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CHAIRMAN, M.A.C.T.-Cum -JUDGE, FAMILY COURT-CUM-IV ADDL.
DISTRICT JUDGE, VIJAYAWADA
Present: Sri V. Balram, M.A., LL.B.,
JUDGE, FAMILY COURT, VIJAYAWADA
Wednesday, this the 30th day of January, 2013
M.V.O.P.No. 202/2009
Between:
Myneni Narayana, s/o Narasimha Rao, Hindu, aged 32 years, Private teacher, R/o Gandrai, Jaggaiahpet Mandal, Krishna Dt.
...Petitioner
And
1. Syed Basha, S/o Hanif, Muslim, aged 37 years, driver of ash tanker bearing of.AP 16 TT 6778, R/o Jaggaiahpet, Krishna Dt.
2. K.Krishna Babu, S/o Seshagiri Rao, Hindu, aged 38 years, Lorry owner bearing No. AP 16 TT 6778, D.No.4-40-1, Raithupet, Nandigama, Krishna Dt.
3. M/s. United India Insurance Co. Ltd., Rep. by its Divisional Manager, R.R.Apparao street, Vijayawada-1
.. Respondents
This petition coming on 10.1.2013 for hearing before me in the presence of Sri Nomula Srinivasa Rao, Sri B.Narapareddy, Advocates, for the petitioner and of Sri D.Radhakrishna Reddy, advocate for the 2nd respondent and of Sri T.Uma Maheswara Rao, advocate, for the 3rd respondent; 1st respondent remained exparte, and upon perusing the petition, written statement and written arguments of respondents 2 and 3 other material on record, having been stood over till this day for consideration, and upon consideration, this court delivered the following :-
ORDER
1. This is a petition filed by petitioner under Sec.140 and 166 of M.V.Act claiming compensation of Rs.3,00,000/- for the injuries sustained by the petitioner in a lorry accident.
2.The brief case of the petitioner as follows:
That on 3.9.2007 at about 5.00 P.M. while the petitioner was proceeding on his motor cycle AP 24 L 1697 to go to Kodada and reached
Shermohammad pet and Anumanchipalli on NH 9 road one lorry tanker bearing No.
AP 16 TT 6778 driven by the 1st respondent in a rash and negligent manner at high speed coming from Vijayawada to Kodad dashed the petitioner from his behind; as a result, the petitioner fell on the road and sustained injuries. One P.Mohana Rao taken the injured and admitted in Government General Hospital, Jaggaiahpet for 2 first aid and thereafter shifted to Vins Hospital, Vijayawada for better treatment. A case was registered against the 1st respondent in Chillakallu P.S. in Cr.No.152/2007
U/s.337 and 338 IPC.
3.It is further according to petitioner that he received 1) commuted fracture of lower radius 2) Fracture of both bones of right leg and 3) Avulsion fracture of laternal tibial condyle and 4) fracture of 2nd metarsal right foot. He was discharged from hospital on 20.9.2007 and he spent an amount of Rs.1,25,000/- towards medical, and operation. He is working as private teacher and earning
Rs.5,000/- p.m. towards salary and he is aged about 32 years and he was suffering pain and caused severe and mental agony. Therefore, according to him he had lost earning capacity and as such he requested to grant compensation of Rs.3,00,000/- against the 1st respondent who is the driver of lorry and 2nd respondent is the owner of crime lorry and 3rd respondent who is the insurer, as such the respondents 1 to 3 are being responsible to pay the compensation. Hence, the petition.
3.The 1st respondent who is the driver of lorry bearing No. AP 16 TT 6778 remained exparte. 2nd respondent filed his counter denying material allegations made in the petition and submitted that this respondent is not liable to pay any compensation as awarded in this case, and the claim of petitioner is very excessive and unreasonable and he is not entitled for the same. Under the terms and conditions of insurance policy and that the 3rd respondent has to indemnify any loss suffered by 3rd parties like the petitioner and that 2nd respondent is not liable to pay compensation and prayed to dismiss the petition.
4.The 3rd respondent is the insurer of the vehicle of 2nd respondent filed written statement wherein he denied all the averments made in the petition and submitted that an unknown vehicle dashed the petitioner, but the crime vehicle was falsely implicated for compensation purpose and in report also there is no mention about the crime lorry and there are no eye witnesses to the incident and further there is no information about the accident to this respondent either from the owner of the crime vehicle or from police concerned U/s.158(6) of M.V.Act and that the 3 petitioner planted a vehicle bearing No. AP 16 TT 6778 ash tanker for the sake of claiming compensation by involving the crime vehicle and filed charge sheet against the 1st respondent and that this respondent is not liable to pay any compensation and prayed to dismiss the petition.
