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IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-
VII- ADDITIONAL DISTRICT & SESSIONS JUDGE, WARANGAL
Present: Sri V. Prabhakara Rao, B.Sc., B.L. Chairman, M-A-C-T- Cum-VII A.D.J, Warangal.
Monday, the 19th day of March, 2012
M.V.O.P. 1303 of 2007
Between: Rasamalla Kumara Swamy, S/o. Bhugulaiah, 32 years, Occ: Labour, R/o. Ayodhyapuram
village, Hanamkonda Mandal, Warangal District. ... Petitioner.
A N D
1.Srinivasa Transports, 7-74/A/1, I floor, Opp: HUDA Lorry Parking, Kukatpally, Hyderabad.
2.The Oriental Insurance Company Limited, rep. By its Divisional Manager, Divisional Office-I, III floor, Tilak Road, Abids, Hyderabad .
3.The Oriental Insurance Company Limited, rep. By its Divisional Manager, Office at
J.P.N. Road, Warangal .... Respondents.
This petition coming up before me for final hearing in the presence of Sri P. Nagesh, Advocate for Petitioner and of Sri Ch. Upender, Advocate for Respondent No. 3; and the respondents 1 and 2 remained exparte and having stood over till this day for consideration and this court delivered the following Award :
:: A W A R D ::
This petition is filed by the petitioner u/S. 166 (i)(a) of M.V. Act, 1988 r/w Rule 455 of A.P.M.V. Rules, 1989 to award compensation of Rs.5,10,000/- for the injuries caused in a
Road Traffic Accident.
2. The brief averments of the petition is that :-
The petitioner is aged about 32 years old and working as labour and used to earn
Rs.3,000/- per month. While so on 25/11/2005 he was engaged as a labour by a contractor by name Venkateshwarlu, that he was attending coolie work behind the Diesel Shed at Old
Centering Line with the help of Crane bearing No. ADI 2825 (Now onwards called as “Crane”)and while he was unloading Iron sheets from the Rail Wagons that the driver of the crane negligently drove and the hooks of the crane loosen and the Iron sheets fell on the petitioner, as a result he sustained injuries to the complete avulsion of sole flap, fracture to navicular, fracture of medical cuneiform, communited fracture of calcaneus with bone loss, fracture of bimalleolar bone of right ankle and contusion on right wrist, upon that he was immediately admitted in Life Line Hospital and underwent operation and he was discharged on 12/12/2005 and again he admitted in the same hospital on 10/1/2006 for skin grafting and discharged on 12/1/2006 and doctor advised to him that he require two or more operations for reasonable recovery and ambulation, upon that the wife of the petitioner gave complaint to the Kazipet police who registered a case in Cr.No. 276/2005 and on point of
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jurisdiction that the case was transferred to Railway Police, Secunderabad and they again re- registered it as a case in Cr.No.14/2006. The said Crane belongs to the first respondent transport company and it is insured with the second respondent vide insurance policy No.
2006/6456 valid from 17/9/2005 to 16/09/2006. As he was sustained such grievous injuries that the petitioner unable to attend his work or do any work and he is the only earning member of his family and used to maintain them and after sustaining injuries the petitioner became idle and as such the petitioner claimed Rs.75,000/- towards medicine and treatment, Rs.5,000/- towards transport to hospital, Rs.5,000/- for extra nourishment under
Special Damages and further claimed Rs.60,000/- for pain and suffering and Rs.3,65,000/- compensation for continuing and permanent disability under General Damages, in total he claimed a sum of Rs.5,10,000/- and hence this petition.
3. The brief averments of the counter filed by the third respondent is that it denied all the allegations made in the petition and further contended that it is the burden of the petitioner to establish about his age and earnings and sustaining of injuries in the said accident and it was made due to the rash and negligent act of the Crane driver and who having valid driving license and the Crane having valid insurance policy. The petitioner and the first respondent failed to inform the accident immediately to this respondent and as such they violated the provisions under the statute. The claim made by the petitioner is excessive one and the petitioner also filed another petition in O.P. 1206/2006 earlier for the same cause of action, as such the petitioner is not entitled for any compensation in this petition and it is liable to be dismissed with exemplary costs.
