Smt. C.Padmaja v. K.Venkata Siva Reddy
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH **** M.A.C.M.A. No.289 of 2009 Between:
Smt. C. Padmaja. .... Appellant And K.Venkata Siva Reddy and another. .... Respondents DATE OF JUDGMENT PRONOUNCED: 20.07.2015 SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers may be allowed to see the judgments? Yes / No
2. Whether the copies of judgment may be marked to Law Reporters / Journals? Yes / No
3. Whether Their Lordship wish to see the fair copy of the Judgment? Yes / No THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.289 of 2009 JUDGMENT:
Aggrieved by the Award dt: 28.11.2008 in O.P.No.438 of 2006 passed by the Chairman, M.A.C.T-cum-III Additional Chief Judge, City Civil Court, Hyderabad (for short 'the Tribunal'), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus: a) On 17.08.2005, the claimant, her husband and her father were travelling in the Maruthi car bearing No.AP 9 N 6471 to Kurnool and when they reached near Pebbair village on N.H7, one Toyota Vehicle bearing No.AP 16 DL/TR 1141, came in the opposite direction being driven by its driver in a rash and negligent manner and collided with the claimant's car, causing grievous injuries to the passengers. In the resultant accident, the claimant suffered fractures to right femur and pubic rami. Immediately after the accident, the claimant and her father were shifted to Government Hospital, Kurnool and later shifted to Gowri Gopal Hospital and from there she was shifted to Yashoda Hospital.
It is averred that the accident was occurred due to rash and negligent driving by the driver of the offending Toyota car. On these pleas, the claimant filed O.P.No.438 of 2006 under Section 166 of Motor Vehicles Act, 1988 (for short "the Act") against respondent Nos.1 and 2, who are owner and insurer of the offending Toyota Car and claimed Rs.10,00,000/- as compensation.
b) Respondent No.1 remained ex parte. c) The second respondent/Insurance Company filed counter denying all the material averments and contended that the accident was occurred due to the contributory negligence by the driver of claimant's car and that the driver of the insured vehicle had no valid driving licence. R.2 denied the injuries sustained by the claimant and the alleged expenditure incurred by her. Finally R.2 contended that claim of the claimant is highly excessive and exorbitant and prayed to dismiss the OP. d) During trial, PWs.1 and 2 were examined and Exs.A1 to A13 were marked on behalf of claimant. Policy copy filed by R.2 was marked as Ex.B.1.
e) After trial, the Tribunal basing on the evidence on record held that the claimant is entitled to Rs.1,40,000/- as compensation under different heads as below:
For two fractures Rs. 60,000-00 Facial lacerations Rs. 5,000-00 Pain and suffering Rs. 10,000-00 Future operation expenses Rs. 60,000-00 Nutritious food, transport & Attendant expenses Rs. 5,000-00 ------------------- Total Rs.1,40,000-00 ------------------- In view of the Tribunal's finding in issue No.1 that there was contributory negligence of equal ratio by the drivers of both the vehicles, it reduced the compensation by 50% and granted Rs.70,000/- with proportionate costs and interest at 7.5% p.a to
the claimant.
Hence, the appeal by claimant.
3) The parties in the appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri C. Vikram Chandra, learned counsel for appellant/claimant and Sri R. Venkat Rao, learned counsel for respondent No.2/Insurance Company. Though notice to R.1 was served but there is no representation on his behalf, hence treated as heard.
5) Fulminating the award, learned counsel for appellant/claimant argued that the compensation awarded under different heads is grossly low for the following reasons: a) Firstly that inspite of cogent evidence placed by the claimants that the accident was occurred due to the sole fault of driver of the opposite vehicle i.e, Toyota Car and inspite of absence of rebuttal evidence placed by the respondents, the Tribunal purely on the basis of conjecture, opined that it was a head on collision and hence the drivers of both the vehicles were equally responsible for the accident and reduced compensation by 50%. In this process, the Tribunal made two grossly wrong observations as if the claimant has not examined her husband who was driving their Maruthi Car and that she did not produce his driving licence. Learned counsel argued that unfortunately the Tribunal did not peruse the record to know
that claimant's husband died while being shifted to Hospital and claimant produced his driving licence which is marked as Ex.A.10.
b) Secondly, he argued that the Tribunal did not grant any compensation towards medical expenditure though the claimant took treatment in a Corporate Hospital i.e, Yashoda Hospital, Somajiguda and produced discharge summary and other medical bills showing her medical expenditure. c) Thirdly, he argued that the claimant suffered 30% permanent disability but the Tribunal has not granted any compensation.
