THE HON'BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A.No.1925 of 2005 27th April, 2010 Between :- Kotamareddy Siva Prasada Reddy @ Siva Prasad .. Appellant And K.Vijaya Lakshmi & another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA M.A.C.M.A.No.1925 of 2005 JUDGMENT:- Heard Sri Subrahmanyam, the learned Counsel representing the appellant and Sri Mahender Rao, the learned Counsel representing the 2nd respondent. 2. This M.A.C.M.A. is filed by the claimant as against the order made in M.V.O.P.No.485/2003 on the file of the Motor Accident Claims Tribunal (District Judge), Nellore (hereinafter, in short, referred to as ‘the Tribunal’ for the purpose of convenience) being aggrieved of allowing the M.V.O.P. partly and disallowing the rest of the claim. 3. The learned Counsel representing the appellant would maintain that the Tribunal totally erred in awarding compensation of Rs.1,46,625/- as against the claim of Rs.5,20,000/-. The learned Counsel also would maintain that the Tribunal ought to have allowed the compensation as prayed for. Further the learned Counsel would maintain that the Tribunal totally erred in awarding Rs.75,000/- towards medical expenses as against the claim of Rs.3,00,000/-. While further elaborating his submissions, the learned Counsel also pointed out to the evidence of P.W.2 in particular and would maintain that P.W.2 deposed that P.W.2 received professional fee and hospital expenses at a quantum of Rs.80,000/- and when that being so, the compensation awarded cannot be said to be just and proper. The Counsel also specifically pointed out to Ex.A.4 and Ex.A.5 and would maintain that if these medical expenses are to be calculated, it would come to Rs.2,06,340.70 ps., and when that being so, awarding lower compensation may not be just and proper. While further elaborating his submissions, the Counsel also pointed out that the Tribunal had not awarded any compensation at all for the loss of earnings. The Counsel also further pointed out that even under the other Heads, the compensation amount awarded being on the lower side, the same to be enhanced. Hence, in the facts and circumstances of the case the compensation awarded by the Tribunal to be enhanced and the rest of the claim also to be granted. 4. Per contra, Sri Mahender Rao, the learned Counsel representing the 2nd respondent had taken this Court through the findings recorded by the Tribunal and would further maintain that the bunch of medical bill which had been strongly relied on Ex.A.4 and Ex.A.5 had been well discussed at para 14 and since the Tribunal on verification came to the conclusion that there is some duplication or repetition, instead of granting Rs.2,06,340.70 ps., the Tribunal granted Rs.75,000/- and hence it cannot be said that any injustice had been done to the claimant in this regard. The learned Counsel also pointed out that the claimant claimed Rs.10,000/- towards compensation for pain and suffering and the Tribunal having thought that it is just and proper had granted the same. The Counsel also had pointed out to the relevant findings recorded at paras 9, 10, 11 and 12 as well while appreciating the injuries and how the same had been calculated. In the light of the convincing reasons which had been recorded by the Tribunal, this is not a fit matter to be interfered with. 5. Heard the Counsel. Perused the oral and documentary evidence available on record and also the findings recorded by the Tribunal. 6. Before appreciating the submissions made by the Counsel on record, it may be appropriate to have a glance at the respective stands taken by the parties in O.P.NO.485/2003 on the file of the Tribunal aforesaid, the evidence available on record and also the findings recorded in relation thereto. The parties hereinafter would be referred to as shown before the Tribunal. 7. The appellant – claimant filed the aforesaid O.P. under Section 166 of the Motor Vehicles Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) claiming compensation of Rs.5,20,000/- for the injuries sustained by the claimant in the road accident, which took placed on 18-5-2002 at about 7-00 p.m. on bypass road near Audi Sankaraiah Engineering College, Gudur, Nellore District. The details of the compensation claimed by the claimant are hereunder:- Special Damages: Loss of earnings Rs.50,000/- Medical Expenses Rs.3,00,000/- Transport expenses Rs.15,000/- Attendant charges Rs.10,000/- General Damages:- Compensation for pain and suffering Rs.10,000/- Compensation for permanent disability and loss of earning power and disfiguration Rs.1,35,000/- Total Rs.5,20,000/- 8. The facts in brief are as hereunder:- The claimant prior to the accident was quite hale and healthy, aged 30 years, working as Manager in Nirmala Hotel, Red Hills, Chennai and was earning Rs.10,000/- per month. On 18-5-2002 at about 7.00 p.m. while the claimant and