THE HON'BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.2984 of 2005 JUDGMENT: The appellant-claimant filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) against the order dated 01.02.2005 passed in O.P.No.1642 of 2001 by the Motor Vehicles Accidents Claims Tribunal-cum-V Additional Chief Judge, City Civil Court, Hyderabad. 2. Brief facts of the case are that the claim petitioner filed the above O.P. under Section 166 of the Act claiming compensation of Rs.1,00,000/- for the injuries received by him in the accident that took place on 24.05.2001 at about 3.15 p.m., when he was going to Aramghar from Durga Nagar on his cycle, a lorry bearing No.KA-39- 5145 driven by its driver in high speed in rash and negligent manner dashed against him, due to which, he fell down and sustained injuries. The police, Rajendra Nagar Police Station registered a case in Crime No.245 of 2001 for the offence punishable under Section 337 IPC. 3. The first respondent remained ex parte. The second respondent- Insurance Corporation filed counter denying the averments made in the petition regarding the age, income, avocation and the injuries received by the claimant and prayed to dismiss the petition. 4. On the basis of the above pleadings, the Tribunal framed the following issues for trial. 1. Whether the petitioner sustained injuries in the accident on account of the rash and negligent driving of the driver of lorry bearing No.KA-39-5145 by its driver? 2. Whether the petitioner is entitled to any compensation and if so, to what amount and from whom ? 3. To what relief ? 5. Before the Tribunal, on behalf of the claimant, PWs.1 & 2 were examined and Exs.A.1 to A.7 were marked. On behalf of the respondents, though no oral evidence was adduced, Ex.B.1-copy of the Insurance Policy was marked. 6. On consideration of the oral and documentary evidence adduced by the claimant, the Tribunal on Issue No.1 observed that as per the evidence of the claimant as PW.1 he received fracture of left leg and multiple grievous injuries. In his cross-examination he denied the suggestion that the accident had not occurred due to the lorry bearing NO.KA-39-5145. He relied on Exs.A.1 to A.5 in support of his contention. Ex.A.1 is the F.I.R. copy, Ex.A.2 is treatment chit issued by the Osmania General Hospital, Hyderabad, Ex.A.3 is treatment chits issued by Dr. Subhash Rao, Ex.A.4 is Disability certificate and Ex.A.5 is Bunch of medical bills. The contents of Ex.A.2 shows that the claimant received injuries and that he took treatment in Osmania General Hospital from 24.05.2001 to 28.05.2001. The claimant did not choose to examine Siddanna Yesu, who gave the complaint to the police about the accident. Since petition was filed under Section 166 of the Act, it was incumbent on the part of the claimant to prove that the accident had occurred due to the rash and negligent driving of the driver of the offending vehicle. Except the interested testimony of PW.1 no other independent evidence was available to prove that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. Observing so, the Tribunal answered the issued against the claimant. 7. On Issue No.2 the Tribunal observed that though the claimant in his evidence stated that he was working as Mastry and used to earn Rs.3500/- p.m., in the absence of any rebuttal evidence, the Tribunal took the income of the claimant at Rs.50/- per day, since now a days even an agricultural coolie gets Rs.50/- per day. As per Ex.A.4- disability certificate the disability of the claimant is 25%. Because of the injuries, the petitioner must not be in a position to attend his routine work at least for a period of three months. Therefore, the Tribunal awarded Rs.4,500/- (50 x 30 = Rs.1500 x 3) towards future earnings. Taking into consideration the nature of injuries sustained by the claimant and the period of treatment undergone by him, the Tribunal awarded Rs.8,000/- towards pain and suffering. Ex.A.2-treatment chit issued by the Osmania General Hospital, Hyderabad, shows that the claimant received fracture of left tibia and five injuries in total. Though the claimant stated that he had spent Rs.15,000/- for medicines, the medical bills filed by him under Ex.A.5 were only for Rs.8,750/-. Therefore, the Tribunal awarded Rs.8,750/- for extra nourishment and medicines. Though the claimant claimed compensation of Rs.2,000/- towards transportation to the hospital, he did not produce any transport bills. Therefore, the Tribunal awarded Rs.500/- to the claimant under the said head. In all the Tribunal awarded a sum of Rs.21,750/- towards compensation dismissing the petition. Seeking further enhancement, the present appeal has been preferred by the claimant. 8. Heard learned counsel for the appellant/claim petitioner and learned counsel for the respondents. 9. Learned counsel for the appellant contended that the Tribunal erred in holding that the claimant did not choose to examine Siddana Yesu, who gave the complaint to the police regarding the accident. He also contended that the Tribunal erred in holding that simply because the claimant received injuries, it cannot be said that the accident took place due to the rash and negligent driving of the driver of the offending lorry. The Tribunal ought to have appreciated the evidence of P.W.1, who is the injured as well as the eyewitness to the accident. He further contended that the Tribunal took erroneous view that the claimant did not choose to file final report in Cr.No.345 of 2001 of Rajendranagar Police Station and the claimant failed to establish that the accident took place due to rash and negligent driving of the offending lorry. He lastly contended that the Tribunal erred in holding that the income of the claimant comes to Rs.1500/- per month instead of Rs.3,500/- per month and that the Tribunal ought to have appreciated the disability of the claimant at 25%, which is permanent in nature. Hence he prays to allow the appeal. 10. On the other hand, the learned counsel appearing for the respondents sought to sustain the order of the Tribunal. 11. The question of proving rash and negligent driving of the driver of the offending lorry does not arise, in view of the judgment reported in PUSHPABAI VS. RANJIT GINNING AND PRESSING COMPNAY PVT LIMITED[1], wherein the Supreme Court while dealing with res ipsa loquitur, held as under: “The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident ‘ speaks for itself’ or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence……. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happened if those who had the management used proper care.” 12. Apart from that, as seen from the record, it is no doubt true that the appellant received injuries i.e., fracture of left leg and multiple grievous injuries. Ex.A.2-treatment chit shows that the petitioner took treatment in Osmania General Hospital, Hyderabad from 24.05.2001 to 28.05.2001 and that he received fracture of left tibia and five injuries in total. During the period of treatment, the appellant must have suffered with pain. Taking into consideration the nature of injuries suffered by the appellant and the period of treatment undergone by him, I deem it appropriate to take the income of the appellant at Rs.2000/- p.m. and by taking into consideration disability at 30%, his annual income would come to Rs.7,200/- (Rs.2000 x 12 = 24,000 x 30%). Since the appellant was aged about 45 years at the time of accident, the appropriate multiplier, as per the judgment of the Supreme Court reported in Sarala Verma V Delhi Transport Corporation and Another[2], would be ‘14’. Thus the loss of future earnings of the appellant comes to Rs.1,00,800/- (Rs.7,200/- x 14), but the same is rounded off to Rs.1,00,000/-, as the appellant claimed only Rs.1,00,000/-. The amounts awarded by the Tribunal under other heads are confirmed. The enhanced compensation shall carry interest @ 6% p.a. 13. Accordingly, the Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs. ________________________ (GHULAM MOHAMMED, J.) Date: 17.09.2010 va [1] AIR 1977 SC 1735 [2] 2009 (6) SCALE 129