G. Ramakrishna S/O. Suryanarayana Vs. G. Narayana Reddy S/O. G. Rami Reddy and United India Insurance Company Ltd., Represented by Its Divisional Manager - Court Judgment

C.Y. Somayajulu, J.

1. Appellant, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 ('the Act') alleging that he is the cleaner in the lorry of the first respondent which was taken to Hampapuram to pick up a load of Cheeni fruits for being transported to Bangalore and after the lorry was loaded with Cheeni fruits, the driver asked him to grease the vehicle, and he was greasing the vehicle the driver suddenly started the lorry and so the rear wheels of the lorry ran over his right leg resulting in a fracture and so he was admitted in the Government Head Quarters Hospital, Anantapur, for treatment and as the first respondent requested him not to disclose the truth, with a promise that he would settle the claim, he did not state correct facts to the doctor but as first respondent did not fulfil his promise and did not pay any compensation he is filing the petition seeking compensation of Rs. 1,25,000/- from the first respondent and the insurer-second respondent.

2. First respondent chose to remain exparte before the Tribunal.

3. Second respondent filed a counter inter alia contending that the averment that the accident was occurred due to the rash and negligent driving of the driver of the lorry of the first respondent at Hampapuram and that he sustained injuries in that accident is not true. In fact, appellant did not sustain injuries as alleged in a motor accident.

4. In support of his case, the appellant examined himself as P.W.1 and the driver of the lorry as PW.2 and the owner of the Cheeni garden as P.W.3 and Doctor as P.W.4 and marked Exs.A1 to A.4. No oral evidence was adduced by the second respondent, but Exs.B1 and B2 were marked by consent on its behalf.

5. The Inspector of Police, Anantapur I Town Police Station was examined as C.W.1.

6. On the basis of the evidence, the Tribunal held that the appellant failed to prove the accident and so he is not entitled to any compensation and dismissed the claim petition. Hence, this appeal.

7. Heard the learned Counsel for the appellant. No representation on behalf of the respondents though served.

8. The points for consideration are:

1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry of the first respondent. 2. To what compensation, if any, is the appellant entitled to.

POINT No. 1:

9. After going through the entire material on record, I am of the opinion that the claim petition was filed in collusion between the appellant and the first respondent. That must be the reason for the Tribunal permitting the second respondent to adduce evidence with regard to the negligence on the part of the driver of the lorry as alleged by the appellant, and so permission under Section 170 of the Act to the second respondent to take all the pleas open to the owner can be implied.

10. The evidence of P.W.1 (appellant) is that when he was greasing the lorry, the driver started the vehicle acting on the signal given by a hamali and so the back wheels of the lorry ran over his right thigh resulting in a facture to his right thigh bone and that he was taken to Anantapur in that lorry and was admitted in a private hospital and from there he was taken to the Government Hospital, Anantapur, and the owner of the fruit Garden, from which fruits were loaded into the lorry, by name Rangappa incorrectly reported to the Doctor that he fell down from a height, and that he took treatment in the hospital for 2 1/2 years after undergoing an operation. During cross examination he stated that on the day of admission he did not inform the doctor as to how he received injuries but on the next day he informed the doctor that he received the injuries in a lorry accident, and filed a private complaint against the owner of the goods and also the driver for their cheating him and that he mentioned in the complaint that the accident took place on 03.11.1992 and that his elder brother filed a private complaint, and admitted that the petition field by him under Section 140 of the Act was dismissed.

11. The evidence of P.W.2 is that he was engaged to drive the lorry of the first respondent from Hampapuram to Bangalore with Cheeni fruits, and after the fruits were loaded into the lorry, he asked the appellant, the cleaner of the lorry, to grease the wheels and chasis of the lorry and as he heard a signal to start, thinking that the appellant himself had given that signal, he started the lorry and then came to know that the appellant did not complete greasing the lorry, and stopped the lorry on hearing the cries of the appellant and in the process the back wheels of the lorry ran over the leg of the appellant, and as the owner asked him to go away, he went away and that police filed a case against him, and that he paid the fine imposed against him and that the accident occurred only due to his negligence. During cross-examination he stated that he has no record to show that he worked as the driver of the lorry of the first respondent and that he did not give a report to the police after the accident and that the appellant was working in the lorry of the first respondent from four or five years prior to the accident and that the trip sheet contains the names of the driver and owner only but not the name of the cleaner and that he does not know the name of the owner, and denied the suggestion that he is giving false evidence with a view to help the appellant, and to defraud the second respondent, and that appellant had in fact sustained injuries due to a fall from height.

