* THE HON’BLE SRI JUSTICE D.S.R.VARMA + M.A.C.M.A.M.P.No.2497 of 2006 IN M.A.C.M.A.No.1166 of 2006 AND M.A.C.M.A.No.2072 of 2007 % 23-09-2010 M.A.C.M.A.M.P.No.2497 of 2006:-- # K.Raghu Babu ..… Applicant Vs. $ 1.C.Veera Sekhar & 3 others ..… Respondents M.A.C.M.A.No.1166 of 2006:-- # K.Raghu Babu ….. Appellant Vs. $ 1. C.Veera Sekhar & 3 others ….. Respondents M.A.C.M.A.No.2072 of 2007:-- # The New India Assurance Company Limited ….. Appellant Vs. $ 1. K.Raghu Babu & 3 others ….. Respondents ! Counsel for the Appellant: Sri M.V.S.Suresh Kumar for Applicant in M.A.C.M.P.No.2497 of 2006, Appellant in M.A.C.M.A.No.1166 of 2006 And Respondent No.1 in M.A.C.M.A.No.2072 of 2007 ^ Counsel for the Appellant: Dr. Muddu Vijay, S.C. for Appellant-New India Assurance Company Limited in M.A.C.M.A.No.2072 of 2007 Counsel for the Respondent No.3: Sri Kota Subba Rao, S.C. for New India Assurance Company Limited/Respondent No.3 in M.A.C.M.A.No.1166 of 2006 Counsel for the Respondent No.4: Sri E.Venugopal Reddy, S.C. for United India Insurance Company Limited-in M.A.C.M.A.Nos.1166 of 2006 & 2072 of 2007 < Gist: > Head Note: ? Cases referred: 1. AIR 2002 SC 350 2. 2003 (1) ALD 1 (SC) 3. (1879) 4 QBD 406 at 407 4. (1869) 21 T 326 5. (2009) 6 SCC 121 THE HONOURABLE SRI JUSTICE D.S.R.VARMA M.A.C.M.A.M.P.No.2497 of 2006 IN M.A.C.M.A.No.1166 of 2006, M.A.C.M.A.No.1166 of 2006 AND M.A.C.M.A.No.2072 of 2007 COMMON JUDGMENT: Since both the Motor Accident Claims Miscellaneous Appeals arise out of the same order and decree, they are heard together and being disposed of by this common judgment. 2. Heard both sides. 3. The claimant filed M.A.C.M.A.M.P.No.2497 of 2006, seeking to amend the original petition O.P.No.125 of 1997, for claiming the enhanced compensation of Rs.35,00,000/- instead and in place of Rs.15,24,876/- which was claimed before the Tribunal. 4. Dissatisfied with the quantum of compensation, awarded by the Motor Accident Claims Tribunal-cum-District Judge, Mahaboobnagar, partly allowing the petition O.P.No.125 of 1996, by order and decree, dated 20.03.2006, the claimant has preferred the appeal M.A.C.M.A.No.1166 of 2006, seeking enhancement, and challenging the quantum of compensation, the New India Assurance Company Limited has preferred the appeal M.A.C.M.A.2072 of 2007. 5. It is brought to the notice of this Court, by both the learned counsel, that no application is filed, by the insurer, before the Tribunal, seeking permission, to contest the matter on all aspects, as contemplated under Section 170 of the Motor Vehicles Act, 1988 (for brevity “the Act”), as held by the apex Court in NATIONAL INSURANCE CO. LTD. vs. NICOLLETTA ROHTAGI[1], in which event the scope for the insurance company to agitate before this Court is limited only to the extent of Section 149 of the Act. In view of the said fact, ex facie, the appeal M.A.C.M.A.No.2072 of 2007, filed by the insurer, is not maintainable and is liable to be dismissed. 6. Now I will deal with the appeal M.A.C.M.A.No.1166 of 1996, filed by the claimant, only. 7. The facts of the case, in brief, are that, on 27.04.1996, at about 06.00 am., when the claimant, along with her wife, parents- in-law and sister-in-law, started from their house at Hyderabad to go to Cuddapah, in a Maruthi Van, bearing No.AP.9H-1251, at about 08.00 am., in between Moosapet and Janampet villages, the tractor and trailer bearing Nos.APM.5853 and AP.22/T.2844, respectively, driven by its owner-cum-driver, in high speed and in a rash and negligent manner, came from opposite direction and dashed against the Maruthi Van, due to which the Maruthi Van was damaged completely and the inmates of the Maruthi Van sustained multiple fractures, in addition to multiple bleeding injuries all over their bodies; that the claimant was having driving license and he could not avert the accident in spite of his due diligence and the accident was occurred purely due to the negligence of the driver of the above said tractor and trailer; that the injured claimant was immediately shifted to the Government Hospital, Mahaboobnagar, for treatment; that he