Cholamandalam [\/.S. General lnsurance Co. Ltd v. 1. Bezawada Rajasekhar S/o Nehru

THE HON'BLE SRI JUSTICE NARSING RAO NA]U)IKONDA M.A.C.M.A.NO.09 0F 2020 JUDGMENT: This appeai has been preferred by th: appellant- Cholamand:rlam M.S.General Insurance Coml,any Limited aggrieved by Award ancl decree in M.V.O.P.No.254 of 2016, d,ated 01.08.20 1!), passed by the Chairman, Motor Accidents Claims Triltunal-cum District Judge, Khammam (for short, the Tribttrial').

2. For the sake of convenience, the parties hereinafter referred to, as they are arrayeri before the Tribunal.

3. The brief facts of the case .rre that on O5.06.2010 at about 13:30 hours, the claimar- along with other passengers were travelling in an Auto br:ztring No.AP- 20 Y 3230 from Sathupalli Village and \,l,hen t hey reached near Kakarlapalli Village on R&B Road, tht: Eicher Van bearing No.AP 2O-Y-456 came at high speed r a rash and negliBent manner and dashed the auto, due to u'hich the auto turned turtle, due to which the claimzrrrt and other inmates of the auto sustained injuries. Imnre diately after 2 NNR.J Macma 09 2020 the accident, the claimant was shifted to Government hospital, Sathupalli and from there he was shifted to Raghuram Orthopaedic hospital, Sathupalli for better treatment. The police Sathupalli registered a case in Crime No.99 of 2010 under Section 337 of IPC against the driver of Eicher Van.

4. At the time of accident, the claimant was aged about 22 years and he used to ea-rn an amount of Rs.9,000/- per month by running auto. The claimant sustained grievous injuries on the chest, fracture to right scapula, right hip and other multiple injuries all over the body. After 1 Yz year from the date of accident, he took treatment at NIMS hospital and later he took treatment at Manipal Super Speciality Hospital, Vijayawada, where he underwent surgery and incurred an amount of Rs. 1,78,O0O/-. He a-lso suffered disability on account of said accident, Respondent No.1 is owner of Eicher Van and respondent No.2 is insurer of the said vehicle and both the respondents a-re jointly and severally liable to pay compensation to the claimant 3 NNR.I 1\,1acma [x) 2020

5. Respondent No.1 remained ex pane before the Tribunal. In spite of service of notice, tirere is no representation on behalf of respondent No.2

6. The appellant-Insurarrce Company filed counter-affidavit denving the rnanner of accident, age, avocation ald income of the claimant. It is alst stated that the driver ol Eciher varl was not holding any vrrlid driving licence to <lrive the vehicle. It is also stated that the accident has occurred due to rash and negligent driving of driver of auto only, as such the insurance conrltany is not liable to pay compensation to the claimant aei hence, it prayed to dismiss the O.P.

7. Basing on the above pleadings, the Tribunal has framed the following issues for consideratrc,r: ? '1. Whether tlLe accident has occurred drre to rash and negligent driving of driver of Eciher Van bearing No.AP-2O-Y 456 resulting rn rn;uries to B.Rajasekhar?

2. Whether the claimant is entitled tb - claim of compensation as prayed? If so, to what quantum, and from which of the respondents? 3. To rvhat relieP" E. After analyzing the entire evidence available on record, the Tribuna-l held that the driver of the llciher Van 4 NNRJ Macma_09_2020 .'1,:' bearing No.AP-20-Y-456 was responsible for the accident and came to the conclusion that the accident has occurred due to rash and negligent driving of driver of Eicher van and accordingly granted compensation of Rs.2,58,O00/- to the claimant to be paid by respondent Nos.l and 2 jointly and severally with interest @7.5% per annum. Being aggrieved by the said compensation awarded by the Tribunal, the appellant-Insurance company filed the present appeal.

9. Heard Sri A. Ramakrishna Reddy, learned counsel for the appellant-Insurzrnce. Company. None appears for claimant-respondent No. 1.

