Pothuraju Chandraiah vs G. Narasimha and others

R. Kantha Rao, J.—This appeal is filed by the claimant aggrieved by the order and decree dated 30.1.1998 passed in M.V.O.P. No. 135 of 1995 on the file of the Motor Vehicles Claims Tribunal (Third ADJ), Guntur.

The claimant filed the claim petition u/s 166 of the Motor Vehicles Act, 1988 on account of the injuries sustained by him in a motor vehicle accident occurred on 12.1.1995.

I have heard the learned counsel appearing for the appellant. Though served with notice, respondent No. 1, the owner of the lorry and respondent No. 2, the insurer, did not make their appearance.

The learned Tribunal as against the claim of the appellant, who was aged 48 years on the date of accident, keeping in view the injuries sustained by the appellant, which ultimately resulted in amputation of his left leg above knee, granted compensation of Rs. 25,000 with interest at the rate of 12 per cent per annum from the date of petition till the date of realization. The Tribunal in order to grant the said compensation arrived at the decision that there was contributory negligence on the part of the appellant.

In this appeal the finding of Tribunal that there was contributory negligence on the part of the appellant and the quantum of compensation arrived at, basing on the evidence, have been challenged.

As could be seen from the averments of the claim petition filed by the appellant, on 12.1.1995, at about 4 p.m. while he along with some others was waiting with a chilli bag near Chuttugunta on Guntur to Sattenpalli Road, with a view to go to his village, Siripuram, the lorry bearing No. AAT 4333 belonging to the respondent No. 1 and insured with the respondent No. 2 arrived there and when the appellant was about to get into the lorry with the permission of the driver, the driver started the lorry suddenly in a rash and negligent manner without observing him and without taking necessary precautions, due to which he fell down and the front tyre ran over his left leg resulting ultimately in amputation of the left leg.

The above-mentioned facts stated in the claim petition have been testified before the Tribunal by appellant-claimant who was examined as PW 1. He also marked Exh. A1, certified copy of first information report and Exh. A2, certified copy of charge-sheet. The version of the appellant before the Tribunal is in conformity with the version in F.I.R. Exh. Al. Further, Exh. A2 indicates that the police after thorough investigation filed charge-sheet against the driver of the lorry bearing No. AAT 4333 alleging commission of offences punishable u/s 338 of Indian Penal Code and 134 (b) of Motor Vehicles Act, 1988. Respondent No. 2, insurance company, did not adduce any contra evidence in support of its version. Thus, except the evidence adduced by the appellant there was absolutely no other evidence to arrive at a conclusion that there was contributory negligence on the part of the appellant. One cannot imagine the situation that the appellant might have ventured to board the lorry without the permission of the driver, because it is almost impossible. Thus, the Tribunal without any basis and contrary to the evidence before it reached the conclusion that there was contributory negligence on the part of the appellant and the finding arrived at basing on the said conclusion is liable to be set aside in this appeal and accordingly the same is set aside.

Next, since the lorry was driven by its driver who has permitted the appellant to board the same without taking necessary precaution and without observing the appellant, while the appellant was about to get into the lorry, which clearly shows that the driver of the lorry was solely responsible for the accident and under these circumstances the appellant can be considered to be a third party who is entitled to claim compensation u/s 166 of Motor Vehicles Act, 1988 and it is not possible to hold that he is a gratuitous passenger.

The other question required to be determined in this appeal is whether the compensation arrived at by the learned Tribunal is just and reasonable or whether it requires to be enhanced, as claimed by the appellant.

According to him the appellant was a businessman in pulses on commission basis and was earning Rs. 1,500 per month. The learned Tribunal observed that no evidence was let in by the appellant regarding his avocation and income and granted a lump sum of Rs. 25,000 holding that there was contributory negligence on the part of the appellant. The evidence of PW 2, the doctor who examined appellant-claimant in Government General Hospital, Guntur, shows that the appellant-claimant was admitted in the said hospital on 12.1.95 and was discharged on 21.3.1995. He received a crush injury to his left leg and there was disarticulation of knee joints (amputation of left leg above knee done on 10.3.1995). Though there is no disability certificate, since, this is a case of amputation of left leg of the appellant above knee and there being no dispute about the said fact, this court can safely act on the testimony of PW 2, who treated the appellant.

The appellant was aged 48 years on the date of accident. He was said to be doing business in pulses on commission basis and thereby earning Rs. 1,500 per month. Since, the income stated by the appellant seems to be reasonable, even though if he is considered to be a labourer, the same can be accepted for the purpose of computing compensation.

In the case of Ningamma and Another Vs. United India Insurance Co. Ltd., , the Apex Court held as follows:

Undoubtedly, section 166 of the Motor Vehicles Act deals with ''just compensation'' and even if in the pleadings no specific claim was made u/s 166 of the Motor Vehicles Act, in our considered opinion a party should not be deprived from getting ''just compensation'' in case the claimant is able to make out a case under any provision of law. Needless to say, the Motor Vehicles Act is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award ''just compensation'' irrespective of the fact whether any plea in that behalf was raised by the claimant or not.

Therefore, in the instant case by applying the ratio laid down in the above case, this court can grant the compensation which is just and reasonable without restricting the same to the amount actually claimed by the appellant and to that extent, if necessary, enhanced compensation has to be awarded to the appellant, whose left leg was amputated above knee. The annual income of the appellant is Rs. 1,500 x 12 = Rs. 18,000. The appropriate multiplier according to the Second Schedule to section 163-A of the Motor Vehicles Act, 1988 relevant to the age of the appellant is 13. Therefore, the amount for which the appellant is entitled towards loss of earnings and permanent disability is Rs. 18,000 x 75/100 x 13 which comes to Rs. 1,75,500. Apart from the above an amount Rs. 20,000 can be granted towards pain and suffering. Since, there is no evidence regarding medical expenses and since the treatment being in government hospital, no amount was awarded towards medical expenses.

In the result, appellant-claimant is entitled for a compensation of Rs. 1,95,500 which according to this court is just and reasonable. The enhancement in the quantum of compensation, therefore, would be Rs. 1,70,000. The learned Tribunal below awarded interest at the rate of 12 per cent per annum which is not in consonance with the judgments of the Supreme Court and, therefore, it is reduced to 7.5 per cent per annum from the date of petition till realization.

With the above enhancement of compensation and reduction in the rate of interest, the appeal filed by the injured-claimant (the appellant) is allowed. There shall be no order as to costs.