sustained fracture of right leg, right hand and other multiple injuries all over the body; that as his condition was precarious, he was shifted to Apollo Hospital at Hyderabad on the same day; that he was inpatient in the said hospital from 27.04.1996 to 10.05.1996, and thereafter underwent treatment for six months as outpatient; that an operation was done to his right leg and right hand and steel rods, plates and screws were inserted in both the right leg and right hand by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad; that as the bones were not set completely, after a period of ten months, the claimant was again admitted in Apollo Hospital, Hyderabad, on 12.02.1997 and got operated second time and bone grafting was done in the right leg and was discharged on 15.02.1997; that the steel plates, rods and screws inserted in his right leg and right hand were to be removed later; that he spent Rs.1,05,000/- for his treatment; that he sustained permanent disability and discomfort to his both right leg and right hand; that he was not in a position to walk and lift anything with his right hand; that he was working as Sub-Registrar at the time of accident and was bedridden for eleven and half months and was put to loss of salary of Rs.5,500/- per month; that he was subjected to much physical pain and mental agony due to the injuries; that as himself and his wife were bedridden, the claimant had to engage an attendant for him by paying a sum of Rs.2,000/- per month; that, thereafter, the claimant underwent treatment for a period of one year as an outpatient under the treatment with the said Doctor; that at the time of his discharge i.e., on 10.05.1996, admission and discharge card was issued by Apollo Hospital, Hyderabad; that a cash receipt for Rs.50,000/- was issued by the said Doctor, for the surgical operation done by him on 28.04.1996; that as the bones were not set completely, after a period ten months, the claimant was again admitted in Apollo Hospital, on 12.02.1997, and got operated second time and bone grafting was done to his right leg and right hand and was discharged on 15.02.1997; that the said Doctor issued another cash receipt for Rs.25,000/- towards his fee, for the surgical operation done by him; that at the time of discharge of the claimant, the Apollo Hospital issued summary report; that the steel plates, rods and screws inserted in the right leg and right hand of the claimant are to be removed later; that in spite of bone grafting, the claimant sustained permanent partial disability and discomfort to his both right leg and right hand, as a result of which he is not in a position to walk and lift anything with his right hand; that while so, on 25.06.1998, as the bones were not set completely and as the steel plates and rods were broken, again the claimant was admitted in Apollo Hospital and got operated third time by inserting new steel plates, rods and screws and bone grafting was also done to his right leg and was discharged on 27.06.1998, for which he was subjected to mental agony and also suffering and, apart from that, he incurred huge expenditure towards operation, by way of borrowings from his kith and kin and also his friends; that the said Doctor also issued another cash receipt for Rs.50,000/- towards his fee, for the surgical operation done by him; that consequence of which, he has not only suffered financially but also mentally and physically; that he is entitled to all the claims and also incidental charges till the realisation of the amount from the respondents; that the claimant has to attend to his regular and normal duties daily and he was not able to sit more than two hours and he has to necessarily take rest for some time and his right leg was shortened by one and half inch; that since his right leg gets swelling every day, the said Doctor, who treated him as an inpatient and is treating as outpatient, advised the claimant not to travel on two wheeler and to travel only on four wheeler; that, for that also, in view of the present cost of living, necessarily the claimant has to pay a sum of Rs.3,000/- per