Smt. Siripurapu Sree Devi

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU.

PRESENT: SMT. SIRIPURAPU SRIDEVI,

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

VIII ADDITIONAL DISTRICT JUDGE, W.G., ELURU

Monday, the 6th day of March, 2017.

M.V.O.P. No.55/2011

Between:

Pinnamaneni Bhima Sankara Rao. … Petitioner.

And

1.Kummukuri Sinivasa Rao.

2.Lanka Subrahmanyam.

3.The New India Assurance Company Limited., Rep. by it’s Divisional Manager, Tadepalligudem. …Respondents.

This Petition coming on 23-12-2016 before me for hearing in the presence of Sri B.V. Krishna Reddy, Advocate for Petitioner and of Sri K. Rambabu,

Advocate for the 3rd respondent and the respondents 1 and 2 remained exparte and upon perusing the material available on record and having stood over for consideration, till this day, this Tribunal made the following:

A W A R D

The petitioner filed this petition against the respondents 1 to 3 u/s.166 of M.V. Act r/w. Rule 455 of M.V. Rules claiming compensation of

Rs.2,00,000/- on account of injuries sustained by him in a motor vehicle accident and the brief case of the petitioner is as follows:-

The petitioner who is resident of Ayyaparajugudem village aged about 61 years left his house on 6.10.2010 and when he reached near the house of one Lanka Subrahmanyam, the driver of tractor and trailer bearing No.AP37

TB 2912 & AP37 TB 2913, drove the same in a rash and negligent manner and dashed against the petitioner, due to which he sustained grievous and multiple injuries who also sustained fractures to both legs and immediately he was shifted to Shraddha Hospital and later on, shifted to Asram Hospital, Eluru. On account of seriousness, he was shifted to a private hospital by name Charithasri Hospital, 2

Vijayawada where he took treatment and the doctors conducted operations to his fractures and inserted steel rods and screws. Even now he has been taking treatment as an outpatient. He spent Rs.30,000/- towards tests, medicines, operation charges, room rent etc., and at present, the petitioner has been getting pain in both legs and he is unable to move freely. The loss sustained by the petitioner cannot be compensated in terms of money. He became permanently disabled. He was advised to take rest for a period of five months.

The SHO, Dharmajigudem P.S. registered a case in Cr.No.82/2010 u/s.338 I.P.C.

The respondents 1 to 3 who are driver, owner and insurer are jointly and severally liable to pay compensation.

2. The 1st respondent remained exparte as per the docket order dt.2.9.2011.

3. The 2nd respondent remained exparte as per the docket order dt.8.4.2011.

4. The 3rd respondent filed written statement praying the Tribunal to dismiss the petition while denying the averments made in the petition specifically and it’s brief contentions are as follows:-

It is mainly contended that the petitioner has to explain the delay in giving report to police. The 3rd respondent seeks protection u/s.170 of M.V. Act and also protection u/s.147 and 149 of M.V. Act. The 2nd respondent failed to furnish the particulars of policy, date of accident, particulars of injured etc., and thereby failed to comply statutory demand. Hence, 3rd respondent is not liable to pay any compensation and the petition is liable to be dismissed for non- compliance of statutory demand. The compensation and interest claimed by the petitioner are excessive. The petitioner is put to strict proof of validity of insurance policy and relevant documents enabling the offending vehicle to ply on the road.

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5. Based on the pleadings my learned predecessor-in-office framed the following issues for trial:-

1. Whether the petitioner sustained injuries in the accident dt.6.10.2010 due to the rash and negligent driving of tractor and trailer bearing No.AP37 TB 2912 & AP37 TB 2913 by it's driver/1 st respondent?

2. What was the age and income of the petitioner by the time of accident?

3. Whether the driver of the offending vehicle has a valid and effective driving license to drive the offending vehicle at the time of the accident?

4. Whether the petitioner is entitled to the compensation? If so,

to what amount and against which of the respondents?

5. To what relief?

6. The petitioner got himself examined as P.W.1, the supporting witnesses were examined as P.Ws.2 and 3 and Exs.A.1 to A.13 were exhibited on his behalf. The Administrative Officer of 3rd respondent, the Senior Assistant of

RTO Office and the Junior Assistant of RTA got themselves examined as R.Ws.1 to 3 and exhibited Exs.B.1 to B.3 and Exs.X.1 to X.5 were exhibited on behalf of 3rd respondent.

The 3rd respondent filed I.A.1211/2016 and it was allowed by permitting the 3rd respondent to take all defences available to 2nd respondent.

7. Heard the learned counsel for the petitioner and 3rd respondent.

8. ISSUE No.1:- Both the learned counsel for the petitioner and 3rd respondent reaffirmed the respective contentions of both parties to the proceedings during the course of their arguments in all material particulars and to avoid repetition, the same are not discussed in detail.

9. The petitioner pleaded and deposed in his evidence that on 6.10.2010, he started at his house who is resident of Ayyaparajugudem and 4 when he reached the house of Lanka Subrahmanyam, the 1st respondent drove the tractor and trailer bearing No.AP37 TB 2912 & AP37 TB 2913 in rash and negligent manner and thereby dashed against him on his back, due to which he sustained multiple grievous injuries and immediately, he was shifted to Shraddha

Hospital and later on, to Asram Hospital and subsequently to Charithasri

Hospital, Vijayawada.

10. He relied upon Ex.A1 FIR and Ex.A3 charge sheet. The contents of

Ex.A1 FIR shows that when PW1 was present on the road, the driver of the tractor and trailer bearing No.AP37 TB 2912 & AP37 TB 2913, drive the vehicle in a rash and negligent manner and dashed against him, due to which he sustained injuries. Ex.A.3 charge sheet also shows that the accident occurred due to rash and negligent driving of driver of offending vehicle. Though in the cross- examination, PW1 admitted that he had not reported to police on the date of accident and that he reported about the accident to police only on 7.10.2010, which was registered on 17.10.2010, it can't be inferred that there was no negligent and rashness on part of 1st respondent in driving the offending vehicle for the reason that the petitioner could not have given report immediately as he sustained injuries. He also admitted that he stated before police that the tractor hit him while it was reversed towards backside but he voluntarily stated that when he was standing on the side of the road, the tractor came and hit him.

Therefore, the evidence of petitioner clearly proved that due to rash and negligent driving of driver of offending vehicle, the petitioner sustained injuries.

Accordingly, issue No.1 is answered in favour of the petitioner.

11. ISSUE No.2:- The 3rd respondent disputed the age and income of the petitioner at the time of accident. Ex.A.5 wound certificate shows that the petitioner was aged about 60 years at the time of accident. Since the petitioner pleaded that he was aged 61 years at the time of accident and as there is no 5 contra evidence, it has to be treated that he was aged about 61 years at the time of accident.

12. Though the petitioner stated that by attending agricultural work, he used to earn Rs.15,000/- per month, there is no documentary proof. By making guess work, this court opines that the petitioner could have earned Rs.150/- per day in the year 2010, i.e., at the time of accident. Therefore, issue No.2 is answered holding that the petitioner was aged 61 years at the time of accident and was earning Rs.150/- per day.

13. ISSUE No.3:- The learned counsel for 3rd respondent argued that the driver of offending vehicle was not having valid and effective driving license to drive the offending vehicle at the time of accident. RW1 stated in his evidence that as per the contents of D.L. extract, the 1st respondent was having driving license to drive the tractor and trailer for non-transport category whereas the tractor and trailer involved in the accident is a commercial vehicle. So, the 1st respondent was having driving license to drive non-transport tractor and trailer. When the 3rd respondent contends that the vehicle involved in the accident was used for commercial purpose, the burden lies upon 3rd respondent to prove the same. In the cross-examination also, RW1 admitted that there is no technical variation besides admitting that Ex.B.2 policy does not speak that the driver of offending vehicle shall not drive any other vehicle, other than the vehicle mentioned in it.

14. RW2 produced Ex.X.3 Form 24-B Register extract of trailer saying that it is meant for commercial use. He further stated that it comes under transport category. He further stated that the driver who drives tractor and trailer needs transport license whereas Ex.B.3 shows that it was given for non- transport vehicle. A perusal of Ex.B.3 shows that R1 was given license to drive non-transport vehicle.