10. Learned counsel for the appellant-respondent No.2 contended that though the claimant sustained grievous injury to Chest, fracture of right scapula, fracture of right hip and other multiple injuries all over the body, in trx.A.3-Medical Certificate, it refers to only fracture of right scapula and there is no mention about the facture of right hip. However, the Tribunal without considering the same, granted compensation to the claimarrt basing on Ex.A.3. I : , I i i i i I I r i'r 5 NNR,J It{acma 09 2020 He further submitted that except the eviden:r: of P.Ws. 1 and 2 that the claimant sustained fracture to rrght hip, no documentary evidence was produced 1n suplort of his contention. He further submitted that_ P.V/.1 himself admitted in his cross-examination that he war; admitted in NIMS Hospital on 27.O2.2O12 and there is n: mention of injury due to Road Trafl-rc Accident in the Dis;charge Card of NIMS Hospital. He a-lso submitted that for the purpose of claiming higher compensation, the claimanl .ncluded all the ailments in the claim petition an,l that the compensation awarded by the Tribunal is erroneous and same is liable to be set aside and hence, he prays to allow the appeal by setting aside the award and decree passed in M.V.O.P.No.254 of 2016, dated 01.08.2019 I 1. It is pertinent to refer to the judlJrnent of the Tribunal at paragraph No. 10 wherein it was h,:1d that "the ewidence of P.W. 1 shows that he suffered scapula injury and also fracture of right hip and other multiple injuries. Ex.A.3 is the injury certificatr: issued by Raghurarn Orthopaedic Hospital, Sathup:rlli. As per 6 NNR,J Macma @ 2020 Ex.A.3, the inJured suffered ftacture of lateral border of scapula." According to learned Standing Counsel for the appellant, as per Ex.A.3 -injury certificate issued by Raghuram Orthopaedic Hospital, Sathupalli, the claimant sustained only scapula injury and there is no reference with regard to fracture of hip. He also pointed out that since there is no reference about fracture of hip in Ex.A.3 and a-lso further treatment to be taken in respect of said injury. But, subsequently on account of continuous pain, the claimant went to one or two hospitals and hnally diagnosis was rightly made in Marripal hospital and fixed the problem. The Tribunal granted an amount of Rs.30,000/- under the head of 'pain and suffering'taking into consideration all the injuries, facture of scapula as well as fracture of hip. L2. Further, as seen from the record, the claimant took treatment in NIMS and he was adrnitted on

27.02.2012 and discharged on Ol.O3.2Ol2. As per the evidence of P.W.2 and Ex.A.7 shows that the petitioner was admitted for hip injury on O4.O5.2O12 and discharged on 7 NNR,J Macma 09 2020

08.05.2012. The evidence of P.W.2 and Exs ?..4 and A.7 show that the claimant took treatment e .t NIMS on

27.O2.2O12. The entire evidence placed by ..lLe claimant would show that the claimant get treatment fol the injuries sustained by him in the accident ald he rncurred an arnount of Rs.1,78,000/-. Ex.A. 11 is the treatrnent bill of Manipal hospital, Tadepalii, Vijayawada. Learr:.ed counsel for the appellant has contended that though :tre claimant produced Ex.A. 11 bill showing expenses incu.'red by him, he has not examined the person who issued E:.r\. 1 1.