5.On the basis of the aforesaid pleadings of both parties, the following issues were framed for trial:
1. Whether the accident had occurred due to rash driving of the driver of tanker bearing No. AP 16 TT 6778 on 3.9.2007?
2.Whether the petitioner is entitled for compensation? If so, for how much amount he is entitled?
3. Whether the petitioner is entitled for the compensation against all the respondents?
4. To what relief?
6. During the trial, on behalf of the petitioner, PW-1 to 3 are examined and marked Ex.A-1 to A-8. On the other hand, R.W.1 examined and Ex.B1 copy of insurance policy of crime vehicle marked on behalf of respondents. Ex.X1 case sheet of petitioner also marked.
7.Issue No.1:
The petitioner who is the injured person himself examined as P.W.1 and he reiterated what all state din the petition averments. It is the specific case of the petitioner that on the date of accident i.e. on 3.9.2007 at 5 p.m. while he was proceeding on his motor cycle AP 24 L 1697 to go to Kodada from his village
Gandrai on his personal work and reached near Shermohammadpet and
Anumanchipalli on NH 9 road one lorry/tanker bearing No.AP 16 T T 6778 driven by the 1st respondent proceeding towards Kodada from Vijayawada side came in a high speed and dashed against the petitioner from his behind. As a result, P.W.1 sustained multiple grievous injuries all over his body. One P.Mohana Rao (P.W.2) came there and shifted him to Government Hospital, Jaggaiahpet. On a complaint given by P.W.2 to Chillakallu P.S. a case in Cr.No.152/2007 was registered against the 1st respondent for the offence U/s.337 IPC. Ex.A1 is the attested copy of FIR shows that accident was occurred on 3.9.2007 at 5 p.m. and on the same day it was 4 reported at 7.30 p.m. Ex.A2 is wound certificate showing that P.W.1 sustained injuries. Ex.A3 is the copy of charge sheet. Ex.A6 is the MVI Report. As per Ex.A6 he examined the crime vehicle AP 16 T T 6778 on 12.9.2007 and in his opinion, the accident was occurred not on account of any mechanical defect of the said vehicle.
8.The learned counsel for the respondents argued that P.W.2 is an eye witness to the incident. According to him on 3.9.2007 at 5 p.m. while he was going in an auto from Kodada to Shermohammad peta, he noticed that one tanker lorry hit one motor cyclist in high speed and it was not stopped on the spot. He had telephone to 108 Ambulance and shifted P.W.1 to Government Hospital,
Jaggaiahpet. He also gave Ex.A1 complaint to Police. In Ex.A1 report he did not state that he has seen the vehicle, he only found P.W.1 on road with injuries. He did not see the lorry-tanker which dashed against P.W.1. Therefore, according to him the lorry tanker is falsely implicated as a crime vehicle and it is not the vehicle which is involved in the accident. In contrary to the information given to the police in Ex.A1 he had deposed before the court he had seen the lorry tanker and while hitting
P.W.1 from his behind. Therefore according to him the crime vehicle AP 16 TT 6778 is falsely implicated in order to claim compensation. I do not find any force in the argument of the 3rd respondent, because a complaint was given on the same day of accident. The police investigation revealed that the lorry-tanker AP 16 TT 6778 is the vehicle which has given dash against PW.1. The crime vehicle is a symbolic one because it is a tanker which has passed on that road at that particular time.
Therefore, it cannot be said that crime vehicle is not the lorry AP 16 TT 6778.
9.In view of the evidence of P.Ws.1 and 2 coupled with Exs.A1 to A8 it is clearly established that crime vehicle is only AP 16 TT 6778 which gave dash to
P.W.1 from his behind causing several injuries all over his body. For the foregoing reasons, I hold on the issue that the accident was occurred due to rash and negligent driving of lorry tanker bearing No.AP 16 TT 6778 driven by the 1st respondent.
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10.ISSUE NO.2 to 4:
The petitioner claimed compensation of Rs.3,00,000/-. P.W.1 is the injured person. According to him soon after the accident he had fallen on road as unconscious due to injuries sustained in the lorry accident. P.W.2 had shifted him to
Government Hospital, Jaggaiahpet in 108 Ambulance. After taking first aid in the said hospital, he had been shifted to Vins Hospital, Vijayawada for better treatment.