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15. Coming to the evidence of RW3, he stated in his evidence that 1st respondent was given driving license to drive non-transport tractor and trailer and that he was not given license to drive tractor and trailer meant for transport.

In the cross-examination, he also stated that technically there is no difference between transport vehicle and non-transport vehicle. However, there is no proof that the 1st respondent drove the tractor and trailer meant for commercial purpose except the oral evidence of R.Ws.1 to 3. RW1 also admitted in the cross-examination that as per Ex.B.3, the driver of offending vehicle is competent to drive four types of vehicles including tractor and trailer. He stated that non-transport purpose means if the vehicle is used to plough etc. Here the 3rd respondent failed to explain as to how the offending vehicle comes under commercial purpose. Therefore, though the 3rd respondent examined R.Ws.1 to 3, still their evidence is not convincing to infer that the offending vehicle was driven by 1st respondent for commercial purpose or transport purpose.

Accordingly, this issue is answered holding that the driver of offending vehicle was having valid driving license at the time of accident.

16. ISSUE No.4:- The petitioner stated in his evidence that on the date of accident, he sustained fracture to his left leg CALWER bone, fracture to right leg thigh, crush injury to his right knee up to foot, fracture to left leg knee besides sustaining other injuries and that he was shifted to Shradha Hospital near Old Bus stand and later to Asram Hospital, Eluru and due to non-availability of Specialist Doctors, he was shifted to Charithasri Hospital, Vijayawada. He further stated that he underwent three operations.

17. The medical officer who treated PW1 was examined as PW3. He stated in his evidence that he found crush injury to right leg with fracture to right tibia and fracture to right fibula and that they are grievous in nature. He further stated that he treated the petitioner with inter-locking nailing to right tibia 7 initially and later on, he treated the petitioner with external fixation and he found wound debridement and flap cover. In the cross-examination, he stated that all the bills including the procedure and medical bills were issued under Arogya Sri scheme under free of cost. Therefore, as the petitioner sustained three injuries, i.e., one simple injury and two internal grievous injuries under the head pain and suffering the petitioner is entitled to receive Rs.55,000/-towards compensation.

18. As far as the medical expenditure is concerned, for the three operations which were undergone by him, he is not entitled to recover any medical expenditure as they come under Arogya Sri Scheme though the petitioner relied upon Ex.A.9, Ex.A.10 and Ex.A.13 bunch of medical bills.

However, PW3 stated in his evidence that the petitioner needs implant removal which would costs Rs.25,000/- and the said contention remained unchallenged.

Therefore, under future medical expenditure, the petitioner is entitled to get

Rs.25,000/- by virtue of the judgment of the Hon’ble Apex Court reported in G.

Ravindranath @ R. Chowdary, Vs., E. Srinivas & another.1

19. PW2 is the medical officer of Charithasri Hospital, Vijayawada who produced Ex.X.1 case sheet. His evidence shows that PW1 had undergone surgery for wound debridement, external fixation for tibia and fibula right lower leg. He further stated that PW1 had undergone 2nd surgery on 29.10.2010 for wound debridement and flap cover and that P.W.1 was discharged from the hospital on 9.11.2010. His evidence also shows that PW1 was again admitted in their hospital on 11.2.2011 as he had been getting pain and abnormal movements of right lower limb and that he was discharged from their hospital on 25.2.2011 who stated that the petitioner undergone surgery on 15.2.2011 for -----------------------------------

1. 2013(4) ALD, 79.

8 interlocking and nailing for right tibia who admitted that Exs.A.9 and A.10 medical bills were issued by their hospital. In the cross-examination, he stated that as per discharge summary, the petitioner was in stable condition but was not in a position to walk by then, i.e., on 9.11.2010. He denied the suggestion that there is no possibility of knowing the handwriting of doctor who issued

Ex.A.5 wound certificate and basing on that the petitioner examined PW3 who issued Ex.A.5 wound certificate. Therefore, the evidence of PW2 and PW3 infers that the petitioner suffered from injuries and in healing process he might have incurred Rs.18,000/- towards nourishment for taking juices and nutritious food and therefore he is entitled to recover the same.

20. The petitioner might have incurred transport charges on account of nature of injuries sustained by him when he obtained treatment in the hospital several times as referred above. Therefore, under the head transport charges, he is entitled to get Rs.15,000/- as he might not have travelled in any two wheeler on account of injuries sustained by him.

21. The petitioner might not have attended his duties for a period of six months on account of injuries sustained by him. Therefore, under the head of loss of earnings, he is entitled to get Rs.27,000/-. Therefore, under various heads, in toto the petitioner is entitled to get Rs.1,50,000/- (Rs.55,000/- +

Rs.35,000/- + Rs.18,000/- + Rs.15,000/- + Rs.27,000/-) towards compensation from respondents 1 to 3 whose liability is joint and several. Accordingly, issue

No.4 is answered.

22. ISSUE No.5:- In the result, this petition is partly allowed. The respondents 1 to 3 are jointly and severally liable to pay compensation of

Rs.1,50,000/- along with interest @ 7.5% per annum with proportionate costs. However, the 3rd respondent is directed to deposit the entire compensation amount of Rs.1,50,000/- with proportionate costs together with 9 interest @ 7.5% per annum from the date of petition, i.e., from 06.12.2010 till the date of deposit within 30 days from today. On such deposit, the petitioner is entitled to withdraw the entire amount of Rs.1,50,000/- along with interest and costs.

Advocate fee is fixed at Rs.1,500/-.

Typed to my dictation, corrected and pronounced by me in Open Court, the 6th day of March, 2017.

CHAIRMAN, MACT – cum –

VIII ADDITIONAL DISTRICT JUDGE

ELURU

APPENDIX OF EVIDENCE

Witnesses Examined

For the Petitioner: For the Respondents:

P.W.1: Pinnamaneni Bhima Sankaram. R.W.1: M. Sunil Vasu.

P.W.2: Dr. K. Sree Shiva. R.W.2: P. Sandhya Rani.

P.W.3: Dr. D. Srinivas. R.W.3: Oggu Joseph Kumar.

Documents Marked

For the Petitioner:

Ex.A.1/-- Attested photocopy of the F.I.R.

Ex.A.2/-- Attested photocopy of driving license of 1st respondent.

Ex.A.3/-- Attested photocopy of charge sheet.

Ex.A.4/-- Attested photocopy of Insurance policy.

Ex.A.5/-- Attested photocopy of wound certificate.

Ex.A.6/-- Original 2 discharge summaries.

Ex.A.7/-- Original patient discharge summary issued by Charithasri Hospital,

Vijayawada.

Ex.A.8/-- Original 3 outpatient card issued by ASRAM Hospital, Eluru.

Ex.A.9/-- Bunch of 20 medical bills.

Ex.A.10/-- Original medical bills issued by Rajendra Medical Stores.

Ex.A.11/-- Original X-ray film.

Ex.A.12/-- 2 photos of petitioner.

Ex.A.13/-- Bunch of Medical Bills worth Rs.18,217/-.

1 0

For respondents:

Ex.B.1/-- Authorization letter.

Ex.B.2/-- Attested copy of insurance policy.

Ex.B.3/-- D.L. Extract.

Through Witness:-

Ex.X.1/-- Case sheet relating to PW1.

Ex.X.2/28.11.2016 Authorization letter.

Ex.X.3/-- Form 24B register.

Ex.X.4/-- Authorization letter.

Ex.X.5/-- Driving license extract of R1.

CHAIRMAN, MACT – cum –

VIII ADJ, W.G., ELURU.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

V ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU.

PRESENT: SMT. SIRIPURAPU SRIDEVI,

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

VII ADDITIONAL DISTRICT JUDGE, W.G., ELURU.

FAC V ADDITIONAL DISTRICT JUDGE, W.G., ELURU.

Thursday, the 08th day of June, 2017.

M.V.O.P. No.267/2013

Between:

Gurudasu Narasamma … Petitioner.