Perumareddy Sai Mohan Reddy were proceeding from Nellore to Gundur in Maruthi Car bearing registration No.AP-26/B-6555 and when they reached near Audi Sankaraiah Engineering College, Gundur on bypass road, a lorry bearing registration No.TAL 7171 owned by the 1st respondent and insured with the 2nd respondent being driven by its driver in rash and negligent manner with high speed came from Nellore towards Madras side and dashed the car on its right side as a result of which the claimant who was driving the car sustained injuries. The claimant was taken to Gudur hospital and after first aid, he was taken to Dr.Raghnath, Bone Specialist at Nellore Hospital and on his advice, he was admitted in Vijaya Hospital, Nellore, and later shifted to Vijaya Health Centre, Madras. Even now, he is still undergoing treatment. He became permanently disabled. Both the respondents are jointly and severally liable for compensation. 9. The 1st respondent had not chosen to contest the matter. 10. The 2nd respondent filed counter denying the allegations and specifically did not admit the following averments made in O.P. aforesaid:- a) narration of the accident. b) Rash and negligent driving of the driver of the lorry. c) Driving licence of the driver of the lorry d) Age, income and avocation of the petitioner. e) Medical expenses incurred and nature of the injuries sustained by the petitioner. It was further pleaded that the petition is bad for non-joinder of the insured and the insurer of the Maruti Car and the petition is liable to be dismissed for non-joinder of necessary parties. Further it was pleaded that the claim of the petitioner is highly excessive, exorbitant and imaginary. 11. On the strength of these pleadings, the following Issues had been settled:- 1) Whether the accident occurred out of the use of the motor vehicle of respondent No.1? 2) Whether the petitioner is entitled to compensation? If so, to what amount and from which of the respondent? 3) To what relief? 12. P.W.1 to P.W.3 were examined and the under-noted documents were marked as Ex.A.1 to Ex.A.10:- Ex.A.1 :- Attested Xerox copy of First Information Report in crime No.69/2002 of Gudur Rural Police Station. Ex.A.2 :- Attested Xerox copy of charge sheet in C.C.No…./2002 on the file of the J.F.C.M., Gudur Ex.A.3 :- Attested Xerox copy of wound certificate. Ex.A.4 :- Bunch of medical bills and prescriptions. Ex.A.5 :- Bunch of receipts issued by J.S.Travels, Chennai Ex.A.6 :- Admission card, dt.19-5-2002 issued by Vijaya Health Centre, Chennai Ex.A.7 :- x-ray film. Ex.A.8 :- Discharge summary issued by Vijaya Health Centre, Chennai. Ex.A.9 :- Certificate dt.14-12-2004 issued by P.W.2 Ex.A.10:- Certificate dt.14-12-2004 issued by P.W.2. Ex.B.1 – Copy of the insurance policy relating to the offending vehicle also had been marked. 13. The Tribunal while answering issues No.1 and 2 had discussed the oral evidence of P.Ws.1, 2 and 3 and also the documentary evidence – Ex.A.1 to Ex.A.10 and Ex.B.1 and came to the conclusion that in the light of the oral evidence of P.W.1 coupled with the documentary evidence – Ex.A.1 and Ex.A.2, it had been established that the accident was due to rash and negligent driving of the driver of the 1st respondent. The Tribunal further discussed the evidence available on record and also had taken into consideration Ex.A.3, Ex.A.4, Ex.A.5, Ex.A.6, Ex.A.7 and Ex.A.8 and further discussed the evidence of P.W.1 and also P.W.2 and the nature of the injury and also discussed about the nature of disability and further had taken into consideration Ex.A.9 and Ex.A.10 as well and ultimately came to the conclusion that taking into consideration the nature of injury granting Rs.50,000/- towards the said injury, permanent disability, loss of earning power and disfiguration against the claim of Rs.1,35,000/- is just and proper. The Tribunal further observed that the claimant claimed Rs.10,000/- towards compensation for pain and suffering and the said claim being just and reasonable, the same had been granted. But however the Tribunal while discussing the bunch of medical bills and the claim made for Rs.2,06,340-70 ps., came to the conclusion that certain bills appear to be repetitive and hence it would be just and reasonable to grant only Rs.75,000/- instead of allowing the claim as prayed for Rs.2,06,340-70 ps. Further the claimant claimed Rs.15,00/- towards transport charges. The vouchers – Ex.A.5 would go to show that the claimant spent Rs.11,625/- towards transport expenses and accordingly the said amount was granted in the special circumstances of the case and thus in total, a sum of Rs.1,46,625/- had been granted and aggrieved by the same, for the disallowed portion, this M.A.C.M.A. had been preferred. 