4. Basing on the above said pleading the following issues are settled for trial:
1. Whether the accident that took place due to rash and
negligent driving of driver of Crane bearing Registration NO.
ADI 2825 ?
2. Whether the petitioners are entitled for compensation ? If so, to what amount and from whom ?
3. To what relief ?
5.In order to substantiate the claim of the petitioner that he himself examined as Pw.1 and the doctor who treated him by name Dr. G. Krishna Murthy examined as Pw.2.
On behalf of the petitioner Ex.A.1 to Ex.A.10 and Ex.X.1 are marked. On behalf of the third respondent one of its employee by name Kalpana examined in chief as Rw.1, subsequently as she was turned up for cross examination her evidence was eschewed and after that the
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another employee by name Sandhya Jagannathan examined as Rw.2 and on behalf of the respondent Ex.B.1 and Ex.B.2 are marked.
6.The third respondent filed petition in I.A. 80/2011 u/S. 170 of M.V. Act and the same was allowed permitting it to take all necessary defenses available.
7.The learned advocate for the petitioner contended that the petitioner filed earlier O.P.1206/2006 and the same was dismissed for default and as such the present petition is filed, so the earlier petition will not deprived the right to claim compensation in this petition and further at first the Kazipet police registered the case and on point of jurisdiction it was transferred to the Secunderabad Railway police station. The doctor who treated the petitioner also examined as Pw.2 who proved the injuries and also proved the certificates issued by him, as such the petitioner is entitled for compensation as claimed for.
8.Whereas the learned advocate for the third respondent argued that the petitioner by suppressing the facts of filing the earlier O.P. 1206/06 filed this petition with a malafide intention and further that the disability certificate under Ex.A.8 is only a created one for the purpose of claiming more compensation. Since the earlier O.P.1206/2006 was dismissed for default that this respondent is not liable to pay any compensation in this petition.
9. ISSUE NO.1 :It is the contention of the petitioner that while he was working as Labour in unloading the Iron sheets from the Rail Wagons with the help of a
Crane that on 25/11/2005 at about 1830 hours due to the negligent act of the Crane driver that the hooks of the crane were loosen and iron sheets fell on the petitioner and he sustained injuries, whereas the respondent denied the same. In order to prove the claim of the petitioner that he himself examined as Pw.1 and who also supported and corroborated with the averments mentioned in the petition. Besides his oral evidence that he also filed
Ex.A.1 certified copy of F.I.R registered by the Railway Police, Secunderabad and further filed Ex.A.5 certified copy of F.I.R. in Cr.No. 276/2005 registered by Kazipet police on the application given by the wife of the petitioner. The Ex.A.5 was registered at first by the
Kazipet police and on point of jurisdiction as the accident took place within the railway premises while unloading the Iron sheets from the rail wagon that the said case was transferred to the Railway Police, Secunderabad, so both Ex.A.1 and Ex.A.5 are in respect of one and the same accident. The petitioner further filed Ex.A.3 certified copy of Charge
Sheet filed against the driver of the Crane. From the oral evidence of Pw.1 coupled with
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Ex.A.1, Ex.A.3 and Ex.A.5 it is established that the petitioner met with accident while working as labour.
10.It is the contention of the petitioner also that he sustained severe injuries in that accident and in support of it that he also examined Pw.2 one of the doctor who treated him. From the evidence of Pw.2 it is made clear that immediately after the accident on 25/11/2005 itself, the Pw.1 joined in the Life Line hospital and taken treatment and he noticed the following injuries:
i.Complete evulsion of sole of right foot.
ii.Fracture of navicular medial cunelform, commuted fracture of calcaneum with bone loss of right foot.
iii.Bimmaleolar fracture of right ankle.
iv.Contusion of right wrist.