month towards salary to the driver; that at last, as per the advise of the said Doctor, the claimant has purchased a second hand Maruthi car by way of loan from the Bank/finance companies, after obtaining permission from the Head of the Institution and has engaged a driver by paying a sum of Rs.3,000/- per month; that the claimant is undergoing physiotherapy every day in the morning and evening for which he has been paying a sum of Rs.100/- each i.e., in the morning and evening, as per the medical advise; that in view of the fractures and multiple grievous injuries suffered by the claimant, in the accident, he is not able to hold independent charge as Sub-Registrar as he has to necessarily sit in the office from 10.30 am., to 5.00 pm., and also beyond office hours to sign the papers and has to go for inspecting the sites in his jurisdiction; that all these problems are due to the injuries suffered by the claimant i.e., fractures and grievous injuries all over his body, in the accident and that any amount of compensation can not compensate the injuries suffered by the claimant. 8. The owner-cum-driver of the tractor and trailer and the owner of the Maruthi Van remained ex parte before the Tribunal. 9. The New India Assurance Company Limited with which the tractor and trailer were insured filed counter denying the material allegations in the claim petition and contending that since the unfortunate accident occurred due to the negligent driving of the driver of the Maruthi Van, the said insurance company is not liable to pay the compensation and that the claim was excessive and that the application now filed before this Court seeking enhancement of the compensation is liable to be dismissed. 10. The United India Insurance Company Limited with which the Maruthi Van was insured filed counter admitting the material allegations in the claim petition and contending that the claim was excessive. 11. Before the Tribunal, the claimant examined himself as P.W.1 and Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Jubilee Hills, Hyderabad, who is treating the claimant, as P.W.2, and got marked Exs.A-1 to A-29 on his behalf. No oral evidence was adduced on behalf of the insurance companies, but marked the copy of insurance policy of the tractor and trailer in question, under Ex.B-1. 12. Basing on the above pleadings, the Tribunal framed the following issues for trial: (1).Whether the accident occurred due to rash and negligent driving of the driver of tractor and trailer bearing No.AP.APM.5853 and AP.22-T.2844? (2).Whether the petitioner is entitled to claim compensation from the Respondents, and if so to what amount and against whom? (3).To what relief? 13. The Tribunal, having considered the entire material, including the evidence, both oral and documentary, available on record, on issue No1 held that the accident occurred due to rash and negligent driving of the driver of the tractor and trailer in question, on issue No.2 held that the owner of the tractor and trailer and the New India Assurance Company Limited are jointly and severally liable to pay the compensation amount to the claimant and on issue No.3 awarded a sum of Rs.7,45,287/- towards compensation. Dissatisfied with the same, the claimant has preferred M.A.C.M.A.No.1166 of 2006, while, challenging the same, the New India Assurance Company Limited has preferred M.A.C.M.A.No.2072 of 2007. 14. Sri M.V.S.Suresh Kumar, learned counsel appearing for the claimant, vehemently contends that the compensation awarded by the Tribunal is disproportionate to the grievous fractures, multiple fractures, grievous injuries and also bleeding injuries all over the body sustained by the claimant, more so, keeping in view the medical evidence available on record and the age of the claimant as on the date of the accident and that, in this case, “just compensation “ was not awarded by the Tribunal viewed from any angle, in view of the evidence available on record and the facts and circumstances of the case. To buttress his contentions, the learned counsel placed strong reliance on the judgment of a three- Judge Bench of the apex Court in NAGAPPA vs. GURUDAYAL SINGH & OTHERS.