14. The submissions made by the Counsel already had been referred to supra. In the light of the oral and documentary evidence available on record, and also the findings recorded by the Tribunal, the following points arise for consideration in this M.A.C.M.A.:- 1) Whether the compensation which had been awarded by the Tribunal can be said to be just and proper in the facts and circumstances of the case? 2) Whether the appellant-claimant is entitled for any further enhancement of compensation for any of the reasons which had been submitted before this Court in the facts and circumstances of the case? 3) If so, to what relief, the parties would be entitled to? 15. Points 1 and 2:- These points are being discussed together for the purpose of convenience. The respective stands taken in the pleadings of the parties, the Issues settled, the evidence available on record and the findings recorded by the Tribunal, in brief already had been referred to above. 16. In order to prove the accident, the injured examined himself as P.W.1 and P.W.1 deposed about the details. Ex.A.1 - Attested Xerox copy of F.I.R. and Ex.A.2 - Attested Xerox copy of charge sheet had been filed. As against this evidence, since there is no rebuttal evidence, the Tribunal came to the conclusion that in the light of the oral evidence of P.W.1 coupled with Ex.A.1 and Ex.A.2 it had been established that the accident was due to rash and negligent driving of the driver of the 1st respondent. In the light of the said finding, this Court is satisfied that the said finding need not be disturbed especially in the light of the fact that the Insurance Company did not choose to file any M.A.C.M.A. and the claimant alone had chosen to file the M.A.C.M.A. claiming for enhancement of the compensation. Ex.B.1 – Insurance Policy also had been referred to. 17. It is no doubt true that the evidence of P.W.1 and also the evidence of the Doctor – P.W.2 had been appreciated in elaboration apart from the evidence of P.W.3. Certain submissions were made relating to Ex.A.4 and Ex.A.5 as well. In the light of the nature of the disability which had been specifically discussed at para 10 and inasmuch as the Tribunal had taken into consideration the oral and documentary evidence available on record – the evidence of P.W.1, P.W.2 and also appreciated Ex.A.3, Ex.A.4,Ex.A.5,Ex.A.6, Ex.A.7, Ex.A.8, Ex.A.9 and Ex.A.10 and came to the conclusion that taking the gravity of the injury and the nature of the injury granting of Rs.50,000/- towards the said injury, permanent disability, loss of earning power and disfiguration, would be just and reasonable against the claim made by the claimant for Rs.1,35,000/-. This finding need not be disturbed and accordingly the same is hereby confirmed. As far as the claim of Rs.10,000/- towards compensation for pain and suffering, the same had been granted as prayed for by the Tribunal. But as far as the medical expenses are concerned, the evidence of P.W.2 is available on record and apart from this, Ex.A.4 and Ex.A.5 had been heavily relied on and certain arithmetical calculations also had been made and submissions had been made. The claim was made for Rs.2,06,340-70 ps., and instead of granting the same, the Tribunal awarded only Rs.75,000/- towards medical expenses. In the light of the facts and circumstances, this Court is of the considered opinion that under this head, instead of granting Rs.75,000/-, it would be just and reasonable to grant Rs.1,25,000/- i.e., under this head instead Rs.75,000/-, a further enhancement of Rs.50,000/- is being granted especially in the light of the evidence of P.W.2 and Ex.A.4 and Ex.A.5 in particular. As far as the other claims i.e., Transport Charges is concerned, Ex.A.5 had been taken into consideration and hence the same is hereby confirmed. Further it is stated that for loss of earnings, nothing had been granted. Taking into consideration the nature of evidence available on record, the evidence of P.W.1, this Court is of the considered opinion that it would be just and proper to grant a quantum of Rs.10,000/- under this head. 18. Thus, for the compensation already awarded, this Court is of the opinion that the appellant/claimant is entitled to Rs.50,000/- towards medical expenses in addition to the amount already awarded by the Tribunal under this head plus Rs.10,000/- towards loss of earning as aforesaid, i.e., in toto Rs.60,000/-. 19. The Tribunal awarded interest at 9% per annum. However, this Court is of the considered opinion that the same to be modified to 7.5% per annum. 20. Accordingly, the award made by the Tribunal is modified and the compensation is enhanced to Rs.2,06,625/- with interest @ 7.5% per annum instead of 9% per annum. 21. Point No.3:- Accordingly, the award is modified as indicated above. In all other respects, the findings of the Tribunal are hereby confirmed. The M.A.C.M.A. is partly allowed to the extent indicated above. No order as to costs. _____________________ Justice P.S.Narayana 27th April, 2010 smr