The Pw.2 also issued original of Ex.A.2 wound certificate and further filed Ex.A.4 medical certificate issued by Pw.2 and Ex.A.6 hospital discharge card. Pw.2 also opined that the injuries 1 to 3 are grievous in nature and 4th injury is simple in nature and he also operated the wound department and internal fixation of various fractures and wound closure POP slab application and the petitioner again admitted in the hospital on 10/1/2006 and skin grafting was made to the right foot and discharged on 12/1/2006. So, from the evidence of Pw.2 coupled with Ex.A.2, Ex.A.4, Ex.A.6 and Ex.X.1 Case Sheet it is established that the petitioner sustained injuries in the said accident and taken treatment in
Life Line Hospital.
11.It is the contention of the petitioner while he was unloading the Iron sheets and lifting the hooks of the Crane were loosen due to the negligent act of the driver of the crane, as such they fell on him and sustained said injuries, whereas the respondent denied the same. In this case that the Pw.1 being the victim cum eye witness for the incident that who specifically deposed about falling of Iron sheets due to the loosing of Crane hooks due to the negligent act of the driver of the crane the accident was occurred. Even after adducing the evidence of the petitioner, that the respondent did not choose to examine the driver of the Crane to show that there is no negligence on the part of the driver of the
Crane nor adduced any rebuttal or contra evidence. Immediately after the accident also that a complaint was given to the Kazipet police under Ex.A.5 and also case was registered by the Secunderabad railway police under Ex.A.3, filed charge sheet against the driver of the Crane, by all it goes to show that only due to the accident in operating the crane by its
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driver that the accident was occurred, as such this issue is answered in favour of the petitioner.
12. ISSUE No.2 : It is the contention of the petitioner that he was aged about 32 years old and used to earn Rs.3000/- per month by doing labour work. In order to substantiate about his age the petitioner has not adduced any evidence and so also about his earning capacity. Even otherwise that the petitioner attend for any coolie work that he can earn Rs.3000/- per month @ Rs.100/- per day. So it is to be consider that the petitioner can earn Rs.3,000/- per month and the same can be take in to consideration in fixing the compensation.
13. The petitioner claimed an amount of Rs.75,000/- towards medicine and treatment. In order to prove the same the petitioner filed Ex.A.8 medical prescriptions (five in number), Ex.A.7 bunch of medical bills and Ex.A.10 x-ray films to show that he purchased the medicines from outside. The petitioner admitted in Life Line Hospital which is a private hospital where the treatment will be given on payment of charges and the patient has to purchase the medicines from out side. From the evidence of Pw.2 it also goes to show that the Pw.1 taken treatment as inpatient for about 18 days and on the second occasion for about three days and while taking treatment that he has to purchase medicines and further even after discharge from the hospital that he has to use the medicines for complete recovery as per the Ex.A.8 prescriptions issued by Pw.2. As seen from Ex.A.7 bunch of medical bills which are filed to a total sum of Rs.17,795/- only it includes the hospital charges. The claim made for medicines and treatment is Special
Damages and the same has to be granted only against the documentary proof. In this case that the petitioner filed bunch of medical bills to a total sum of Rs.17,795/- only and as such the petitioner is entitled to a sum of Rs.18,000/- under this head.
14.The petitioner claimed an amount of Rs.5,000/- towards transportation to the hospital. Immediately after the accident as he sustained fracture to the legs, as such he may not be in a position to move and he must necessarily shifted from the place of accident to Life Line Hospital which is about 5 to 6 k.m. Away from the place of accident in a private vehicle and after discharge from the hospital as the POP applied to his right leg that he may not be in a position to move and he must also be taken in a private vehicle to his house and also to be taken further on the second time to the said hospital for treatment , by taking in to consideration of those factors that the petitioner can be awarded an amount of
Rs.2,500/- under this head.