[2] 15. Sri E.Venugopal Reddy, learned Standing Counsel appearing for the United India Insurance Company, contends that the findings recorded by the Tribunal, with regard to the factum of accident and the rash and negligence on the part of the owner- cum-driver of the tractor and trailer, are based on acceptable evidence borne on record and that the impugned award do not call for any interference in this appeal. 16. Sri Kota Subba Rao, learned Standing Counsel appearing for the respondent No.3-New India Assurance Company Limited, in M.A.C.M.A.No.1166 of 2006, and Dr. Muddu Vijay, the learned Standing Counsel appearing for the appellant-New India Assurance Company Limited, in M.A.C.M.A.No.2072 of 2007, contend that the impugned award does not call for any interference in the claimant’s appeal and that the compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case. 17. In the above scenario, the sole and short question that needs to be decided, in this appeal, is as to whether the compensation awarded by the Tribunal is the “just compensation”, in the facts and circumstances of the case and also in the light of the evidence, both oral and documentary, available on record? 18. Admittedly, there is no dispute with regard to the manner in which the accident occurred and the rash and negligence on the part of the owner-cum-driver of the tractor and trailer. In fact, the learned Standing Counsel appearing for both the insurance companies did not lay any stress on these aspects, inasmuch as, there is sufficient evidence and the Tribunal very rightly answered the issues framed in that regard, based on the evidence, both oral and documentary, available on record. 19. A ghastly motor vehicle accident occurred on 27.04.1996 at about 08.00 am., in between Moosapet and Janampet villages, Mahaboobnagar District, when the claimant, his wife, parents-in-law and his younger sister-in-law were proceeding in a Maruthi Van from Hyderabad to Cuddapah, and when the said Maruthi Van was dashed by a tractor and trailer, referred to above, at high speed and in a rash and negligent manner, resulting in instantaneous death of the father-in-law of the claimant, and severe grievous fractures, multiple fractures and multiple grievous injuries to the claimant, his wife, his mother-in- law and also injuries to his sister-in-law, all over their bodies. 20. P.W.1 is the claimant and P.W.2 is the Doctor, who treated the claimant as an inpatient and is treating as an outpatient, Apollo Hospital, Hyderabad. Ex.A-1 is Photostat copy of FIR.No.25/96 of Addakal Police Station, dated 27.04.1996, Ex.A-2 is the Photostat copy of Motor Vehicles Inspector Report of crime vehicle, dated 05.05.1996, Ex.A-3 is the copy of insurance policy of Maruthi Van bearing No.AP.9H-1251, dated 04.02.1995, Ex.A-4 is the copy of insurance policy of Maruthi Van bearing No.AP.9H-1251, Ex.A-5 is the copy of Driving Licence of the claimant, dated 19.03.1994, Ex.A-6 is the Admission and Discharge chit, issued headquarters hospital, Mahaboobnagar, dated 27.04.1996, Ex.A-7 is the copy of case sheet maintained in headquarters hospital, Mahaboobnagar, dated 27.04.1996, Ex.A-8 is the certified copy of medical certificate issued by the Doctor, dated 27.04.1996, Ex.A-9 is the Admission and Discharge card, issued by Apollo Hospital, Hyderabad, dated 27.04.1996, Ex.A-10 is the cash receipt for Rs.50,000/-, issued by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad, dated 28.04.1996, Ex.A-11 is the cash receipt for Rs.2,000/-, issued by Apollo Hospital, Hyderabad, dated 10.05.1996, Ex.A-12 is the cash bill for Rs.9,275/-, Apollo Hospital, Hyderabad, dated 10.05.1996, Ex.A-13 is the cash bill for Rs.54,275/-, Apollo Hospital, Hyderabad, dated 10.05.1996, Ex.A- 14 is the cash bill for Rs.16,000/-, Apollo Hospital, Hyderabad, dated 15.02.1997, Ex.A-15 is the cash bill for Rs.12,670/-, Apollo Hospital, Hyderabad, dated 15.02.1997, Ex.A-16 is the Summary Report, issued by Dr. Prem Kishore, cash bill for Rs.54,275/-, Apollo Hospital, Hyderabad, dated 