12. The evidence of P.W.3 the owner of the Cheeni garden, is that a lorry came to his orange garden for taking the load of oranges and even when the cleaner was greasing the lorry, the driver, without noticing that fact, started the lorry and the rear wheels of the lorry ran over the legs of the cleaner and that the driver without stopping the lorry went away to Bangalore and thereafter, the injured was taken to the Government Headquarters Hospital, Anantapur, for treatment by some persons. During cross examination he stated that he does not know the name of the owner of the lorry and does not know under whom the appellant was working at that time, and as his father, the owner of the Cheeni Garden, is an old man, he is looking after its cultivation etc., and that he sold the oranges to one Rangappa, a resident of Kattakindapalli but did not obtain any receipt, and when the rear wheels were about to run over the legs of the appellant, the hamali shouted and so the lorry was stopped but then itself the right leg of the appellant was run over by the rear wheels of the lorry.

13. The evidence of P.W.4-Doctor is not relevant for deciding this point.

14. The evidence of C.W.1 inspector of Police, Anantapur is that on the basis of a private complaint received from the Court, he registered a case in Crime No. 190 of 1992 under Section 338 IPC but by mistake he noted the date of accident as 03.11.1993 and while he was investigating into the case he was transferred and so the Sub-Inspector of Police, conducted the further investigation. During cross-examination for the second respondent he stated that the private complaint given by brother of the appellant, about 9 months after the incident, was referred to the police by the Court and that the date of offence is mentioned as 03.11.1992 in the F.I.R. and that he examined one Mallikarjuna, D. Narasimhulu and G. Shanker, the owner of the vehicle and that all of them stated that the accident took place on 03.11.1992 and that in the charge sheet also the date of accident is mentioned as 03.11.1992, and his investigation also disclosed that the accident took place on 03.11.1992. During cross-examination for the appellant, he stated that the private complaint also disclosed that the accident took place on 03.11.1992 and the wound certificate produced disclosed that the injured was admitted in the hospital on 11.03.1992. During re-examination he stated that the wound certificate was obtained by him on 16.10.1993.

15. The contention of the learned Counsel for the appellant is that inasmuch as P.W.2, the driver of the lorry, admitted that the accident took place due to his negligence, the Tribunal was in error in dismissing the claim petition. As stated earlier the case seems to have been instituted in collusion between the appellant and the owner to defraud the 2nd respondent-insurer. So it is not safe to rely on the oral evidence which is contrary to the documentary evidence. So the case cannot be decided merely on the basis of the evidence of P.W.2.

16. In column No. 8 of the claim petition the date of accident is mentioned as 11.03.1992. In the charge sheet the date of accident is mentioned as 03.11.1993. May be it is a mistake for 03.11.1992, the First Information Report, which is registered after the private complaint was referred to the police for investigation the date of accident is mentioned as 11.03.1992 and that the appellant, while on duty as a cleaner of the lorry bearing No. AP02 2772 met with an accident due to the negligence of the driver. Ex.B.1, produced by the second respondent, shows that the appellant went to the Government Headquarters Hospital, Anantapur and was examined by the Civil Assistant Surgeon, who recorded that the appellant informed that he sustained the injury due to an accident by fall from height near his residence on 11.03.1992, and that there was a swelling of right thigh in its upper part and middle thigh. Ex.A2, which was issued on 16.10.1993, shows that the appellant was earlier examined on 11.03.1992. In view of Ex.B.1 genuineness of Ex.A.2 is doubtful. If the appellant went to the Government Hospital and informed the Doctor, who examined him on 11.03.1992 that he sustained an injury due to a motor accident, the Doctor would have intimated the police about the injury in an accident to the police, and the police would have definitely swung into action and registered a case. So merely because Ex.A.2 shows that the appellant sustained injuries in a lorry accident on 11.03.1992 at 5.00 P.M., it cannot be said that the appellant received injuries in an accident caused by the lorry, more so because Ex.B1, shows that he received the injury due to fell from a height near his residence accidentally on 11.03.1992 at 5.00 p.m.

