Kasi Reddy Ashok Kumar Vs P.Bantappa and Another

This appeal is filed under Section 177 of the Motor Vehicles Act, 1988, in short ‘the M.V Act’ against the award and decree dated 19.02.2010 in M.V.O.P. No. No.581 of 2007 on the file of the Motor Accidents Claims Tribunal- cum-Principal District Judge, Kadapa, granting compensation of Rs.3,76,000/- with interest 6 % p.a from the date of petition till the date of deposit and the costs pro rata jointly and severally by the respondents No.1 and 2 to the claimant.

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2. The case of the appellant / claimant, in brief, is as follows:

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On 09.03.2007, when the petitioner was travelling as pillion rider on Hero Honda motor cycle bearing No. AP 2K 2428 driven by his friend Mallikharjun Reddy, at about 8 am, near Rampur gate culvert on Thandur-Chindholi road, a lorry bearing No AP 10T 2124 owned by the respondent No.1 and insured with the respondent No.2 was driven by driver in rash and negligent manner coming on the wrong side of the road and caused the accident by dashing against the motor cycle. As a result, the right thigh of the claimant was crushed. The claimant was treated in the government hospital, Thandur initially, later shifted to NIMS hospital, Hyderabad in an Ambulance belonging to Maruthi Yuva Manch, Thandur. Initially, a constable from Karnakote police station obtained signatures of the father of the claimant on a blank paper and on an unfiled printed FIR form stating that the details would be fetched, but when the father of the claimant demanded to furnish copy of FIR, the police refused to give copy and consequently on 07.04.2007, the father of the claimant lodged complaint before the Superintendent of Police, Rangareddy District. Later, they filed charge sheet against the

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driver of the offending vehicle. The learned Munsif Magistrate, Thandur imposed a fine of Rs.1,000/- upon the driver of the offending lorry vide judgment dated 10.07.2007. The claimant underwent several operations and got treated for 45 days. He spent more than Rs.1,50,000/- towards medical expenses. He underwent further treatment for 6 to 7 months thereafter. Despite proper medical care, he is unable to stand and sit. He return requires help of others even to answer call of nature. He lost earning capacity and chance of matrimonial alliance on account of the disability suffered due to the accident. Hence, he prayed for compensation of Rs.7,00,000/- .

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The respondent No.1 remained ex parte. The respondent No.1 / insurance company resisted the claim by filing written statement denying the involvement of the lorry in the accident and further contended that the accident was on the account of negligent driving of the rider of the motor cycle. It was also disputed that even if the respondent No.2 is the insurer of the offending lorry, the driver of the offending lorry violated the terms and conditions of the policy and respondent No.2 is not liable to satisfy the claim.

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The claimant examined PWs 1 to 7, including him as PW1, and Exs.A1 to A13 were marked and 3 documents Exs. X1 and X2 and Ex.C1 were marked. On behalf of the contesting respondent, D.Rajasekharan, Manager, Legal, ICICI, Lombard General Insurance Company Limited, Hyderabad was was examined as RW1 and V.Danamma, Junior Assistant, D.T.C Office, Rangareddy District was examined as RW.2, and copy of the driving licence of Abdul Rawoof was marked as Exhibit B1 which is equal to Exhibit C2.

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After hearing both sides, and considering the evidence, Tribunal held that the claimant sustained injuries in the accident caused due to rash and negligent driving by the driver of the lorry. Thereafter, the Tribunal found that the claimant is entitled to compensation of Rs.3,76,000/- under the following heads:

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a. Compensation towards pain and sufferance : Rs.22,000/-

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b. Compensation towards medical expenses : Rs.70,000/-

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c. Compensation towards transport charges : Rs.23,000/-

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d. Compensation towards extra nourishment : Rs.5,700/-

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e. Compensation towards partial permanent disability : Rs.2,55,000/-

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Total :

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Rs.3,76,000/-

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Though the claimant contended that he sustained partial permanent disability of 65%. The Tribunal held that since he is not a labourer who carries business in stones, mal-union of the fracture injury does not affect his earning as much as it would affect the labourer and therefore, evaluating the disability at 25% is appropriate.

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The Tribunal assessed the value of notional income of the petitioner at Rs.5,000/- and thus, awarded Rs.2,55,000/- towards the partial permanent disability.

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Aggrieved by the award, this appeal was filed by the claimant seeking enhancement of the compensation.

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Heard the learned counsel for the appellant. Notice sent to the respondent No.1 was returned un-served. Since the respondent No.1 did not contest before the Tribunal, no further notice is necessary.

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Though the respondent No.2 appeared through the counsel, there is no representation today for hearing.

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The learned counsel for the appellant submitted that the Tribunal assessed low value of the income of the claimant, percentage of disability assessed is also far below what was certified by the medical board. He further submitted that the petitioner was unmarried on the date of accident, but the Tribunal failed to consider the factor of marriage prospects and failed to grant any compensation towards the same.

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A perusal of the amount of compensation awarded under different heads with reference to detailed analysis of evidence in particular reference to the concerned heard of compensation shows that the amount awarded is just and reasonable. However, it is only the factor of marriage prospectus of the petitioner due to the disability which was not considered by the Tribunal. The appellant is physically present before this Court along with the counsel and submitted that still he is not married. Therefore, a reasonable amount of compensation of Rs.50,000/- can be granted under different heads.

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Insofar as the amount of compensation granted towards partial permanent disability is concerned, the Tribunal rightly discussed as to the nature of business at the time of the accident does not effect his earning capacity as much as a labourer who needs physical strain during the course of his job. Therefore, during the relevant period of the accident in the year 2007, the total amount of compensation granted by the Tribunal is adequate.

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