15.02.1997, Ex.A-17 is the Medical Certificate in respect of orthopaedically handicapped, issued by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad, dated 03.01.2000, Ex.A-18 is the cash receipt for Rs.25,000/-, issued by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad, dated 15.02.1997, Ex.A-19 is the original medical bill, issued by Apollo Hospital, Hyderabad, for outpatient for Rs.1,835/-, dated 25.06.1998, Ex.A-20 is the cash receipt for Rs.50,000/-, issued by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad, dated 27.06.1998, Ex.A-21 is the original medical bill, issued by Apollo Hospital, Hyderabad, dated 27.06.1998, Ex.A-22 is the Salary Certificate of the claimant for the month of April, 1996, issued by the Assistant District Registrar, Office of the District Registrar of Assurances, Nizam Shahi Road, Hyderabad, Ex.A-23 is the positive photograph along with negative showing the operated part of Right Hand and Right Leg of the claimant, Ex.A-24 is the leave sanction proceedings of the claimant from April, 1996, to April, 1997, issued by the Joint Inspector General of Stamps and Registration, Hyderabad Range, Hyderabad, Ex.A-25 is the Xerox copy of certificate, issued by Dr. S.V.Chandrasekhara Reddy, M.S., Orthopaedic Surgeon, Apollo Hospital, Hyderabad, advising the claimant to purchase four wheeler, dated 10.01.2004, Ex.A-26 is the copy of application by the claimant to the Deputy Inspector General, Stamps and Registration, requesting to permit him to purchase a second hand Maruthi Car with the source mentioned therein, dated 12.01.2004, Ex.A-27 is the copy of proceedings of the Deputy Inspector General, Stamps and Registration, dated 13.01.2004, permitting the claimant to purchase a second hand Maruthi Car, Model 1990, as per the source mentioned by him and requesting him to submit a copy of R.C. Book for office record after its registration, Ex.A-28 is the copy of application by the Registrar to the Deputy Inspector General, Stamps and Registration, along with Xerox copies of R.C. Book, issued by the R.T.A., for transfer of Maruthi Car Certificate of Registration, in the name of claimant, and also receipt issued by the owner of vehicle, Ex.A-29 is the copy of charge sheet and Ex.C-1, the X- Ray films (2), was marked with consent of both parties. 21. None were examined on behalf of both the insurance companies. However, Ex.B-1, the copy of insurance policy of the tractor and trailer, was marked. 22. The claimant was aged about 35 years as on the date of accident. Broadly, the grievous fractures, multiple fractures and multiple grievous bleeding injuries suffered by the claimant are:-- As per Discharge Summary (Ex.A-9), dated 25.05.1996:-- Principal Diagnosis:-- (1). COMMINUTED FRACTURE RIGHT FEMUR, (2). BASICERVICAL FRACTURE RIGHT FEMUR, (3). MONTEGGIA FRACTURE RIGHT ULNA, (4). FRACTURE LATERAL CONDYLE RIGHT TIBIA, (5). FRACTURE RIGHT FIBULA. Operative Procedure:-- Open Reduction with DCP Fixation Right Femur, Right ulna & DHS Fixation Right Hip done on 28.04.1996 under G.A. EXAMINATION:-- - Swelling, deformity & tenderness right femur (+), - Creptitus & abnormal mobility of fragments (+), - Movements of right lower limb painfully restricted, - No distal neurovascular deficit. - Deformity, swelling & tenderness right forearm (+), - Creptitus & abnormal mobility (+), - Movements of right elbow painfully restricted, - No distal neurovascular deficit. SURGERY:-- 1. OPEN REDUCTION WITH DCP FIXATION RIGHT FEMUR AND DHS FIXATION RIGHT HIP DONE ON 28.04.96 UNDER G.A. 2. OPEN REDUCTION & DCP FIXATION RIGHT ULNA DONE ON 3-5-96 UNDER G.A. 3. LONGLEG POP CAST APPLICATION RIGHT LOER LIMB DONE ON 9-5-96. Right thigh cleansed with Betadine, draped and opsite applied. Through lateral approach the fracture shaft femur exposed & 12 holed DCP appliced and fixed with 8 screws. Basicervical fracture right femur was fixed with 75 mm DHS and 4 holed plate and 4 screws. Fracture right ulna fixed with 6 holed plate & 6 screws. Wound closed over closed suction drain. Skin closed with subscuticular vicryl sutures. As per Discharge