17. In the private complaint filed by the brother of the appellant he alleged that on 11.03.1992 the appellant was on duty as cleaner of the lorry bearing No. AP02 2772 belonging to Y. Narayana Reddy resident of Anantapur. But he cited T. Shanker as owner of the lorry. The evidence of C.W.1 shows that he examined G. Shanker, the owner of the vehicle. Ex.A.3, which is a copy of the insurance policy shows that an unnumbered 1991 model lorry belonging to G. Narayana Reddy son of G. Raja Reddy was insured with the second respondent from 09.07.1991 to 08.07.1992. When G. Shanker became the owner of the lorry is not known from the evidence on record. The brother of the appellant who filed the private complaint is not examined.

18. Had the accident occurred on 03.11.1992, Ex.A.3-insurance policy was not be in force because its validity is only till 08.07.1992.

19. The appellant did not take steps for production of the case sheet maintained by the hospital during the period of his treatment, which would have revealed the actual injuries on his person at the time of his admission into the hospital. Since it is the case of the appellant that the rear wheels of a lorry loaded with cheeni fruits ran over his right leg, the injury caused in such an event must be a crush injury, and both his legs must have been crushed if really the accident took place when he was greasing the lorry by going underneath it.

20. The evidence of P.W.3 shows that the driver sped away after causing the accident even without stopping it. But the evidence of P.W.2 is that he stopped the lorry, and as the owner asked him to go away, he went away. So according to P.W.2, the lorry was stationed at the scene of offence of accident only. But the evidence of P.W.3 is different. P.W.2 must have admitted the offence before the Magistrate, only with a view to help the appellant obtaining compensation for the 2nd respondent in collusion with the first respondent. That that is so is evident from Ex.B.1 which shows that the appellant was injured due to a fall from height.

21. Appellant failed to produce any record to show that the lorry covered by Ex.A2 policy is the lorry bearing No. AP02 2772 referred to in the charge sheet, and that it was actually standing in the name of the first respondent at the time of the alleged accident. For that reason also the second respondent cannot be made liable to pay any compensation to the appellant.

22. Since P.W.2 admitted that he committed an accident and since the first respondent chose to remain exparte, they only but not the second respondent that can be made liable for payment of the compensation payable to the appellant. The point is answered accordingly.

POINT NO. 2:

23. The evidence of P.W.1 shows that he suffered a fracture to his right thigh bone and underwent treatment for 2 1/2 years. But he did not produce any documents to show the treatment undergone by him. The evidence of P.W.4 is that he treated P.W.1, who absconded on 12.05.1994 and that appellant has 35 to 40 percent permanent disability and requires further treatment.

24. Since evidence of P.W.4 shows that the appellant sustained fracture, Rs. 7,500/- would be a reasonable amount of compensation to the appellant for pain and suffering. 25. Since the appellant claimed that he underwent treatment for about 2 years assuming that his salary was Rs. 1,000/- per month, he can be awarded Rs. 24,000/- as damages for loss of earnings during the period of treatment.

26. Rs. 10,000/- can be awarded towards attendant charges and purchase of medicines and transport to hospital etc.,

27. Keeping in view the age of the appellant Rs. 50,000/- can be awarded to him towards continuing permanent disability.

28. Thus, the appellant entitled to Rs. 7,500/- + Rs. 24,000/-, + Rs. 10,000/- + Rs. 50,000/- = Rs. 91,500/- from the first respondent but not the second respondent.

29. In the result, the appeal is allowed in part without costs against the first respondent and an award is passed for Rs. 91,500/- in favour of appellant and against first respondent only with interest at 9% per annum from the date of the petition till the date of deposit with proportionate costs in the Tribunal. Rest of his claim is dismissed without costs. Claim against the second respondent is dismissed with costs throughout.