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15.The petitioner claimed a sum of Rs.5,000/- towards extra nourishment charges. Since the petitioner sustained three fracture injuries, for speedy recovery that he has to take extra nourished diet and taking in to consideration of his earning capacity that the petitioner can be granted an amount of Rs.4,000/- under this head.
16.The petitioner claimed Rs.60,000/- towards pain and suffering. Since the petitioner sustained three fracture injuries and one simple injury and the fracture injuries also operated that the pain and suffering will be more and he has to suffer till he completely recover from the said injuries. Under Schedule-2 of M.V. Act for fracture injury an amount of Rs.5,000/- can be granted and for non fracture Rs.1,000/-. Since the petitioner in this case underwent operation on two occasions by admitting in the hospital, so taking in to consideration of the said factors that the petitioner can be granted an amount of
Rs.20,000/- under this head.
17.The petitioner claimed Rs.3,65,000/- towards continuing and permanent disability. The petitioner also filed Ex.A.9 disability certificate issued by Pw.2 to show that he is having permanent disability of 55% due to the said injuries. The Pw.2 also filed
Ex.X.1 case sheet of the petitioner maintained in their hospital. When coming to the evidence of Pw.2 who categorically admitted that he is also one of the member of Medical
Board of the MGM hospital and he issued Ex.A.9 disability certificate that the petitioner is having disability about 55% of permanent partial disability. In the cross examination it was elicited that Pw.2 cannot say individually due to the which injury that the disability was caused, but it was caused due to the cumulative effect of all the injuries. The disability is about 30% due to the loss of heel and 25% for the deformity of the ankle joint and further admits that he has not specifically mentioned the percentage of disability for which injury and he denied to the suggestion that he issued Ex.A.9 falsely only to help the petitioner to get compensation. The learned advocate for the petitioner contended that the medical certificate issued by the Orthopedic Surgeon and it is to be take in to judicial notice and in support of his contention he relied in a decision reported in 2012 (1) TAC 489 (Sikkim)
between Branch Manger, New India Assurance Company Limited, Gangtok, Sikkim
Vs. Bikram Chettri and another wherein his lordships observed that “ In any case, the certificate having been issued by a recognized Orthopedic Surgeon under his seal and signature, it is permissible in law to take judicial notice of it”. In this case also that the
Ex.A.9 was confronted with Pw.2 at the time of his examination and who also deposed that he is one of the member of the Medical Board of MGM hospital and he is also an Orthopedic
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Surgeon, so under such circumstances that he is competent to issue certificate and his evidence can be take in to consideration. The respondent also not adduced any contra evidence to disbelieve the contents of Ex.A.9 certificate.
18.The learned advocate for the petitioner further contended that the court has to take in to consideration about the loss of future earnings on account of permanent disability and in support of his contention he relied in another decision reported in 2012 (1) T.A.C.
22 (S.C.) between Ibrahim Vs. Raju and others wherein their lordships observed that “ the award of future earning on account of permanent partial disablement ex-facie unreasonable, but a just compensation which is reasonable on the basis of evidence produced on record can be awarded.” In the present case that the petitioner produced
Ex.A.9 disability certificate and also proved the same through Pw.2, the doctor who treated him who also being one of the member of the Medical Board. The Pw.2 also opined in
Ex.A.9 that it is a deformity is a permanent partial one. In this case that there is no amputation to any of the either upper or lower limbs of the petitioner that he only sustained fracture and there is a loss of sole of the right foot. The Pw.2 also deposed that he has not mentioned the disability for injury-wise as a whole he given Ex.A.9 certificate. Even there is a loss of sole of foot that there may be some difficulty while walking, but it is not a complete disability for the petitioner and so far the fracture injuries is concerned that the disability is only partial one till he completely recover from the said fracture injury that he may not be in a position to attend normal work, it will take about six months to one year for complete re-union of the fracture bones and during that period the petitioner may not be in a position to attend for any hard work and after that as usual he can attend to any work. In this case it is contended by the petitioner after he met with accident that he has not attending to any duty and kept idle and his family members are depending upon him, as such there is a complete disability for him. Even it is take in to consideration that there is some disability due to the loss of sole of right foot that it cannot be said that it is 30% disability for him and so far the fracture injuries of the bones are concerned and when they are completely re-united that there may not be any such permanent disability for him.
Under such circumstances that the disability for the petitioner can be fixed at 20%. The
Rw.2 in her evidence also admitted that once the matter was referred for compromise and they offered to pay Rs.1,10,000/- in Lok Adalath settlement and the petitioner failed to accept the same.
19.Since the income of the petitioner is taken as Rs.36,000/- (Rs.3,000 x 12) per annum and there is no dispute in respect of the age of the petitioner was 32 years old at
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the time of accident that the multiplier (16) is applicable as per AIR 2009 SUPREME
COURT 3104 between Smt. Sarla Verma and others Vs. Delhi Transport
Corporation and another. So, the actual loss comes to Rs.5,76,000/- (Rs.36,000/- x 16) since it is take in to consideration that there is disability of 20% that the petitioner can be awarded a sum of Rs.1,15,200/- (Rs. 5,76,000 x 20/100).
20.In view of the above said observations and findings that the petitioner is entitled for total sum of Rs. 1,59,700/- towards compensation as shown below:
1)Towards Medicines and TreatmentRs. 18,000/-
2)Towards transportationRs. 2,500/-
3)Towards extra nourishmentRs. 4,000/-
4)Towards pain and sufferingRs. 20,000/-
5)Towards continuing or permanent disabilityRs. 1,15,200/- ------------------------------ Total : Rs. 1,59,700/- ------------------------------ (Rupees One Lakh Fifty Nine Thousand Seven Hundred only)
21.It is the contention of the learned advocate for the respondent and also the evidence of Rw.2 that the petitioner also filed earlier petition in O.P. 1206/2006 on the same cause of action and as such the second petition is not maintainable under law and in support of his contention that they also filed Ex.B.1 certified copy of petition in O.P. 1206/2006 on the file of III Additional District Judge, Warangal. The Pw.1 also admitted his signatures on
Ex.B.1 is that of him. The learned advocate for the petitioner argued that the earlier O.P.
1206/2006 was dismissed for default and not so far restored to file as the second petition is maintainable under Law and in support of his contention he relied in a decision reported in 2008 (3) T.A.C. 315 (Delhi) between Baby Rinki and others Vs. Surendra Singh and others wherein his lordships observed that “ the fact of withdrawal of the first petition vide orders dated 25th May, 2000 was brought to the notice of the Tribunal, but the fact on concealment on the part of the petitioners overpowered the rationale and conscience of the
Presiding Judge. The Tribunal in such eagerness failed to realize that no motive could be attributed to the claimants in filing two separate claim petitions.” As seen from the facts of the above said case that two different MACT cases filed by the petitioners through two different advocates for the same cause of action. But in this case that as seen from the
Ex.B.1 goes to show that the present advocate for the petitioner himself filed the earlier application in O.P. 1206/2006. It is undisputed fact by both parties that the O.P.1206/2006 was dismissed for default, so far the said application was not restored to the file. As per
Section 11 of the Code of Civil Procedure the application of res-judicata does not arise
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unless the rights of the parties are decided in the earlier suit and it was completely adjudicated then the filing of the second suit or petition on the same ground between the same parties or their successor claimants, then only the earlier finding will operate as res- judicata. In this case that the earlier OP 1206/2006 was dismissed for default and the rights of the parties are not adjudicated therein. The filing of present second petition is maintainable as the orders passed in the earlier OP 1206/2006 will not operate as res- judicata as the rights of parties are not decided therein, though both the petitions are filed under the same cause of action of the same accident.