And

1. T.Koteswara Rao

2. The Oriental Insurance Company Limited, rep. by its Divisional Manager, Vijayawada. …Respondents.

This Petition coming on 18-05-2017 before me for hearing in the presence of Sri B.Varahala Rao, Advocate for Petitioner and of Sri M.V. Nanda

Kumar, Advocate for the 2nd respondent and 1st respondent having been re- mained exparte and upon perusing the material available on record and hav- ing stood over for consideration, till this day, this Tribunal made the following:

A W A R D

1.The petitioner filed this petition against the respondents 1 and 2 u/s.166 of M.V. Act r/w. Rule 533 and 455 of M.V. Rules claiming compensation of Rs.3,00,000/- and the brief case of the petitioner is as follows:-

The petitioner was aged 45 years at the time of accident who was earning Rs.6000/- per month by doing milk business. She was permanent resident of Eastern street, Eluru West Godavari District. On 16-2-2013 the petitioner and some other persons travelled in an auto bearing No.AP 37 Y 8646 from Yellamilli to Tadepalligudem towards extreme left side of the road and by the time they reached near mother Vannini Hospital,

Tadepalligudem one TATA Indica DLS car bearing NO.AP 16 AA 2499 which was coming from opposite direction being driven by it's driver in a rash and negligent manner, dashed against the auto due to which it turned turtle 2 and the petitioner and others sustained multiple and grievous injuries. The police registered a case against the 1st respondent who is the driver of the above said car. After the accident the petitioner was admitted in mother

Vennini hospital where she had under gone operation. She incurred

Rs.50,000/- towards medical and attendant charges. She sustained permanent disability. She is unable to move from bed. The 1st respondent is the driver cum owner of the offending vehicle having valid driving license and all the vehicle documents are in force. The 2nd respondent is the insurer of the said vehicle which is liable to pay compensation.

2.The 1st respondent remained exparte as per the docket order

dated 23-01-2015.

3.The 2nd respondent filed written statement praying the Tribunal to dismiss the petition while denying the averments made in the petition specifically and it’s brief contentions are as follows:-

It is mainly contended that the vehicle involved in the accident was driven by the person who was not having valid and effective driving license which amounts to violation of terms and conditions of policy. It has no valid vehicular documents at the time of accident. The 1st respondent failed to submit the claim form. The vehicle involved in the accident referred above was not insured with 2nd respondent. The compensation and interest claimed by the petitioner are excessive. The present O.P., may be clubbed with other O.Ps if any.

4. Based on the pleadings my learned predecessor-in-office framed the following issues for trial:-

1. Whether the petitioner sustained injuries in a Motor Vehicle accident on 16-02-2013 due to rash and negligent driving of the Car bearing No.AP 16 AA 2499 by the 1st respondent ?

2. Whether the petitioner is entitled to the compensation as prayed for. If so, from whom ?

3. To what relief ?

3

5. The petitioner got herself examined as P.W.1, the supporting witnesses were examined as P.Ws.2 to 5 and Exs.A.1 to A.8, Ex.X.1 was exhibited on behalf of the petitioner. The 2nd respondent neither let in oral evidence nor let in documentary evidence.

6. Heard the learned counsel for the petitioner. Arguments on behalf of 2nd respondent are treated as heard.

7. ISSUE No.1:- The learned counsel for the petitioner reaffirmed the contentions of the petitioner during the course of his arguments in all material particulars. The petitioner reiterated her case who mainly deposed that on 16-2-2013 herself and some other persons traveled in an auto bearing No.AP 37 Y 8646 from Yellamilli to Tadepalligudem towards extreme left side of the road and by the time they reached near mother

Vannini Hospital, Tadepalligudem one TATA Indica DLS car bearing NO.AP 16

AA 2499 which was coming from opposite direction being driven by it's driver in a rash and negligent manner dashed against auto due to which it turned turtle and the petitioner and others sustained multiple and grievous injuries. In the cross examination PW1 denied the suggestion that the accident took place due to rash and negligent driving of the auto bearing

NO.AP 37 Y 8646. She denied the suggestion that the 1st respondent did not drive the car bearing no. AP 16 AA 2499 in a rash and negligent manner. A perusal of Ex.A1 copy of FIR shows that the petitioner sustained injuries due to rash and negligent driving of the driver of Car bearing No. AP 16 AA 2499. A perusal of Ex.A2 MVI report shows that the accident was not occurred due to mechanical defects. It further shows the name of the driver as T.Koteswara Rao i.e. 1st respondent herein. Though the learned counsel for the 2nd respondent cross-examined PW1 at length on the lines that the 1st respondent did not possess valid license to drive the above referred car, Ex.A2 shows that the license is valid up to 30-06-2024.

4

Therefore, the driver, owner and insurer of the auto in which the petitioner travelled on the date of accident are not necessary parties. The 1st respondent is the best person to speak about the absence of rashness and negligence on his part but he remained exparte. The oral evidence as well as documentary evidence let in by the petitioner proved that the petitioner sustained injuries due to rash and negligent driving of 1st respondent.

Hence, issue no.1 is answered in favouar of the petitioner holding that the petitioner sustained injuries on account of rash and negligent driving of 1st respondent in driving the offending vehicle.

8. ISSUE No.2:- The learned counsel for the petitioner argued that the petitioner used to carry on milk business and thereby used to earn

Rs.6,000/- per month and that she was aged 45 years on the date of accident. A perusal of Ex.A3 copy of wound certificate shows that the petitioner was aged 45 years at the time of accident. The petitioner has not filed any documentary evidence to show that she used to earn

Rs.6000/- per month. However, by making guess work this Tribunal opines that in the year 2013 i.e. at the time of accident the petitioner might have earned Rs.4,500/- per month by carrying on milk business.

9. PW1 deposed in her evidence that she sustained multiple and grievous injuries on all vital parts of her body. PW3 is the medical officer who stated that the petitioner joined in the hospital on 16-2-2013 at 4-30 pm., with the following injuries:

1. Bleeding wound of 7x3 cms on right thigh. 2. Lacerated injury of 12x3 cms over right leg. 3. Lacerated injury of 6x2 cms at her right ankle.

4. Communited fracture of right femur. 5.Fracture shaft of left femur 6.Fracture lower end right radious.

10.PW3 further stated that the injuries no.4 to 6 are grievous in nature while the other injuries are simple in nature who identified his signature on Ex.A3.

5

11.PW5 is the medical officer and he stated in his evidence that he conducted surgery on 17-02-2013 to compound communited fracture lower end of right femur i.e., debridement (cleaning of wound) and external fixator application. PW2 who is a Civil surgeon cum Medical

Superintendent of the District Head quarters hospital, Eluru, stated that on 9-10-2013 Ex.A8 disability certificate was issued to the petitioner and that he is one of the members who issued Ex.A8 certificate to the petitioner and that it is a permanent and partial disability. Ex.A8 shows that the medical board assessed the disability of the petitioner as 69%.

12.As per the decision held in between Ram Chandrappa, Vs.,

Manager, Royal Sundaram Aliance Insurance Company Limited,3 the

Hon'ble Apex Court held that if the claim made is so exorbitant or the

claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time.

13.In this case also this tribunal by making guess work assessed the monthly income of the petitioner as Rs.4500/- as the petitioner has not filed any piece of evidence to establish that by carrying on milk business she used to earn Rs.6,000/- per month at relevant period, and therefore, the annual income of the petitioner comes to Rs.54,000/-. When the disability of the petitioner is assessed as 69% and when the age of the petitioner is considered as 45 years, then the multiplier that is applicable in this case is ‘14’. Therefore, under the head of loss of future earnings, the petitioner is entitled to get Rs.5,21,640/- (Rs.54,000/- X 14X69/100).

14.The learned counsel for the petitioner argued that the petitioner incurred Rs.50,000/- towards medical expenses. The petitioner relied upon

Ex.A4 bunch of medical bills for Rs.2,04,519-56ps. PW4 who is the medical officer stated in his evidence that the petitioner was admitted in their hospital 6 with non-union of communited fracture, fracture of distal femur and proximal tibia of right lower limb. He further stated that Ex.A4 medical bills were issued by their hospital except bill numbers 48,49, 50. Bill no.48 was issued for Rs.327-56 ps, bill no.49 was issued for Rs.400/- and bill no.50 was issued for Rs.1810/- which in toto comes to Rs.2537-56 Ps. After deducting Rs.2537- 56 Ps, from Rs.2,04,519-56 ps, the balance comes to Rs.2,01,982/-.

