HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.2948
OF 2007
JUDGMENT:
The injured-claimant in
O.P.No.2948 of 2004 on the file of the learned Chairman of the Motor Accidents Claims Tribunal–cum-II
Additional Chief Judge, City Civil Court, Hyderabad, (for short, ‘Tribunal’),
filed under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’),
for the claim of Rs.2,00,000/- against the owner and Insurer of the crime lorry
bearing No.ADW 2588, due to rash and negligent driving of the driver of which
coming in opposite direction while proceeding in his scooter bearing No.AP9AB
6851, sustained Grade III compound fracture of right tibia that later led to
amputation, since granted compensation of Rs.28,000/- with interest at 7.5%
p.a. with joint and several liability of both the respondents, by the tribunal
by its award dated
01.03.2007, preferred the appeal with the contentions in the grounds of appeal
that the compensation awarded is utterly low and unjust, that the tribunal
gravely erred in fixing contributory negligence for no fault of him as a
scooterist, that the tribunal also erred in not taking into consideration of
disability he suffered and the amounts awarded towards fracture injury, pain
and sufferance, loss of earnings, attendant and transport charges etc., are all
utterly low. Hence, to award compensation as prayed for by setting aside the
award of the tribunal. The learned counsel for the appellants reiterated the
same in the course of the hearing.
2. Whereas, it is the contention of the
2nd respondent-Insurer, that the award of the tribunal holds good
and for this Court while sitting in the appeal, there is nothing to interfere,
hence to dismiss the appeal.
3.
Perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
4). Now
the points that arise for consideration in the appeal are:
1.
Whether
there is any contributory negligence on the part of the injured-claimant if so,
with what observations?
2.
Whether
the compensation awarded by the tribunal in O.P.No.2948 of 2004 by its Award, dated
01.03.2007 is unjust and utterly low and requires interference by this Court
while sitting in appeal and if so, with what compensation and with what observations?
3. To what
result?
Point No.1:
5. On
perusal of the record, the manner of accident shows while the injured was
proceeding on his scooter and in the attempt of overtaking the RTC bus, came into contact
with the opposite coming lorry, from which he fell down and sustained fracture
injury. It is therefrom the tribunal rightly, including from the
cross-examination of the P.W.1, fixed 30% contributory negligence on his part
and remaining 70% on the part of the lorry driver. No doubt, the contribution
depends upon several factors including size of the vehicles too. Here, the
claimant-injured was proceeding on scooter and the accident was occurred while
overtaking the bus, came into contact with opposite coming lorry. Thus, so far
as 30% contribution on the part of the injured for the accident is concerned,
this Court while sitting in appeal, there is nothing to interfere. Accordingly,
Point No.1 is answered.
Point No.2:
6. Now coming to the quantum of compensation,
the P.W.2 doctor who treated the injured deposed that the fracture injury of
the petitioner healed well and there is no disability and further opined that
it would take 3 to 6 months from the date of accident for its complete recovery
and thereafter he could attend duties as usual without any difficulty. The
pleading of the injured-claimant shows he was under bed rest for more than one
and half year but there is no basis for that saying much less against said
medical evidence of his own witness doctor-P.W.2. There is no proof of income but from mere
filing of the so called Ex.A.7 salary certificate it does not suffice to show
his real income. When such is the case, even from P.W.2 doctor’s evidence if
the disability from attending duties is taken for three months, what the tribunal
awarded of Rs.10,000/- is no way less nor excessive but just. Coming to pain and sufferance of the compound
fracture of right tibia, it is just to award Rs.30,000/- by enhancing what the
tribunal awarded of Rs.25,000/-. For medical expenses and extra nourishment as
the claimant is white card holder and treatment was free, no doubt though filed
Ex.A.5 bills, in all awarded Rs.5,000/- by the tribunal no way requires
interference but from no amount awarded for attendant and transport charges but
it is to be awarded of Rs.5,000/- and in all making Rs.50,000/- after deducting
his 30% contributory negligence, out of Rs.50,000/-, the injured-claimant is
entitled to Rs.35,000/-. Thus, the compensation awarded by the tribunal is
enhanced from Rs.28,000/- to Rs.35,000/-.
Accordingly, Point No.2 is answered.
POINT No. -3:
7. In the
result, the appeal is partly allowed by modifying the award of the tribunal by
enhancing the compensation awarded by the tribunal of Rs.28,000/- to 35,000/-
(Rupees thirty five thousand only) with interest at 7½% p.a. from the date of
petition (MVOP) till realization/deposit with notice. The respondents 1 and 2
(owner and Insurer of the crime vehicle), are directed to deposit the amount
before the tribunal within one month from today. On such deposit or execution
and recovery, the claimant is permitted to withdraw the same. There is no order
as to costs in the appeal. Consequently, miscellaneous petitions, if any,
pending in this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date: 15.12.2014
VVR
