THE HONOURABLE SRI JUSTICE NOUSHAD ALI C.M.A No. 1448_of 2001 Date: 22.1.2010 Between: Yerramsetti Sri Ramulu, Ramachandrapuram, Mudinepalli Mandal, Krishna District. And Pinanti Bujji, Machilipatnam and others. THE HONOURABLE SRI JUSTICE NOUSHAD ALI C.M.A No. 1448_of 2001 JUDGMENT: This appeal is filed by the claimant against the judgment dated 19.9.1997 in O.P.No.366 of 1993 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari, Eluru whereby the claim petition filed by the appellant under Section 166 of the Motor Vehicle Act, 1988 (for short ‘the Act’) for compensation of Rs.75,000/- was dismissed. The appellant filed the O.P stating that on 25.12.1991 he was travelling in a lorry bearing Registration No.AAK 3778 and that while he was getting down near Janakamma Hospital, the 1st respondent- driver drove the vehicle in a rash and negligent manner, as a consequence of which, he fell down and the vehicle ran over his right foot. He therefore, claimed that he suffered injuries due to rash and negligent driving of the aforesaid vehicle. The respondents 1 & 2 remained exparte and the 3rd respondent-Insurance Company resisted the claim on the ground that at the time of the accident, the lorry was not used for permissible things and that the terms of the policy were violated and that the 1st respondent had no valid driving licence. The Tribunal formulated the points, whether the accident occurred was due to rash and negligent driving of the lorry and whether the appellant was entitled to claim compensation amount? If so, to what amount? The appellant examined himself as P.W.1 and Exs.A1 to A3 were marked on his behalf. The 3rd respondent-Insurance Company filed the Insurance Policy-Ex.B1 and did not adduce any evidence. The Tribunal, based on the pleadings and the evidence as deposed by P.W.1, recorded finding that there was no rash and negligent driving on the part of the driver of the vehicle and on this ground, dismissed the whole of the claim including the claim for no fault liability under Section 140 of the Act. Aggrieved by the said judgment, the appellant has filed the present appeal. Heard. The contention of the appellant is that there is no dispute with regard to the accident and that he sustained injuries in the said accident. It is further contended that even if the appellant himself was guilty of contributory negligence he is entitled for compensation under no fault liability as per Section 140 of the Act. The learned counsel for the 3rd respondent- Insurance Company contended that the appellant is not entitled for any compensation. The learned counsel contended that as per the plea taken by the appellant in the O.P, the accident occurred when the appellant was getting down from the lorry whereas in his own deposition, the P.W.1 stated that after he got down from the lorry, he was walking on the road and that he was hit by the lorry from behind. The learned counsel urged that the plea contained in the petition is at variance with the version of P.W.1 himself and the same renders the claim as false. The learned counsel therefore, urged that the appeal is liable to be dismissed. I perused the claim petition filed by the appellant and in the petition the appellant stated as follows: “On 25.12.91 at about 2.00 P.M when the petitioner injured boarded a lorry by paying hire charges to go to Akiveedu from Undi, when the lorry reached Akiveedu it was stopped and one Yerramsetti Srinivas got down from the lorry. When the petitioner was getting down from the lorry though caution was given to the driver 1st respondent drove the vehicle in a rash and negligent manner as a result of which, the petitioner fell down and his right foot was ran over by the vehicle.” I also perused the deposition of the appellant as P.W.1, he stated as under:- “… … …I was involved in lorry accident on the day of Christmas in the year 1991 at Akividu, at about 2-30 P.M. At that time I was traveling in a lorry from Bhimavaram. The lorry was bearing No.3778. I got down from the lorry near Janakamma Hospital. I was going by walk and covered a distance of 50 yards, then the same lorry came at high speed from my behind and dashed me. My right foot was crushed…………….” Two things are clear from the above – One, that he was travelling in the lorry by paying hire charges to go to Akiveedu from Undi; Two, that as per the pleading, he was getting down from the said lorry. It is therefore clear that the appellant was a passenger and that at the time of the incident he was getting down from the lorry. It is also stated that the appellant while deposing as P.W.1 adopted a totally different version regarding the manner of the accident. His deposition shows that he already got down from the lorry and walked for a distance when he was hit by the lorry from behind. Thus the two versions are not reconcilable. The appellant, in the event of adopting the same stand as taken in the petition that he was getting down the lorry, would not get any compensation, as he would be treated as a passenger unauthorisedly travelling in the lorry. Apparently, the appellant gave up this stand and adopted a different stand that he was on the road when he was hit by the vehicle. In view of the fact that the evidence is at variance with the pleading coupled with the fact that the appellant himself stated in the petition that he paid hire charges to travel from Undi to Akiveedu, I am of the opinion that despite the occurrence, the appellant failed to establish rash and negligent driving on the part of the driver of the lorry. As such, the appellant is not entitled to any compensation under Section 166 of the Act. However, the fact remains that the accident had in fact occurred and that the appellant suffered injuries. Ex.A2 is the wound certificate which shows that the appellant suffered crash injury on the right foot from the heal to the toes, bones and tissues were crashed and exposed that there was irregular discontinuation of the bones of the foot. The injury is 21 X 5 X 5 cms. The opinion in the medical certificate is that the said injury would have been caused due to running over of the vehicle. The said injury appears to be grievous in nature. Further it is evident from the evidence of the appellant that he was treated in the hospitals and that he was not able to go for his regular work. Having regard to the same, although the appellant failed to establish rash and negligent driving of the vehicle, I am of the opinion that the appellant can be granted compensation under Section 140 of the Act. In this case, the accident occurred on 25.12.1991 and at the relevant point of time, the amount payable under Section 140 of the Act for no fault liability was Rs.12,000/-. Accordingly, I hold that the appellant is entitled for a compensation of Rs.12,000/- under Section 140 of the Act. I also hold that interest at 6% is payable thereon from the date of this judgment till the date of realization. The orders in O.P.No.366 of 1993 dated 19.9.1997 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, West Godavari, Eluru are set aside and modified accordingly. The appeal is allowed in part. There shall be no order as to costs. ______________________ JUSTICE NOUSHAD ALI Date:22.1.2010 mrb