem to Hyderabad, a lorry bearing No. HNC 1322 driven in a rash and negligent manner, came at great speed and hit their ambassador car near Raikal village on N.H.Road No.7. According to PW.1 the accident occurred solely on account of the rash and negligent driving of the driver of the lorry bearing No.HNC 1322 and there was no fault on the part of the driver of the ambassador car bearing No. ADU 7784 in which he and his colleagues were traveling. He also filed Ex.A.2 certified copy of the charge sheet dated 12.11.1992 showing that the driver of the lorry was charge sheeted for causing death as well as grievous injury to the inmates of the ambassador car by his rash and negligent driving. Absolutely no contra evidence was let in by the respondents 1 and 2, who are the owner and insurer of the lorry bearing No.HNC 1322 respectively, but curiously, the learned Additional District Judge who tried the other two claims in respect of the same accident apportioned the contributory negligence at 50% each on the drivers of both the vehicles and in one case fixed negligence exclusively upon the driver of the lorry bearing No.HNC 1322 since in that O.P. the respondents 3 and 4 were not made as parties. In the present case, the learned Tribunal fixed the contributory negligence on both the drivers at 50% each on the ground that it became final in both O.Ps. which were tried and disposed of by the Additional District Judge earlier. The finding on this aspect recorded by the learned Tribunal below is erroneous for the aforementioned reason. The learned Tribunal has to decide the issue basing on the evidence before it, but not basing on any of the findings recorded earlier since all the claim petitions have not been tried jointly and have not been disposed of simultaneously. Further the findings in the earlier cases also even according to the learned Tribunal are contradictory. Therefore, the learned Tribunal below ought not to have taken the said finding into consideration while deciding the issue No.1 in the present case. In the present case, the evidence on record clearly indicates that the accident was solely occurred on account of the rash and negligent driving of the driver of the lorry bearing No.HNC 1322 on account of which admittedly the driver of the ambassador car and three persons including the appellant were injured. The finding recorded by the learned Tribunal on this aspect is erroneous and contrary to the evidence on record and the same is set aside in this appeal and it is held that the accident was caused solely on account of the rash and negligent driving of the driver of the lorry bearing No.HNC 1322 and the respondents 1 and 2 are jointly and severally liable to pay compensation to the appellant claimant. 5. On the question relating to quantum of compensation, the learned Tribunal taking into consideration the evidence of PW.1, who was working as Professor and Dean of Students affairs in A.P. Agricultural University, Rajendernagar, Hyderabad and Exs.A.7 and A8 the salary certificates and Ex.A.9 the certificate dated 01.06.1993 issued by the Agricultural University showing that the appellant was on leave for 10 months from 08.06.1992 to 31.3.1993 and his loss of salary was estimated by the university authorities at Rs.1,11,200/- and considering the said evidence, granted an amount of Rs. 1,00,000/- towards loss of earnings/loss of leave and the said finding does not require any interference in this appeal. According to the evidence of the doctor, who was examined as PW.5 – Orthopedic Surgeon of St. Theresa Hospital, Hyderabad, the appellant was admitted in the hospital on 06.06.1992 and on examination, the following injuries are found on the person of PW.1: 1. Posterior Fracture dislocation of the left hip with sciatic nurve palsy. 2. Grossly comminuted fractures of the distal radious and ulna on the left side who was involving radio carpal and radio ulna joints. 6. According to PW.5, the fractures were multiple involving in three bones. The appellant – injured was treated as inpatient by performing two surgeries and ultimately the left leg of the appellant was shortened by 2 cms and the fracture of hip joint could not be adjusted and the appellant needs hip replacement. It is also borne out from the evidence of PW.5 that the appellant was suffering from severe pain in hip when he walks and he has to use a stick at the time of walking and that he cannot squat or bend and all the movements of the hip are grossly restricted and painful. It is also his evidence that there is still some weakness in the ankle and toes, there is mild deformity of the left wrist and only with some range of the normal movement and the grip is weak. PW.5 assessed the disability at 55% and he issued Ex.A.13 disability certificate. Therefore, even though there is ample evidence before the learned Tribunal that the appellant sustained grievous injuries and ultimately the disability of 55%, no amount is granted to the appellant towards permanent disability. Therefore, in this appeal an amount of Rs.75,000/- is granted towards permanent disability. The amount of Rs.60,000/- granted towards paid and suffering being reasonable, it needs no interference in this appeal. As against the medical bills of Rs.99,551.42ps the learned Tribunal granted an amount of Rs.60,000/- towards medical expenses which also needs no interference. However, the learned Tribunal even though there is evidence of PW.3, who attended the appellant during the period of hospitalization that PW.3 was paid an amount of Rs.9,600/-, no such amount was granted and in this appeal relying on the evidence of PWs.1 and 3, Rs.9,600/- is granted towards attendant charges. The learned Tribunal also granted an amount of Rs.50,000/- towards loss of amenities in life, loss of expectation of life, inconvenience, hardship, discomfort etc. which needs no interference in this appeal. The Tribunal below also granted an amount of Rs.1,00,000/- towards loss of past earnings, which needs no interference. For the operation to be performed on the appellant – claimant and for future medical expenses, the learned Tribunal did not grant any amount. Therefore, towards the charges of surgery and future medical expenses, a sum of Rs.60,000/- is granted to the appellant. The total compensation granted to the appellant is Rs.4,14,600/-. Therefore, the enhancement in this appeal comes to Rs.4,14,600/- minus Rs.2,70,000/- = Rs.1,44,600/-. The enhanced compensation shall carry interest at 6% per annum from the date of petition till the date of realization. 7. Accordingly, the appeal is allowed in part. There shall be no order as to costs. __________________ R. KANTHA RAO,J Dated: 04.12.2009 kvrm