NEW INDIA ASSURANCE CO. LTD. Vs. MUDAM KISTAIAH

JUDGEMENT

(1.) AGGRIEVED by the Award dated 09.04.2008 in O.P.No.964 of 2001 passed by the Chairman, M.A.C.T -cum -I Additional District Judge, Nizamabad (for short the Tribunal), the second respondent in the OP/New India Assurance Company Limited preferred the instant MACMA. The respondent No.1 in the appeal is the claimant and respondent No.2 is the first respondent before the Tribunal.

(2.) THE factual matrix of the case is thus: a) The case of the claimant is that on 28.11.2000, at about 11.00 A.M., while he was returning to the bank from post office by walk, at Indira chowk, Kamareddy town, one lorry bearing No.ATG 72 belonging to 1st respondent came from back side in a rash and negligent manner and hit the claimant and the front left wheel of the lorry ran over the right leg of the claimant and thereby he sustained grievous crush injuries on his right leg and hands, chest and injuries all over the body. Immediately, he was shifted to Government Hospital, Kamareddy, from there he was shifted to Sai Vani Super Specialty Hospital, Hyderabad wherein he underwent treatment for one month. His right leg was surgically amputated three times i.e. on 28.11.2000, 8.12.2000 and 14.12.2000 and his leg was removed upto knee level. The claimant incurred expenditure of Rs.1,50,000/ - for treatment, lodging and boarding, transport etc., and he needs another Rs.1,50,000/ - for artificial limb, fixation, corrective surgery, medicines, extra nourishment etc. On these pleas, the claimant filed OP No.964 of 2001 against respondents 1 and 2, who are the owner and insurer of the offending vehicle and claimed Rs.10,00,000/ - as compensation under different heads mentioned in the OP. b) Respondent No.1 opposed the claim contending that the claimant himself emerged on the road all of a sudden and fell down and sustained simple injuries without any touch or dash by the vehicle, and the claimant sustained injuries only due to his own negligence and fault. The lorry of this respondent is insured with the 2nd respondent and the liability of the 1st respondent has to be indemnified by the 2nd respondent. c) Respondent No.2/New India Insurance Company opposed all the material averments made in the petition. It contended that the alleged accident took place due to negligence of the claimant, and hence, insurer is not liable to pay compensation. It denied the occurrence of the accident and the claimant receiving injuries in the accident. It denied the licence of driver of the lorry, road -worthiness of vehicle to ply and ownership of respondent No.1. It further denied the policy. d) During trial P.Ws.1 and 2 were examined and Exs.A.1 to A22 were marked on behalf of claimant. Policy copy filed by the 2nd respondent was marked as Ex.B1. e) A perusal of the award would show that issue No.1 which relates to occurrence of accident is concerned, the Tribunal basing on the evidence of PW1 concluded that the accident was occurred due to the fault of the lorry driver. Issue No.2 which relates to quantum of compensation and liability of the respondents is concerned, the Tribunal granted total compensation of Rs.7,15,788/ - (rounded off to Rs.7,16,000/ -) with costs and interest @ 7.5% p.a against respondents, under different heads as follows: <FRM>JUDGEMENT_563_LAP_2014.htm</FRM> Hence the appeal by the 2nd respondent/New India Assurance Company Limited.

(3.) LEARNED counsel for appellant impugned quantum of compensation mainly on two grounds: