Dumpala Pentayya Vs Illamula Appalasuri

This appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 04.01.2005 in M.V.O.P.No.341 of 1999 on the file of the Court of the Motor Accidents Claims Tribunal (District Judge), Srikakulam awarding compensation of Rs.31,500/- with interest @9% p.a. from the date of filing of the petition i.e., 03.03.1999 till the date of realization with joint and several liability against the respondents No.1 and 2, besides awarding costs of Rs.500/-.

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The appellant is the claimant. The respondents No.1 and 2 are the respondents before the tribunal. Since the respondent No.1 remained ex parte, he is shown as not necessary party in the appeal.

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The case of the claimant is briefly as follows:

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On 15.06.1996 at about 10.30 AM, the claimant along with two others was going on a scooter bearing No.AAS 4598 to go to Kotabommali. When they reached Jarjangi Village junction on National Highway No.5, RTC bus bearing No.AEZ 1498 coming from the side of Kotthapeta junction was driven by its driver in a rash and negligent manner and was suddenly turned without giving any signal and dashed against the scooter. As a result, all three persons on the scooter fell down and sustained injuries. The claimant received injuries on his left forearm, right index finger and other parts of his body. Immediately, he along with the other two were taken by the respondent No.1 to the Government Headquarters Hospital, Srikakulam for treatment. On the same day, the medical officer in the hospital referred them to King George Hospital, Vishakapatnam for better treatment. Therefore, he was shifted there in a taxi. On 16.06.1996, the claimant was shifted to

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Bhavani Nursing Home, Vishakapatnam where Dr.D.Laxmana Rao, Orthopaedic Surgeon conducted surgery to the left knee and left hip joint and inserted steel rod to the left femur. The claimant took treatment till 27.06.1996. Plaster of paris was applied to his left leg. Later, he was shifted to his relative’s house in Vishakapatnam where he stayed for eight weeks. The claimant used to visit the nursing home by engaging an auto every alternative day for check-up. After removing the plaster, the doctor advised the claimant to undergo physiotherapy for sixty days and accordingly the claimant took physiotherapy every alternate day by going in an auto to the physiotherapy centre. Later, the claimant was shifted to his native place at Harischandrapuram. For another sixty days, the claimant used to go to Vishakapatnam every fortnight for medical check-up, by engaging taxi. He spent Rs.35,000/- for medical expenses, Rs.5,000/- for travelling expenses and Rs.7,000/- for attendant charges, besides Rs.15,000/- for extra nourishment. The claimant used to earn Rs.2,000/- per month by attending to agricultural work. The police of Kotabommali Police Station registered a case in Crime No.74 of 1996 against the respondent No.1 and filed charge sheet which was registered as C.C.No.596 of 1996 on the file of the Court of Judicial Magistrate of First Class, Kotabommali. The respondent No.2 is the owner of the bus and the employer of the respondent No.1. So, both the respondents are jointly and severally liable to pay compensation.

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The respondent No.2 filed written statement opposing the claim and denying the rash and negligent driving of the respondent No.1.

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On behalf of the claimant, he got himself examined as PW.1 and Dumpala Appanna, was examined as PW.2 to prove the expenses of

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attendance charges and Dr.Boddepalli Surya Rao was examined as PW.3 and Ex.A1 to A8 were marked as below:

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Ex.A1 - Certified copy of first information report in Crime No.74 of 1996 of Kotabommali Police Station

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Ex.A2 - Certified copy of charge sheet in C.C.No.596 of 1996 on the file of Judicial Magistrate of First Class, Kotabommali

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Ex.A3 - Certified copy of Motor Vehicles Inspector’s report. Ex.A4 - Certified copy of wound certificate of the petitioner. Ex.A5 - Bunch of medical bills (6 in number)

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Ex.A6 - Receipt for Rs.7,000/- towards attendant charges issued by PW.2

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Ex.A7 - Receipt for Rs.3,500/- towards taxi charges

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Ex.A8 - Permanent disability certificate dated 10.05.2004, issued by Medical Board, Srikakulam.

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On behalf of the respondents, the respondent No.1 was examined as RW.1 and no documentary evidence was filed.

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The tribunal held that the accident was caused due to the negligence of both the claimant and the respondent No.1, as the claimant was one of the two pillion riders on the scooter carrying totally three persons. The tribunal held that the claimant is entitled to Rs.15,000/- towards pain and suffering, Rs.9,000/- for loss of earnings and Rs.20,000/- for loss of earnings on account of partial permanent disability as the claimant could earn Rs.1,500/- per month on agricultural work. The tribunal further held that the claimant is entitled to Rs.5,000/- for future medical expenses for removal of steel rod inserted in the left thigh. Further, an amount of Rs.7,000/- was assessed for

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meeting expenses for attendant charges and Rs.2,000/for transportation charges and Rs.5,000/- for expenses of extra nourishment. Thus, though a total amount of Rs.63,000/- was calculated, an amount of Rs.31,500/- was awarded as compensation due to the finding that the claimant is guilty of contributory negligence to an extent of 50%.

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Aggrieved by the award and decree, the appeal was filed by the claimant contending that the tribunal erred in fastening contributory negligence on the claimant and for awarding less amount of compensation under different heads.

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The learned counsel for the petitioner submitted as contended in the grounds of appeal. Sri Ch.Pavan Kumar, learned counsel representing the learned counsel for the respondent No.2 opposed the interference in appeal.

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Insofar as the aspects of rash and negligence are concerned, apart from the oral evidence of the claimant and the respondent No.1, the claimant relied on the documentary evidence under Ex.A1 and Ex.A2. So far as oral evidence is concerned, it is their statements on oath. Both of them denied negligence on their part. No other eyewitness was examined. It is only from the fact that the claimant was one amongst triple riders on the scooter, the tribunal held that the claimant is responsible for the cause of the accident and held him liable for contributory negligence to an extent of 50%. The tribunal failed to consider the other evidences under Ex.A1 and Ex.A2. If the version of the respondent No.1 is true, he could have laid a complaint to the police attributing negligence to the driver of the scooter. That apart, the investigating officer, after making investigation by examining the eye-

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witnesses, primarily held the view that the respondent No.1 was rash and negligent in causing the accident as complained in the F.I.R. and filed charge sheet only against the respondent No.1. Therefore, in addition to the evidence of PW.1, the other documentary evidence would lend support to his evidence, whereas, there is no such supporting evidence to the version deposed by the respondent No.1. Mere fact that the claimant is a pillion rider in a triple riding on a two wheeler ipso facto does not establish negligence contributing to the cause of accident. It is from the evaluation of total circumstances proved with evidence, negligence shall be concluded. However, the tribunal, without appreciating the evidence, both oral and documentary, together as a whole, came to the conclusion of contributory negligence solely based on the fact of triple riding. Therefore, the finding of the tribunal that the claimant is responsible for his contributory negligence is liable to be set aside.

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Insofar as the quantum of compensation is concerned, there is no need to interfere with the impugned award.

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In the result, the motor accident civil miscellaneous appeal is partly allowed by holding that the claimant is entitled to Rs.63,000/(sixty three thousand rupees only) with the same rate of interest as awarded by the tribunal payable by the respondents with joint and several liability. No costs in the appeal.

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Interim orders granted earlier, if any, shall stand vacated.

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________________________ JUSTICE B.S.BHANUMATHI

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Date: 03.04.2025 NSM

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