--------------- 2011(6) ALD, 75. Though on 16-02-2013 the petitioner was admitted in the hospital of PW3 and though the entire treatment was covered under Arogya Sri scheme the subsequent treatment, commenced on 13-8-2013 was not covered by

Arogya Sri scheme as nothing is suggested to PW4 disputing Ex.A4 medical bills. Hence, the petitioner is entitled to get Rs.2,01,982/-, towards medical expenditure.

15.Basing on the health condition of the petitioner, it can be easily inferred that the petitioner might have incurred some amount towards transport. After the accident, the petitioner was admitted in Sai Spurthi

Hospital, Jangareddigudem who was there from 16-2-2013 to 7-3-2013.

Again she was admitted in Sri Sai hospital in Tanuku on 13-8-2013 and discharged on 5-9-2013. The petitioner could have travelled in an ambulance or in any four wheeler. She is not expected to preserve the bills. Therefore, under the head transport charges, this Tribunal is of the considered opinion that she is entitled to get Rs.20,000/- as she cannot travel in any bus or auto.

16. Due to severe injuries sustained by the petitioner, she needs extra nourishment and so, she might have taken special diet, fruit juices etc., and the petitioner is not expected to preserve bills. Under the head extra nourishment, the petitioner is entitled to get Rs.36,000/- .

17. In Nagappa, Vs., Gurudayal Singh and others,5 wherein

Their lordships of our Hon'ble Apex Court observed as follows:- 7 "In a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, tribunal/court should consider such eventuality and fix compensation accordingly." -------------------- Civil Appeal 7989/2002), dt.3.12.2002.

18.In this case also, PW4 stated in the cross examination that there is no other alternative except to go for knee replacement. He denied the suggestion that there is a chance of negligence of petitioner after she undergone treatment in Vennini hospital. Therefore, by making guess work, this tribunal opines that the petitioner is entitled to get Rs. 50,000/- towards future medical expenditure.

19. On account of nature of injuries sustained by the petitioner she might not have attended her duties for a period of seven months.

Therefore, under the head of loss of earnings, the petitioner is entitled to get Rs.31,500/-.

20. In this case though the 2nd respondent filed I.A.No.443/2016 under order 8, rule 1 A (3) and section 151 CPC and the same was allowed by grating leave to the 2nd respondent to exhibit the policy which was obtained by the 1st respondent for the offending vehicle bearing No. AP 16

AA 2499 for the period commencing from 25-05-2012 to 24-05-2013, the same was not exhibited by the 2nd respondent for the reasons best known to her. Whereas the accident was caused on 16-2-2013. Therefore, the petitioner is entitled to claim compensation from 1st and 2nd respondents whose liability is joint and several since adverse inference has to be drawn against 2nd respondent as 2nd respondent has not let in any evidence.

21. Therefore, under the above referred heads, the petitioner is entitled to claim total compensation of Rs.8,61,122/-(Rs.5,21,640/-+ 8

Rs.2,01,982/- + Rs.20,000/- + Rs.36,000/- + Rs.50,000/- + Rs.31,500/-).

Accordingly, issue No.2 is answered in favour of the petitioner holding that the petitioner is entitled to claim Rs.8,61,122/- along with interest @ 7.5% per annum. The petitioner is entitled to claim compensation from the 1st respondent who is the driver cum owner and from 2nd respondent which is the insurer of the vehicle, whose liability is joint and several.

22.In the result, this petition is allowed. 1st and 2nd respondents are jointly and severally liable to pay compensation of Rs.8,61,122/- along with interest @ 7.5% per annum with costs. The 2nd respondent is directed to deposit the entire compensation amount of Rs.8,61,122/- with costs together with interest @ 7.5% per annum from the date of petition till the date of deposit within 30 days from today. On such deposit, the petitioner is entitled to withdraw 6,00,000/- and the balance amount along with interest and costs shall be kept in fixed deposit in any Nationalized Bank for a period of one year. Advocate fee is fixed at Rs.8,000/-. The office is directed to prepare decree after collecting deficit court fee within one month.

Typed to my dictation, corrected and pronounced by me in Open Court, the 08 th day of June, 2017.

Chairman, Motor Accidents Claims Tribunal-cum- VII Additional District Judge,

FAC V Additional District Judge,

West Godavari, Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioner: For the Respondents:

P.W.1: Gurudasu Narasamma.-None-

P.W.2: Dr. A.V.R.Mohan.

P.W.3: Dr. K.A.Thresiamma.

P.W.4: Dr. T.Uday Prakash Reddy

P.W.5: Dr.D.Uma Maheswara Rao 9

Documents Marked

For the Petitioner:

Ex.A.1/--Attested copy of the F.I.R.

Ex.A.2/--Attested copy of M.V.I. report

Ex.A.3/--Attested copy of wound certificate.

Ex.A.4/--Bunch of medical bills

Ex.A.5/--Bunch of medical prescriptions.

Ex.A.6/--Photo.

Ex.A.7/-- Xray films

Ex.A.8/-- Disability certificate.

By witness :-

Ex.X.1/--Attested copy of Case sheet

For respondents: NIL.

CHAIRMAN, MACT – cum –

VII ADJ, W.G., ELURU,.

FAC: V ADJ, W.G., ELURU

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU.

PRESENT: SMT. SIRIPURAPU SRIDEVI,

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

VIII ADDITIONAL DISTRICT JUDGE, W.G., ELURU

Monday, the 6th day of March, 2017.

M.V.O.P. No.8/2010

Between:

Pativada Ramesh. … Petitioner.

And

1.Kandula Venkanna.

2.Etakota Venkateswara Rao.

3.Bajaj Allianz General Insurance Company Limited., Rep. by it’s Authorized Signatory, Yerwada, Pune-411006. …Respondents.

This Petition coming on 09-1-2017 before me for hearing in the presence of Sri S. Raghu Ram, Advocate for Petitioner and of Sri D. Prabhakar, Advocate for the 3rd respondent and the respondents 1 and 2 remained exparte and upon perusing the material available on record and having stood over for consideration, till this day, this Tribunal made the following:

A W A R D

The petitioner filed this petition against the respondents 1 to 3 u/s.166 of M.V. Act r/w. Rule 455 of M.V. Rules claiming compensation of

Rs.1,00,000/- on account of injuries sustained by him in a motor vehicle accident and the brief case of the petitioner is as follows:-

The petitioner who was aged about 21 years boarded an Auto on 30.7.2009 at 2 P.M., at Kaikaluru in order to go to Eluru Railway Station and by the time, the auto reached Lingaraogudem village at about 2.45 P.M., the driver of lorry bearing No.AP16T 2276 drove the lorry in a rash and negligent manner while proceeding from Eluru towards Kaikaluru and dashed against the Auto, due to which it turned turtle. The petitioner sustained severe grievous and multiple injuries all over his body. Immediately, the petitioner was shifted to Asram

Hospital, Eluru in 108 Ambulance for treatment. The petitioner is resident of 2

Kakathinagaram who was a clever student and also has been attending cultivation along with his father and thereby extending his cooperation to his father in earning their livelihood. Due to accident, he sustained permanent disability who could not study and who could not attend his works as earlier. The

SHO, Eluru Rural P.S. registered a case in Cr.No.156/2009 u/s.338 I.P.C. The respondents 1 to 3 who are driver, owner and insurer are jointly and severally liable to pay compensation.

2. The respondents 1 and 2 remained exparte as per the docket order dt.26.7.2010.

3. The 3rd respondent filed written statement praying the Tribunal to dismiss the petition while denying the averments made in the petition specifically and it’s brief contentions are as follows:-

It is mainly contended that the insurance policy issued by 3rd respondent is in possession of 2nd respondent which is subject to terms and conditions who may be given direction to produce the policy. The accident said to have occurred on 30.7.2009 whereas the complaint was lodged on 1.8.2009 and there was a delay of two days in lodging complaint to police which is not properly explained. The medical officer also has not intimated the police concerned about the accident under medico legal case which shows that the petitioner managed and foisted a case against the 1st respondent to claim compensation. The 1st respondent was not having valid and effective driving license. The 2nd respondent willfully committed breach of terms and conditions of policy.

The driver of auto in which the petitioner travelled contributed for the accident by driving the same in a rash and negligent manner and the accident occurred due to collision of vehicles which came in opposite direction.