13. Admittediy, there is no dispute rr:6larding the treatment being taken by the claimant at NIL{S Hospital, which can be culled out from the evidence of P.W.2. Further Ex.A.4 is the Discharge card issu<:ct by NIMS hospital, Hyderabad, Ex.A.5, Bunch of l-:rb reports numbering (3) of NIMS hospital, Hyderabad and Ex.A.6- Bunch of treatment bills numbering (a) of NIIVIS hospital In paragraph No.14 of the judgment, the learnerd Tribuna-l considering the evidence of P.W.2 and Ex.A.7, lrr-.ld that the claimalt admitted in the hospital on 04.,11i.20 12 for E NNR.J M?rma @ 2020 fracture of hip and discharged on 08.05.2012. The Tribunal also accepted bills produced by the claimalt pertaining to treatment taken at Manipal Hospital. Therefore, I do not see any ground to find fault with the findings given by the Tribunal and so also as to awarding of Rs.3O,OOO/- towards pain and suffering for injuries sustained by him. Admittedly, the injuries sustained by the claimant are grievous in nature injury, as such the compensation ',r,hich is granted under the head of pain and suffering appears to be just compensation so also granting of Rs.30,OOO/-towards loss of amenities and loss of expectation of life. Further, claimant has faced inconvenience on account of accident for nearly two years. Considering the said problem, this Court is inciined to take the period of rest as six months and calcuiate the same taking the monthly earning at Rs.3,O0O/- as taken by the Tribunal which comes to Rs. 18,000/-, towards temporar5l loss of earnings, which needs no interference by this Court. This Court anaJyzed the entire evidence on record and came to the conclusion that there are no grounds to 9 N^rll.J N{itcnrir 09 2020 interfere with the impugned Judgment. Henct'. the appeal is liable to be dismissed. L4. Accordingly, the appeal is dismiss:d. There shall be no order as to costs. Miscellaneous petitions, if any, pending :hal1 stand clo sed. SD/.MOHD. ISMAIL DEPUTY REGISTRAR //TRUE COPY// \ SECTION OFFICER '1 . The Chairman, lt/otor Vehicje Accident Claims Tribuna -cum- District Judge, To, Khammam.

2. One CC to Sri A Ramakrishna Reddy, Advocate [OPUt)] 3. One CC to Sri V brahmaiah chowdary, Advocate [OPU 3 4. Two CD Copies SGB/PSL :r-,:1 --_-;.-.-dffiJ> t HIGH COURT DATED:1710412025 ,,::t:. ,'rl,- .- \:\- - v . )t, / -....\. tr:.\\ ?ffi iri, i-/i 1'/.'/ ',/ JUDGMENT + DECREE MACMA.No.9 of 2020 /r'' ?1 TI t.. \: f:I DISMISSING THE MACMA WITHOUT COSTS (, \ \D ( IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA MOTOR AccIDENT clVlL MISCELLANEOUS APPEAL NO: 9 OF 2020 Between: Cholamandalam M.S. General lnsurance Co. Ltd.,, Represented by its Branch fVlanager, Floor, Hussain Street, Opposite Kalaniketan, Near Chennupati Petrol Bunk, It/.G. Road, Labbipet, Vijayawada ...Appellant AND

1. Bezawada Rajasekhar S/o Nehru, Age- 28 years, Occ- Driver of the Auto bearing No. AP 20 Y 3230, R/o H.No.3-1-2311 , Prasanthi Nagar, Khammam Town and Drstrict

2. P. Visweswar Rao, S/o Viswanatham, Age- Major, Occ: Owner of Eicher Van bearing No. AP 20 Y 456, R/o H.No.7-75, Sri Venkateswara Oil tt/ill, Siddaram Road, Sathupally Town, Khammam District ...Respondents Appeal filed Under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree in M.V.O.P.No. 254 o'f 2016 dated 01.08.2019 on the file of the Cou( of the lVlotor Vehicle Accident Claims Tribunal-cum- District Judge, Khammam. This appeal coming on for hearing and upon perusing the grounds of appeal, the Award and Decree of the Lower Court and the material papers in the Case and upon hearing the arguments of sri. A ramakrishna reddy, Advocate for the Appellant and of Sri. V Brahmaiah Chowdary, Advocate for the Respondent No.1 and none appeared for the respondent No.2. This Court doth Common Judgment and Decree as follows:-

1. That the MACMA be and here by is Dismissed. 2. That there be no order as to costs in this Appeal SD/-MOHD. ISMAIL DEPUTY REGISTRAR ,TRUE COPY// To,

1. The Chairman, Motor Vehicle Accident Claims Tribunal-cum- District Judge, ECTION OFFICER Khammam. 2. Two CD Copies W HIGH COURT DATED:1710412025 DECREE MACMA.No.9 of 2020 DISMISSING THE MACMA WITHOUT COSTS q