Summary (Ex.A-16), dated 15.02.1997:-- HISTORY:-- Old case of comminuted fracture right femur, basicertical fracture right femur, monteggia fracture right ulna, fracture lateral condyle right tibia and fracture right fibula for whom plate fixation right femur & ulna and DHS fixation for right hip had been done on 28/4/96 in this hospital. Serial X-rays showed union progressing except fracture femur where there was non-union. SURGERY:-- BONE GRAFTING RIGHT FEMUR DONE ON 12-02-97 UNDER G.A. 23. The only and important oral evidence available on record is that of the claimant, P.W.1, and the Doctor, P.W.2, who treated and made surgical operations to him by way of inserting steel plates, rods and screws and also bone grafting. Therefore, it is apt to examine and scrutiny the same with care and caution. 24. P.W.1 filed chief-examination affidavit reiterating all his contentions in the claim petition and also the application filed before this Court seeking enhancement. Therefore, there is no need to reiterate the entire chief-examination of the claimant and only to the limited extent, which is relevant and important, is reiterated hereunder: 25. P.W.1 deposed that, on 27.04.1996, at about 06.00 am., when himself, his wife, his sister-in-law and his parents-in-law started from Hyderabad in a Maruthi Van bearing No.AP.9H-1251, driven by him, to go to Cuddapah, at about 08.00 am., in between Moosapet and Janampet villages, the tractor and trailer, bearing Nos.APM-5853 and AP.22/T.2844, respectively, driven by its owner-cum-driver, at a high speed and in a rash and negligent manner, came from opposite direction and dashed against the Maruthi Van, due to which the Maruthi Van was damaged completely and the inmates of Maruthi Van sustained fractures and multiple grievous bleeding injures all over their bodies; that his father-in-law by name Sri K.Sreeramulu died on the spot; that he could not avert the accident in spite of his due diligence and that the accident occurred purely due to rash and negligent driving by the owner-cum-driver of the above said tractor and trailer; that he had valid driving licence at the time of accident and that the Motor Vehicles Inspector after inspecting the crime vehicle, issued a report, dated 05.05.1996, stating that there are no mechanical defects in the vehicle. 26. He further stated that he, being the injured, along with other inmates of the said Maruthi Van, was immediately shifted to the Government Hospital, Mahaboobnagar, for treatment; that he sustained fracture of right leg, right hand and other multiple grievous injuries all over the body; that after treatment by the Doctors at Government Hospital, Mahaboobnagar, as his condition was precarious, immediately he, along with other inmates, was shifted to Apollo Hospital, Hyderabad, on the same day; that at the time of his admission in Apollo Hospital, he sustained major fractures i.e., (1). Comminuted Fracture Right Femur, (2). Basicervical Fracture Right Femur, (3).Monteggia Fracture Right Ulna, (4). Fracture Lateral Condyle Right Tibia and (5). Fracture Right Fibula, in addition to multiple grievous bleedings injuries all over the body; that he was an inpatient in the said hospital from 27.04.1996 to 10.05.1996, and, surgical operations were done to his right leg and right hand and steel rods, plates and screws were inserted in both the right leg and right hand and that he incurred a sum of more than Rs.1,50,000/- in the hospital, for his treatment, for the said period. 27. He further stated that as the bones were not set completely, he was again admitted in Apollo Hospital, on 12.02.1997, and got operated second time and bone grating was done to his right leg and was discharged on 15.02.1997; that he incurred more than Rs.1,00,000/-; that the steel rods, plates and screws, which were inserted in his right leg and right hand, were yet to be removed and that even in spite of bone grafting, he sustained permanent disability and discomfort to his both right leg and right hand, as a result of which, he was not in a position to walk and lift anything with his right hand.