Full Judgment
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.501 OF200730-01-2014 N.Shankar...Appellant K.Devagiri and 2 others... Respondents Counsel for the Appellant : Sri P.Gangarami Reddy Counsel for the Respondent No.3: Mr.Ravishankar Jandhyala : : ?.Cases referred:
1. 2009 ACJ12982. (2001) 8 SCC197HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.501 OF2007JUDGMENT
: The unsuccessful claimant preferred this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal- cum-I Additional District Judge, Mahabubnagar, (for short, 'Tribunal') in M.V.O.P.No.338 of 2004 dated 28.12.2006, dismissing the claim petition against his claim of Rs.1,25,000/-(Rupees one lakh twenty five thousand only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, 'the Act').
2. Heard Sri P.Gangarami Reddy, the learned counsel for the appellant and Smt.A.Jayanthi, learned standing counsel for the 3rd respondent. Notice to respondent Nos.2 and 3 sent and served, but not appeared and they also remained exparte before the Tribunal and thus taken as heard respondent Nos.2 and 3 to decide on merits. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
3. The contentions in the grounds of appeal as well as oral submissions by the appellant-claimant in nutshell are that the Tribunal ought to have awarded the compensation claimed of Rs.1,25,000/-, tribunal erred in saying the accident took place solely on the negligence of the injured-claimant instead of holding the moving lorry coming from the opposite direction also contributed and thereby sought for allowing the appeal by setting aside the dismissal order awarding just compensation.
4. Whereas, it is the contention of the 3rd respondent insurer that the Tribunal is right in coming to the conclusion having recorded the evidence fresh in mind by appreciation of the facts and for this Court while sitting in appeal, there is nothing to interfere with the dismissal of the claim. Hence, to dismiss the appeal which is nothing but vexatious with costs.
5. Now the points that arise for consideration in the appeal are:
1. Whether the award of the Tribunal dismissing the claim petition impugning herein is unsustainable and requires interference by this Court and if so with what what observations?.
2. To what result?. POINT-1:
6. The fact that the claimant-injured who came to the witness box also as P.W-1 was not holding any driving licene muchless evidence to say experienced in riding a bike even that too not the owner of the vehicle muchless authorized. Having taken the bike of his friend P.W-3 Ramesh proceeded that too as can be seen from the evidence on record while under intoxicated condition and in so proceeding at the scene of offence on the fateful time he dashed to the running lorry coming in opposite direction. The finding of the Tribunal therefrom is though police on the report given registered the crime as if the lorry driver was negligent, from the investigation revealed all these facts including from scene observation with sketch that the bike is on the middle of the road, the claimant with a twisted version placed material by suppressing the material facts and deserves for dismissal.
7. In fact even from the referred report of the investigation officer, finding no fault on the part of the driver of the lorry under Section 173 Cr.P.C. covered by Ex.B-5 the factum that the lorry was moving. Even from the scene observation report with rough sketch Ex.B-4, it is the moving lorry and even in the case revealed from such investigation relied by the respondent-insurer through their witness and the claimant being in drunken condition drove the bike in zigzag manner. By appreciating with these circumstances, the factual matrix the main contribution to the accident is by the injured without much experience and without driving licence dashed the lorry also contributed despite finder of last opportunity to avert that while coming from opposite side not even from behind in an unexpected situation the accident took place and it is a fit case to say the contribution of the injured at 80% and the lorry driver of the 20% to assess reasonably. Thereby the dismissal of the claim in toto by the Tribunal is liable to be set aside.
8. Coming to the injuries suffered by the claimant-injured, the Tribunal in para 21 with reference to the evidence of P.W-4 doctor as well as the claimant with Ex.A-3 disability certificate and Ex.A-2 wound certificate found claimant suffered from the fracture of mal-united fracture of both bones of right leg spoken of 40% just to assess 10% more particularly his avocation is agriculturist. Even taken the 10% disability from the age of the claimant upto 30 years and the multiplier that is applicable as per Sarla Verma v Delhi Transport Corporation1 is 17 and not 18 and as on the date of accident 17.06.2003 his earnings can be estimated by following the Apex Court expression in Latha Wadhwa vs. State of Bihar2 being an agriculturist minimum Rs.3,000/- per month with escalation for two years comes to Rs.3,200/- and not Rs.70/- per day as arrived by the Tribunal, it comes to 10% on Rs.3,200/- = 320 x 12 x 17 = Rs.65,280/- besides that for the pain and sufferance to the fracture injuries an amount of Rs.20,000/- as the fracture is of the both bones of right leg and medical expenses, attendant charges and transport charges even taken and even the treatment is in the Government hospital and later at private hospital Rs.12,000/- i.e., 10% on 32,000/- = Rs.3,200/- + 65,280/- = 68,480/- rounded to Rs.68,500/-. Accordingly point No.1 is answered. POINT -2:
9. Accordingly and in the result, the appeal is partly allowed while setting aside the dismissal award of the Tribunal by granting compensation of Rs.68,500/- with interest at 7.5% p.a. from the date of appeal till the date of realization. Respondents 1 to 3 are jointly and severally liable to pay the compensation. The respondents are hereby directed to deposit said amount within one month from the date of receipt of copy of the order, failing which the claimant can execute and recover. The claimant is permitted to withdraw the entire amount after deposit is made by filing necessary petition before the Tribunal. There is no order as to costs.
10. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _______________________ Dr. B. SIVA SANKARA RAO, J Date:
30. 01-2014