The seating capacity of auto rickshaw is 3+1 including driver but 5 persons were 3 travelling at the time of alleged accident and it amounts to breach of provisions of M.V. Act. The petitioner failed to add the owner and insurer of auto rickshaw as parties to the proceedings and therefore, the petition is not maintainable.

The 3rd respondent seeks protection under section 147 and 149 of M.V. Act.

Though it is mandatory on part of 2nd respondent to furnish particulars of accident, injured and name of driver, he has not complied the statutory demand.

Therefore, the 3rd respondent is not liable to pay compensation. Though the police station is under an obligation u/s.158(6) of M.V. Act to forward relevant documents to 3rd respondent within 30 days, it failed to forward the documents and thereby failed to comply statutory demand. The compensation and interest claimed by the petitioner are excessive. The 3rd respondent seeks permission to take defences available to 2nd respondent u/s.170 of M.V. Act.

4. Based on the pleadings my learned predecessor-in-office framed the following issues for trial:-

1. Whether the petitioner sustained injuries in a motor vehicle accident dt.30.7.2009 due to rash and negligent driving of

lorry bearing No.AP16T 2276 by it's driver 1 st respondent?

2. Whether the petitioner is entitled for compensation? If so for

to what amount and from which of the respondents?

3 To what relief?

5. The petitioner got himself examined as P.W.1, the medical officer was examined as P.W.2 and Exs.A.1 to A.5 were exhibited on his behalf. The

Junior Assistant and the Deputy Manager of 3rd respondent got themselves examined R.Ws.1 and 2 and exhibited Exs.B.1 to B.3 and Exs.X.1 and X.2.

6. Heard the learned counsel for the petitioner and perused the written arguments filed by 3rd respondent.

7. ISSUE No.1:- Both the learned counsel for the petitioner and 3rd respondent reaffirmed the respective contentions of both parties to the 4 proceedings during the course of their arguments in all material particulars and to avoid repetition, the same are not discussed in detail.

8. The case of the petitioner as per his evidence is that on 30.7.2009 at 2 P.M., he boarded an auto at Kaikaluru to go to Eluru Railway Station and by the time, the auto reached Lingaraogudem village, at about 2.45 P.M., the driver of lorry bearing No.AP16T 2276 who was proceeding towards Kaikaluru by coming from Eluru drove the vehicle in a rash and negligent manner and thereby dashed against the auto, due to which the auto turned turtle and the petitioner sustained multiple injuries. PW1 admitted in the cross-examination that while he was coming from Kakatiyanagaram to Eluru in an auto, the lorry dashed against the auto in which he was travelling on the left side of the road.

9. The contents of Ex.A.1 FIR show that on 30.7.2009 at 2 P.M., the driver of lorry bearing No.AP16T 2276 drove the same in a rash and negligent manner and dashed against the auto due to which, the petitioner and some others sustained injuries. Ex.A.3 charge sheet proves that the accident occurred due to negligent driving of 1st respondent in driving the offending vehicle and the petitioner herein is shown as 3rd witness in the charge sheet.

10. Therefore, though the learned counsel for 3rd respondent cross- examined PW1 at length nothing could be elicited from his evidence in disproving the rashness and negligence on part of the 1st respondent in driving the offending vehicle. He denied the suggestion that the accident occurred because of the negligence of auto driver. The said suggestion does not amount to proof.

Therefore, the petitioner proved that he sustained injuries on account of rash and negligent driving of the offending vehicle. Though the learned counsel for the 3rd respondent aruged that the accident occurred due to the sheer negligence on part of driver of auto, 3rd respondent failed to place any valid 5 evidence to that effect. Accordingly, issue No.1 is answered in favour of the petitioner.

11. ISSUE No.2:- The petitioner examined the medical officer as PW2.

He stated in his evidence that on 30.7.2009, the petitioner was admitted in

Asram Hospital, Eluru as per discharge summary. The petitioner sustained the following injuries as per Ex.A.2 wound certificate. 1) Chest valve tenderness with swelling. 2) Abrasion over left cheek. 3) X-ray examination shows fracture over left scapula and Edema over left shoulder. He stated that the petitioner sustained grievous fracture over left scapula. He identified Ex.A.5 medical bills saying that they were given by Asram Hospital. He further stated that the patient might have sustained 30% of permanent and partial disability. In this case, the petitioner has not filed any disability certificate. Ex.A.2 wound certificate shows that the petitioner sustained one grievous injury and two simple injuries. Therefore under the head pain and suffering the petitioner is entitled to receive Rs.35,000/- towards compensation.

12. The learned counsel for the petitioner argued that the petitioner incurred Rs.40,000/- to Rs.50,000/- towards medical expenditure. But the petitioner filed Ex.A.5 bunch of medical bills for Rs.2,718/-. At the same time, the petitioner might not have preserved all medical bills and by making guess work, this Tribunal opines that the petitioner could have spent Rs.5,000/- towards medical expenditure. Hence, under the head of medical expenditure, he is entitled to receive Rs.5,000/-.

13. The petitioner stated in his evidence that he was admitted as an inpatient on 30.7.2009 and discharged from the hospital on 5.8.2009. So, the petitioner might have spent some amount to take nutritious food and juices under healing process. Therefore, under the head of extra-nourishment, he is entitled to recover Rs.3,000/-. The petitioner was taken to hospital in 108 6

Ambulance as per his evidence. He might have reached his place of residence in any four wheeler after his discharge from the hospital as he sustained grievous fracture over left scapula. Hence, under the head transport charges, he is entitled to get Rs.5,000/-.

14. The petitioner stated that he was studying and also attending cultivation at the time of accident. He might not have attended cultivation on account of accident for a period of one month. Therefore, under loss of earnings, he is entitled to get Rs.4,500/-. Therefore, under various heads, in toto the petitioner is entitled to get Rs.52,500/- (Rs.35,000/- + Rs.5,000/- +

Rs.3,000/- + Rs.5,000/- + Rs.4,500/-) towards compensation.

15. The petitioner is entitled to claim compensation from 1st and 2nd respondents whose liability is joint and several. The learned counsel for 3rd respondent while arguing that the insurance company is liable to be exonerated from paying compensation on the ground that the 1st respondent was not having valid and effective driving license, relied upon the following decisions:

1) National Insurance Company Limited, Vs., Kusum Rai,1

2) New India Assurance Company Limited, Vs., Roshan Ben

Rahemansha Phakir & Another,2

3) Surina Durvasulu, Vs., Bhavanarayana Murthy & Others,3

4) Sardari Vs., Sushil Kumar,4

16. The learned counsel for 3rd respondent while arguing that the

Tribunal has no statutory power to direct the insurance company to pay the ---------------------------------

1. 2006 ACJ 1336.

2. 2008 ACJ 2161.

3. 2008 ACJ 654.

4. 2008 ACJ 1307.

7 directing insurance company to recover the amount from the insured, relied upon the judgment of Hon'ble Bombay High Court held in between United

India Insurance Company Limited, Vs., Anu Bhai Gopichand Thakere &

Others.5

17. The 3rd respondent examined RW1 to prove that the driver of offending vehicle was not having valid driving license at the time of accident.

RW1 produced Ex.X.2 driving license extract saying that the license issued in favour of 1st respondent expires by 28.4.2009. In the cross-examination he stated that charge sheet shows that the 1st respondent got valid driving license.

18. Coming to the evidence of RW2, he stated in his evidence that the 2nd respondent knowingly handed over the offending vehicle to the 1st respondent by violating the M.V. Act Rules who was not at all having valid and effective driving license to drive the vehicle. In the cross-examination, he stated that the 1st respondent was having non-transport driving license but not transport driving license as on the date of accident.

19. A perusal of Ex.X.2 driving license shows that the 1st respondent though was having driving license to drive non-transport vehicle, he had no license to drive transport vehicle as he got driving license to drive transport vehicle up to 28.4.2009 only though he was having license to drive non-transport vehicle. Therefore, it amounts to violation of terms and conditions of policy.

20. The evidence of RW2 shows that Ex.B.1 policy was issued by 3rd respondent for the offending vehicle and it is valid from 8.9.2008 to 7.9.2009.

The accident occurred on 30.7.2009. Therefore, at the time of accident, the policy was in force. The 3rd respondent is not liable to pay compensation to the petitioner as the 2nd respondent violated the terms and conditions of policy.