22.It is undisputed fact by both parties that the Crane is having valid insurance policy at the time of accident and the respondent also filed Ex.B.2 copy of insurance policy.
Since it is observed that while the driver discharging his duties he negligently acted and responsible for the accident and sustaining of injuries by the petitioner and the first respondent/owner of the said Crane and the second respondent has to indemnify to the first respondent, under such circumstances that the respondents 1 to 3 are jointly and severally liable to pay the compensation.
23.ISSUE No.3 : Since the issues No. 1 and 2 are answered in favour of the petitioner that this petition is allowed partly.
24.In the result, this petition is allowed partly by awarding a sum of Rs.
1,59,700/-(Rupees One Lakh Fifty Nine Thousand Seven Hundred only) towards compensation with interest @ 6% per annum on the said sum from the date of this petition i.e., 12/7/2007 till the date of deposit or realization with proportionate costs.
25.The respondents 1 to 3 are jointly and severally liable to pay the amount as awarded with accrued interest and proportionate costs and shall deposit the same in to the
Court within 30 days from the date of this award.
26.The rest of the petition claim is hereby dismissed. The Advocate fee is fixed at Rs. 1,000/-.
27.Disbursement of the compensation amount:- Upon depositing the amount by the respondents 1 to 3 that the petitioner is initially entitled to withdraw an amount of
Rs.1,00,000/- (Rupees One Lakh only) and the rest of the amount including the accrued interest and costs shall be kept in fixed deposit in any Nationalized bank for a period of two years.
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28.The petitioner is directed to open a bank account in any nationalized bank nearer to their place of residence or native place and furnish particulars to this court.
29.As seen from the record that initially the petitioner failed to pay the Court Fee of Rs.4,460/- and he was exempted to pay the same temporarily as per orders in I.A.
1706/2007, dt: 12/7/2007. Since the petition is disposed off that the petitioner is liable to pay the Court Fee of Rs.4,460/- within 30 days from the date of this award and the office is directed not to prepare decree and not to furnish copies of the award and decree to the petitioner until payment of said Court Fee.
(Dictated to the Personal Assistant, transcribed by her, corrected and pronounced by me in the open Court on this day the 19th day of March, 2012.)
Sd/- V. PRABHAKARA RAO
THE CHAIRMAN,
MOTOR ACCIDENTS CLAIMS
TRIBUNAL-CUM-VII A.D.J,
WARANGAL.
APPENDIX OF EVIDENCE
Witness Examined
For Petitioner : For Respondents :
Pw.1: R. Kumara SwamyRw.1: N. Kalpana Pw.2 : Dr. G. Krishna MurthyRw.2: Sandhya Jagannathan
Documents Marked
For Petitioners :
Ex.A.1/ Certified copy of F.I.R. along with the copy of complaint. Ex.A.2/ Certified copy of Wound Certificate. Ex.A.3/ Certified copy of Charge Sheet. Ex.A.4/ Certified copy of Medical Certificate issued by Life Line Hospital. Ex.A.5/ Certified copy of F.I.R. In Cr.No.276/2005 of Kazipet P.S. Ex.A.6/ Original discharge card of Life Line Hospital, Warangal. Ex.A.7/ Bunch of medical bills. Ex.A.8/ Medical Prescriptions (5 in number) Ex.A.9/ Disability Certificate Ex.A.10/ X-ray film (4 in number)
Ex.X.1/ Case Sheet.
For Respondents :
Ex.B.1/ Petition copy in MVOP 1206/2006 Ex.B.2/ Copy of Insurance policy.
Sd/- V. PRABHAKARA RAO
THE CHAIRMAN,
MOTOR ACCIDENTS CLAIMS
TRIBUNAL-CUM-VII A.D.J,
WARANGAL.