He thus prayed to allow the appeal.
6) Per contra, while opposing the appeal learned counsel for respondent No.2/ Insurance Company argued that compensation awarded under different heads was just and reasonable and there is no need to revise the same. 7) In the light of above rival arguments, the point for determination in this appeal is:
"Whether the award passed by the Tribunal is factually and legally sustainable?"
8) POINT: The first grievance of the appellant is that the Tribunal erred in holding that claimant's husband being the driving of their car equally contributed for the accident. A perusal of the award shows that the Tribunal held that drivers of
both the vehicles were collided because of negligence in equal ratio. To come to this opinion, the Tribunal firstly observed that it was a head on collision between the two vehicles, secondly that the claimant has not examined her husband to show that there was no fault on him and thirdly that she did not produce his driving licence. On a perusal of the record, I am constrained to hold that these observations are classic examples of how callously and blindfoldedly learned Chairman of the M.A.C.T came to such conclusion. Ex.A.1-FIR was lodged by the father of claimant, who happened to travel along with her in the illfated car which was driven by his son-in-law-C.V.N.Prasad. He clearly mentioned in Ex.A.
1 that in the resultant accident all the three of them suffered injuries and his son-in-law succumbed to injuries while being shifted to Hospital at Kurnool. Hence the question of claimant examining him does not arise. The driving licence of the deceased is concerned, the claimant produced his driving licence which is marked as Ex.A.10, which shows that he was holding valid driving licence. Then the head on collision is concerned, it is nobody's case. The version of PW.1-injured was that on the way the offending Toyota Car came in the opposite direction at high speed being driven by its driver in a rash and negligent manner and dashed their car. She asserted that fault lies with the offending driver only. Her version was corroborated by Ex.A.
2-charge sheet which shows that police too after investigation found fault with the driver of Toyota car and charge-sheeted him.
evidence and to establish the contributory negligence on the part of the deceased, respondents did not place any evidence. There was no material on record to hold that the husband of the claimant equally contributed for the accident. The observation of the Tribunal in this regard is totally wrong and unwarranted and therefore, it is held that the accident was occurred purely due to the fault of driver of offending Toyota car.
9) Then compensation is concerned, as rightly argued by the appellant, the Tribunal did not grant any compensation towards medical expenditure on the observation that medical bills were not proved through the doctor. The claimant produced Ex.A.8 -medical bills said to be issued by different pharmacies. The Tribunal observed that concerned doctor was not examined and no prescriptions are filed and on that ground did not grant any medical expenditure. Be that it may, it must be noted that as per Ex.A.4-discharge summary, the claimant took treatment in a Corporate Hospital like Yashoda Hospital at the first instance from 19.08.2005 to 29.08.2005 and again from 07.12.2006 to 19.12.2006.
Having regard to the cost factor involved in getting treatment in a Corporate Hospital, the Tribunal ought to have granted a reasonable compensation for medical expenditure even though the claimant failed to prove the medical expenditure. In such consideration, the claimant is awarded Rs.25,000/- towards medical expenditure. a) Then disability is concerned, PW.
limb. It is true that the doctor did not reveal any associated problems due to the disability. The Tribunal on the observation that there was no loss of income due to disability, did not award any compensation. It is only partially correct. Even assuming that there is no proven loss of income due to disability, still the disability in her right lower limb will cause hindrance to some extent to her day-to-day activities. As such, in my considered view, she deserves compensation for loss of basic amenities. Accordingly, she is awarded Rs.20,000/-. Thus the total compensation payable to the claimant under different heads can be stated thus:
For two fractures Rs. 60,000Facial lacerations Rs.
5,000-00 Pain and suffering Rs. 10,000-00 Future operation expenses Rs.
60,000-00 Nutritious food, transport & attendant expenses Rs. 5,000-00 Medical expenditure Rs.
25,000-00 Loss of basic amenities Rs.
20,000-00 -------------------- Total Rs.1,85,000- -------------------- So at the outset, the compensation awarded by the Tribunal is enhanced by Rs.1,15,000/- (Rs.1,85,000/- minus 70,000/-).
10) In the result, this M.A.C.M.A is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.1,15,000/- with proportionate costs and simple interest @ 7.5% per annum from the date of OP till the date of realization. b) The respondents 1 and 2 are directed to deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against them.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_________________________ U. DURGA PRASAD RAO, J Date: 20.07.2015 Note: L.R Copy to be marked: Yes / No.
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