----------------------------

5. 2008 ACJ 213.

8

However, in this case the 3rd respondent insurance company which insured the offending vehicle has to pay compensation and then recover the compensation from the owner of the offending vehicle, i.e., from the 2nd respondent as held by their lordships in Bajaj Allianz General Insurance Company Limited, Vs.,

Tallaguri Naganna & Others,6 wherein the Hon'ble High Court referred the judgment of our Hon’ble Apex Court and the Hon'ble Apex Court held that it is for the insurer to proceed against the insured for recovery of amount in the event there has been violation of any condition of the insurance policy.

Accordingly, issue No.2 is answered holding that the petitioner is entitled to claim compensation amount of Rs.52,500/- from 1st and 2nd respondents whose liability is joint and several. However, the 3rd respondent insurance company has to deposit the compensation amount initially and then recover the same from 2nd respondent.

21. ISSUE No.3:- In the result, this petition is allowed. 1st and 2nd respondents are jointly and severally liable to pay compensation of Rs.52,500/- along with interest @ 7.5% per annum with proportionate costs. However, the 3rd respondent is directed to deposit the entire compensation amount of

Rs.52,500/- with proportionate costs together with interest @ 7.5% per annum from the date of petition, i.e., from 11.12.2009 till the date of deposit within 30 days from today. On such deposit, the petitioner is entitled to withdraw the entire amount of Rs.52,500/- along with interest and costs.

However, the 3rd respondent insurance company is entitled to proceed against the 2nd respondent for recovery of amount.

Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation, corrected and pronounced by me in Open Court, the 6th day of March, 2017.

CHAIRMAN, MACT – cum –

VIII ADDITIONAL DISTRICT JUDGE

ELURU ----------------------------------

6. 2015 ACJ, 2131.

9

APPENDIX OF EVIDENCE

Witnesses Examined

For the Petitioner: For the Respondents:

P.W.1: Pativada Ramesh. R.W.1: G. Durga Devi.

P.W.2: Dr. B. Mahendra Giri. R.W.2: T. Soma Raju.

Documents Marked

For the Petitioner:

Ex.A.1/-- Attested copy of the F.I.R.

Ex.A.2/-- Attested copy of wound certificate.

Ex.A.3/-- Attested copy of charge sheet.

Ex.A.4/-- Discharge summary.

Ex.A.5/-- Bunch of medical bills.

For respondents:

Ex.B.1/-- Copy of insurance policy.

Ex.B.2/12.2.2010 Office copy of registered letter issued to R2.

Ex.B.3/-- Postal acknowledgment.

Through Witness:-

Ex.X.1/-- Authorization letter.

Ex.X.2/-- Driving license extact.

CHAIRMAN, MACT – cum –

VIII ADJ, W.G., ELURU.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

V ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU.

PRESENT: SMT. SIRIPURAPU SREE DEVI,

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

VII ADDITIONAL DISTRICT JUDGE,

FAC V ADDITIONAL DISTRICT JUDGE, (FTC)

W.G., ELURU

Tuesday, the 21st day of March, 2017.

M.V.O.P. No.33/2012.

Between:

Bojja Prabhakara rao. … Petitioner.

And

1. Shaik Khaja Mohiddin.

2. The A.P.S.R.T.C., Musheerabad, Hyderabad. …Respondents.

This Petition coming on 20-03-2017 before me for hearing in the presence of Sri Eluru Venkateswara Rao, Advocate for Petitioner and of Sri

S.V.R.Gandhi, Advocate for 2nd respondent and the 1st respondent remained exparte and upon perusing the material available on record and having stood over for consideration, till this day, this Tribunal made the following:

A W A R D

1.The petitioner filed this petition u/s.166 of M.V. Act r/w. Rule 455 of M.V. Rules claiming compensation of Rs.2,00,000/- with interest at the rate of 12% p.a. from the date of filing of the petition till realization on account of injuries sustained by the petitioner against respondents 1 and 2 and the brief case of the petitioner is as follows:-

The petitioner is permanent resident of Kalaparru, Pedapadu mandal of West Godavari District. He was hale and healthy and aged 40 years at the time of accident who was working as Junior Assistant at ZP

High school, Malapadu and used to earn Rs.21,000/- per month. He used to attend his duty at ZP High school, Malapadu daily from his house situated at Bhavanipuram on his motor cycle. On 01-4-2011 in the morning the petitioner left his house and attended his duties at ZP 2

High school, Malapadu and after completion of his work he was returning to his house by riding the vehicle i.e., TVS Victor GX Motor cycle bearing

No.AP 16 AM 4774 and when he reached near Donbosco school on NH 9 road, Guntupalli, Vijayawada city, Krishna District at about 3-30p.m., one

APSRTC City bus bearing No.AP 10-Z-6667 being driven by it’s driver in a rash and negligent manner suddenly taken a turn towards right side, due to which the motor cycle of the petitioner dashed the bus on it’s right side and the petitioner had fallen on the road along with his motor cycle, due to which the petitioner sustained multiple and severe injuries on all vital parts of his body. Immediately he was shifted to Trust Hospital,

Vijayawada where he underwent treatment as an inpatient from 01-04-2011 to 04-04-2011 and still he is undergoing treatment as an out patient. The doctors conducted surgery and inserted steel plates and screws to his hand and conducted another surgery to his right eye brow and the petitioner spent Rs.1,00,000/- towards tests, operation, fixation of screws and medicines etc. The SHO., Ibrahimpatnam P.S.,, Vijayawada

City, Krishna District registered a case in crime no.135/2011 u/section 338 and 429 IPC. The 1st respondent is the driver, 2nd respondent is the owner of APSRTC City Bus bearing No.AP 10 Z 6667. The respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner.

2. The 1st Respondent remained exparte as per the docket order

dated 28-08-2012.

3. The 2nd respondent filed written statement, praying the

Tribunal to dismiss the petition while denying the averments made in the petition specifically and the brief contents of it are as follows:-

It is mainly contended that the mode of accident as narrated by the petitioner was invented for the purpose of this petition.

The accident took place not due to rash and negligent driving of driver of

APSRTC Bus but it had taken place only on account of negligence of 3 petitioner who was riding his motor cycle on the back of RTC bus in a rash and negligent manner and being unable to control his motor cycle, dashed against the backside of the bus and fell on the road, due to which he sustained injuries. The petitioner failed to observe the vehicular movement and traffic rules. The petitioner foisted false allegations and got the crime registered against 1st respondent. The interest claimed by the petitioner is excessive.

4.Basing on the pleadings my learned predecessor in office framed the following issues for trial :

1.Whether the accident occurred on 01-04-2011 at about 03-30 p.m., near Donbosco School on NH 9 road,

Guntupalli, Vijayawada city of Krishna District due to rash and negligent driving of the APSRTC Bus bearing

No.AP 10 Z 6667 driven by it’s driver / respondent no.1 herein ?

2.Whether the petitioner is entitled to claim compensation ? If so, to what amount and against which of the respondents ?

3.To what relief ?

5. The petitioner got himself examined as Pw1 and exhibited

Exs.A1 to A7 on his behalf. The 2nd respondent examined the driver of

RTC bus as RW1 and no documents were exhibited.

6. Heard the learned counsel for the petitioner and the 2nd respondent.

7. Issue NO.1: Both the learned counsel for the petitioner and 2nd respondent reaffirmed the contentions of respective parties to the proceedings during the course of their arguments in all material particulars. The petitioner reiterated his contentions during the course of his evidence. He mainly deposed that on 01-04-2011 he went to ZP High school, Malapadu on his TVS Victor GX Motor cycle bearing No.AP 16 AM 4774 and after discharging his duties while he was returning to his house 4 by proceeding on the extreme left side of the road on his motor cycle and by the time he reached near Donbosco school on NH 9 road, Guntapalli,

Vijayawada City, Krishna district at about 3-30 p.m., one APSRTC City Bus bearing NO.AP 10 Z 6667 which was coming from Ibrahimpatnam and proceeding towards Vijayawada being driven by 1st respondent in a rash and negligent manner and the driver suddenly had taken a turn towards right side, due to which the bus dashed against the motor cycle on it’s right side due to which the petitioner fell on the road and sustained fractures and multiple grievous injuries. Immediately, he was taken to

Trust Hospital, Vijayawada. A perusal of Ex.A1 FIR shows that due to rash and negligent driving of 1st respondent in driving the offending vehicle as suddenly the 1st respondent has taken a turn, the petitioner fell down as the motor cycle dashed against the offending vehicle towards it’s right side. A perusal of Ex.A4 charge sheet shows that the accident occurred due to rash and negligent driving of driver of offending vehicle i.e., 1st respondent.