The doctor who examined as P.W.3, deposed that Ex.A2 wound certificate issued by
Dr.A.Srinivasa Rao, Vins Hospital, Vijayawada shows that P.W.1 was brought to his hospital on 3.9.2007 at 11.10 p.m. and he found with following injuries:
1. Transverse wound over volar aspect right wrist exposing soft tissue.
2. Right leg-wounds over mid and lower one-third of right leg exposing soft tissue and tibia.
3. Right knee—posterior sagging present, Varus stress test positive.
4. Right foot—lacerated wound over dorsal aspect of right foot exposing second metatarsal.
5. Bi frontal contusions.
6. Right frontal compound depressed fracture.
11.P.W.3 further deposed that in his opinion all the injuries 1 to 6 are grievous in nature. P.W.3 supported the version of P.W.1 in order to injuries sustained by him. P.W.3 further stated that he found that there was open committed fracture lower ridis right. Open fracture both boes right leg and evulsion fracture lateral tibia condyle. Open fracture 2nd metatarsal right foot for which open reduction, buttress plating right lower radius after debridement of wound under general anaesthesia done on 4.9.2007. Wound debridement interlocking nailing right tibia ‘K’ wire fraction of 2nd metatarsal right foot and spinal anaesthesia done on 4.9.2007. SSG of raw area right leg and right foot done under regional block on 16.9.2007. According to discharge summary neuro surgeon diagnosed right frontal depressed fracture and B1 frontal cerebal contusion for which would debridement evaluation of depressal fracture and duro plating done. Ex.X1 is the case sheet of
P.W.1.
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12.According to P.W.3 Exs.A2 and A5 are medical bills issued from his hospital incurring an expenditure of total amount of Rs.89,290/-. It is therefore taking into consideration, the nature of injuries suffered by P.W.1 and type of treatment he has undergone in a private hospital incurring expenditure I am of the view that a sum of Rs.20,000/- each for six grievous injuries is just and proper to award compensation. Apart from that P.W.1 also further entitled a sum of
Rs.50,000/- towards his medical expenses. Thus, in all the petitioner is entitled for
Rs.1,70,000/-.
13.Ex.A6 is the driving licence of the 1st respondent driver of crime vehicle
AP 16 TT 6778. 2nd respondent is the owner of the said lorry. 3rd respondent is the insurer and Ex.B1 is the insurance policy copy issued by 3rd respondent. On the date of accident 1st respondent is having valid and effective driving licence to drove the said lorry tanker and the insurance police is also valid and inforce for the crime vehicle. The Assistant Manager of 3rd respondent company examined as R.W.1 and in his evidence he stated that some unknown vehicle had dashed against P.W.1 and not the crime vehicle AP 16 TT 6778. R.W.1 is not an eye witness to the incident he deposed on the basis of record available with him. Therefore, the respondents 1 to 3 are jointly and severally liable to pay the compensation awarded in this case.
Thus, I answered the three issues accordingly.
14.For the foregoing reasons, I hold on the points that the petitioner is entitled for a compensation of Rs.1,70,000/- only from the respondents 1 to 3.
15.IN THE RESULT, the petition is partly allowed. Respondents 1 to 3 jointly and severally are liable to pay the compensation of Rs.1,70,000/- (Rupees one lakh and seventy thousand only) to the petitioner, with proportionate costs and interest @ 7.5% per annum from the date of filing of the petition till the date of realization. The respondents 1 to 3 are directed to deposit the compensation amount within 45 days from the date of this award. On such deposit, the petitioner is permitted to withdraw an amount of Rs.70,000/-. The remaining amount of
Rs.1,00,000/- of petitioner shall be kept in FDR in Oriental Bank of Commerce, 7
M.G.Road branch, vijayawada, for a period of two years. The rest of the claim is hereby dismissed. Advocate fee is fixed at Rs.2,000/-.
Dictated to Personal Assistant, transcribed by him, corrected and
pronounced by me in the Open Court on this the 30th day of January, 2013.
SD/-.V.BALRAM,
CHAIRMAN, M.A.C.T.-Cum-
JUDGE, FAMILY COURT-CUM-IV
ADDL.DISTRICT JUDGE, VIJAYAWADA
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR
PETITIONERRESPONDENTS
PW-1M.NarayanaR.W.1K.A.Purnachandra rao PW-2S.P.Mohan Rao P.W.3Dr. A.Srinivasa rao
EXHIBITS MARKED
Ex.A13.9.2007Attested Copy of FIR in Cr.No.152/2007 of Chillakallu P.S.
Ex.A21.11.2007Copy of wound certificate of P.W.1
Ex.A320.9.2007Discharge summary of P.W.1
Ex.A4Copy of charge sheet in Cr.No.152/07
Ex.A520.9.2007Medical bills for Rs.90,015/-
Ex.A6copy of MVI Report
Ex.A714.8.2007Bunch of medical bills Rs.63,120/-
Ex.A8Xrays 5 Nos.
FOR RESPONDENTS :
Ex.B1Copy of insurance policy (marked with consent)
Ex.X1: Case sheet of p.w.1
SD/-V.BALRAM,
CHAIRMAN, M.A.C.T.-Cum-
JUDGE, FAMILY COURT-CUM-IV
ADDL.DISTRICT JUDGE, VIJAYAWADA