8. In the cross examination Pw1 stated that while taking U turn the accident has occurred and the bus has no need to take U turn but the driver has taken U turn so as to go to school. Pw1 denied the suggestion that the accident occurred due to his negligence as he tried to over take the bus. The 2nd respondent examined the driver of offending vehicle as

RW1 who stated that the accident occurred due to the negligence of the petitioner in driving motor cycle as he was unable to control motor cycle, dashed against the back side of stationed bus. In the cross examination he admitted that the police registered a case against him and charge sheet was filed against him. He further stated that he has been attending the Court on every date of adjournment. He did not give any report to the police saying that the petitioner has hit the stationed bus. He did not file any petition to his higher authorities about filing of the case. In this case the petitioner proved that as the 1st respondent had taken a turn suddenly 5 the accident occurred. Though, the learned counsel for 2nd respondent cross examined Pw1 at length nothing could be elicited from his evidence in disproving rashness and negligence on part of 1st respondent in driving the offending vehicle.

9. The learned counsel for the petitioner argued that as the driver of offending vehicle suddenly had taken a turn towards right side the accident occurred and that the evidence given by PW1 before Tribunal is in conformity with the FIR and therefore, the question of contributory negligence on part of petitioner doesn't arise and while arguing so he relied upon a case of our Hon'ble High court of AP held in between

Pothuraju Chandraiah Vs. G.Narasimha and others 1.

10. In this case also had really the 1st respondent been cautious in driving the offending vehicle he could have given report to the police showing rashness on part of the petitioner. Therefore, issue no. 1 is answered accordingly holding that the petitioner sustained injuries on account of rash and negligent driving of 1st respondent in driving the offending vehicle.

11. Issue No.2 : The petitioner relied upon Ex.A2 Attested copy of wound certificate which shows that he sustained one grievous injury i.e., fracture radius-right and ulnar stolid with laceration on right eyebrow and black eye-right. Therefore, under the head of pain and suffering the petitioner is entitled to get Rs.25,000/- towards compensation.

12. Pw2 stated in his evidence that Ex.A7 is X-ray film showing fixation of plates and screws and that they are to be removed after two years. He further stated that surgery for removal of plates and screws costs Rs.20,000/-. The evidence of Pw2 clearly proves that the petitioner needs future treatment. It is a settled law that the Tribunal has to assess future medical expenditure and grant the same in the award itself. Therefore, the petitioner is entitled to get Rs.20,000/- 6 towards future medical expenditure.

13. On account of injuries sustained by him he might have taken some nutritious food and juices in nourishing process. The evidence of Pw2 who is the medical officer shows that the petitioner was treated as an inpatient for a period of 4 days. By making guess work this Tribunal opines that the petitioner might have incurred

Rs.3,000/- for nourishment and so he is entitled to get Rs.3,000/- towards nourishment.

-------------------

1. 2011 ACJ 806 7

14. Pw2 further stated that the petitioner was discharged from the hospital on 4-4-2011 besides saying that ExA.6 bunch of medical bills were issued by their hospital. He stated in the cross examination that the bills were not issued by him and that the billing department issued the medical bills. A perusal of Ex.A3 discharge summary shows that including medicines the petitioner incurred Rs.31,367/-.

Therefore, under the head of medical expenditure the petitioner is entitled to recover Rs.31,367/-.

15. On account of injuries sustained by him he might not have attended his duties for a period of one month. Therefore, under the head of loss of earnings he is entitled to get Rs.10,000/- by working as a clerk in ZP High school, as the petitioner has not filed any documentary proof showing his monthly income.

16. As the petitioner sustained injuries, he might have incurred some amount towards transport charges. Hence, under the head of transport charges he is entitled to get Rs.2,000/-. Therefore, under the above heads the petitioner in toto is entitled to get

Rs.91,367/- (25,000 +20,000 + 3,000 +31,367+ 10,000 + 2,000) towards compensation.

17. Since the 2nd respondent is the owner of offending vehicle i.e., APSRTC, Musheerabad, Hyderabad, both the 1st and 2nd respondents are jointly and severally liable to pay compensation to the petitioner.

18. In the result, this petition is partly allowed. Respondents 1 and 2 are jointly and severally liable to pay compensation of Rs.91,367/- 8 along with interest @ 7.5% per annum with proportionate costs. The 2nd respondents is directed to deposit the entire compensation amount of

Rs.91,367/- with proportionate costs together with interest @ 7.5% per annum from the date of petition, i.e., from 23-12-2011 till the date of deposit within 30 days from today. Petitioner is entitled to get Rs.91,367/- towards compensation.

On such deposit, the petitioner is entitled to withdraw entire compensation amount. Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation, corrected and pronounced by me in Open Court, the 21 st day of March, 2017.

VII ADDITIONAL DISTRICT JUDGE

FAC CHAIRMAN, MACT – cum –

V ADDITIONAL DISTRICT JUDGE

(FTC), W.G., ELURU.

APPENDIX OF EVIDENCE

Witnesses Examined

For the Petitioners:For the Respondents:

P.W.1: Bojja Prabhakara Rao. R.W.1 : Shaik Khaza Mohiddin.

P.W.2: Dr.U.Venkata Ramana.

Documents Marked

For the Petitioners:

Ex.A.1/--Attested true copy of F.I.R. in crime no.135/2011 of Ibrahimpatnam P.S. Ex.A.2/--Attested true copy of wound certificate of Pw1.

Ex.A.3/--Original Discharge summary of PW1 issued by Trust Hospital, Vijayawada.

Ex.A4/-- Attested true copy of charge sheet.

Ex.A5/-- Bunch of Medical Prescriptions.

Ex.A6/-- Bunch of Medical Bills.

Ex.A7/- X-ray film.

For Respondents:

NIL.

VII ADJ,

9

FAC CHAIRMAN, MACT – cum

VADJ, (FTC)

W.G., ELURU.

1

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-cum-

VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST GODAVARI, ELURU.

PRESENT: SMT. SIRIPURAPU SRIDEVI,

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

VII ADDITIONAL DISTRICT JUDGE, W.G., ELURU

FAC V ADDITIONAL DISTRICT JUDGE, (FTC), ELURU.

Thursday, the 8th day of June, 2017.

M.V.O.P. No.599/2011.

Between:

Manukonda Rambabu … Petitioner.

And

1. Pothuraju Ramayya,

2. K.Subrahmanya Gurumurthy

3. The New India Assurance company limited. …Respondents.

This Petition coming on 02-06-2017 before me for hearing in the presence of Sri. C.V.Srinivasa Sastry, Advocate for Petitioner and of Sri M.B- haratha Rao, Advocate for 3rd respondent and respondents 1 and 2 having been remained exparte and upon perusing the material available on record and having stood over for consideration, till this day, this Tribunal made the fol- lowing:

A W A R D

1.The petitioner filed this petition u/s.166 of M.V. Act r/w. Rule 533 and 455 of M.V. Rules claiming compensation of Rs.2,00,000/- with interest at the rate of 12% p.a. from the date of filing of the petition till realization on account of injuries sustained by the petitioner against respondents 1 to 3 and the brief case of the petitioner is as follows:-

The petitioner has been working as a cleaner in the lorry bearing

No.AP 37 W 7171 owned by the 2nd respondent and thereby earning

Rs.5000/- per month. On 03-5-2010 during early hours as per the instructions of the owner of the Tipper lorry bearing No.AP 37 W 7171, the petitioner and the driver started on the tipper lorry with a load of metal from

Gowripatnam to Challapalli village, Denduluru Mandal and the petitioner sat in the cabin of the lorry as a cleaner. By the time they reached Sai Baba temple, at Challapalli village at about 4-30 am, the petitioner fell down from 2 the lorry cabin due to rash and negligent driving of the 1st respondent in driving the Tipper lorry as the door was unlocked. The petitioner sustained fracture to his left knee. Immediately he was shifted to Government hospital, Eluru and from there he was shifted to Thilak hospital, Eluru for better treatment. He spent Rs.50,000/- towards medicines, operation etc.

Still the petitioner is not able to move from bed who has been suffering from physical and mental agony. He got permanent disability. The 1st respondent is the driver of Tipper lorry, the 2nd respondent is the owner and the 3rd respondent is the insurer of the said Tipper lorry who are liable to pay compensation and the policy was in force.

2. The 1st respondent remained exparte as per the docket order

dated 01-08-2011.

3.The 2nd respondent remained exparte as per the docket order

dated 30-05-2011.

4. The 3rd respondent filed written statement, praying the Tribunal to dismiss the petition while denying the averments made in the petition specifically and the brief contents of it are as follows:-

It is mainly contended that the petitioner is not entitled to claim compensation as mentioned under various heads. The accident was not reported by the insured with a view to cause loss to the 3rd respondent.

The petitioner is not entitled to claim interest as mentioned in the petition.

5.Based on the pleadings, my learned predecessor in office framed the following issues for trial :

1.Whether the accident occurred on 03-05-2010 at about 04-30 AM near Saibaba Temple, Challapalli village due to rash and negligent driving of the Tipper lorry bearing No.

AP 37 W 7171 being driven by it's driver/respondent No.1 herein ?

2.Whether the petitioner is entitled to claim compensation? If so, to what amount and for how much amount ?

3

3.To what relief ?

6. The 3rd respondent was permitted to avail all defences available to respondents 1 and 2 as per the orders in IA.No.388/2016, dated 05-01- 2017.

7.The petitioner got himself examined as PW1 and the supporting witness was examined as PW2 and exhibited Exs.A1 to A4 on his behalf.

The 3rd respondent/insurance company exhibited Ex.B1 by consent.

8.Heard the learned counsel for the petitioner and the 3rd respondent.

9.Issue No.1: Both the learned counsel for the petitioner and 3rd respondent reaffirmed the contentions of respective parties to the proceedings during the course of their arguments in all material particulars.

The petitioner reiterated his contentions during the course of his evidence.

He mainly deposed that on 30-05-2010 during early hours being a cleaner, as per the instructions of his owner he left Gowripatnam in the Tipper lorry bearing No.AP 37 W 7171 with metal load and he sat in the cabin of the lorry and that the same was driven by the 1st respondent. By the time they reached Challapalli he fell down from the lorry due to rash and negligent driving of driver of tipper lorry due to which he sustained fracture to his left knee and multiple injuries on all vital parts of his body. A perusal of Ex.A1 copy of FIR in crime no.72/2010 shows that the petitioner joined under the owner of the Tipper lorry bearing NO.AP 37 W7171 to work as a cleaner and he sustained injuries due to the negligence on part of the 1st respondent as the 1st respondent had taken a turn suddenly while driving the lorry, due to which he fell on the road as door was unlocked. Ex.A2 copy of MVI report shows that the accident was not caused due to any mechanical defect of the vehicle. Ex.A3 charge sheet shows that the 1st respondent was shown as an accused in crime No.72/2010 which shows that the petitioner sustained injuries due to rash and negligent driving of 1st respondent. It also shows that the petitioner was working as a cleaner at the time of accident. The 1st 4 respondent is the best person to speak about the absence of rashness and negligence on his part in driving the offending vehicle but he remained exparte. Though, the learned counsel for the 3rd respondent argued that there is no negligence on part of 1st respondent, the oral as well as the documentary evidence let in by the petitioner clearly proved that the petitioner sustained injuries only on account of rash and negligent driving of 1st respondent in driving the offending vehicle. Accordingly, issue no.1 is answered in favour of the petitioner.

10.Issue No.2: The evidence of petitioner further shows that immediately after the accident the petitioner was shifted to Government head quarters hospital, Eluru and from then he was shifted to Thilak Hospital,

Eluru for better treatment. He stated that he sustained severe fracture to his left knee and multiple injuries on all over his body. A perusal of Ex.A3 copy of wound certificate shows that the petitioner sustained grievous injury. PW2 stated in his evidence on 04-5-2010 at 8-25 pm he examined PW1 and found the following injury. A swelling of 10x8x4 cm on left knee. He stated that X- ray was taken under MNC342/5-5-2010 of left knee. He further stated that it shows fracture of left patella. He opined that the injury is grievous in nature.

The oral as well as documentary evidence of PW1 and 2 shows that PW1 sustained one grievous injury. Therefore, under the head of pain and suffering he is entitled to get Rs.25,000/-.

11.On account of injuries sustained by him he might have taken some nutritious food and juices in nourishing process. By making guess work this Tribunal opines that he might have incurred Rs.3,000/- for nourishment.

Hence, the petitioner is entitled to get Rs.3,000/- towards nourishment.

12.On account of injuries sustained by him he might not have attended his duties as a cleaner for a period of one month. The petitioner stated in his evidence that he used to earn Rs.5,000/- per month by working as a cleaner. He has not filed any documentary proof to that effect. In the year 2010, a cleaner of the Tipper lorry is expected to earn not less than 5

Rs.4,500/- per month. Therefore, under the head of loss of earnings he is entitled to get Rs.4,500/- as the accident occurred in the year 2010.

13.P.W.1 did not file any documentary proof to show that he incurred

Rs.50,000/- towards medical expenditure. On account of nature of injuries sustained by him definitely the petitioner might have incurred some amount towards medical expenditure. Therefore, by making guess work this Tribunal opines that the petitioner might have incurred Rs.20,000/- towards medical expenditure. Therefore, under the head of medical expenditure, he is entitled to get Rs.20,000/-.

14.As the petitioner sustained injuries, he might have incurred some amount towards transport charges. Hence, under the head of transport charges he is entitled to get Rs.2,000/-. Therefore, under the above heads, thepetitionerintotoisentitledtogetRs.54,500/- (25,000+3,000+4,500+20,000+2,000)towards compensation.

15.A perusal of Ex.B1 insurance policy shows that the tipper lorry bearing NO.AP 37 W 7171 was duly insured with 3rd respondent which is valid for the period commencing from 11-11-2009 to 10-11-2010 whereas the accident occurred on 03-05-2010. Hence, the policy was in force on the date of accident.

16.Therefore, 1st respondent who is the driver, the 2nd respondent who is the owner of Tipper lorry referred above and the 3rd respondent who is the insurer of crime vehicle are jointly and severally liable to pay compensation to the petitioner. Accordingly, issue no.2 is answered holding that the petitioner is entitled to get compensation from respondents 1 to 3 whose liability is joint and several.

17.Point No.3: In the result, this petition is partly allowed.

Respondents 1 to 3 are jointly and severally liable to pay compensation of

Rs.54,500/- along with interest @ 7.5% per annum with proportionate costs.

The 3rd respondent is directed to deposit the entire compensation amount of

Rs.54,500/- with proportionate costs together with interest @ 7.5% per 6 annum from the date of petition, i.e., from 11-07-2011 till the date of deposit within 30 days from today. Petitioner is entitled to get Rs.54,500/- towards compensation. On such deposit, the petitioner is entitled to withdraw entire compensation amount. Advocate fee is fixed at Rs.1,000/-.

Typed to my dictation by the Stenographer on computer, corrected and

pronounced by me in Open Court, the 08 th day of June, 2017.

CHAIRMAN, MACT – cum –

VII ADDITIONAL DISTRICT JUDGE

FAC V ADDITIONAL DISTRICT JUDGE,

W.G. ELURU.

APPENDIX OF EVIDENCE

Witnesses Examined

For the Petitioners: For the Respondents:

P.W.1: Manukonda RambabuNone

P.W.2: Dr.K.Hari Krishna

Documents Marked

For the Petitioners:

Ex.A.1/--Attested Photostat copy of the F.I.R.

Ex.A.2/-- Attested Photostat copy of MVI report

Ex.A.3/-- Attested Photostat copy of wound certificate

Ex.A.4/-- Attested Photostat copy of charge sheet

For respondents:

Ex.B.1-- Attested copy of Insurance policy

CHAIRMAN, MACT – cum –

VII ADJ,

FAC V ADJ.,W.G., ELURU.